BDO v The Queen [2023] HCA 16

BDO v The Queen [2023] HCA 16

In Queensland, s 29(2) of the Criminal Code requires that the prosecution prove, beyond reasonable doubt, the child's capacity to know that the act was seriously morally wrong according to the standard of reasonable people at the material time; however, in this case, there was insufficient evidence to rebut the presumption of incapacity regarding counts 2, 3, 4, 7, and 8, thus the acquittal on those counts is required.

Parties
Appellant: BDO; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
17 May 2023
Procedural Posture
Criminal Appeal / Appeal to High Court From the Supreme Court of Queensland (court of Appeal)
Outcome
appeal allowed in part
Legal Topics
Rape, Doli Incapax, Presumption of Incapacity, Capacity to Know Moral Wrongness, Criminal Code (qld), S 29, Child Defendants
Criminal Law Rape Doli Incapax Presumption of Incapacity Capacity to Know Moral Wrongness Criminal Code (qld), S 29 Child Defendants

Case Brief

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Parties

BDO

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Appeal to High Court From the Supreme Court of Queensland (court of Appeal)

Legal Issues

  1. 1 Whether the presumption of incapacity under s 29(2) of the Criminal Code (Qld) was rebutted for offences allegedly committed by a child aged over 10 but under 14
  2. 2 Whether s 29(2) requires proof of actual knowledge of moral wrongness or capacity to know
  3. 3 Whether the evidence in this case was sufficient to rebut the presumption of incapacity beyond reasonable doubt for specific counts

Ratio Decidendi

In Queensland, s 29(2) of the Criminal Code requires that the prosecution prove, beyond reasonable doubt, the child's capacity to know that the act was seriously morally wrong according to the standard of reasonable people at the material time; however, in this case, there was insufficient evidence to rebut the presumption of incapacity regarding counts 2, 3, 4, 7, and 8, thus the acquittal on those counts is required.

Court Disposition

appeal allowed in part

Orders

  • Appeal allowed with respect to counts 2, 3, 4, 7 and 8.
  • Set aside order 1 of the Court of Appeal of the Supreme Court of Queensland made on 15 October 2021 with respect to those counts, and in its place enter a judgment and verdict of acquittal.