Children under 14 are incapable of evil and should be protected from criminal responsibility, NSW review finds | Crime – Australia
A New South Wales review led by a former supreme court judge and a former NSW police official has recommended that the centuries-old legal assumption that children aged 10 to 14 are not capable of evil should be enacted.
The age of criminal liability in NSW is 10, but the common law presumption of doli incapax (Latin for “incapable of evil”) can apply up to 14, providing protection to children who are tried on the assumption that they do not understand the difference between right and wrong.
This presumption could be rebutted by the prosecution, but a 2016 supreme court ruling explained how it should be applied: Prosecutors had to prove that the child understood that he was seriously at fault in committing a crime.
Since then, conviction rates for children aged 10 to 13 have fallen sharply, pushing the state’s citizens to support a change to the doli incapax, pushing the NSW government and Liberals to support a change to doli incapax.
The review follows a report from the NSW Bureau of Crime Statistics and Research (Bocsar) which found the proportion of young people aged 10-13 being tried in court has fallen from 76% in 2015-16 to 16% in 2022-23.
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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 have said the criminal age should be raised to 14 and the presumption of doli incapax removed entirely.
The review, led by state probation authority chief and former supreme court judge Geoffrey Bellew SC and former NSW police deputy commissioner Jeffrey Loy, was published on Saturday.
The seven recommendations included a new legal framework to give effect to the presumption of doli incapax in NSW; This should confirm the assumption, unless refuted, that a child over the age of 10 and under the age of 14 cannot commit a crime.
In the report, Bellew and Loy acknowledged that the current test for determining whether the presumption has been rebutted “imposes a high threshold”, but said the difficulty “is an important safeguard against the possibility of inappropriate findings of criminal liability where a child does not have that knowledge, and recognizes that children aged 10-13 are highly vulnerable and the significant impact of a criminal conviction on such children”.
The report acknowledges that “youth crime is a legitimate concern for many communities in NSW” but notes that data shows it is only a small proportion of children aged 10 to 13 who commit serious or persistent offending.
“It is therefore important not to conflate this focus with broader concerns arising from youth crime involving older children.”
They recommended creating a voluntary pathway for children in the criminal justice system, including referrals, assessments and support plans for children with complex needs.
It also recommended that the government consider introducing court orders allowing children aged 10 to 13 to receive treatment under appropriate conditions.
In a statement released on Saturday, NSW attorney general Michael Daley said the review showed “current environments are not working for the benefit of children or the wider community”.
“We do not want a situation where when charges are dismissed or withdrawn, children are left without any intervention and return to the courts because they are not supported to change their behavior,” Daley said.
Karly Warner, chief executive of the Aboriginal Legal Service, welcomed the report’s recommendations.
“We know that locking children up not only increases trauma for that child, but also increases the likelihood of reoffending in adolescence or adulthood, ultimately increasing future crime,” Warner said in a statement.
Upon the review’s announcement in May, Chairman Timothy Roberts The NSW Civil Liberties Council initially said it was “completely unnecessary”.
Roberts questioned the fact that: “At a time when the people of NSW should be asking ourselves whether 10-year-olds, 4- or 5-year-olds attending primary school, should be facing criminal charges, this government has launched a review that is undermining fundamental legal principles that protect our community from unfair prosecution.”
“What’s wrong with the court saying we need to make sure that even 10-year-olds facing criminal charges know that the charge against them is false, which we know beyond a reasonable doubt? It’s a good thing to have fewer young children in prison,” Roberts said.
