WA criminal responsibility: age, police contact and court
A child’s age at the alleged incident matters, and the WA capacity test needs careful explanation. Compare the age rules, check the police or court step you face, and gather the existing papers a youth lawyer needs.
Key points
- Use the exact birth date and each alleged incident date or date range. Current age and age when charged do not replace age at the alleged conduct.
- For ages 10–13, WA section 29 concerns the child’s capacity to know the conduct was seriously morally wrong at the relevant time. It is not simply the NSW common-law actual-knowledge test.
- Get legal advice before a substantive police interview, admission or plea. The general right to silence has exceptions, including lawfully required personal details.
- Ask for a trusted adult and any interpreter or communication assistance needed. Responsible-adult notification is not the same as an unconditional right to a parent’s physical presence.
- A caution or juvenile justice team may be possible, but eligibility, offence exclusions and agreement matter. Turning 18 does not by itself decide the court or sentencing rules.
- Use the age-and-date comparison and existing-document checklist. Free legal-help pathways are listed below; a hotline call or consultation booking does not change a court obligation.
For offences against WA statute law, the minimum age of criminal responsibility is 10. A person under 10 at the time of an act or omission is not criminally responsible for it. For ages 10–13, the prosecution must prove beyond reasonable doubt that the particular child then had capacity to know the conduct was seriously morally wrong, as well as prove the offence. Capacity to understand is different from actual knowledge. Use the age-and-date comparison and preparation checklist below.
Checked on 24 October 2026: current WA Criminal Code and selected youth, court and police provisions; High Court judgments and official court, Legal Aid and service guidance. The guide concerns WA offences and does not calculate an individual sentence or audit Commonwealth offences. Sources and limits of this check.
Start with age at the alleged conduct
Section 29 of the WA Criminal Code sets the ten and fourteen boundaries. Section 36 applies the chapter to offences against WA statute law. This is a WA guide: if the charge is under Commonwealth law, or concerns historical conduct, ask a lawyer to check the particular law and version.
If allegations cover more than one incident or a date range, give the lawyer the whole timeline. A birthday within that range can matter. Do not assume all counts can be treated as though they happened at the same age.
Scroll the tables sideways to compare all columns.
| Age or timing | What the WA rule means | What to check with a lawyer |
|---|---|---|
| Under 10 at the act or omission | Section 29 excludes criminal responsibility for that conduct. | Confirm the exact dates and the purpose of any police contact or document. This does not mean police have no powers or that you should ignore a notice. |
| 10–13 at the act or omission | The prosecution must prove the particular child’s capacity to know the conduct was seriously morally wrong at that time, beyond reasonable doubt. | Ask about section 29 before an interview, admission, plea or proposed diversion. Proving the physical act alone is not enough. |
| 14–17 at the act or omission | The special under-14 section 29 protection no longer applies. Other defences and the prosecution’s burden remain. | Identify the offence and youth-court rules. Being 14 does not make every procedure or sentencing rule identical to an adult’s. |
| Now 18 or older; alleged conduct before 18 | Children’s Court jurisdiction can continue, subject to statutory exceptions. Age at sentence also matters. | Check the alleged-offence date, any indictment or transfer, and the applicable sentencing provisions. The charge date alone does not answer these questions. |
Current section 29 was checked on 24 October 2026. Its minimum remains ten. A proposal, campaign or rule in another state is not the current WA rule.
Capacity to know is different from actual knowledge
The question is whether this child had the ability, at the time of the particular act or omission, to understand that the conduct was seriously morally wrong by ordinary adult standards. Merely being naughty, rude or aware that an adult might disapprove is not the test. The prosecution bears the burden; the child does not have to prove incapacity.
In BDO v The Queen [2023] HCA 16, the High Court explained the distinction between capacity and actual knowledge. BDO was a Queensland appeal on materially matching statutory wording and expressly discussed the WA case RYE. The WA Supreme Court’s Equal Justice Bench Book, section 5.3.2 also explains the WA distinction.
RP v The Queen [2016] HCA 53 concerns the NSW common-law rule. Its discussion of child-specific development and evidence is relevant, but its actual-knowledge formulation must not simply replace the wording of WA section 29. A child being closer to fourteen does not justify assuming uniform maturity.
A lawyer may consider existing school and learning records, developmental or medical assessments, upbringing and education, communication needs, and what was said or done around the alleged incident. No diagnosis, absence of diagnosis, secrecy or single document automatically proves or disproves capacity. Evidence must address the relevant child, conduct and time.
- Preserve existing records and give the lawyer the alleged dates and any uncertainty about them.
- Explain relevant learning, language, disability or communication needs so the lawyer can assess how to take instructions and what evidence may matter.
- Do not ask a child to make a new admission or rehearse an account to complete this checklist. Ask the lawyer how existing records should be supplied and handled.
This explanation does not predict whether a charge will be laid, withdrawn or proved. Capacity and the elements of the particular offence need individual assessment.
If police want to speak to the child
The Legal Aid WA police guide recommends legal advice before an interview or statement and asking for a trusted adult. Be calm, ask what the police require and seek advice promptly. Do not lie, obstruct police or assume every question can lawfully be refused.
Scroll the tables sideways to compare all columns.
| Situation | Practical next step | Important qualification |
|---|---|---|
| Police request personal details | Give correct details when lawfully required and ask what law a disputed requirement relies on. | The Identifying People Act permits specified requests where its conditions are met. General silence does not remove legally required answers. |
| Police want an interview or statement | Say that you want legal advice before discussing the alleged offence. Ask about an interpreter or other communication needs. | An arrested suspect has a reasonable opportunity to communicate or attempt to communicate with a lawyer, subject to specified refusal grounds. This is not a guarantee a lawyer will physically attend. |
| A parent or other adult needs to be involved | Ask for a trusted adult and give a safe contact for the person responsible for the child’s day-to-day care. | Young Offenders Act section 20 requires responsible-adult notification before qualifying questioning, with exceptions. Notification does not itself require physical presence at every interview. |
The relevant provisions include Identifying People Act section 16, Criminal Investigation Act sections 137–138 and Young Offenders Act section 20. Other laws can require particular answers. If unsure, ask for urgent legal advice rather than relying on a blanket instruction to answer everything or nothing.
Court, turning 18 and responsible-adult attendance
The Children’s Court Act sections 19–19E generally give the Children’s Court jurisdiction over an offence alleged to have been committed before eighteen, including where the person is now an adult. Indictable-offence, election and transfer provisions can change the route. Not every matter is heard by a children’s magistrate.
Age at sentence is a separate question under Young Offenders Act sections 50–50B. A person who is eighteen or older at sentence generally falls under Sentencing Act sentencing, with the qualifications in section 50B. Do not assume turning eighteen leaves every youth sentencing option unchanged.
Youth justice includes rehabilitation and family and cultural considerations, alongside responsibility, victims and community protection. Detention as a last resort is a principle, not a guarantee that custody is impossible. This page does not calculate a sentence or set out every mandatory-penalty rule.
Follow the date, time and place on the actual notice, bail papers and court orders. The Children’s Court day guide says to bring your police/court papers, check in and seek duty advice early if needed. Tell the lawyer and registry promptly about any attendance problem; a booking does not excuse attendance.
Under Young Offenders Act section 45, if no responsible adult is present the court must enquire why and require attendance by order unless there is a valid excuse or it is unreasonable to delay proceedings. An exempt responsible adult cannot be ordered to attend. The court can proceed without an adult if expedient and just, and must then take reasonable steps to give written notice of the charge and decisions. Follow any actual attendance order and ask about your obligations.
Court staff can explain administrative steps but cannot give legal advice. Missing a required appearance can lead to further action, including a warrant in the circumstances provided by law.
A caution or juvenile justice team is not automatic
The Young Offenders Act requires police to consider no action or a caution before starting proceedings. Cautioning and juvenile justice team referrals have separate requirements, exclusions and effects. Ask about section 29 capacity before making an admission simply to obtain diversion.
Scroll the tables sideways to compare all columns.
| Route | What may happen | What must be checked |
|---|---|---|
| No action or police caution | Police must consider no action or a caution. Where cautioning is permitted, section 23 requires preference for a caution over a charge, subject to its previous-offending exception. | Schedule 1 and 2 offences and specified weapons offences are excluded. The number of previous offences can make a caution inappropriate; seriousness of the current and previous offences must be considered in that assessment. |
| Juvenile justice team | For eligible first offenders, section 29 requires referral discretion to favour a team. A previous caution, infringement or specified team participation does not by itself count as previous offending for this rule. | Offence exclusions, acceptance of responsibility and participant agreement still apply. An infringement notice is preferred where available unless inappropriate. Non-completion can return the matter for prosecution or court consideration. |
| Court proceedings | A charge is dealt with through the applicable court process, with legal advice about plea, evidence, capacity and orders. | Court is not limited to cases a reader considers serious. A referral or advice booking does not cancel a current notice or bail obligation. |
- Ask the lawyer to explain eligibility, what any proposed acceptance or agreement means, and the consequences of completion or non-compliance.
- Tell the lawyer about previous cautions, referrals or cases without assuming they all count in the same way under every provision.
- Keep any caution certificate, referral, agreement and notice. Confirm the next required step and date.
Section 37A prohibits representation by a lawyer or other agent during juvenile justice team proceedings. A lawyer can advise beforehand about rights and the proposed process; a consultation offer should not be understood as representation at the team meeting.
Dates and existing documents to prepare for advice
Gather what already exists and keep originals safe. This helps a lawyer assess the next step; it is not a test you or the child must complete to establish capacity.
- Proof of the child’s date of birth, their present age, and each alleged incident date or date range.
- All police and court papers, the alleged charge, case number, next appearance details and any bail conditions or orders.
- Any interview request, existing interview or statement record, caution certificate or police correspondence.
- Existing school, learning, developmental or medical records that may be relevant to the child at the alleged time; ask the lawyer which are needed.
- Previous caution, juvenile justice team or court papers, including any agreement and outstanding requirements.
- Language, communication, disability or access needs and any arrangements already made.
- A safe responsible-adult contact, the lawyer’s details if already represented, and questions about the next police or court step.
- Any attendance problem and communications already sent to police, court or the lawyer. Confirm any actual change to a date or obligation.
Do not publish the child’s records or treat a general AI call as a confidential legal intake. Ask the appropriate adviser how to provide sensitive material and read the service’s privacy terms.
Get advice before an interview, admission or plea
Use the dates and existing-document checklist to explain the situation to an independent Australian lawyer. Ask about the capacity issue, police requirements, court route and any proposed diversion. Confirm who the lawyer will act for, acceptance and availability for any urgent step.
Legal Hotline’s A$295 GST-inclusive fee covers platform matching and arrangement. Eligible bookings can include an initial consultation with an independent participating lawyer at no additional initial lawyer charge, subject to suitability, conflicts, availability and acceptance. Confirm duration and scope before paying. Further work and fees are agreed separately.
The free 1800 951 176 line provides AI-generated general legal information, not individual legal advice. Legal Hotline is not a law firm. A call does not itself create a lawyer-client relationship or guarantee privilege. A booking does not automatically include an interview attendance, court appearance, drafting, filing or ongoing representation. It does not change a notice, bail requirement or court date, and does not guarantee diversion or an outcome.
Official help and free legal information
These independent services can be contacted directly without paying Legal Hotline. Information, advice appointments, duty assistance and ongoing representation have different eligibility and availability.
Legal Aid WA Infoline
1300 650 579, Monday–Friday 9 am–4 pm WST, excluding public holidays. Information Officers provide information, referrals and access to appointments; they do not give personal legal advice. Appointment and representation requests are assessed. Call charges may apply.
Legal Aid WA duty lawyer
The directory lists criminal duty assistance at Perth Children’s Court Monday–Friday and separate regional/sitting arrangements. Confirm your court and day, arrive early with papers, and ask what assistance is available. Representation is not guaranteed.
Aboriginal Legal Service of WA
1800 019 900 freecall within WA, or 08 9265 6666. Culturally secure criminal-law assistance for Aboriginal and Torres Strait Islander people, including Children’s Court matters. Conflicts or capacity can require a referral.
Community Legal WA directory
Find free or low-cost community legal services. Check the centre’s youth-criminal scope, eligibility and capacity. Youth Legal Service’s current website notice reports a pause on new requests; do not assume an immediate appointment there.
Questions about children, police and criminal responsibility in WA
What is the minimum age of criminal responsibility in WA?
For offences against WA statute law, the minimum age is ten. Under Criminal Code section 29 a person under ten at the time of an act or omission is not criminally responsible for it. Ages ten to thirteen have the separate capacity protection. Check the birth date and alleged incident date; police contact or a notice still needs appropriate attention.
Has WA raised the age to 12 or 14?
The current WA Criminal Code checked on 24 October 2026 still sets the minimum at ten, with the separate capacity rule for a child under fourteen. A proposal, campaign or law in another jurisdiction does not change that WA provision. For historical conduct or a Commonwealth charge, ask which law and version applies.
What does doli incapax mean in WA?
The expression concerns a child’s criminal capacity. In WA, section 29 says a child under fourteen is not criminally responsible unless the prosecution proves the child had capacity at the relevant time to know they ought not do the act or make the omission. For ages ten to thirteen, the issue is capacity to understand serious moral wrongness, not simply actual knowledge or naughtiness.
Can a seven-year-old be criminally responsible in WA?
For a WA statutory offence, a child who was seven at the alleged act or omission is below the minimum age of ten and is not criminally responsible for it. This does not establish that police have no investigative or protective powers. Obtain advice about actual contact or documents rather than ignoring them.
Can a twelve-year-old be charged in WA?
Yes, a charge is possible. To establish criminal responsibility for conduct at twelve, the prosecution must prove beyond reasonable doubt that this child then had capacity to know the conduct was seriously morally wrong, as well as prove the offence. A charge is an allegation, not proof of guilt. Seek advice before an interview, admission or plea.
What must the prosecution prove for ages 10 to 13?
It must prove this child’s capacity at the time of the particular act or omission to know the conduct was seriously morally wrong, beyond reasonable doubt, along with the offence. Proving the physical act alone is insufficient. Capacity and actual knowledge are distinct; the High Court explains that distinction in BDO. A diagnosis, secrecy or being almost fourteen does not automatically decide the issue.
Which court deals with young people, and should a parent attend?
The Children’s Court generally has jurisdiction over offences allegedly committed before eighteen, subject to statutory indictment, election and transfer rules. A judge or other permitted court constitution may hear the matter; it is not always a children’s magistrate. Follow the actual notice and any responsible-adult attendance order. If no responsible adult is present, section 45 requires enquiry and an attendance order unless its exceptions apply. An exempt responsible adult cannot be ordered to attend; the court can proceed without an adult where the law permits.
What if the person turns 18 before the case finishes?
Age at the alleged offence, not simply age when charged, is relevant to Children’s Court jurisdiction. That jurisdiction can continue after eighteen, subject to exceptions and possible transfer. Age at sentence matters separately: section 50B generally requires Sentencing Act sentencing for a person eighteen or older, with qualifications. Ask about both the court route and sentence regime.
Does my child have to answer police questions or have a parent present?
There is a general right to silence, but lawfully required personal details and other statutory requirements are exceptions. Seek advice before a substantive interview or statement and ask for a trusted adult and any interpreter needed. Responsible-adult notification has exceptions and is not itself a guarantee of physical presence. An arrested suspect’s opportunity to communicate with a lawyer is also subject to specified refusal grounds.
Where can a young person get free legal help in WA?
Start with Legal Aid WA on 1300 650 579 or, for Aboriginal and Torres Strait Islander people, ALSWA on 1800 019 900 within WA. Ask about advice and duty assistance; scope, eligibility and availability matter. Youth Legal Service’s homepage checked on 24 October says new requests are paused until 2 November 2026 and describes successor arrangements, so confirm its current position rather than waiting on an assumed appointment.
Is a first offence automatically dealt with by a caution or team?
No automatic outcome is guaranteed, but statutory preferences matter. Where cautioning is permitted, section 23 requires preference for it unless the qualified previous-offending exception applies. Section 29 favours eligible first-offender team referrals. Offence exclusions, responsibility and agreement requirements still matter. Seek capacity advice before an admission. Section 37A prevents lawyer representation during team proceedings, though advice beforehand is possible.
Is the free hotline a lawyer, and what does A$295 cover?
The free hotline provides AI general information. A$295 including GST is the platform matching and arrangement fee; an eligible accepted booking can include an initial independent lawyer consultation at no additional initial lawyer charge. Confirm duration, scope and availability. Interview attendance, court work and later representation are separate. A call or booking does not change a legal obligation or guarantee diversion.
Sources and update record
Sources checked 24 October 2026. Current WA Code, selected youth/court/police provisions and complete High Court BDO and RP judgments informed this guide. BDO is a Queensland statutory case; RP is a NSW common-law case. The older WA judicial Bench Book is explanatory guidance. The page does not audit every Commonwealth offence, historical amendment, bail rule, sentence, appeal or record-disclosure question.
- WA Criminal Code — current version index
- WA Criminal Code — sections 29 and 36
- Young Offenders Act — current version index
- Young Offenders Act — selected police, diversion and court provisions
- Children’s Court Act — current version index
- Children’s Court Act — jurisdiction and court constitution
- Criminal Investigation Act — arrested-person rights
- Identifying People Act — personal-details requirements
- High Court — BDO v The Queen [2023] HCA 16
- High Court — RP v The Queen [2016] HCA 53
- WA Supreme Court — Equal Justice Bench Book section 5.3.2
- Legal Aid WA — age guide, read with statutory qualifications
- Legal Aid WA — speaking to police
- Children’s Court — criminal matters
- Children’s Court — your court day
- Children’s Court — legal advice services
- Legal Aid WA — Infoline and assistance
- Legal Aid WA — duty lawyer directory
- ALSWA — criminal support and representation
- ALSWA — current contacts
- Community Legal WA — service directory
- Youth Legal Service — current availability notice
- Legal Hotline — Australian booking
- Legal Hotline — participating lawyer arrangements
- Legal Hotline — customer terms
- Legal Hotline — privacy policy
General information only, not legal advice. Updated . Checked against the sources above on 24 October 2026.
Review date recorded on the previous version: . This content update does not represent a new personal legal review.