Doli Incapax | Age of Criminal Responsibility Australia - Criminal Defence Lawyers Australia

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Table Of Contents

Key Takeaways
What is Doli Incapax?
How Can the Doli Incapax Presumption Be Rebutted?
Review of Doli Incapax in NSW (2025)

Key Takeaways

Doli Incapax is a common law principle meaning ‘incapable of wrong’. In Australia, it applies to children aged between 10-13 years who are presumed incapable of criminal intent even if the criminal act is committed. This presumption is rebuttable, and if rebutted, can result in criminal penalties, including imprisonment.

The minimum age of criminal responsibility in Australia is 10 years. This means that a child aged under 10 years cannot be criminally responsible for committing a crime. The same minimum age of criminal responsibility applies in New South Wales under section 5 Children (Criminal Proceedings) Act, and across each State and Territory of Australia undern section 7.1 Criminal Code Act 1995 (Cth).

What is Doli Incapax?

The meaning of Doli Incapax is found in the common law principle which is Latin for ‘incapable of wrong’. It is the rebuttable presumption that a child aged between 10 and 13 years (inclusive) is presumed incapable of criminal intent, according to the High Court case of RP v The Queen [2016] HCA 53.

To be guilty of a crime in Australia, an offender needs to commit the offending act as well as having the necessary criminal intention, usually coinciding at the same time. If either one of those elements are not present, the accused person will be ‘not guilty’, which will result in a complete acquittal.

Normally, the prosecution is required to prove both the act and intent. Both must be proven beyond reasonable doubt in order to prove the offence against an accused person standing trial. If the prosecution fails to prove these elements, it will result in the dismissal of the charges.

If the Doli Incapax presumption is rebutted, any child aged between 10 and 13 can be found guilty and subjected to criminal penalties, including imprisonment.

**How Can the Doli Incapax Presumption Be Rebutted?**

The Doli Incapax rebuttable presumption can only be rebutted if the prosecution proves, beyond reasonable doubt, that the accused person knew that his or her actions were seriously wrong in a moral sense.

The test as to whether or not a child who is accused of a crime has the knowledge that his or her act(s) were morally wrong will not be satisfied if:

The child was aware that his or her conduct was merely naughty or mischievous (or a focus on the child’s belief the act was more than mischievous or naughty may tend to obscure the test), or
From evidence of the fact that the accused did the act however horrifying or obviously wrong, or
The accused acknowledgement that he or she understood the act was seriously wrong by itself does not indicate that the child appreciates the moral wrongness, or
Knowing the complainant did not consent or knowledge that his/her act was causing distress to the complainant.

The evidence to prove a guilty knowledge must be strong and clear beyond reasonable doubt.

If there’s no evidence to rebut the presumption by the prosecution, then what lawyers call a ‘no prima facie case’ can be submitted which may result in the charge(s) being dismissed.

The type of evidence that can help prove the necessary knowledge of serious moral wrongness include evidence of intellectual and moral development of the particular child through expert evidence; evidence of a capacity to understand an event, the ability to judge whether their actions were right or wrong and an ability to act on that moral knowledge; or evidence of the child’s performance at school, education and environment the child has been raised.

What is the meaning of a child? A child means a person who is of or over the age of 10 years and under the age of 18 years, according to section 4 of the Young Offenders Act 1997 (NSW).

Age of Criminal Responsibility at the International Stage

The Age of Criminal Responsibility also upholds the requirement in the UN Convention on the Rights of the Child (1989), Article 40(3)(a) that encourages the establishment of a ‘minimum age below which children shall be presumed not to have the capacity to infringe the penal law’.

Calls to Increase the Age of Criminal Responsibility in Australia

The NSW Bar association is renewing calls for the New South Wales Government to raise the 10-13 age of criminal responsibility.

This has sparked after Four Corners exposed the brutal conditions that children face in youth detention, particularly in the Banksia Hill Detention Centre.

One of the conditions includes unlawful solitary confinement, which has facilitated devastating self-harm and attempted suicide by young children.

“Sending ten-year-old children into the criminal justice system is exposing them to trauma. It is not stopping them from committing crimes nor is it making our community safer in the long-term,” President Gabrielle Bashir of the NSW Bar Association said.

She urged government action, criticising the faults of youth detention and the criminalisation of children.

“State governments and politicians have now dragged their feet for far too long, despite this report, ignoring reams of expert medical and legal advice that confirms criminalising children aged 10, 11, 12 and 13 does not work,” says the President

She also mentioned that youth detention leads to devastating impacts on the future of a child’s life

“Jailed children – often the most marginalised in our community – are set on a path of lifetime damage,” she said.

The true data reveals that children under 14, and particularly First Nations children, are being subject to the criminal justice system, including being bail refused in detention awaiting hearings, despite in 2019, around 99% of matters before the courts ultimately resulted in a non-custodial outcome.

Further Youth detention is extremely expensive and the daily cost of detaining one child in NSW has risen to nearly $2,000 per day whereas other proven intensive rehabilitation programs can be run for a fraction of that cost.

The average cost of detaining a young person in a Youth Justice centre is approximately $170 000 per year; proven intensive rehabilitation programs can be run for a fraction of that cost.

As highlighted by medical experts such as Dr Weatherburn, many youth justice detentions fail to address the underlying causes of juvenile offending such as socioeconomic status, drug and alcohol use, parental neglect and abuse, unemployment, and other issues.

This leads to an increase in the likelihood of children to reoffend and commit crimes as adults which places a larger burden on both the prison system and the Australian economy.

Review of Doli Incapax in NSW (2025)

In May 2025, a formal review of the Doli Incapax presumption was announced by NSW Attorney General Michael Daley. The review was led by former Supreme Court Justice Geoffrey Bellew SC and former Deputy Commissioner of NSW Police Jeffrey Joy APM.

The review examined how Doli Incapax operates in practice following the High Court’s decision in RP v The Queen, particularly given the sharp decline in proven outcomes for children aged 10 to 13.

Meaning of Doli Incapax in the Review

The review reaffirmed the principle that Doli Incapax is a rebuttable presumption that children aged 10 to under 14 cannot be prosecuted unless the prosecution can prove the child understood their actions were seriously wrong in a moral sense.

How the Presumption Is Rebutted

The review reaffirmed that the test cannot be satisfied by showing:

The child knew the behaviour was naughty or mischievous
The child simply did the act, even if the act appears obviously wrong
The child said they knew it was wrong
The child knew the complainant did not consent or felt distressed

The evidence must be strong, clear, and capable of proving guilt knowledge beyond reasonable doubt.

The prosecution may rely on evidence such as:

The child’s intellectual and moral development (often via expert reports)
Their ability to judge right from wrong and act on that judgment
Their education, school performance, and upbringing environment

Minimum Age of Criminal Responsibility

The review confirmed the existing minimum age remains 10 years, consistent with NSW and Commonwealth law.

Why the Review Occurred | BOCSAR Statistics

The NSW Bureau of Crime Statistics and Research found:

Charges against 10–13 year olds remained steady
Proven matters dropped from 76 percent (2015–16) to 16 percent (2022–23)

This drop coincided with the High Court’s strengthened interpretation in RP v The Queen.

The Attorney General cited the drop in proven matters when announcing the review, though stakeholder groups like the NSW Bar Association criticised the focus on conviction rates.

Review Recommendations of the Doli Incapax Presumption Concerning Children

The review made seven key recommendations:

Additional Police TrainingThe review recommended that there should be additional training and operational guidance for Police. This includes training on the type of evidence that is required to successfully rebut the presumption, the importance of considering the evidence and the presumption when deciding if charges should be laid and when the brief of evidence is being prepared.

Enshrining the Principles from RP into LegislationThe review recommended the NSW Government pass legislation that confirms, as set out in RP, that the Prosecution must prove, beyond a reasonable doubt, that the child knew at the time of the relevant act that their conduct was seriously wrong in a moral sense. This would strengthen protections for children.The review recommended that legislation be passed to provide a non-exhaustive list of considerations to guide decisions on whether the prosecution have successfully rebutted the presumption. It was also recommended that the legislation expressly include that the circumstances of the offence with which the child is charged be a relevant consideration.
Review the operation of the new legislation within 3 – 5 years of its commencement.This was recommended so further changes could be made if need be, after a review of how the legislation was operating in practice.
Improve Avenues to DiversionThe review recommended changes to theYouth Offenders Act 1997 (NSW), so that children become eligible for diversion options if they do “not deny” the offence rather than “admit” the offence. This would mean that more children would be eligible for diversion. It was also recommended that the list of offences for which 10 – 13 year olds can access diversion be expanded, and that non denial evidence from participation in diversion programs not be admissible to rebut the presumption of doli incapax in later proceedings.
Section 14Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) received as a child not limit the availability of these orders once a child turns 14.Section 14 orders give a court discretion to dismiss criminal charges if certain conditions are met and the court considers that it is more appropriate to deal with the defendant under this provision rather than in accordance with the law.The review recommended that legislation be passed to ensure that orders made under section 14 before a child turns 14 years of age do not limit the availability of section 14 orders once the person is over 14 years of age.
Introduce an alternative legislative pathway for 10 – 13 year olds who are in contact or who are at risk of contact with the criminal justice system.

The review recommended that alternative pathways, independent to the criminal justice system, be introduced. This would include the opportunity for referrals, assessments, and support plans for children who have complex needs. The review recommended a case management system to facilitate the implementation of support plans. It was also recommended there be restrictions on the admissibility of statements made by the child while engaging in this alternative pathway in later criminal proceedings.
Mandatory court orders for at risk 10 – 13 years olds to engage in therapeutic treatmentThe review recommended a scheme which includes a high threshold for making of these orders, for example, where there is significant risk of harm to the child or another person. The scheme should have a requirement for multidisciplinary advice to be provided about whether an order is needed in a particular case, and a restriction of the admissibility of statements made by the child while participating in treatment pursuant to an order in subsequent criminal proceedings.

NSW Government’s Response to the Review Recommendations of Doli Incapax

The recommendations of the review are the result of consultation with key legal stakeholders, including the NSW Bar Association, the Law Society of NSW, Legal Aid NSW, NSW Police Force, the Aboriginal Legal Service NSW ACT, the Office of the Director of Public Prosecutions, and many more.

In response to the review, the NSW Government announced that it would be strengthening protections for children, by enshrining the common law principle of doli incapax into legislation.

However, a close read of the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 (NSW) and a ministerial media release reveals that the legislation passed by the NSW Government in fact weakens protections for children, and makes it easier for the Prosecution to rebut the presumption of doli incapax.

The bill, which has since been passed by both houses, mandates that the presumption can be successfully rebutted if the Prosecution establish that the child committed a crime, and the circumstances surrounding the crime prove beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child conduct was seriously wrong.

This weakens protection for children, in that section 5(7) of the legislation now makes it clear that the court can find that the presumption has been overcome based on the facts or circumstances of the offence alone, and in the absence of any other evidence, including in the absence of evidence the child’s development or functioning. The legislation also says the Court must consider the circumstances of the offence when deciding if they knew the conduct was seriously wrong.

Currently, under the protective common law presumption, the Prosecution ordinarily rely on evidence of the child’s intellectual or moral development to rebut the presumption, including school reports, evidence from caretakers, psychological assessment and like material. This inquiry is at the heart of the assessment of whether doli incapax has been overturned. Under the common law presumption, the prosecution is not able to rely on the circumstances of the alleged offence alone to rebut the presumption.

While the review recommended legislative guidance on how the Prosecution can rebut the presumption, it did not recommend that the legislation allow the court to find the presumption has been rebutted without consideration of the child intellectual and moral development. The new legislation is significantly at odds with the High Court of Australia decision of RP, which states that the presumption cannot be rebutted without evidence about the child’s moral development and the environment in which the child’s was raised.

Ultimately the bill will result in more children being held criminally liable, in some cases without regard to the deprived background in which they have been raised, and the subsequent underdevelopment of their moral and intellectual understanding. The law has been introduced at a time where there has been a nation push backed by experts to raise the age of criminal responsibility.

By Jimmy Singh, Hana Seraphim and Alyssa Maschmedt.

Published on 07/12/2022