On 1 March 2026 NSW 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 provisions are found in the “Age of Criminal Responsibility” provisions in s 5 of the Children (Criminal Proceedings) Act 1987(NSW). Even though the common law tests have not changed that much, there are some new provisions that seem to impact the use of expert evidence. For example, the potential operation of the new s 5(7) which 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.
We ask if this provision could impact the nature and frequency of using relevant expert evidence in such cases against the background of High Court authority in existence pre-reform,  (eg. RP v The Queen [2016] HCA 53; see also Freckelton (2017) https://doi.org/10.1080/13218719.2017.1379892; and a recent national study of expert evidence presented in doli incapax cases (Baidawi et al., 2026, https://doi.org/10.1080/13218719.2025.2599132).
This event will take place online. Information about how to register will be provided shortly.
Speakers
All views expressed are the individual academic views of the presenters and not meant to represent the views of the organisations the speakers also work for.
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Prof Mark Nolan BSc(Hons), LLB, MAsPacSt, PhD (ANU), SFHEA
(Centre for Law and Justice, Charles Sturt University)
https://bjbs.csu.edu.au/centres/law-and-justice/staff/profiles/academic-staff/mark-nolan
Prof Nolan is trained in both law and psychology and is an interdisciplinary academic at CSU Port Macquarie teaching and researching law and criminology to undergraduates and supervising postgraduate research students. Mark is involved in an ongoing research project comparing the NSW reforms to reform of the criminal responsibility of children in other Australian jurisdictions, as well as being a co-author on the forthcoming 2nd Edition of Legal Psychology in Australia(Thomson Reuters, 2027).
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Dr Bianca Spaccavento BSc (Hons – Psychology), Dip Correctional Administration, DPsych (Forensic)
(School of Psychology, Charles Sturt University)
https://bjbs.csu.edu.au/schools/psychology/staff/profiles/professors-and-lecturers/bianca-spaccavento
Dr Spaccavento is a registered forensic psychologist and Senior Lecturer at CSU, Port Macquarie, teaching and researching psychology to undergraduates and post-graduates and supervising post-graduate research students. Bianca is involved in an ongoing research project comparing the NSW reforms to reform of the criminal responsibility of children in other Australian jurisdictions, as well as being a co-author on the forthcoming 2nd Edition of Legal Psychology in Australia(Thomson Reuters, 2027).
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A Prof Susan Baidawi PhD Social Work, BSW (Hons), BPharm (Hons)
(Co-Director of the Monash Criminal Justice Research Consortium and member of the Social Work Department, Monash University)
https://www.monash.edu/medicine/spahc/socialwork/about/our-people/susan-baidawi
A/Prof Baidawi is the Director of the Higher Degrees by Research program in the Department of Social Work and Co-Director of the Monash Criminal Justice Research Consortium with much experience in research and evaluation of adult and youth criminal justice policy including child protection and the criminal responsibility of children. In 2026, Susan led a team who published an open access article in Psychiatry, Psychology and Law as an overview of expert forensic assessments used nationally in doli incapaxcases: Baidawi et al., 2026, https://doi.org/10.1080/13218719.2025.2599132)
