Four thresholds of doli incapax in Australia: Inconsistency or uniformity for children’s criminal responsibility?

Abstract

The presumption of doli incapax is a legal safeguard for children who contravene the criminal law. Four distinct thresholds emerge from the application of doli incapax across the Australian jurisdictions: actual knowledge that the offending conduct was ‘seriously wrong’; actual knowledge that the offending conduct was ‘wrong’; capacity to know that the offending conduct should not occur; and capacity to know that the offending conduct was ‘seriously wrong’. This article explores differences in the four doli incapax thresholds and suggests a uniform approach to the presumption is required to correct the jurisdictional inconsistency.