UPDATE: A significant legal review in New South Wales (NSW) has just confirmed that children under 14 years old should not be criminally responsible, a principle known as doli incapax. Released on October 14, 2023, the report urges the state to uphold this long-standing legal framework amid a contentious national conversation about youth crime.
The review, led by former Supreme Court judge Geoffrey Bellew and retired police deputy commissioner Jeffrey Loy, was initiated by the state Labor government in May. It follows alarming data showing a dramatic drop in youth convictions, with the percentage of youths aged 10 to 13 with a proven outcome in the NSW Children’s Court plummeting from 76 percent to 16 percent between 2016 and 2023.
Legal experts emphasize that the presumption of doli incapax—meaning “incapable of evil”—is crucial in protecting vulnerable children who may not fully grasp the difference between right and wrong. The report underscores that the current legal threshold for rebutting this presumption is appropriately high, providing essential safeguards against unjust findings.
Some advocates suggested implementing a “capacity to know” test to ease the prosecution’s burden, but the report warns that such a shift could disrupt the consistency of criminal law. Instead, it presents seven recommendations, including formalizing the rebuttal process for doli incapax and enhancing training for police on this sensitive issue.
Karly Warner, chief executive of the NSW Aboriginal Legal Service, praised the report, urging Premier Chris Minns and Attorney-General Michael Daley to adopt all recommendations. “Locking children up compounds trauma and increases the likelihood of future reoffending,” she stated, emphasizing the human cost of punitive measures.
The review’s findings also reveal a troubling trend in perceptions of youth crime within the justice system, indicating a “degree of misunderstanding” regarding the application of doli incapax and a landmark 2016 High Court decision that has complicated convictions for younger offenders.
With the NSW government now set to examine the report in detail, the implications could reshape how the legal system interacts with minors. Critics, including the NSW Council for Civil Liberties, argue that there is no need for codification of doli incapax, cautioning against placing children within the criminal justice system.
As the debate continues, the report’s recommendations could serve as a pivotal step in protecting the rights and futures of young people in NSW. The state government is expected to announce its pathway to reform in the coming weeks, making this a crucial moment for advocates and families alike.
Stay tuned for ongoing updates as this story develops.
