The Minns Labor Government has today released the independent review of the operation of doli incapax in NSW for children under 14.
Doli incapax operates as a common law presumption in NSW and presumes children aged between 10 and 13 are not able to be held criminally responsible for their actions.
It can be rebutted if the prosecution proves beyond reasonable doubt the child knew their actions were seriously wrong as opposed to merely naughty.
The Government continues to carefully consider the recommendations of the review, including the recommendation to codify. It is important to get this right and ensure doli incapax operates in the best interests of the broader community and children.
The NSW Government understands the community’s concerns about youth crime and launched the review in May.
The review followed NSW Bureau of Crime Statistics and Research (BOCSAR) data finding a very significant decline in proven offences for children aged 10 to 13.
This decline followed the 2016 High Court decision of RP which clarified how doli incapax should be applied.
The BOCSAR study found the proportion of 10–13-year-olds with a proven (i.e. guilty) outcome in the NSW Children’s Court fell dramatically from 76 per cent in 2015-16 to just 16 per cent in 2022-23. The prosecution withdrew charges in more than half of all cases in 2022-23.
Similar trends were observed in Victoria and South Australia following the High Court decision. States that have codified doli incapax, such as Queensland and Western Australia, did not show a similar decline.
The review was conducted by State Parole Authority Chair and former Supreme Court justice, the Honourable Geoffrey Bellew SC, and former NSW Police Deputy Commissioner, Mr Jeffrey Loy APM.
The report finds that a small proportion of 10–13-year-olds engage in serious or persistent offending and, without the benefit of rehabilitation efforts or supervision, there is too often repeat offending.
The report makes seven recommendations, including:
- An option for introducing a new legislative framework for enacting the presumption of doli incapax in NSW.
- Giving NSW Police another tool in their kit by expanding access to diversion pathways for 10-13-year-olds. For less serious offending, a child would become eligible for a caution or Youth Justice Conference by ‘not denying’ the offence rather than needing to ‘admit’ to the offending. Currently, many at-risk young people receive no intervention or support at an early stage when offending is less serious.
The Government thanks Mr Bellew and Mr Loy for their important work.
The Government’s consideration of the operation of doli incapax follows a series of strong actions taken to address offending by young people:
- Introducing and extending a strict bail test for young people accused of repeat car theft and break and enter offences.
- Creating a new ‘post and boast’ offence under the Crimes Act, criminalising the filming and
disseminating of footage of certain serious offences. - More than $100 million in additional youth justice funding in the 2024-25 budget.
- A $26.2 million community safety package announced last year, including additional funding for a targeted response in Moree.
- NSW Police Force efforts under Operation Soteria and Operation Regional Mongoose.
Attributable to Attorney General Michael Daley:
“The Government thanks the reviewers for their considered recommendations. This review shows the current settings are not operating in the best interests of children or the broader community.
“We don’t want a situation where children are left without any intervention when charges are dismissed or withdrawn, only to come back before the courts because they were not supported to change their behaviour.
“We will take the time to carefully examine the report and will publicly detail a pathway to reform in due course.”
Media Release: NSW Attorney General Michael Daley
