DOLI INCAPAX REFORM IN NSW
A criminal conviction for a child can result in severe consequences. Criminal Lawyers Group have been nationally recognised as the top criminal law firm in NSW for securing the best outcomes for children who have been charged with criminal offences.
This article explains the principle of Doli Incapax and the recent reforms in NSW.
If your child has been accused or charged with a criminal offence, contact our award-winning team of specialised criminal lawyers at Criminal Lawyers Group immediately for a free consultation.
WHAT IS DOLI INCAPAX?
Doli Incapax is the legal principle that a child aged between 10 and 13, inclusive, is presumed to not possess the necessary knowledge to have criminal intention and by extension, is not guilty of a criminal offence. The presumption can be rebutted by the prosecution, although the onus is on the prosecution to prove beyond reasonable doubt that the child knew that what they did was seriously wrong.
WHAT WERE THE REFORMS?
The principle of Doli Incapax operated as a common law principle. On 1 March 2026, the legal principle of Doli Incapax was codified in legislation, via amendments to the Children (Criminal Proceedings) Act 1987 (NSW).
The purpose of the reform was to provide statutory certainty to the principle and to provide the courts greater clarity around the circumstances which can be considered when rebutting doli incapax.
WHAT IS THE STATUTE LAW ON DOLI INCAPAX?
Section 5(2) of the Children (Criminal Proceedings) Act 1987 (NSW) states that 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.
Section 5(3) of the Act states that the presumption in subsection (2) is rebutted only if the prosecution proves beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child’s conduct was seriously wrong.
The legislation proceeds to state that whether a child knew that the child’s conduct was seriously wrong:
- is a question of fact, and
- must not be inferred merely from the fact that the child engaged in the act or acts which constituted the alleged offence, and
- refers to the child’s knowledge that it was seriously wrong in a moral sense to engage in the act or acts which constituted the alleged offence.
WHAT MATTERS DOES THE COURT CONSIDER FOR REBUTTAL OF PRESUMPTION?
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. For example, the child taking steps to plan the conduct, including equipping themself for the conduct or to avoid detection.
- The child’s intellectual and moral development and education.
- The environment in which the child was raised.
The above list does not limit other matters to which a court may have regard.
CAN MY CHILD GET BAIL FOR A CRIMINAL CHARGE?
Yes, your child may be granted bail on a criminal charge. Our expert bail lawyers at Criminal Lawyers Group were awarded the best law firm in NSW for securing bail for our clients who have been charged with criminal offences, including children charged with serious criminal offences.
PRINCIPAL LAWYER MR STEVEN MERCAEL SUCCESSFULLY ESTABLISHES DOLI INCAPAX
Mr Steven Mercael, Principal and award-winning criminal lawyer at Criminal Lawyers Group, secured another Not Guilty verdict for a child who had been charged with a criminal offence, after successfully establishing Doli Incapax.
This result is among the latest of a continuous record of Not Guilty verdicts achieved by Criminal Lawyers Group, who were recently awarded the titles of Best Criminal Lawyers in Sydney and NSW.
CONTACT CRIMINAL LAWYERS GROUP NOW
If your child has been charged with a criminal offence, contact our expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may secure the best outcome for you.
Our award-winning team of criminal law experts are nationally recognised for securing not guilty verdicts, bail and the withdrawal of charges for children across NSW who have been charged with serious criminal offences.