Law experts want high bar for convicting kids to stand

Legal eagles are warning a state not to depart from a long-standing presumption that children younger than 14 are “incapable of evil”, despite youth crime conviction rates tumbling.

A NSW review of doli incapax was released on Saturday after it was launched by the state Labor government in May amid a national debate about youth crime.

Latin for incapable of evil, doli incapax is a legal presumption that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible.

The common law principle can be rebutted if the prosecution proves beyond a reasonable doubt that the child knew their actions were seriously wrong as opposed to merely naughty.

Led by former Supreme Court judge Geoffrey Bellew and retired NSW police deputy commissioner Jeffrey Loy, the review acknowledged the test for rebutting doli incapax imposed a “high threshold”.

But the high bar was justified as it provided a safeguard for inappropriate findings, was consistent with the mens rea principle of a guilty mind, recognised the vulnerability of 10 to 13-year-olds and the impact of a criminal conviction.

Some review participants pushed for a “capacity to know” test to alleviate the burden on the prosecution to prove what a child was actually thinking at the time of the act.

But the criminal law experts argued it did not warrant a departure from common law or introducing legislation that imposed a different standard for 10 to 13-year-olds.

“On the contrary, such a change would risk creating an inconsistency within the broader framework of criminal law,” the 90-plus page review read.