In NSW, doli incapax – the legal presumption that children aged 10 to 14 lack enough understanding of the difference between right and wrong to be held criminally responsible – operates as a common law presumption.

However, it can be rebutted if it is proven beyond a reasonable doubt that the child understood their actions were seriously wrong.

Former Supreme Court justice the Honourable Geoffrey Bellew SC, alongside former NSW Police deputy commissioner Jeffrey Loy, will lead the review.

Daley explained that their role is to consider “how the presumption of doli incapax is applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation”.

The review follows the release of a new report from the NSW Bureau of Crime Statistics and Research, which revealed a “significant decline in the number of young people aged 10 to 13 years found guilty of a criminal offence”, which dropped from 76 per cent in 2015–16 to 16 per cent in 2022–23.

VIEW ALL

The sharp decline follows the 2016 High Court decision in RP v The Queen, which reaffirmed and clarified that to rebut the presumption of doli incapax, prosecutors must prove beyond reasonable doubt that the child understood their actions were “seriously wrong” at the time of the offence.

As part of the review, Bellew and Loy will examine how doli incapax interacts with other legal frameworks and consult key stakeholders from Aboriginal-led organisations, legal and government bodies, victims’ advocacy groups, and local communities.

The pair are expected to deliver their findings in the second half of 2025.

Daley stated that the review into doli incapax follows recent concerns raised about its operation, with the aim of identifying “any improvements that can be made and possible legislative reforms”.

While the NSW Bar Association welcomed the review and affirmed that doli incapax is an “important safeguard which must be protected”, it also expressed concern that the NSW government’s focus on declining conviction rates overlooked the broader purpose of the doctrine.

“The utility of doli incapax is not measured in the number of children found guilty of offences. It is a longstanding recognition of the vulnerability of children and the need to protect them,” the NSW Bar Association said in a statement.

“The focus of the NSW government should be on reducing the contact young people have with the criminal justice system and addressing the root causes of a child’s vulnerability, which, in turn, reduces recidivism.”

This review comes following outrage after the Northern Territory government revealed plans to decrease the age of criminal responsibility from 12 to 10 years last year, as well as the Victorian government abandoning its commitment to raise the age of criminal responsibility to 14 in August last year. NSW and the ACT have also been previously urged to raise the age of criminal responsibility to 14.

As part of its recommendations, the NSW Bar Association has called on the state government to raise the minimum age of criminal responsibility to 14 years.

It emphasised that reforming doli incapax is unnecessary to “provide the vital services and support needed by vulnerable children and their communities”.

The NSW Bar Association also urged the government to prioritise “evidence-based policies” that tackle the underlying causes of youth crime, highlighting that such measures are essential to safeguarding the “long-term interests of children” and the broader community.