Doli incapax is a Latin term meaning incapable of evil. 

Doli incapax is a legal presumption that protects young children from being held criminally responsible because they may not understand that their actions were wrong. The legal principle presumes that children aged under 14 may not sufficiently understand the difference between right and wrong to be held criminally responsible. It is a common law presumption in New South Wales, but the presumption can be rebutted if the prosecution proves beyond reasonable doubt that a child understood their actions were seriously wrong.

New South Wales

The minimum age of criminal responsibility in New South Wales is 10 years. Children under 10 years old are conclusively presumed to have the inability to form criminal intent and cannot be charged. 

Where a child is aged over 10 years but under 14, there is a rebuttable presumption of doli incapax. The prosecution must prove beyond reasonable doubt that the child understood that their conduct was seriously wrong. This presumption can be rebutted by the prosecution calling evidence to prove beyond reasonable doubt that the child, at the time of doing the act, knew that it was seriously wrong as a matter of morality, or according to the ordinary principles of reasonable persons and was not merely naughty or mischievous.

Children under the age of 14 may have a limited understanding of criminal behaviour. However, for serious offences, the prosecution can rebut this presumption with evidence. 

In 2026, New South Wales codified the doli incapax test into legislation under section 5 of the Children (Criminal Proceedings) Act 1987 (NSW). This provides the Courts with guidance when deciding whether a child can be held criminally responsible. The Children (Criminal Proceedings) Act 1987 (NSW) provides that no child under the age of 10 years can be guilty of an offence. This presumption is irrebuttable.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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