Prof. Mark Nolan1, Dr Bianca Spaccavento1, A/Prof Emma Colvin2, Dr Brett Shipton1, Ms Lisa Coates2, Dr Peita Richards2
1Charles Sturt University, Port Macquarie, Australia, 2Charles Sturt University, Bathurst, Australia
Biography:
Professor Mark Nolan is an interdisciplinary law and psychology academic with undergraduate training in law, a doctoral qualification in psychology, and a Master of Asia Pacific Studies degree. Mark is the current Editor-in-Chief of the ANZAPPL journal Psychiatry, Psychology and Law and is an experienced criminal law teacher and researcher at both ANU (2002-2020) and at Charles Sturt University (Centre for Law and Justice Director from 2020-2024; and is the current Chair of the CSU Australian Graduate School of Policing and Security's Research Committee). Mark has engaged extensively with the National Judicial College of Australia and professionals attending ANZAPPL conferences.
Abstract:
On 1 March 2026 NSW reforms passed at the end of 2025 came into force replacing common law tests with statutory tests for the doli incapax presumption (rebuttal of which allows prosecutions of children between the ages of 10 and 14 in NSW). New presumption rebuttal guidance for prosecutors is now also provided in the Children (Criminal Proceedings) Act 1987 (NSW), s 5. Even though the common law tests have not changed that much, some of the approaches taken in the reforms are at odds with some High Court authority (eg. RP v The Queen [2016] HCA 53) and with other jurisdictions who have raised the minimum age of criminal responsibility from 10 to 12 or older. Of particular concern is 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 clinical and forensic expert evidence in such cases noting the value argued for in a recent overview of expert evidence in these cases (Baidawi et al., 2026) of the use of expert evidence provided by psychologists and psychiatrists in doli incapax cases.