Review of doli incapax for young offenders under 14

Thursday 8 May 2025

Attorney General Michael Daley has appointed State Parole Authority Chair and former Supreme Court Justice, the Honourable Geoffrey Bellew SC, and former NSW Police Deputy Commissioner, Mr Jeffrey Loy, to review the operation of doli incapax in NSW.

Doli incapax is a legal presumption that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible.

It operates as a common law presumption in NSW and can be rebutted if the prosecution proves beyond reasonable doubt that a child understood what they did was seriously wrong.

The NSW Government has been considering the operation of doli incapax for some time and launched the review this month.

It comes as the NSW Bureau of Crime Statistics and Research (BOCSAR) released a new report finding a significant decline in the number of young people aged 10 to 13 years found guilty of a criminal offence following a 2016 High Court decision.

The 2016 decision in RP v The Queen clarified a number of matters in relation to doli incapax, including that the prosecution must prove beyond reasonable doubt that the child understood their actions were ‘seriously wrong’.

Convictions fell dramatically from 2016, coinciding with the High Court decision.

The BOCSAR study found the proportion of 10–13-year-olds with a proven outcome in the NSW Children’s Court fell dramatically from 76 per cent in 2015-16 to 16 per cent in 2022-23. The prosecution withdrew charges in more than half of all cases in 2022-23.

Similar trends were observed in Victoria and South Australia following the High Court decision. Like NSW, these states rely on a common law understanding of doli incapax, instead of having it codified in legislation.  

States that have codified doli incapax in legislation, such as Queensland and Western Australia, did not show a similar decline.

BOCSAR said the result raised questions about how best to support these young people to reduce future criminal involvement. Often, the young person is simply released from custody without support, back into the care of dysfunctional families and, too often, they engage in behaviour that endangers themselves and members of the community.

The review being undertaken by the Honourable Geoffrey Bellew SC and Mr Jeffrey Loy is considering 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.

They will also consider how doli incapax interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other relevant matters including community safety and the interests of children.

Stakeholders including victims’ groups, local and regional communities, Aboriginal-led organisations and legal and government stakeholders will be consulted as part of the review.

They are due to report back to the Attorney General in the second half of 2025.

The Honourable Geoffrey Bellew SC’s legal career spans more than 40 years and he served as a Justice of the Supreme Court of NSW between 2012 and 2023.

Mr Loy spent 40 years with the NSW Police Force, including as Deputy Commissioner from 2017 until 2021, receiving the Australian Police Medal (APM) and National Emergency Medal.

He was appointed a member of the Independent Liquor and Gaming Authority in 2022.

Attorney General Michael Daley said:

“The common law presumption of doli incapax dates back hundreds of years. It operates across all Australian jurisdictions and its existence in the common law has been affirmed by the High Court.

“Recently, concerns have been raised about the operation of doli incapax. I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.

“The Honourable Geoffrey Bellew SC and Mr Jeffrey Loy are a highly respected experts in criminal law and law enforcement, particularly in the youth space. They are well-placed to examine how doli incapax is being applied in NSW and I look forward to considering their recommendations.”