Law experts want high bar for convicting kids to stand
Legal eagles are warning a state not to stray from the long-held assumption that children under 14 are “incapable of evil” even as conviction rates for youth crimes are falling.
The review of doli incapax in NSW was published on Saturday after it was launched by the Labor government in May amid a national debate over youth crime.
Doli incapax, Latin for incapable of evil, is a legal presumption that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally liable.
The common law principle may be rebutted if the prosecution proves beyond a reasonable doubt that the child knew that his actions were seriously wrong rather than merely mischievous.
The review, conducted by former Supreme Court judge Geoffrey Bellew and retired NSW deputy police commissioner Jeffrey Loy, deemed the test to disprove doli incapax introduced a “high threshold”.
But the high bar was justified because it provided a safeguard against improper findings and was consistent with the principle of male guilt., It acknowledged the vulnerability of children aged 10 to 13 and the impact of criminal conviction.
Some reviewers pushed for a “capacity to know” test to ease the burden on prosecution to prove what a child was actually thinking at the time of the act.
But criminal law experts have argued that this does not require departing from common law or introducing a law that imposes a different standard for 10- to 13-year-olds.
“To the contrary, such a change risks creating an inconsistency within the broader framework of criminal law,” the 90-plus page review said. The statement was included.
The review was triggered after a study by the NSW crime statistics agency showed that the Supreme Court decision in RP v R in 2016 had made it harder to convict minors.
The data showed the proportion of young people aged 10 to 13 had fallen from 76 per cent to 16 per cent in the seven years to 2023, a result proven in the NSW Children’s Court.
The number of children charged by police in this group remained mostly stable over the same period, with the downward trend mirrored in Victoria and South Australia.
A 12-year-old boy, known by the pseudonym WD, was accused of stabbing a 37-year-old woman to death in Melbourne’s western suburb of Footscray in 2023.
Prosecutors dropped the charge in 2024, arguing there was no reasonable prospect of conviction under doli incapax.
The review found there was “some level of misunderstanding” among members of the criminal justice system about the application of aspects of the current test and the 2016 Supreme Court decision.
It made seven recommendations to rebut doli incapax, including codifying the common law test, additional police training and guidance on the principle, and expanding access to diversionary means for 10 to 13-year-olds.
NSW Attorney-General Michael Daley said states that code doli incapax, such as Queensland and Western Australia, had not shown a similar decline in conviction outcomes.
The NSW government will review the report before detailing a path to reform “in due course”.
