A centuries-old legal presumption that children aged between 10 and 14 don’t understand the difference between right and wrong is to be reviewed after New South Wales youth criminal conviction rates tumbled fivefold.
The NSW attorney general’s office said the review will consider how the principle of doli incapax – Latin for “incapable of evil” – is applied in criminal proceedings, its impact on intervention, possible improvements and a framework for legislation.
In NSW, the criminal age of responsibility is 10 but doli incapax can apply up to 14. The presumption can be rebutted if police can prove a child understood what they did was seriously wrong, as opposed to naughty.
Geoffrey Bellew SC, the state parole authority chair and a former supreme court judge, and Jeffrey Loy, a former NSW police deputy commissioner, will lead the doli incapax review, the NSW attorney general, Michael Daley, said on Thursday.
In 2016, a high court ruling clarified doli incapax, resulting in prosecutors needing to prove the child understood they were seriously wrong when committing a crime. Since then, conviction rates of children aged 10 to 13 have plummeted.
A NSW Bureau of Crime Statistics and Research (Bocsar) report found the proportion of 10- to 13-year-olds with a proven outcome – guilty or not guilty – in the NSW children’s court tumbled from 76% in 2015-16 to 16% in 2022-23.
The prosecution withdrew charges in more than half of all cases in 2022-23, with similar patterns in Victoria and South Australia.
The attorney general’s office said a similar decline was not seen in Queensland and Western Australia, where doli incapax has been codified in legislation (rather than as a common law understanding, as in NSW).
“The common law presumption of doli incapax dates back hundreds of years. It operates across all Australian jurisdictions and its existence in the common law has been affirmed by the high court,” Daley said in a statement.
“Recently, concerns have been raised about the operation of doli incapax. I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.”
Citing Bocsar, the attorney general’s office said the result raised questions about how best to support young people to reduce future criminal involvement.
According to Bocsar, Aboriginal children and children living in regional and remote NSW are disproportionately represented in the state’s criminal justice system. Aboriginal legal groups said the criminal age should be raised to 14 and the presumption of doli incapax removed altogether.
Karly Warner, the CEO of the Aboriginal Legal Service for NSW and the Australian Capital Territory, expressed “alarm” over the attorney general’s announcement.
“Throwing a child in prison compounds trauma and disadvantage, and all but guarantees they will end up in a cycle of more serious offending and adult imprisonment,” Warner said
“We are alarmed the NSW government is considering options that may weaken legal safeguards for our society’s most vulnerable children that date back hundreds of years.”
If the government is “serious” about preventing youth crime and supporting families, it must address the root causes of offending, she said.
Very young children ‘criminalised’
Camilla Pandolfini, the CEO of Redfern Legal Centre, agreed, saying children “should not end up in prison”.
“Putting young children into prison isn’t going to make anybody safer. It doesn’t address the causes of crime [or] address the reasons why very young children are being criminalised. It only increases the risk of recidivism.”
Rather than reviewing doli incapax, she said the state should focus on crime prevention and boost funding of Aboriginal community organisations and local services in rural and regional communities.
The NSW government recently extended its controversial youth bail laws, despite experts warning it would not curb crime long term, and internal pushback from some Labor MPs.
The state Nationals have been pushing the NSW government and the Liberals to support a change to doli incapax.
A budget estimates hearing was told last month that the youth justice system was about “90% full at the moment”.
“The changes to bail laws in the past year have coincided with an increase,” Paul O’Reilly, the acting deputy secretary for system reform at the Department of Communities and Justice, told the hearing. “It’s not entirely clear that increase is entirely attributable to the change in the bail laws.
“What we have seen is a change in bail decision-making behaviour from police and courts generally, and we’ve also seen an increase in offending and an increase in violence in offending.
“All of those things add up to more kids in detention and, at the moment, we are managing that within our current capacity.”
Youth crime has remained stable over the short and medium term in NSW, the latest Bocsar data shows.
However the data indicated a “significant increase” in young people shoplifting and possessing illicit weapons.
