Latest news with #doliincapax
News.com.au
08-05-2025
- Politics
- News.com.au
NSW launches review of doli incapax legal protection for minors
A civil liberties group has warned a fresh government review into a core legal protection for minors could soon put more kids in prison and strip away an 'ancient' community safety principle. The review, announced by NSW Attorney-General Michael Daley, will reassess 'doli incapax', or the presumption in law that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible for their actions. It follows months of rolling community outrage over an alarming spike in youth crime across multiple towns in regional NSW. For the Central West, Far West and Orana and New England and North West areas, the NSW Bureau of Crime Statistics and Research recorded a 26 per cent jump in the number of young people proceeded against by the NSW Police from 2020 to 2024. In 2024, 3444 young people went through legal proceedings across the three jurisdictions. On Thursday Mr Daley said the review would include victims' groups, local and regional communities, Aboriginal-led organisations and legal and government stakeholders. 'Recently, concerns have been raised about the operation of doli incapax,' he said. 'I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.' Doli incapax is designed to protect children from unfair prosecutions. In 2016, the High Court ruled prosecutors must prove beyond a reasonable doubt that a child defendant understood their actions to be 'seriously wrong' at the time of the offence. Since the 2016 decision, BOCSAR has found the proportion of 10-13-year olds with a proven outcome in the NSW Children's Court slumped from 76 per cent in 2015-16 to 16 per cent in 2022-23. Prosecutors withdrew charges in more than half of all cases in 2022-23. Though doli incapax is a common law protection established by the courts, in Australia parliament rules over the courts, meaning the state government could potentially legislate away or reduce doli incapax. NSW Council for Civil Liberties president Timothy Roberts said he was worried the review would propose legislative reform that would do just that. 'This review is completely unnecessary,' he said. 'What is wrong with the court saying that we need to be sure that children, as young as 10, facing criminal charges know that what they are accused of is wrong and we know this beyond reasonable doubt? 'Less young children in prison is a good thing. This review does nothing to achieve that goal and only risks making it worse.' State Parole Authority chair and former Supreme Court Justice Geoffrey Bellew SC and former NSW Police deputy commissioner Jeffrey Loy will lead the review. Specifically, the review will consider how the presumption of doli incapax is applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation. It will also consider how doli incapax interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other relevant matters including community safety and the interests of children.
The Guardian
08-05-2025
- Politics
- The Guardian
NSW to review law that presumes children under 14 are incapable of evil
A centuries-old legal presumption that children aged between 10 and 14 don't understand the difference between right and wrong is to be reviewed after New South Wales youth criminal conviction rates tumbled fivefold. The NSW attorney general's office said the review will consider how the principle of doli incapax – Latin for 'incapable of evil' – is applied in criminal proceedings, its impact on intervention, possible improvements and a framework for legislation. In NSW, the criminal age of responsibility is 10 but doli incapax can apply up to 14. The presumption can be rebutted if police can prove a child understood what they did was seriously wrong, as opposed to naughty. The state parole authority chair and former supreme court judge, Geoffrey Bellew SC, and former NSW police deputy commissioner Jeffrey Loy will lead the doli incapax review, the state attorney general, Michael Daley, said on Thursday. In 2016, a high court ruling clarified doli incapax, resulting in prosecutors needing to prove the child understood they were seriously wrong when committing a crime. Since then, conviction rates of children aged 10 to 13 years have plummeted. A NSW Bureau of Crime Statistics and Research (Bocsar) report found the proportion of 10–13-year-olds with a proven outcome – guilty or not guilty - in the NSW children's court tumbled from 76% in 2015-16 to 16% in 2022-23. The prosecution withdrew charges in more than half of cases in 2022-23, with similar patterns in Victoria and South Australia. The attorney general's office said a similar decline was not seen in Queensland and Western Australia, where doli incapax has been codified in legislation (rather than as a common law understanding, as in NSW). 'The common law presumption of doli incapax dates back hundreds of years. It operates across all Australian jurisdictions and its existence in the common law has been affirmed by the high court,' Daley said in a statement. 'Recently, concerns have been raised about the operation of doli incapax. I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.' Citing Bocsar, the attorney general's office said the result raised questions about how best to support young people to reduce future criminal involvement. 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 said the criminal age should be raised to 14 and the presumption of doli incapax removed altogether. Very young children 'criminalised' Camilla Pandolfini, the CEO of Redfern Legal Centre, said children 'should not end up in prison'. 'Putting young children into prison isn't going to make anybody safer. It doesn't address the causes of crime [or] address the reasons why very young children are being criminalised. It only increases the risk of recidivism.' Rather than reviewing doli incapax, she said the state should focus on crime prevention and boost funding of Aboriginal community organisations and local services in rural and regional communities. The NSW government recently extended its controversial youth bail laws, despite experts warning it will not curb crime long term and internal pushback from some Labor MPs. The state Nationals have been pushing the NSW government and the Liberals to support a change to doli incapax. A budget estimates hearing was told last monththe youth justice system is about '90% full at the moment' 'The changes to bail laws in the past year have coincided with an increase,' Paul O'Reilly, the acting deputy secretary for system reform at Department of Communities and Justice, told the hearing. 'It's not entirely clear that increase is entirely attributable to the change in the bail laws. 'What we have seen is a change in bail decision-making behaviour from police and courts generally, and we've also seen an increase in offending and an increase in violence in offending. 'All of those things add up to more kids in detention and, at the moment, we are managing that within our current capacity.' Youth crime has remained stable over the short and medium term in NSW, the latest Bocsar data shows. However the data indicated a 'significant increase' in young people shoplifting, and possessing illicit weapons.
ABC News
07-05-2025
- ABC News
AUDIO: Youth convictions plunge after legal term clarified
In New South Wales, there's been a dramatic decrease in the number of 10 to 13 year olds found guilty of a criminal offence. Experts believe this is linked to the High Court clarifying the legal principal of 'doli incapax' in 2016. However, the rate of police charges for the age group remain stable and advocates want the age of criminal responsibility lifted to 14.
