‘Shock’ loophole in NSW law meant to protect children against incarceration could mean more will be locked up | Youth justice

The Minns government is trying to create a loophole in a law intended to protect against juvenile incarceration; This could mean more children being incarcerated.

On Tuesday, the New South Wales government announced it would strengthen protections for children aged 10 to 14 by legislating a common law presumption known as doli incapax, which means children cannot commit crimes because they do not understand the difference between right and wrong.

The proposed bill would also specify when this presumption can be rebutted. This includes a loophole that says the presumption can be overturned if prosecutors determine that the child committed a crime and the circumstances surrounding the crime prove “beyond a reasonable doubt that the child knew at the time the crime was alleged to have been seriously wrong.”

Courts can then decide whether to convict the child “without or despite” evidence of the child’s intellectual or moral development, including mental impairment.

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Assoc. Prof. from the University of New South Wales, who is an adolescent forensic psychiatrist and an expert on children’s issues. Dr. John Kasinathan said this goes against the point of doli incapax.

Consideration of a child’s intellectual and moral development “is at the core of doli incapax, and if we ignore that, that means ignoring a huge aspect of understanding what’s going on for the child,” he said.

NSW attorney general Michael Daley announced the changes on Tuesday following an independent review into doli incapax by former supreme court judge Geoffrey Bellew and former NSW deputy police commissioner Jeffrey Lloyd.

Their report recommended that the government enact the doli incapax law and provided guidance on how prosecutors could rebut it.

But he did not recommend that courts be allowed to ignore the child’s intellectual and moral development. Refuting this assumption requires “considering the child as a unique individual and considering a wide range of issues,” the report said.

The report also acknowledged that “youth crime is a legitimate concern for many communities in NSW” but said data showed only a small proportion of children aged 10 to 13 were committing serious or persistent offending.

The government commissioned the review earlier this year after the publication of data showing that the number of children prosecuted had fallen significantly following the 2016 high court ruling.

RP v The Queen found that doli incapax could only be rebutted if the police could prove that the child understood that what he had done was seriously wrong rather than mischievous.

The decision found that it is not possible to prove beyond a reasonable doubt that a child knew his actions were morally wrong in the absence of evidence about the environment in which the child was raised or his moral development.

Following this decision, the Bureau of Crime Statistics and Research found that the proportion of 10 to 13-year-olds in the NSW children’s court “with a proven outcome” fell from 76% in 2015-16 to 16% in 2022-23. The number of 10- to 13-year-olds charged remained mostly stable.

NSW Civil Liberties Council president Timothy Roberts said the government’s proposed bill contradicted the high court ruling.

Instead of considering the child’s moral and intellectual development, Daley said, prosecutors may instead consider evidence such as whether a crime was planned or whether the alleged criminals brought weapons; whereas previously primary evidence was required regarding the upbringing or educational background of the perpetrator.

Daley said it was difficult for police to obtain evidence about a child’s ability and education “because school psychologists and counselors are reluctant to hand over their reports… and particularly in regional NSW, there are often children, [who] I just haven’t been to school for years.”

The film’s premiere, Chris Minns, suggested Wednesday that it would be up to defense attorneys to present such evidence.

“Lawyers and the defense have the right to present any information or any evidence… and this occurs regardless of age. [of the child]he said.

“The defense can bring to the table circumstances related to fetal alcohol syndrome, home conditions, school reports, and psychological evaluations.”

NSW Greens justice spokesperson Sue Higginson said she would introduce an amendment to close the loophole.

“It was a shock to see this in the bill,” he said. “This is contrary to scrutiny and completely undermines the entire meaning and essence of doli incapax.”