From 1 March 2026, the way NSW courts assess criminal responsibility for children aged 10 to 13 has fundamentally changed. The doctrine of doli incapax, the presumption that a child in that age group is incapable of criminal intent, has now been codified in statute through significant amendments to section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).
This reform has significant implications for how defence cases involving young people are run, and families and children appearing before the NSW Children’s Court need to understand what has shifted. Our Sydney firm has extensive experience representing children in criminal matters.
NSW Codifies Doli Incapax: What Does This Mean?
Doli incapax has historically operated as a common law principle. It placed the onus squarely on the prosecution to prove beyond reasonable doubt that a child aged 10 to 13 knew their conduct was seriously wrong, not merely naughty or mischievous, before any conviction could follow.
That protection remained significant following the High Court’s decision in RP v The Queen (2016) 259 CLR 641, which reaffirmed the principle and contributed to a narrower application of the doctrine in practice.
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Review Of Doli Incapax
The NSW Government commissioned an independent review into doli incapax in 2025, led by former NSW Supreme Court Justice Geoffrey Bellew SC and former NSW Police Deputy Commissioner Jeffrey Loy. Their report recommended codifying the presumption in statute, alongside expanded diversionary pathways for lower-level offending.
The government has now acted on that recommendation. Under the amendments to the Children (Criminal Proceedings) Act 1987, courts are now required to consider the circumstances of the alleged offending. For example, this includes whether the child took steps to plan the conduct or avoid detection.
The legislation also makes clear it is open for a court to find doli incapax rebutted on the facts of the offending alone, without requiring separate evidence about the child’s background or maturity.
That last point is where the real shift lies. It is now easier for the prosecution to argue that planning or concealment evidence, which may be present in many cases, is sufficient to overcome doli incapax without requiring the same depth of contextual evidence courts have often sought in the past to rebut the presumption.
Opinions On Doli Incapax
The Justice Reform Initiative has strongly condemned the reforms, arguing that weakening this protection will drag more children into the criminal justice system. Research generally indicates that early incarceration of children is associated with higher rates of reoffending rather than lower, a consideration that should sit alongside any assessment of these changes.
For anyone whose child is facing charges in NSW, the practical message is this: doli incapax arguments must be raised early, supported by specific submissions, and backed where possible by evidence about the child’s individual development, background, and understanding. It is no longer safe to assume the prosecution will fail to rebut the presumption without active, informed legal representation.
Is Your Child Facing Criminal Charges In NSW?
O’Brien Criminal and Civil Solicitors have extensive experience in the NSW Children’s Court and youth criminal matters. If your child has been charged with an offence, contact us today for a free, confidential consultation.
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