Why police can’t prove children like Harry committed serious crimes
Harry* went to school only once last year. At the age of 13, he had appeared before the NSW Children’s Court four times, received five cautions from police and recorded more than 100 “interactions” with officers.
His 14th birthday was spent in youth detention. His alleged crimes: breaking into a house to steal keys, stealing a motor vehicle, riding in it at more than 140km/h in a residential street, and boasting about the joyride on social media.
Conviction rates for children aged 10 to 13 have collapsed. Credit: Aresna Villanueva
But when Harry appeared before the Children’s Court this year, he was found not guilty.
Paul Hayes, the specialist children’s magistrate who had refused him bail but was now setting him free, described a kind of catch-22.
Harry’s disadvantaged background made it harder for the prosecution to prove he knew his offending was “seriously wrong”, a necessary step in convicting a child aged 10 to 13.
But without a plea or finding of guilt, Harry couldn’t be placed under supervision by Youth Justice workers, sent to a diversionary program or undergo court-ordered rehabilitation.
“The greater the need for intervention,” Hayes said, “the less likely there will be intervention.”
More children like Harry are beating charges due to a relatively new understanding of a centuries-old legal principle, doli incapax, which presumes children below 14 are not intellectually or morally developed enough to be held criminally responsible for their actions.
A steep decline in convictions has worried the NSW Labor government, which has ordered a review. The Nationals want a major change, arguing doli incapax is failing both victims of crime and the children themselves.
But legal bodies, academics and children’s advocates fear any rise in convictions, arguing support for a child should not hinge on a finding of guilt.
Dramatic fall
Across Australia, no child under 10 can be charged with a crime.
In NSW, in the 10- to 13-year-old bracket where prosecutors must rebut doli incapax, cases with a proven outcome have fallen off a cliff, collapsing from 76 per cent in 2015-16 to 16 per cent in 2022-23.
“It’s a remarkable fall, really,” says Jackie Fitzgerald, executive director of the Bureau of Crime Statistics and Research. “I don’t know that the government and possibly even policymakers in this area knew this.”
Executive director of the Bureau of Crime Statistics and Research Jackie Fitzgerald. Credit: Nick Moir
After noticing the trend last year, Fitzgerald commissioned a report into the effect of a 2016 High Court case, RP v R, which clarified the application of doli incapax.
The High Court emphasised it was the job of prosecutors to prove beyond reasonable doubt that a child knew what they were doing was seriously wrong, as opposed to merely naughty or mischievous. It was not enough to argue an act was “obviously wrong”.
Since that decision, frontline NSW Police officers have kept on charging roughly the same number of children.
But by 2023, one in two cases ended with their police prosecutor colleagues withdrawing all charges.
Many more children were pleading not guilty, and when they did, the prosecution was failing to prove them guilty nearly 90 per cent of the time.
In May, on the same day BOCSAR released its research into the “dramatic shift”, Attorney-General Michael Daley announced a review of doli incapax. Citing “concerns” raised by others, Daley said he had asked former Supreme Court judge Geoffrey Bellew and former police deputy commissioner Jeff Loy to advise on new legislation.
“Often, the young person is simply released from custody without support, back into the care of dysfunctional families,” the ministerial media release said. “Too often, they engage in behaviour that endangers themselves and members of the community.”
NSW, Victoria and South Australia have all relied on the common law standard of doli incapax, which has developed over time as individual judges interpret it.
All three states have seen falls in guilty findings since the High Court case. (Victoria last year introduced legislation that codifies doli incapax in a similar form.)
But in Queensland and Western Australia, which have a lower threshold set down in legislation, conviction rates have remained relatively stable. Prosecutors in those states do not need to prove the child had actual knowledge of serious wrongdoing, only the capacity to know they “ought not” have acted the way they did.
A 2018 review of Queensland’s system heard that “the presumption of doli incapax is rarely a barrier to prosecution”.
“Queensland is the exemplar if you’re trying to prosecute children, and you want to convict children,” says Dominique Moritz, a former police officer turned criminal law academic at the University of the Sunshine Coast.
“From a protective perspective, the common law test is much more preferable.”
‘In one door and out the other’
In the town of Moree, on the NSW Northern Tablelands, robberies, break-ins and car thefts have led to tense discussions about youth crime.
“It’s creating a feeling of fear in my community,” Nationals MP Brendan Moylan says.
The former solicitor, who has lived in Moree for two decades and won office in a byelection last year, says he has been “constantly annoying” the attorney-general about reforming doli incapax.
“We can’t just let these kids go in one door out the other,” he says. “Put in place structures to actually help them to stop that reoffending.”
Nationals MP Brendan Moylan says courts need a greater ability to mandate treatment for children. Credit: Sam Mooy
Moylan believes only courts can enforce treatment plans for children, whom he acknowledges have often suffered violence or have grown up amid substance abuse. He suggests they could be dealt with in a similar way to adults found not guilty because of mental illness.
But others are wary of the review into doli incapax.
“It’s a distraction from the real issue,” says Jonathon Hunyor, chief executive of the Justice and Equity Centre, an independent law and policy advisory organisation.
“Why aren’t we providing services before children are putting themselves and the community in dangerous situations? Why do children need to act out to get the support they need?”
A detainee at the Cobham Juvenile Justice Centre in Sydney. Credit: Kate Geraghty
Hunyor said decades of research showed early contact with the criminal justice system “absolutely guaranteed” a higher likelihood of reoffending down the track.
When the review was first announced, the NSW Bar Association also warned against a focus on declining conviction rates.
“The NSW government does not need to reform doli incapax in order to provide the vital services and support needed by vulnerable children and their communities,” then-president Ruth Higgins, SC, said.
Doli incapax is a live issue because the state government has resisted a push to change the minimum age of criminal responsibility.
Bodies that want to “raise the age” to 14 or higher include the Bar Association, the Law Council of Australia, the Aboriginal Legal Service and the Australian Medical Association. The NSW Children’s Court has previously called for it to be raised to 12.
A 2020 draft report by the Australian Council of Attorneys-General, which recommended the age be raised to 14, found “placing a child in detention can disrupt normal brain development and compound pre-existing trauma”. Since then, the ACT has permanently shifted the minimum age to 14. Victoria raised it to 12, but has walked away from plans to raise it to 14 by 2027.
The NSW government says it should stay at 10.
As a research agency, BOCSAR has no position on raising the age or changes to doli incapax. But its executive director says a comparison of crime statistics around the country shows NSW does not have a youth crime “crisis”.
“There’s considerable community harm posed by allowing those young people to continue to offend, of course,” Fitzgerald says. “But a heavy-handed justice response is not the way to turn the tables on that trajectory.”
In a statement, NSW Police said it was working with the government as part of the review. In response to questions, the attorney-general did not elaborate on the concerns raised with him about doli incapax nor answer whether the government intended to increase the conviction rate for 10- to 13-year-olds.
“It is appropriate that doli incapax is reviewed by two eminent experts to ensure that it continues to operate in the best interests of the community and the children it applies to,” a spokesperson for Daley said.
Attorney-General Michael Daley said concerns had been raised about the operation of doli incapax. Credit: Dion Georgopoulos
“We acknowledge that vulnerable children in NSW need more support, which is why we are investing a landmark $1.2 billion in the child protection system. The government invested more than $100 million in additional youth justice funding in last year’s budget, with further additional funding in [last month’s] budget.”
In the case of Harry, who turned 14 in detention, magistrate Hayes noted “the accusatorial system is not focused on the referral to expert services or the reasons why you have been in conflict with the law”.
Avoiding legalese, Hayes spoke in simple sentences, telling Harry that sometimes detention changes people. In the short term, it protects the community, he said, and sometimes, in the long term, it makes things worse.
“Harry, you will now be released back into the community,” Hayes concluded. “I wish you well.”
*Harry is a pseudonym provided by the Children’s Court.
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