Latin for incapable of evil, doli incapax is a legal presumption that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible.
The common law principle can be rebutted if the prosecution proves beyond a reasonable doubt that the child knew their actions were seriously wrong as opposed to merely naughty.
Led by former Supreme Court judge Geoffrey Bellew and retired NSW police deputy commissioner Jeffrey Loy, the review acknowledged the test for rebutting doli incapax imposed a "high threshold".
But the high bar was justified as it provided a safeguard for inappropriate findings, was consistent with the mens rea principle of a guilty mind, recognised the vulnerability of 10 to 13-year-olds and the impact of a criminal conviction.
Some review participants pushed for a "capacity to know" test to alleviate the burden on the prosecution to prove what a child was actually thinking at the time of the act.
But the criminal law experts argued it did not warrant a departure from common law or introducing legislation that imposed a different standard for 10 to 13-year-olds.
"On the contrary, such a change would risk creating an inconsistency within the broader framework of criminal law," the 90-plus page review read.
The review was triggered after a NSW crime statistics agency study indicated a 2016 High Court decision in the case RP v R had made it more difficult to convict younger children.
Data showed the proportion of youths aged 10 to 13 with a proven outcome in the NSW Children's Court fell from 76 per cent to 16 per cent in the seven years to 2023.
The volume of children in that cohort charged by police remained mostly stable over the same period, and the downward trend was mirrored in Victoria and South Australia.
A 12-year-old child, known under the pseudonym WD, was accused of the 2023 stabbing murder of a 37-year-old woman in the suburb of Footscray in Melbourne's west.
Prosecutors withdrew the charge in 2024, citing a lack of reasonable prospects of conviction under doli incapax.
The review found there appeared to be a "degree of misunderstanding" among criminal justice system members on applying aspects of the current test and the 2016 High Court decision.
It made seven recommendations, including legislating the common law test for rebutting doli incapax, additional police training and guidance on the principle and expanding access to diversion pathways for 10 to 13-year-olds.
NSW Attorney-General Michael Daley said states that have codified doli incapax, such as Queensland and Western Australia, did not show a similar decline in conviction outcomes.
The NSW government will examine the report before detailing a pathway to reform "in due course".
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