Doli Incapax: The legal safety net for young children

What happens when a 12-year-old commits a crime? This question sits at the heart of NSW's heated debate over doli incapax, a centuries-old legal principle that protects children from full criminal responsibility. Now under formal review by the NSW Government, this obscure Latin phrase has become a lightning rod for reform in Australia's youth justice system.

Doli Incapax: What does it mean?

In NSW, the law acknowledges that children's brains aren't fully developed. The doli incapax presumption is Latin for "incapable of wrong." It offers crucial protections, including:

• Absolute protection for under-10s: Children younger than 10 cannot be charged with a crime.
• Conditional protection for 10-13-year-olds: Courts presume these children can't grasp the "serious wrongness" of their actions, unless prosecutors prove otherwise beyond reasonable doubt.

This isn't a legal loophole. In fact, prosecutors regularly rely on school reports, psychological assessments or prior conduct to rebut the presumption. However, since the 2016 High Court decision in RP v The Queen, conviction rates have dropped dramatically from 76% to just 16% in NSW Children's Court outcomes.

Why is NSW Re-examining Doli Incapax?

Attorney General Michael Daley has also appointed former Supreme Court Justice Geoffrey Bellew SC and ex-police deputy commissioner Jeffrey Loy to lead a formal review in 2025. Their task? Untangle a complex legal, social and political knot under growing pressure.

1. The "Justice Gap"

While BOCSAR shows fewer convictions, frontline lawyers report something worrying:

• Between 2022-23, 53% of matters involving 10-13-year-olds had all charges dropped
• 75% of these children have a parent or guardian who's been incarcerated
• 56% of under-14 detainees are Indigenous, despite making up just 6% of the NSW youth population

Critics say the system is failing toeither rehabilitate or hold accountablehigh-risk children.

2. Patchwork Laws Across States

NSW is one of only three jurisdictions still relying on common law for doli incapax. Other states have moved to codified systems:

Notably, the review will also consider whether NSW should follow Queensland's codified model to clarify legal expectations.

3. Politics and Public Pressure

Cases like the 2023 manslaughter acquittal of a young teen made headlines. In this case, doli incapax still applied despite fatal gang violence. The government now faces competing calls:

• Rural communities demanding stricter accountability
• Advocates warning against reactionary, punitive policies

Four Core Challenges the Review on Doli Incapax Must Address

1. Proving a Child's Understanding

To rebut doli incapax, prosecutors must offer "clear, positive evidence", such as:

• Verbal or written admissions of guilt
• Previous criminal behaviour suggesting pattern recognition
• Expert evaluations of cognitive ability

Yet disadvantaged children rarely have formal documentation to prove, or contest, these claims.

2. Gaps in Diversion Pathways

NSW's Young Offenders Act 1997 promotes cautioning over prosecution. However:

• 68% of children in doli incapax cases are already in youth justice programs
• 40% have concurrent Child Protection orders

The review will assess whether the current system lets too many vulnerable children "fall through the cracks."

3. Outdated Legal Thresholds vs. Modern Brain Science

Brain imaging shows the prefrontal cortex, responsible for impulse control, continues developing well into a person's 20s. Yet NSW law draws a hard line at 14. The review must reconcile this developmental science with medieval legal doctrine.

Perspectives on Doli Incapax: Punishment or Prevention?

Voices Calling for Reform

• Prosecutors: Say doli incapax makes convictions "virtually impossible" for 10-13-year-olds
• Regional MPs: Warn that offenders are emboldened, believing there are no consequences
• Victims' Advocates: Note that 22% of under-14s re-offend within 12 months

Voices Urging Caution

• Legal Advocates: Argue early incarceration does more harm than good
• Medical Experts: Point to trauma and neurodevelopmental conditions like foetal alcohol spectrum disorders in 58% of detained under-14s
• First Nations Groups: Warn changes will worsen outcomes for Indigenous youth

What Happens Next for Doli Incapax?

The Bellew-Loy Review Panel will:

1. Analyse over 200 recent cases to map how doli incapax is being applied
2. Consult with stakeholders including the Aboriginal Legal Service and Youth Justice NSW
3. Examine national alternatives like Victoria's therapeutic model and Queensland's legal code
4. Deliver recommendations by late 2025, potentially:
   • Codifyingdoli incapax
   • Raising the minimum age of criminal responsibility to 12 or 14
   • Expanding access to Youth Koori Courts

What It Means for NSW Families

Whether your child is accused of a crime or impacted by one, this review could change:

• School protocols for reporting behaviour to police
• Youth support programs and mental health resources
• Legal processes that determine whether children are tried in court

The Path Ahead

So now, NSW stands at a legal crossroads: double down on punitive responses or build a system grounded in prevention and support. With 43% of under-14 offenders having diagnosed mental health conditions, reform isn't just necessary, it's urgent.

However, in an election year, evidence-based policy may compete with political messaging. As the review unfolds, one thing is certain: children who commit crimes are still children. Our collective response will shape not only their lives, but the kind of society we choose to build.

Need clarity on youth justice laws? O'Brien Criminal & Civil Solicitors offer professional guidance tailored to NSW's evolving legal framework. Contact us for confidential legal advice.

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