Review of operation of doli incapax in NSW for children under 14

Attorney General Michael Daley, has appointed the Honourable Geoffrey Bellew SC, former Justice of the Supreme Court of New South Wales, and Mr Jeffrey Loy APM, former Deputy Commissioner of the New South Wales Police Force, to conduct a review into the operation of doli incapax in NSW. The review findings will be reported to the Attorney General in the second half of 2025.

What is this about?

Doli Incapax is a legal principle that presumes that children aged under 14 may not sufficiently understand the difference between right and wrong to be held criminally responsible. It operates as a common law presumption in NSW but can be rebutted if the prosecution proves beyond reasonable doubt that a child understood their actions were seriously wrong.

A recent report by the New South Wales Bureau of Crime Statistics and Research (BOCSAR) found there has been a decline in the proportion of young people aged 10-13 year old that NSW Police charge with a crime that are ultimately prosecuted. The percent with a proven offence fell from 76% in the 2015-16 financial year to 16% in 2022-23. This reduction coincides temporally with the 2016 High Court of Australia decision (RP v The Queen), which clarified the application of doli incapax. Victoria and South Australia saw similar trends, while Queensland and Western Australia, where doli incapax is codified, did not experience comparable declines.

Review terms of reference

The Honourable Geoffrey Bellew SC and Mr Jeffrey Loy (‘the reviewers’) are asked to review and report on the operation of, and legislative options for, the common law presumption of doli incapax in NSW.

The review should recommend a framework to enable the enactment of the presumption in New South Wales legislation and consider matters including, but not limited to:

• ­The form that the legislation should take, noting different approaches across Australian jurisdictions.
• How the presumption is currently operating, including: 
  • The nature and extent of the evidentiary burden on the prosecution
  • The evidence available to the court, including what improvements could be made to improve the available evidence.
• Any improvements in relation to the process by which the presumption is dealt with in criminal proceedings (e.g. if it should be considered earlier in proceedings or dealt with in a separate hearing).
• The interaction between doli incapax, the Young Offenders Act 1997, and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
• The impact of the operation of the presumption on available responses to address underlying causes of behaviour by children aged under 14, including appropriate options for intervention.
• Any other matters considered relevant, including those related to community safety and the interests of children.

The Reviewers

The Honourable Geoffrey Bellew SC has over 40 years of legal experience and served as a Justice of the Supreme Court of NSW from 2012 to 2023.

Mr Jeffrey Loy APM had a distinguished 40-year career with the NSW Police Force, including serving as Deputy Commissioner from 2017 to 2021. He has received the Australian Police Medal and National Emergency Medal and was appointed to the Independent Liquor and Gaming Authority in 2022.