Did a High Court decision on doli incapax shift court outcomes for 10-13 year olds?

By Jonathan Gu

Between 2016 and 2023, the number of young people aged 10 to 13 years found guilty of an offence fell markedly. This paper examines if this decline and other trends can be explained by the 2016 High Court of Australia decision (RP v R (‘RP’)), which clarified the application of doli incapax. We examine trends in: (1) the volume of court appearances for 10-13 year olds, (2) whether these court appearances resulted in a proven offence, (3) for proven matters, the severity of the penalty, (4) the extent to which prosecutors withdrew all charges, and (5) the extent of guilty pleas. METHOD We analyse NSW and national data on outcomes from Children’s Court cases involving 10-17 year olds, finalised between 2010 and 2023. Using these data, we investigate whether and why the five outcomes have changed over time for 10-13 year olds. Possibilities examined include: the RP decision; trends in the nature of the offence children have been accused of; the increased use of specialist Magistrates in the NSW Children’s Court; and demographics of defendants. RESULTS There is little evidence to suggest that the RP decision had any impact on the volume of court appearances involving a 10-13 year old. However, among 10-13 year olds that NSW Police proceeded against to court, there has been a dramatic decline in the proportion with a proven court outcome; the percent proven fell from 76% in the 2015-16 financial year to 16% in 2022- 23, which temporally coincides with the RP decision. Among the proven matters, the RP decision had no clear impact on the penalty imposed. The decrease in the proportion of proven charges cannot be explained by changes in the types of offences committed by 10-13 year olds (i.e., they are not increasingly committing types of crimes that are harder to prosecute), nor by specialist Magistrates, or the demographic characteristics of individuals proceeded against. The drop in proven matters is, however, linked with prosecutors increasingly withdrawing all charges (growing from 12% to 53% from 2015-16 to 2022-23) and 10-13 year olds pleading guilty less frequently (falling from 54% to 14% from 2015-16 to 2022-23). Similar shifts occurred in Victoria and South Australia. CONCLUSION By stipulating what is required to rebut doli incapax, the 2016 High Court of Australia’s decision RP v R likely reduced the number of young people aged 10-13 found guilty of a criminal offence. 

(Crime and Justice Bulletin No. 268). 

Sydney: NSW Bureau of Crime Statistics and Research 2025. 38p.