UPDATE: A pivotal review has just been released, urging New South Wales (NSW) leaders to maintain the crucial legal principle that children under 14 years old are “incapable of evil.” The report, unveiled on October 14, 2023, follows a significant drop in youth convictions and comes amidst ongoing debates about youth crime across Australia.
The review, led by former Supreme Court judge Geoffrey Bellew and retired NSW police deputy commissioner Jeffrey Loy, emphasizes the importance of the legal presumption known as doli incapax. This principle asserts that children aged 10 to 14 do not fully grasp the distinction between right and wrong and therefore should not be held criminally responsible.
Recent data shows that the proportion of youths aged 10 to 13 with a proven outcome in the NSW Children’s Court has dramatically dropped from 76 percent to just 16 percent over the past seven years. Despite this decline, experts argue that altering the existing framework could lead to serious inconsistencies within the justice system.
The review acknowledged that the criteria for rebutting doli incapax is high, but this threshold is deemed necessary to protect vulnerable children and prevent inappropriate criminal findings. Some advocates proposed a “capacity to know” test to ease the prosecution’s burden, but the review firmly rejected this idea, stating it could undermine the integrity of current laws.
A concerning 2016 High Court decision has complicated the prosecution of younger children, prompting this comprehensive review. The report recommends several critical actions, including the need for additional police training, guidance on doli incapax, and an expansion of diversion pathways for young offenders.
The findings have been strongly supported by the NSW Aboriginal Legal Service, with chief executive Karly Warner urging Premier Chris Minns and Attorney-General Michael Daley to adopt all recommendations. Warner stated, “Locking children up not only compounds trauma but also increases the likelihood of reoffending as adolescents or adults, ultimately escalating future crime.”
In light of the review, the NSW government is currently assessing the report’s implications and will outline a pathway for reform. The NSW Council for Civil Liberties has previously argued against codifying doli incapax, warning it could unnecessarily involve children in the criminal justice system.
As the debate continues, the focus now shifts to how the NSW government will respond and whether it will follow the recommendations laid out in the review. This urgent matter holds significant implications for the future of youth justice in Australia.
