NSW has now enacted a legal framework for doli incapax, the common-law presumption that most children aged 10–13 are not criminally responsible. However, this move has raised a common question in youth justice reform: will it significantly change outcomes, or will it simply alter how cases are presented and argued? This article explores both perspectives and identifies the key doctrinal “pressure points” likely to influence litigation and practice once the amendments take effect.

I THE REFORM

The Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 (NSW) (‘Amendment Bill’)[1]proposes amendment of Children (Criminal Proceedings) Act 1987 (NSW) s 5(7)(a)–(b),[2] by codifying the principle found in RP v The Queen (2016) (‘RP’)[3] that the knowledge of “seriously wrong” in a moral sense; is not inferred merely from the act, while also inserting a “to avoid doubt” clause that allows rebuttal based on the conduct and surrounding circumstances alone and “without or despite” other evidence of the child’s intellectual and moral development — provided the court is satisfied those circumstances are sufficient.[4] A practical note upfront: the Amendment Bill provides that it commences by proclamation, and the new regime applies only to proceedings commenced after commencement.[5] That means the “real‑world” effects will depend on when proclamation occurs and how frontline agencies adjust.

II THE LEGAL BASELINE: WHAT RP ACTUALLY DID

The High Court in RP reaffirmed that, for 10–13-year-olds, the prosecution must prove beyond a reasonable doubt that this child knew the conduct was seriously wrong, not merely “naughty”, and that the inquiry is anchored in the child’s intellectual and moral development and socialisation.[6]

A Two Features of RP Became Practice‑Changing

The two features of RP are that no shortcut exists from the act itself, as we cannot assume the necessary knowledge just because the child performed the act, and that there is more individual focus, as the rebuttal emphasises the child’s development, upbringing, and environment, meaning the issue of “moral education” is not theoretical.[7] These points influenced how police, prosecutors, and defence attorneys approached cases: placing greater importance on the developmental context and engaging in more debate over whether evidence is “specific” enough to infer certain conclusions.

III WHAT THE NSW AMENDMENTS DO (AND WHAT THEY DO NOT)

A What They Clearly Do

The new statutory test, as set out in the Amendment Bill, is structured to track RP: presumption for ages 10–13;[8] rebuttable only if prosecution proves beyond a reasonable doubt the child knew conduct was seriously wrong;[9] “seriously wrong” is expressly moral;[10] knowledge must not be inferred merely from the conduct.[11] It also requires the court, if those matters are known, to have regard to a non‑exhaustive list, including: conduct and surrounding circumstances; and if the child’s intellectual and moral development, education, and environment.[12]

B The Hinge Point: “Without or Despite”

Then comes the provision likely to do most of the work in the argument, to avoid doubt, rebuttal may be found based on the conduct and surrounding circumstances, and “without or despite” other evidence of the child’s intellectual and moral development, if the court is satisfied that conduct/circumstances are sufficient.[13] This is the clause that fuels the “burden shift” debate.

IV THE CASE FOR THE REFORM: WHY PROPONENTS SAY IT WILL CHANGE OUTCOMES (FOR THE BETTER)

A. Clarity and Consistency (and Fewer Misunderstandings of RP)

The government‑commissioned Review of the Operation of Doli Incapax in NSW for Children Under 14 (‘Bellew/Loy Review’) recommended legislating the presumption and rebuttal test in terms consistent with RP, partly to improve consistency and address misunderstandings about the evidentiary focus.[14] It also supported statutory guidance about relevant factors, including the nature and circumstances of the alleged offending.[15] From that perspective, codification is not about lowering the threshold; it is about making the threshold legible to police and practitioners, so decisions are made earlier and more consistently.

B The “Evidence Problem”: Development Material is not Always Available (and Can be Costly)

In practice, detailed developmental evidence can require expert reports, school records, out‑of‑home care material, and/or family evidence, all of which can be slow, uneven, or unavailable. A reform that allows courts to proceed where development evidence is missing is framed by supporters as avoiding paralysis: serious offending should not automatically become non‑actionable because the system cannot quickly assemble the child’s background. The Amendment Bill’s own structure reflects that logic: it lists development and environment “if known”, while also emphasising circumstantial evidence such as planning or attempts to avoid detection.[16]

C Maintaining the Beyond Reasonable Doubt Safeguard While Enabling Earlier Interventions

Proponents also say the headline safeguard remains: the prosecution must still prove, beyond a reasonable doubt, knowledge of serious moral wrongness, not just mischief.[17] The statutory language preserves the High Court’s insistence on “seriously wrong” in a moral sense, and keeps the “no inference merely from the act” rule.[18] On this view, the reform doesn’t “reverse” doli incapax; it channels the inquiry towards case‑specific circumstances that may demonstrate moral awareness (planning, concealment, lies, targeted victimisation) and potentially reduces the number of matters that collapse into diversionary limbo solely because of evidentiary gaps.

D Diversion Architecture Matters Too

The Review’s package approach was not only about doli incapax. It also recommended dealing with diversion barriers and building alternative intervention pathways.[19] In a supportive reading, the amendments sit within a broader design: clearer thresholds plus better pathways for responses that are not simply “convict or nothing”.

V THE CASE AGAINST: WHY CRITICS SAY IT MAY CHANGE OUTCOMES — BUT IN THE WRONG DIRECTION

A The “Argument Style” Shift May Still Drive More Convictions

Even if the formal onus remains on the prosecution, the reform may reallocate practical burdens. Under RP, if developmental context is central, then prosecutors often need to lead evidence about the child’s moral development and upbringing, or at least evidence from which those matters can be inferred.[20] The “without or despite” clause creates a gravitational pull toward arguing that the act and surrounding circumstances are sufficient and that developmental evidence is optional or defeasible.[21]

That shift could matter because NSW already has a useful natural experiment: after RP, guilty findings for 10–13-year-olds reportedly fell sharply, with a corresponding rise in withdrawals and guilty pleas.[22] If the NSW amendments make “circumstances-only” rebuttal easier to run, critics argue the system may partially revert toward pre‑RP conviction patterns.

B Internal Tension: “Must Have Regard to Development” vs “Without or Despite Development”

The statute simultaneously says the court must have regard to development and environment if known,[23] and also says rebuttal may be found without or despite other evidence of development.[24] That creates two immediate interpretive questions: what counts as “known” to the court (and how is it made known); and how does a court reconcile a mandatory consideration with a permission to disregard it? As a result, this tension is not merely academic. It will shape whether defence practitioners feel compelled to obtain expert material to “make it known”, and whether prosecution case theory can legitimately proceed as if development is a secondary issue.

C Children With Disability/Trauma: the “Despite” Problem

The phrase “without or despite other evidence” is especially controversial in cases involving intellectual impairment, neurodevelopmental disability, or significant trauma, because those features go directly to the child’s capacity to understand moral wrongness in context. If courts accept that planning‑type circumstances can outweigh “other evidence” of developmental delay, critics say the reform risks criminalising vulnerability, not culpability — particularly given the well‑documented over‑representation of First Nations children in youth justice supervision and detention.[25]

VI SO… OUTCOMES OR ARGUMENT STYLE?

The honest answer is both, but not always in the same direction.

A Why It Could Mainly Change Argument Style

Because the prosecution must still prove beyond a reasonable doubt that the defendant was “seriously wrong in a moral sense” and cannot infer it merely from the act, the reform may end up being pleaded as a structured checklist rather than a new substantive threshold. In many cases, outcomes may remain similar — but with more standardised submissions around: “planning” indicia, concealment, evasion; prior warnings; sophistication of conduct; victim selection.

B Why It Could Change Outcomes (Materially)

Outcomes may shift because the developmental evidence is thin or unavailable and would previously have prevented rebuttal; magistrates treat “conduct and circumstances” as sufficient more often than RP‑era practice; defence resources are limited thus making it harder to obtain and present “other evidence” of development; the statutory phrasing encourages greater confidence in circumstantial inference. Given the BOCSAR evidence of a significant post‑RP change in NSW guilty findings for younger children,[26] the key empirical question for any statutory review will be whether commencement correlates with an uptick in proven outcomes (and whether that is matched by improved diversionary supports — or simply increased criminalisation).

VII WHAT TO WATCH ONCE IT COMMENCES

Early practice directions/policing charging guidance could impact whether agencies treat doli incapax as a threshold triage issue or a merits issue.[27] How courts treat “if known” facts and what minimum material triggers a duty to consider development and the environment.[28] How “despite” is reasoned, whether courts articulate why circumstantial evidence outweighs developmental evidence, especially in disability cases.[29] Aboriginal youth detention and remand trends, as NSW custody reporting already shows very high proportions of Aboriginal young people in detention in recent periods.[30] The statutory review design suggests that the Amendment Bill’s review timing differs from the Bellew/ Loy Review’s suggested 3–5 year window while the Amendment Billcontemplates an 18‑month post‑commencement review.[31]

VIII CONCLUSION

If the reform’s real effect is merely stylistic, we should see clearer pleadings but not a substantial movement in guilty findings for 10–13-year-olds. If it is substantive, we may see higher rebuttal success driven by circumstantial narratives of planning and concealment — with the most acute consequences falling on children least able to marshal developmental evidence. Either way, the amendments are likely to reopen a foundational youth justice debate: are we using criminal adjudication to “reach” children with supports, or are we letting the availability of supports depend on criminalisation?

IX FOOTNOTES

[1] Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 (NSW) sch 1[1] (‘Amendment Bill’).

[2] Children (Criminal Proceedings) Act 1987 (NSW) s 5(7)(a)–(b) (‘CCPA 1987’).

[3] RP v The Queen (2016) 259 CLR 64 (‘RP’).

[4] Ibid [8]–[9].

[5] Amending Bill cl 2; sch 1[2].

[6] RP [8]–[9] (see n3).

[7] Ibid.

[8] Amended Bill Sch 1[1], proposed s 5(2), (see n1).

[9] Ibid s 5(3).

[10] Ibid s 5(4)(c).

[11] Ibid s 5(4)(b).

[12] Ibid s 5(5)(a)–(d).

[13] Ibid s 5(5)(a)–(d).

[14] G Bellew SC & J Loy APM, Review of the operation of doli incapax in NSW for children under 14 (NSW DCJ, 29 Aug 2025) 4–5; 7–9 (‘Bellew/ Loy Review’).

[15] Ibid 5 (Recommendation 2, including express inclusion of surrounding circumstances as relevant consideration).

[16] Amended Bill s 5(5)(b) (see n1).

[17] Ibid s 5(3)–(4)(c).

[18] Ibid s 5(4)(b)–(c).

[19] Bellew/ Loy Review 5–6 (recommendations include diversion and voluntary pathways) (see n14).

[20] RP.

[21] Amended Bill s 5(7)(a)–(b) (see n1).

[22] BOCSAR, Crime and Justice Bulletin No 268: Did a High Court decision on doli incapax shift court outcomes for 10–13 year olds? (May 2025) 11–12 (noting substantial changes in guilty outcomes, withdrawals and guilty pleas over the relevant period) (‘BOCSAR No 268, May 2025’).

[23] Amended Bill s 5(5)(a)–(d) (see n1).

[24] Ibid s 5(7)(b).

[25] AIHW, Youth detention population in Australia 2025, (Report, 10 Dec 2025).

[26] BOCSAR No 268, May 2025 (see n22).

[27] Bellew/ Loy Review (see n14).

[28] Amended Bill s 5(5)(a)–(d) (see n1).

[29] Ibid s 5(7)(b).

[30] BOCSAR, NSW Custody Statistics Quarterly update September 2025 (13 Nov 2025)

[31] Cf Bellew & Loy (n 14) 5 (Recommendation 3: review within 3–5 years of commencement) with Amended Bill Sch 1[2] review clause (18 months after commencement; report within 12 months thereafter).