When is a child responsible for a crime? Not everyone likes the answer

The NSW government’s new laws to make it easier to find children criminally responsible for their actions are aimed at redressing a decade-long problem, but have met resistance from the opposition and legal groups.

Attorney-General Michael Daley on Tuesday announced laws to give prosecutors more ways to argue against doli incapax – a legal principle that assumes children aged 10 to 13 cannot be found criminally liable for their offending because they are too young to know their actions were seriously wrong.

Attorney-General Michael Daley has introduced new youth crime legislation. Credit: Edwina Pickles

The changes were criticised by legal groups that say the laws would result in more children in prison, but NSW Nationals want the laws to go further as rural towns grapple with youth crime.

What is doli incapax?

The latin phrase represents a common-law principle that prosecutors need to argue against to successfully convict a child under 14 of a crime. Children under 10 cannot be convicted under NSW laws. No matter how objectively horrifying the crime may be to the average adult, children aged 10 to 13 can only be held responsible if a high threshold is met.

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Prosecutors need to introduce evidence to the court that proves beyond reasonable doubt that the child knew their actions were morally wrong, not just naughty or mischievous.

The idea is centuries old, but came under the focus of a government-commissioned review in NSW after a 2016 High Court decision led to a renewed focus on the burden put on prosecutors to rebut it.

This led to a sharp decline in convictions from 76 per cent in 2015-16 to 16 per cent in 2022-23.

What could change

The state government wants prosecutors to have more powers to argue against the principle, by introducing new mandatory considerations for the courts. Courts could consider what the child is alleged to have done and the surrounding circumstances without, or despite, other evidence.

Examples include if a child takes steps to conceal their identity, if there was a significant level of planning involved, and if the child went to any effort to cover up the crime.

“These important, considered reforms will ensure doli incapax operates in the best interests of children and the broader community. It will also allow for the presumption to be applied more consistently by police and the courts,” Daley said.

The government is also introducing new laws to allow children to access diversionary programs if they admit to, or do not deny, committing the offence and the time and place of the offending. It will be up to the police and courts to determine if the child should still be charged if the offending is serious.

Too far for some, not far enough for others

The Council for Civil Liberties came out against the changes on Tuesday, arguing the government should instead raise the age of criminal responsibility to 14.

“The NSW government is taking steps to make it easier to lock up children and any step in that direction is the wrong one,” president Timothy Roberts said.

NSW Bar Association president Dominic Toomey, SC, said the group does not support “the undermining of critical legal protections for children who lack the maturity and understanding to appreciate the significance of their actions”.

The Justice and Equity Centre argued the laws would result in more children in prison.

The Nationals have long called for reforms to doli incapax, but police spokesman Paul Toole said the changes would not do much to put fearful rural communities at ease.

“Police officers are saying that in a lot of cases these 10- to 14-year-olds, they’re not kids, they’re hardened criminals because of the lifestyle in which they’ve actually grown up,” he said.

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