Attorney General appoints eminent criminal law expert and law enforcement expert to review doli incapax

Doli incapax is the legal presumption that children between the ages of 10 and 14 do not adequately understand the difference between right and wrong to be held criminally responsible.

In NSW, doli incapax is a common law presumption and is rebuttable if the prosecution can establish or prove beyond reasonable doubt that a child understood their actions or what they did was “seriously wrong.”

The NSW Bureau of Crime Statistics and Research (BOCSAR) recently released a report which found a major decline in the number of people aged 10 to 13 years found guilty of a criminal offence following the decision in RP v The Queen [2016] HCA 53 (RP v The Queen).

In RP v The Queen, the High Court found that the onus is on the prosecution to prove beyond reasonable doubt that the child understood their act or actions were “seriously wrong.” Following the High Court decision, the number of convictions decreased.

The BOCSAR study found the number of 10 to 13-year-olds with a ‘proven outcome’ in the NSW Children’s Court decreased from 76 per cent in 2015-2016 to 16 per cent in 2022-23. In 2022-23, the prosecution withdrew the charges in more than half of all cases.

Analogous results were observed in Victoria and South Australia following the High Court decision. However, states that have passed doli incapax into legislation, like Queensland and Western Australia, did not show a similar decline.

According to BOCSAR, the outcome raises questions about how to support young people to minimise “future criminal involvement” as too often, young people are released from custody without adequate support or back into the care of dysfunctional families.

The review into doli incapax will consider how the presumption is “applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation.”

The review will also examine how the presumption interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, as well as other relevant matters such as community safety and the interests of children.

As part of the review, various stakeholders such as victims’ groups, local and regional communities, Aboriginal-led organisations and various legal and government stakeholders will also be consulted.

Bellew and Loy are expected to report back to the Attorney General later this year.

Geoffrey Bellow SC, State Parole Authority Chair and a former Supreme Court Justice, has a legal career spanning over four decades and Jeffrey Loy spent four decades with the NSW Police Force. Loy served as the Deputy Commissioner from 2017 to 2021 and he received the Australian Police Medal and National Emergency Medal.

“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,” says Daley.

“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.

“The Honourable Geoffrey Bellew SC and Mr Jeffrey Loy are a highly respected experts in criminal law and law enforcement, particularly in the youth space. They are well-placed to examine how doli incapax is being applied in NSW and I look forward to considering their recommendations,” he says.