The Scots College Case: How NSW Youth Justice Balances Accountability, Anonymity and Fairness
Few allegations provoke a stronger community reaction than sexual offending involving children.
Recent proceedings involving three students associated with The Scots College have attracted significant public attention. The accused, one aged 13 and two aged 14, have been charged in connection with the alleged sexual assault of a 14-year-old girl.
The allegations have not been determined by a court. The accused remain on bail and are entitled to the presumption of innocence.
When the proceedings were recently mentioned in the Children’s Court, Judge Susan Duncombe observed that there had already been “some repercussions” arising from the identification of some of the young people involved. The proceedings have been adjourned until 20 October 2026.
The seriousness of the allegations is undeniable. The complainant is entitled to dignity, protection and the opportunity to have her allegations determined according to law. The community is also entitled to expect that any person found responsible will be held properly accountable.
However, the proceedings raise a difficult question:
What does justice require when both the complainant and the accused are children?
NSW law does not answer that question by disregarding the seriousness of the allegations or excusing criminal conduct because of an accused person’s age. Instead, the youth justice system seeks to balance accountability, procedural fairness, rehabilitation, the protection of vulnerable people and the public interest in the proper administration of justice.
Children can be held accountable, but they are not treated as adults
The Children (Criminal Proceedings) Act 1987 (NSW) establishes principles governing the treatment of children in the criminal justice system.
Those principles recognise that children have legal rights and freedoms, require guidance and assistance, and should generally be supported to remain within their families and communities. The legislation also recognises the importance of education, personal development and rehabilitation.
A serious allegation does not become less serious because the accused is young. However, childhood is legally relevant because children are still developing emotionally, intellectually and socially. Their understanding, decision-making capacity and prospects of rehabilitation may differ significantly from those of adults.
Youth justice is therefore not founded on the idea that children should avoid responsibility. It reflects the principle that accountability must be imposed in a way that recognises their age and developmental capacity.
What is doli incapax?
The age of an accused child can also affect whether criminal responsibility is established.
Children under 10 cannot be held criminally responsible in NSW. For children aged between 10 and 14, the common law presumption known as doli incapax applies.
This means that the prosecution must prove, beyond reasonable doubt, that the child understood at the relevant time that the conduct was seriously wrong according to ordinary standards, rather than merely naughty or mischievous.
The High Court considered this principle in RP v The Queen [2016] HCA 53. The assessment is specific to the individual child and the circumstances existing when the alleged conduct occurred. Age alone does not determine the issue, although the strength of the presumption generally increases the younger the child is.
The doctrine does not diminish the seriousness of alleged conduct. It addresses a separate and fundamental question: whether a child had sufficient capacity to be held criminally responsible for it.
Whether doli incapax arises in the present proceedings will depend on each accused’s age at the time of the alleged conduct and the evidence ultimately relied upon. It would be inappropriate to express any view about its application while the proceedings remain before the court.
Why are the accused children’s identities protected?
Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) restricts the publication or broadcast of a person’s name in connection with criminal proceedings in specified circumstances where that person was a child.
The protection is not confined to publishing a child’s name. It can extend to photographs, descriptions and other information that identifies, or is likely to identify, the child. Online posts and comments may therefore contravene the legislation even if they do not expressly state a name.
These protections recognise that public identification can have consequences extending far beyond the courtroom. A child accused of a serious offence may experience threats, harassment, social exclusion, interruption to education and lasting reputational harm.
Those consequences can arise before a court has determined whether the allegations are proved. That distinction is essential. An allegation is not a finding of guilt, and public exposure should not become an informal punishment imposed before the judicial process has run its course.
R v AB: statutory anonymity and the administration of justice
The decision in R v AB [2018] NSWCCA 113 illustrates the operation of section 15A.
The case concerned a person who had pleaded guilty to historical sexual offences, some of which had been committed while he was a child. The NSW Court of Criminal Appeal considered the relationship between the statutory prohibition against identification under section 15A and the separate power to make suppression and non-publication orders.
The Court concluded that an additional suppression order was not necessary in the circumstances because the statutory prohibition already prevented the offender’s identification in connection with the relevant proceedings.
The decision illustrates an important distinction. Statutory anonymity does not prevent a court from determining criminal responsibility or imposing a lawful sentence. It restricts public identification; it does not remove accountability through the justice system.
How is the complainant protected?
The protection of an accused child’s identity does not mean the complainant’s interests are overlooked.
Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of material that identifies, or is likely to identify, a complainant in proceedings concerning a prescribed sexual offence, subject to limited statutory exceptions.
Accordingly, both the complainant and the accused children may be protected from identification, although the protections operate under different provisions and serve distinct purposes.
These restrictions recognise that publication may expose a young person to further distress, unwanted attention and lasting digital consequences. They also protect the integrity of the proceedings by reducing the risk that public commentary or speculation will interfere with the administration of justice.
What about open justice?
Open justice is a fundamental feature of the Australian legal system. Courts ordinarily conduct their work openly so that the community can understand and scrutinise the administration of justice.
However, open justice has never required every person involved in every proceeding to be publicly identified. Parliament has created specific exceptions where identification could cause particular harm or undermine the proper administration of justice.
The public can still be informed that charges have been laid, understand the nature of the legal issues and scrutinise how the court deals with the proceedings. What the community cannot necessarily do is identify the children involved.
That distinction preserves meaningful public scrutiny without turning identification into a form of punishment.
Is the balance right?
There is no simple answer. The youth justice system must accommodate several legitimate but sometimes competing interests:
- ensuring serious allegations are properly investigated and determined;
- protecting the complainant’s dignity, welfare and privacy;
- preserving the accused’s right to a fair hearing and the presumption of innocence;
- recognising the developmental capacity and rehabilitation prospects of children;
- protecting young people from unlawful identification;
- holding a person accountable where an offence is proved; and
- maintaining public confidence in the administration of justice.
Reasonable people may disagree about whether the law strikes the right balance in every case. However, that balance should not be assessed by reference to public anger alone.
The integrity of the justice system depends on its ability to protect the complainant, test the prosecution case fairly and determine the accused’s criminal responsibility according to law.
Conclusion
The criminal justice system has established processes for determining responsibility and imposing consequences. Its purpose is not to satisfy public outrage at any cost, but to ensure that serious allegations are dealt with fairly, lawfully and independently.
That may feel unsatisfying when emotions are high. However, the strength of a justice system is not measured by how quickly it responds to public pressure. It is measured by whether it can withstand that pressure, protect vulnerable people and still deliver a result according to law.
Where every person directly involved is a child, that responsibility becomes especially important.
Important information
The proceedings referred to in this article remain ongoing as at 7 September 2026. The allegations have not been determined by a court, and each accused is entitled to the presumption of innocence.
Care should be taken when publishing or sharing any information that may identify a child involved in criminal proceedings or the complainant in prescribed sexual offence proceedings. This includes information shared through social media posts and online comments.
This article provides general legal information only. It does not constitute legal advice and should not be relied upon as a substitute for advice concerning your individual circumstances.
