‘Incapable of Evil’ Doctrine to be Reviewed (NSW)

Early this month, the New South Wales Attorney-General’s office announced that the operation of the doctrine of doli incapax in the state would be reviewed. Doli incapax, or ‘incapable of evil’ is a centuries-old doctrine under which children younger than 14 are presumed to lack criminal capacity. The review will consider how this doctrine is applied in New South Wales proceedings, its impact on interventions and possible improvements.

Legislation

In New South Wales, the doctrine of doli incapax is governed by the common law. In Queensland and Western Australia, the doctrine has been codified and is contained in the Criminal Code.

What is doli incapax?

The incapable of evil doctrine is a presumption that a child under 14 is not capable of forming a criminal intent, or of understanding the criminal nature of an action. The presumption is rebuttable and can be overcome when the prosecution adduces evidence that the accused child understood the nature of their actions.  As such, the doctrine seeks to balance the protection of young children who do not understand the wrongfulness of criminal behaviour with holding to account those who do.

History of doli incapax

The doli incapax, or incapable of evil doctrine, has its roots in ancient legal systems which recognised that young children lacked the maturity and understanding required to be tried for and found guilty of criminal offences.

The age at which a child has been viewed as capable of forming a criminal intent has varied over the years, from as young as seven to 13 or 14.  

The doctrine is still seen as important today as it reflects scientific understandings of brain development and impulse control. Young children, especially those from poor and disadvantaged backgrounds, may be insufficiently developed to make rational decisions, understand the implications of their actions, on control their impulses. However, the doctrine is criticised by those who believe that young offenders are let off lightly.

RP v The Queen

The 2016 High Court decision of RP v The Queen concerned an appeal against a decision by the Court of Criminal Appeal. The appellant was a man who, as an 11-year-old, had been found guilty of two counts of sex with a child under 16. Both offences occurred when he was 11 and involved his six-year-old brother. The appellant, when he was aged in his late teens, had been assessed as being in the borderline disabled range of intellectual functioning and to be ‘of very low intelligence.’

The appellant sought to have the convictions set aside on the basis that there had been insufficient evidence to rebut the presumption that he, as a child under 14, did not know that his actions were morally wrong.  

The Court of Criminal Appeal found that the doli incapax presumption has been rebutted. However, the High Court overturned this decision on the basis that the court had not heard evidence of the environment in which the appellant had been raised, nor any evidence on his moral development. The High Court found that, with the appellant’s intellectual limitations, it was not open to the court to find that it had been proven beyond a reasonable doubt that he understood the wrongness of his actions.  

The decision clarified how the doli incapax presumption is to be applied in a number of respects, including that the court must be satisfied beyond a reasonable doubt that the child knew the difference between right and wrong.

The effect of the decision in New South Wales has been a marked decrease in the number of successful prosecutions of children under 14, with only 16% of such cases in the 2023-4 period resulting in findings of guilt, and with charges being withdrawn in more than half of cases.  

Other states that rely on common law understandings of doli incapax have experienced similar declines in convictions since RP v The Queen.  In contrast, Queensland and Western Australia, which have codified doli incapax, have not seen such shifts.

The review

The review is to be undertaken by Geoffrey Bellew SC and  Jeffrey Loy. It will consider how doli incapax interacts with the Young Offenders Act 1997, with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other matters. Victims’ groups, Indigenous organisations, legal and government stakeholders will be consulted.

The reviewers are due to report back late in 2025

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