Recent media attention surrounding a Melbourne teenager having more than 100 criminal charges withdrawn has brought renewed public focus to the legal principle of doli incapax in Victoria.
For many people, the term is unfamiliar. Others may have heard it discussed in the media without fully understanding what it means or how it operates within the Victorian criminal justice system.
At EAS Legal, we regularly advise families and young people in relation to Children’s Court matters across Victoria. This article explains what doli incapax is, how it applies, and why it remains one of the most important legal protections within youth justice.
What Does “Doli Incapax” Mean?
Doli incapax is a Latin term meaning “incapable of wrongdoing”.
Under Victorian law, children between the ages of 10 and 14 are presumed to be incapable of committing a criminal offence unless the prosecution can prove otherwise.
Importantly, this does not mean that children under 14 cannot be charged with offences. Rather, it means the prosecution must prove an additional element before a child can be found guilty.
The prosecution must establish that the child understood that their conduct was:
This goes beyond simply understanding that something was “naughty”, against school rules, or likely to result in punishment.
The Age of Criminal Responsibility in Victoria
In Victoria:
This legal principle recognises that children develop maturity, judgment, impulse control, and moral understanding at different rates.
Why Does Doli Incapax Exist?
The principle exists because children are fundamentally different from adults in terms of:
The law recognises that children may engage in harmful or reckless behaviour without fully comprehending the seriousness or moral wrongfulness of their actions.
The protection is intended to ensure that children are not unfairly criminalised where they lack the developmental capacity to truly understand the nature of their conduct.
How Does the Prosecution Prove Doli Incapax?
To rebut the presumption, the prosecution may rely on a range of evidence, including:
The Child’s Conduct
Evidence suggesting the child attempted to hide their behaviour, flee the scene, lie to authorities, or conceal evidence may be relied upon to argue that the child understood the conduct was seriously wrong.
Statements Made by the Child
Comments made before, during, or after the alleged offending can sometimes be used to demonstrate awareness of wrongdoing.
Prior Warnings or Interactions
Previous involvement with police, schools, child protection, or the justice system may sometimes be relied upon by the prosecution.
Nature of the Alleged Offence
The seriousness or sophistication of the conduct itself can also become relevant.
However, every case is highly fact-specific.
Does Doli Incapax Mean Charges Will Automatically Be Withdrawn?
No.
The existence of the presumption does not automatically prevent charges from proceeding.
Rather, it creates an additional legal hurdle for the prosecution.
In some matters, prosecutors may determine that there is insufficient evidence to rebut the presumption and discontinue charges. In other cases, the issue may be argued before a Magistrate in the Children’s Court.
Why the Principle Has Recently Been in the Media
Recent media reporting involving allegations of youth offending in Victoria has led to significant public discussion regarding doli incapax and whether the law strikes the correct balance between:
These discussions are often emotionally charged, particularly where allegations involve serious offending.
However, it is important to understand that doli incapax is not a loophole. It is a long-standing legal principle designed to ensure that criminal responsibility is assessed fairly and appropriately in the context of child development.
Why Early Legal Advice Is Important
Where a child under 14 has been charged with a criminal offence, obtaining legal advice early is critical.
These matters often involve:
An experienced criminal defence lawyer can assess whether the prosecution is capable of rebutting the presumption of doli incapax and advise on the best approach moving forward.
At EAS Legal, our team regularly represents young people and families in Children’s Court matters across Australia.
We understand the sensitive nature of these cases and the significant impact they can have on both children and their families.
Our team provides strategic, practical, and compassionate advice in relation to:
If you or a family member require advice regarding a Children’s Court matter, contact EAS Legal to discuss how we can assist.
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