I WHAT IS A CRIME? INTRODUCTION

A crime is often known as a civil wrong. Overtime, a crime has been determined by what society perceives to be an act or failure to act that is immoral. 

However, who has the capacity to carry out a crime? 

II WHO HAS THE CAPACITY TO COMMIT A CRIME?

The capacity to commit a crime is not determined by the actions required for a crime. Capacity is the ability of a person to understand their actions and be consciously aware their actions are immoral. 

There are certain limitations that can inhibit legal persons from committing a crime. For instance; mental instability, intellectual disability or their age. 

Legal Capacity of Children

Children have a status in the law that limits their legal capacity. Under the Children (Criminal Proceedings) Act 1987(NSW)[1] the age for criminal responsibility is 10 years, this is under the presumption of doli incapax. This implies that children between the ages of 10 and 14 are incapable of wrongdoing. 

Following the case of RP v The Queen (2016) 259 CLR 641[2] the High Court of Australia (HCA) determined the presumption of doli incapax as children between these ages have a lack of intellectual or moral development to understand their actions were ‘seriously wrong’ or ‘gravely wrong.’

This case also established that the only way to refute the presumption is by demonstrating that the child has the relevant development to understand he or she knew their actions were morally wrong. Even so, this implicates the questions on whether children actually know their conduct was wrong or whether they have behaviours that replicate their environment. 

III WHO HAS THE CAPACITY TO COMMIT A CRIME?

Crime is shaped by societal views of immoral conduct, but criminal responsibility depends on an individual’s capacity to understand and appreciate the moral wrongfulness of their actions. Legal capacity may be limited by factors such as age, mental illness, or intellectual disability. In NSW, children aged 10–14 are subject to the presumption of doli incapax, meaning they are presumed incapable of criminal intent unless proven otherwise. As affirmed in RP v The Queen, this presumption can only be rebutted by clear evidence that the child understood their conduct was seriously or gravely wrong, raising ongoing concerns about children’s moral development and the influence of their environment.

IV FOOTNOTES

[1] Children (Criminal Proceedings) Act 1987 (NSW) s5.

[2] RP v The Queen [2016] HCA 259 CLR 641, [9] (‘RP v The Queen’).