BDO v The QueenCitation:[2023] HCA 16Before:Kiefel CJ, Gordon, Steward, Gleeson, Jagot JJDate:17 May 2023Case Number:B52/2022Read more

BDO v The QueenCitation:[2023] HCA 16Before:Kiefel CJ, Gordon, Steward, Gleeson, Jagot JJDate:17 May 2023Case Number:B52/2022Read more

The court held that the presumption of incapacity under s 29(2) Criminal Code (Qld) requires proof that the child knew the act was seriously wrong according to ordinary principles of reasonable people, not merely naughty. The evidence did not sufficiently rebut the presumption for the counts where the appellant's age was in doubt, and thus convictions on those counts could not stand.

Parties
Appellant: Unknown (Appellant); Respondent: Unknown (Respondent)
Jurisdiction
Australia
Judgment Date
17 May 2023
Procedural Posture
Criminal Appeal / Judgment
Outcome
appeal allowed in part
Legal Topics
Rape, Doli Incapax, Capacity, Presumption of Incapacity, Rebuttal of Presumption, Reasonable Doubt
Criminal Law Rape Doli Incapax Capacity Presumption of Incapacity Rebuttal of Presumption Reasonable Doubt

Case Brief

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Parties

Unknown (Appellant)

Appellant

Unknown (Respondent)

Respondent

Procedural Posture

Criminal Appeal / Judgment

Legal Issues

  1. 1 Whether the presumption of incapacity under s 29(2) Criminal Code (Qld) was rebutted for counts where appellant may have been under 14 years old
  2. 2 Whether the standard for rebutting presumption under statute equates with common law standard in RP v The Queen
  3. 3 Whether there was reasonable doubt as to appellant's age for certain counts

Ratio Decidendi

The court held that the presumption of incapacity under s 29(2) Criminal Code (Qld) requires proof that the child knew the act was seriously wrong according to ordinary principles of reasonable people, not merely naughty. The evidence did not sufficiently rebut the presumption for the counts where the appellant's age was in doubt, and thus convictions on those counts could not stand.

Court Disposition

appeal allowed in part

Orders

  • Convictions on counts where appellant's age was in doubt quashed
  • Retrial ordered for those counts if prosecution elects