Recent reform to doli incapax in NSW: Excluding expertise?
Description
On 1 March 2026 in New South Wales, reforms passed at the end of 2025 came into force. Common law tests are now replaced with statutory tests for the doli incapax presumption, rebuttal of which allows prosecutions of children between the ages of 10 and 14 in NSW.
There is also new explicit presumption rebuttal guidance provided in the relevant statute for use by prosecutors.
The new s 5(7) states that rebuttal of the presumption "may be made without or despite other evidence of the child's intellectual and moral development if the court is satisfied that evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence is sufficient to satisfy" that a child is doli capax and should be prosecuted.
Our speakers ask whether this provision could impact the nature and frequency of using relevant expert evidence in such cases.
Lineup
• Prof Mark Nolan BSc(Hons), LLB, MAsPacSt, PhD (ANU), SFHEA. Centre for Law and Justice, Charles Sturt University
• A Prof Susan Baidawi PhD Social Work, BSW (Hons), BPharm (Hons) Co-Director of the Monash Criminal Justice Research Consortium
Dr Bianca Spaccavento BSc (Hons – Psychology), Dip Correctional Administration, DPsych (Forensic), School of Psychology, Charles Sturt University.. Principal Psychologist, Corrective Services NSW
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