Examining the operation of doli incapax and implications for reform in New South Wales (NSW), Australia

Abstract

Children aged between 10 and 13 occupy a distinctive position within the criminal justice system in NSW. Under the doctrine of doli incapax, they are presumed incapable of criminal responsibility unless the prosecution can prove otherwise. Despite the centrality of this doctrine, relatively little empirical research has examined how it operates in practice, how legal actors interpret its requirements, or how it interacts with broader justice system processes. At the same time, debates about youth crime, community safety, and the appropriate age of criminal responsibility have intensified, often without sufficient attention to the day-to-day operation of existing legal safeguards or the lived experiences of children subject to them. This thesis addresses that gap through a mixed-methods examination of doli incapax across legal doctrine, courtroom practice, and children’s trajectories across justice and related systems. By integrating qualitative interviews with magistrates and legal practitioners (n=27), courtroom observations (n=20), an online survey of Local Court magistrates (n=36), and linked administrative data (n=15,895 children with police contact between 10–13), the study provides a comprehensive account of how doli incapax functions not only as a legal principle, but as a mechanism embedded within institutional processes and children’s life courses. The findings demonstrate that the presumption operates primarily as a procedural safeguard that limits conviction but does not prevent children’s exposure to extended justice processes. They further show that early justice system contact is concentrated among children experiencing cumulative and intersecting disadvantage, challenging individualised accounts of offending. In so doing, the thesis contributes new empirical insight into the operation of doli incapax and reframes debates about criminal responsibility by situating the presumption within broader questions of youth justice governance and system design.