Doli Incapax Reforms in NSW: What the New Law Means for Children and Their Defence

On 1 March 2026, significant changes to youth criminal law in New South Wales came into effect, with the codification of the Doli Incapax test under section 5 of the Children’s (Criminal Proceeding) Act 1987 (NSW).

The reform represents a major shift in how courts assess criminal responsibility for children aged between 10 and 13, aiming to provide greater clarity and consistency in the application of the law.

The law in relation to children under 10 years of age, at the time of the alleged commission of an offence, remains that it is conclusively presumed that they cannot be guilty of the offence.

What has changed?

The doctrine of doli Incapax presumed that children aged 10 to 13 are incapable of criminal intent unless proven otherwise. This has traditionally operated as a common law principle.

Under the new reforms, this test is now formally codified in legislation, specifically within section 5 of the Act.

The law now clearly sets out:

• The presumption that a child is not criminally responsible,
• The requirement for the prosecution to rebut that presumption,
• The standard and type of evidence needed to do so.

Defending children under the new test

The new test for Doli Incapax provides:

1. It is presumed that a child who, at the time of the alleged commission of an offence, is 10, 11, 12 or 13 years of age cannot be guilty of the offence.
2. The presumption is rebutted only if the prosecution proves beyond a reasonable doubt that the child knew at the time of the alleged commission of the offence that the child’s conduct was seriously wrong.
3. In determining whether the presumption has been rebutted, a court must have regard to the following matters, if known to the court:

• The conduct that constitutes the alleged offence.
• The circumstances surrounding the commission of the alleged offence.
• The child’s intellectual, moral, and educational development.
• The environment in which the child was raised.

A court may determine that the presumption has been rebutted based on evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence. The determination may be made without or despite other evidence of the child’s intellectual and moral development.

An example of circumstances that might lead doli incapax to be rebutted, as contained in the legislation, is where the child takes steps to plan the conduct, including equipping themselves for it or to avoid detection.

What is the effect of the changes to Doli Incapax?

Codification is often designed to reduce uncertainty and ensure more uniform application of law across courts. However, in the case of the codification of Doli Incapax, the codification was also designed to make it easier for the prosecution to overcome the presumption.

Because the change may be adverse to children, it has important implications for how defence cases are run. Defence lawyers will need to turn their minds and make submissions, specifically as to why the alleged offending is not sufficient to rebut the presumption, especially where there is evidence of planning.

To argue this, defence lawyers can:

1. Examine the child’s actions as well as the context in which they occurred.
2. Challenge the inferences that the prosecution is drawing about the child’s maturity from the alleged offences.
3. Highlight the gaps in the evidence that support that the child was unaware that their behaviour was seriously wrong.

Other matters for Defence lawyers to highlight include:

1. Emphasising the child’s development as a central issue will remain the child’s cognitive and moral development. Relevant considerations may include age, level or maturity, family and social background, and exposure to trauma or disadvantage.
2. Using expert evidence such as psychological assessments. This would help demonstrate that a child lacked the capacity to understand the seriousness of their conduct, through favourable opinions on their intellectual and moral development,

Why instruct the Australian Criminal Law Group to represent your child

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