By Paul Gregoire and Ugur Nedim
The principle of doli incapax is a common law presumption in NSW that considers children under 14 years of age lack the capacity to be criminally responsible for their acts. A review of the operation of doli incapax in NSW was launched by state attorney general Michael Daley in May 2025, and it’s just recommended the principle be reflected in state statutory law, or law passed by parliament.
Released on 25 October 2025, the Review of the Operation of Doli Incapax for Young Offenders Under 14 is the work of former NSW Supreme Court Justice Geoffrey Bellew SC and ex-NSW police deputy commissioner Jeffrey Loy, and it recommends enshrining doli incapax and guidance on how to rebut it in state law, as well as establishing a new intervention pathway for youth under 14.
Common law, or judge-made law, is the body of law comprised of centuries of court decisions. At present, the operation of doli incapax in NSW state law is generally governed by the principles established in the 2016 High Court case RP versus The Queen, which established that it’s up to the prosecution to prove that a child had understood their conduct was seriously morally wrong.
Bellew and Loy have made the recommendation to reflect doli incapax in statutory law, as a decade-long civil society campaign to see the age of criminal responsibility in NSW raised from 10 to 14 years old is ongoing. The review, however, did not reject the key demand of this campaign, as such consideration was beyond the review’s terms of reference produced by the state’s chief lawmaker.
The doli incapax review rather considered the current situation whereby the overwhelming majority of criminal cases involving 10- to 13-years-olds result in the inability to rebut the presumption of doli incapax, or being incapable of wrongdoing, and this means that charges are dropped or withdrawn without any subsequent addressing of the behaviour and then, repeat offending often occurs.
Common law to be enacted
The May 2025 terms of reference related to the doli incapax review required Bellew and Loy recommend a framework to enable doli incapax to be reflected in statutory law. Further issues to be addressed included how the presumption is operating at present, suggestions on how to improve this, the interaction of the principle with current statutory law and how it’s achieving its aims.
In NSW, youth crime law pertains to 10- to 17-year-olds. But the overwhelming number of youth crime cases before the courts are in respect of crimes perpetrated by 14- to 17-year-olds. The research further indicates that ongoing and serious offending by 10- to 13-year-olds makes up a tiny fraction of overall youth offending, and it was this small amount of crime the review addressed.
The review is of the opinion that drafting new legislation to create a different standard for 10- to 13-year-olds would be problematic in that it would cause inconsistences affecting the broader framework of criminal law in NSW. Bellew and Loy then came to the conclusion that what should be enacted into law ought to reflect the process in RP versus The Queen.
Reasons for shifting the common law process into statutory law include that many practitioners lack an understanding of how doli incapax now operates and the legislative approach could further provide assistance on how to determine whether a child did understand the full implications of their actions in breaking the law, which should also be supported by training NSW police on the matter.
The NSW police training is of value as officers are the first point of contact with the criminal justice system. So, if officers understood doli incapax and the requirements for rebutting it, this could then play a factor in whether officers even lay charges against 10- to 13-year-olds at this initial point, especially as when it is addressed at a later point, the prosecution often find they can’t rebut it.
The High Court authority
Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) contains the NSW law on the age of criminal responsibility, and it stipulates that “it shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence”. This law, however, has had no effect upon the operation of the common law presumption of doli incapax or being incapable of wrong.
RP versus The Queen involved an appeal against a finding of the NSW Court of Criminal Appeal. The case involved the sexually offending of a boy between 11 and 13 against his younger brother. The initial trial found that in three of four counts against him, circumstances revealed RP was aware that his actions were wrong beyond a reasonable doubt, while on appeal he was convicted on two counts.
The two grounds of appeal before the High Court were that the boy was not found guilty of his convictions to the criminal standard, or beyond a reasonable doubt, and that in failing to quash one of the remaining counts, the boy had been denied a fair trial. And in handing down its findings, the High Court detailed the nature of the evidence required in order to rebut doli incapax.
The majority of the High Court found that there had been an issue with the original trial as no evidence was heard as to the child’s upbringing or performance in school, and rather the court had solely relied upon the incident, and given this was the case, the fact that RP had covered his brother’s mouth to stop him calling out for help, established that he was aware of his wrongdoing.
RP versus The Queen established that it must be proven beyond a reasonable doubt that a child between 10 and 13 was aware they’d acted in a morally wrong manner. In order to come to a finding that doli incapax does not apply, the court must hear evidence as to the child’s upbringing, school performance and other relevant matters to establish their mental and moral development.
A BOCSAR (NSW Bureau of Crimes Statistics and Research) paper outlined in May this year that the portion of 10- to 13-year-olds who were found guilty in respect of criminal offences they appeared before the courts in respect to, had fallen from a 76 percent proven outcome rate of kids tried over 2015-16 to a rate of 16 percent in 2022-23, which is attributed to the authority of the RP case.
Current recommendations
Bellew and Loy made seven broad recommendations for the Minns Labor government to consider. The initial recommendation pertains to more concise NSW police training in terms of doli incapax, so that the presumption is considered at point of arrest and when a brief of evidence is prepared, including any details of issues that were triggered in respect of the presumption.
The second is that a legislative framework is established that includes the presumption of doli incapax being enshrined in NSW law, including that it requires a finding of beyond reasonable doubt as per RP versus The Queen, as well as creating a non-exhaustive list of considerations that judicial officers should contemplate when trying an individual between 10 and 13.
The Young Offenders Act 1997 (NSW) should be overhauled to expand the caution regime and the availability of diversions being linked to more criminal offences. Further suggestions made by the review include establishing a voluntary alternative intervention pathway for 10- to 13-year-olds, as well as mandatory court orders requiring such young people to undertake therapeutic treatment.
