What Does Doli Incapax Mean?
The term doli incapax is a Latin phrase meaning “incapable of crime.” In New South Wales, it is a long-standing legal principle that applies to children between the ages of 10 and 13 who are accused of criminal offences.
The law recognises that children may not always possess the maturity or understanding necessary to fully comprehend that their actions were seriously wrong in a criminal sense. As a result, there are special protections in place before a child in this age group can be found guilty of a criminal offence.
The Age of Criminal Responsibility in NSW
Under Australian law, children under the age of 10 cannot be held criminally responsible for offences. This is known as the minimum age of criminal responsibility.¹
For children aged between 10 and 13, however, the prosecution must overcome the presumption of doli incapax.² This means the child is presumed incapable of committing a crime unless the prosecution can prove otherwise beyond reasonable doubt.
Once a child reaches the age of 14, the presumption no longer applies and they are generally treated as criminally responsible in the same way as adults, although dealt with under the youth justice system.
What Must the Prosecution Prove?
To rebut the presumption of doli incapax, the prosecution must prove that the child understood that what they did was not merely naughty or mischievous, but seriously wrong according to the standards of ordinary adults.³
This is a significant legal threshold.
The court will consider a range of factors, including:
- the child’s age and level of maturity
- the child’s upbringing and education
- the nature of the alleged offence
- statements made by the child before or after the incident
- whether the child attempted to hide their conduct
- prior exposure to the criminal justice system
- expert psychological or psychiatric evidence where relevant
The closer a child is to the age of 10, the more difficult it may be for the prosecution to establish the necessary understanding.⁴
Why Does the Law Exist?
The principle exists because children develop at different rates emotionally, psychologically, and intellectually. The law recognises that younger children may act impulsively or without a full understanding of morality and criminal wrongdoing.
The High Court of Australia has described the presumption as an important safeguard in protecting children from the criminal justice system unless genuine criminal intent can be established.⁵
This protection reflects broader principles within youth justice that emphasise rehabilitation, welfare, and the developmental needs of children.
How Courts Assess Doli Incapax
Courts cannot simply assume that a child knew their conduct was seriously wrong because the alleged behaviour appears obvious to an adult. Evidence must specifically address the child’s state of mind and understanding at the time of the alleged offence.⁶
For example:
- running away after an incident may not automatically prove criminal understanding;
- copying peers or acting impulsively may indicate immaturity rather than criminal intent;
- some children may understand rules but not appreciate criminal consequences.
Each case is highly fact-specific.
Criticism and Ongoing Debate
The doctrine of doli incapax has been the subject of ongoing debate in Australia. Some legal groups and human rights organisations argue that the minimum age of criminal responsibility should be increased from 10 to at least 14 years old.⁷
Supporters of reform point to medical and psychological research regarding child brain development and the long-term impact of early criminalisation.
Others argue that the current system, including doli incapax, appropriately balances accountability with protections for children.
Importance of Early Legal Advice
When a child is charged with a criminal offence, early legal advice is extremely important. Cases involving doli incapax often require careful preparation, including consideration of:
- police interviews and admissions,
- school or family evidence,
- psychological assessments,
- expert reports, and
- the child’s developmental history.
Because these matters can significantly affect a young person’s future, obtaining legal representation as early as possible is essential.
Disclaimer
This article is intended for general informational purposes only and does not constitute legal advice. Laws may change and legal outcomes depend on the specific circumstances of each case. You should obtain independent legal advice tailored to your situation before acting on any information contained in this article.
- Children (Criminal Proceedings) Act 1987 (NSW), s 5.
- NSW Judicial Commission, Local Court Bench Book – Mental Health and Cognitive Impairment Forensic Provisions and Criminal Responsibility.
- RP v The Queen (2016) 259 CLR 641.
- NSW Department of Communities and Justice, Youth Justice resources.
- RP v The Queen (2016) 259 CLR 641 at [9]–[10].
- M v The Queen (2019) NSWCCA 280.
Australian Human Rights Commission, Raise the Age campaign materials and submissions.
