Today the NSW Labor Government has announced that they will be reviewing the legal principle of doli incapax.
Doli incapax is a way the Courts protect our community by ensuring that when prosecuting children, between the age of 10 and 14, the prosecution has to establish beyond reasonable doubt that the child knows and is capable of knowing what they did was wrong.
The use of beyond reasonable doubt is another, even ancient, community protection that ensures a high standard of evidence in criminal matters. This is important given the serious consequences for a person if convicted of a criminal matter, and the priority the community places on not convicting innocent people in our community.
It is in this context the NSW Council for Civil Liberties (‘NSWCCL’) says that this review into Doli Incapax is unwarranted and inadvisable. There is nothing objectionable about making sure that if we intend to convict children as young as 10, we know that they know what they have done is wrong, and we know this beyond reasonable doubt.
Whatever the complex issues that some communities have faced over the past months, these things do not change with efforts that might result in more young children being placed in prison.
In even reviewing these key protections the NSW Labor Government undermines them. This is even more so when it conducts this review without using the existing infrastructure of the NSW Law Reform Commission. It is a concern to the NSWCCL that having ignored the advice of the Commission earlier this year in passing inadvisable hate speech laws, it sidelines them at the cost of the NSW taxpayer with this review.
Comments attributable to Timothy Roberts, President NSWCCL
“At a time when the people of NSW should be asking ourselves, whether children as young as 10, children in Year 4 or 5 in primary school, should face criminal charges at all, this Government has commissioned a review that undermines basic legal principles that protect our community from unfair prosecutions.
“This review is completely unnecessary. 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.”
“Just a few months ago we saw the Minns Government go completely against the findings of the NSW Law Reform Commission review into hate speech laws. The review announced today is a great waste of taxpayers money, especially when so much evidence on this topic already exists.
“The BOCSAR Crime Statistics from December show recorded property and violent crime rates to be stable or reducing. The Minns Labor Government is playing political football with the most vulnerable members of our community, young children.
