BDO v The Queen

Case [2023] HCA 16

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GORDON, STEWARD, GLEESON AND JAGOT JJ

BDO  APPELLANT

AND

THE QUEEN  RESPONDENT

BDO v The Queen

[2023] HCA 16

Date of Hearing: 20 April 2023
Date of Judgment: 17 May 2023

B52/2022

ORDER

1. Appeal allowed with respect to counts 2, 3, 4, 7 and 8.

2. With respect to those counts, set aside order 1 of the Court of Appeal of the Supreme Court of Queensland made on 15 October 2021, and in its place enter a judgment and verdict of acquittal.

3.Set aside order 3 of the Court of Appeal.

4. Remit the matter to the Court of Appeal for resentencing of the appellant.

On appeal from the Supreme Court of Queensland

Representation

S C Holt KC with Z G Brereton for the appellant (instructed by Legal Aid Queensland)

C W Heaton KC with C Cook for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

Aboriginal Legal Service of Western Australia Ltd appearing as amicus curiae, limited to written submissions

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BDO v The Queen

Criminal Law – Rape – Appeal against conviction – Capacity – Where appellant charged with 15 counts of rape and one count of indecent treatment of child under 16 – Where conceded or reasonable doubt as to whether appellant over 14 years of age for five counts – Where Criminal Code (Qld), s 29(2) states presumption of incapacity of person under 14 years rebuttable by evidence of capacity to know person ought not do the act – Where presumption of incapacity rebuttable by evidence of knowledge of moral wrongness at common law applying RP v The Queen (2016) 259 CLR 641 – Whether what is required by s 29(2) to rebut presumption of incapacity equated with what is required by common law – Whether reasonable doubt as to whether appellant over 14 years of age – Whether evidence of capacity sufficient to rebut presumption where applied to counts of which appellant convicted – Whether retrial should be ordered if evidence insufficient to rebut presumption of incapacity.

Words and phrases – "acquittal", "actual knowledge", "capacity to know", "criminal responsibility", "doli incapax", "indictment", "inference", "intellectual and moral development of child", "jury directions", "moral wrongness", "ordinary principles of reasonable people", "presumption of incapacity", "proof of capacity", "rape", "reasonable doubt", "rebut", "retrial", "serious wrongness".

Criminal Code (Qld), s 29.

  1. KIEFEL CJ, GORDON, STEWARD, GLEESON AND JAGOT JJ.   The appellant was charged with 15 counts of rape[1] and one count of indecent treatment of a child under 16[2]. After a trial before a jury in the District Court of Queensland he was convicted of 11 counts of rape. All of the offences that were the subject of the counts, save for one, were alleged to have occurred on a date unknown over a nine year period between 20 October 2001 and 16 November 2010.

    [1]

Continue reading BDO v The Queen

Sign in free to access the full text

Details
AGLC
BDO v The Queen [2023] HCA 16
Case
[2023] HCA 16
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant against his conviction for rape and indecent treatment of a child. The dispute centred on whether the appellant possessed the requisite criminal capacity at the time of the alleged offences, particularly concerning five counts where there was a reasonable doubt as to whether he was over 14 years of age. The relevant legislation, section 29(2) of the *Criminal Code* (Qld), establishes a presumption of incapacity for persons under 14, which can be rebutted by evidence of capacity to know they ought not to do the act. This statutory test was to be considered in light of the common law requirement, as established in *RP v The Queen*, of knowledge of the moral wrongness of the act.

The legal issues before the Court were whether the capacity required by section 29(2) of the *Criminal Code* equated to the common law standard of knowing the act was morally wrong, whether there was a reasonable doubt as to the appellant's age for certain counts, and if the evidence of capacity was sufficient to rebut the presumption of incapacity for the counts of which he was convicted. The Court also had to determine whether a retrial should be ordered if the evidence was found insufficient to rebut the presumption of incapacity.

The Court reasoned that for the presumption of incapacity under section 29(2) to be rebutted, the prosecution must prove beyond reasonable doubt that the appellant had the capacity to know that he ought not to do the act. This required an assessment of the appellant's intellectual and moral development at the time of each alleged offence. The Court found that for counts 2, 3, 4, 7, and 8, there was insufficient evidence tendered by the prosecution to rebut the presumption of incapacity beyond reasonable doubt. This was particularly relevant given the evidence suggesting a reasonable doubt as to the appellant's age for counts 2 and 3, and the lack of specific evidence demonstrating his capacity to understand the moral wrongness of his actions towards his sister. The Court also noted that the trial judge had given directions on an incorrect legal premise regarding consent for a portion of the charge period, but this was rendered unnecessary by the decision on the first ground of appeal.

The appeal was allowed with respect to counts 2, 3, 4, 7, and 8. The Court set aside the convictions for these counts and entered a judgment and verdict of acquittal. The matter was remitted to the Court of Appeal for resentencing of the appellant.

Orders

Orders of the court

1. Appeal allowed with respect to counts 2, 3, 4, 7 and 8.

2. With respect to those counts, set aside order 1 of the Court of Appeal of the Supreme Court of Queensland made on 15 October 2021, and in its place enter a judgment and verdict of acquittal.

3. Set aside order 3 of the Court of Appeal.

4. Remit the matter to the Court of Appeal for resentencing of the appellant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence as to when this conduct occurred was not entirely clear. The complainant at one point thought it was in the "later primary school" period, at which time the appellant would have been between 14 and 17 years of age. When shown a photograph of the appellant in the loft bedroom, which was said to have been taken on 30 December 2004 when the appellant would have been 13 years of age, the complainant said she did not know whether the conduct occurred before or after the photograph was taken. However, the complainant did say that the appellant commenced sleeping in that room at that time. The mother was unsure when the appellant moved into the loft bedroom. But when she was shown the photograph she said it was probably taken when he first moved in, although it was hard to tell. The father, however, said that the appellant would have been sleeping there around 2004. It should therefore be concluded that there is a reasonable doubt as to the appellant's age at the time of the conduct referred to in counts 2 and 3.Evidence regarding the appellant's capacity to know Some evidence concerning the appellant's upbringing, sexual education, intellectual ability and a learning difficulty was given by his parents. It would appear that the appellant was disciplined for any unacceptable behaviour, both verbally and physically, and by taking away his privileges. His mother described him as quiet at school. She thought that an IQ test conducted showed that the appellant was "okay", but his father considered his performance at primary school was below average to average. He had difficulty reading and was later diagnosed as having dyslexia. The appellant's mother said that the appellant received sexual education at, and from the time of, primary school. All the children were told, from the time that they were very little, that they were not to allow anyone to touch them or any private part of their body. The appellant would have been a toddler when his mother first spoke to him about this, and she would have had the conversation more than once. If this did occur, she told him to tell an adult – his parents, a teacher or a police officer. The evidence by the parents as to the appellant's development does not provide much insight as to his capacity to understand whether his actions towards his sister were morally wrong. Nothing of substance may be inferred from the fact that he received some sexual education; there was no evidence as to the content of it. It may be inferred from his mother's directions that he understood, or was able to understand, that it was wrong for strangers to touch him in his genital area. It does not follow that he was able to translate this to his actions towards his sister. In addition to the complainant's evidence concerning the conduct in question and the circumstances surrounding it, there was evidence of a pretext call made by the complainant to the appellant after she had been to the police. There is no need to detail what was said between them. The complainant repeatedly asked the appellant why he had done what he had done to her when she was a child, which at one point she described as sexual abuse. The appellant did not deny that some such conduct occurred. He repeatedly replied that they were both young and did not know what they were doing. He denied assaulting her. This evidence goes no way to proving anything about the appellant's capacity (or his lack of capacity) to understand what he was doing at the time.

Decision

Reasons for decision

KIEFEL CJ, GORDON, STEWARD, GLEESON AND JAGOT JJ
It is not necessary to review further the directions of the trial judge, except to observe that the evidence was left to the jury as a whole and not in any way that could be associated with the count in question. Given the charge period and the multiplicity of charges in this case, the jury needed to be told that for each count it was necessary for them to assess the question of capacity "at the time of doing the act". To enable the jury to undertake that task, it was necessary for the prosecution to point to evidence from which an inference could be drawn beyond reasonable doubt that the appellant had the requisite capacity at the time the specific act is said to have occurred[36]. That could not be done globally. In a multi-count indictment where lack of capacity is to be rebutted "at the time of doing the act", that task may require the jury to be instructed to assess the events in chronological order. That approach may be important because the surrounding circumstances of an earlier charge may be relevant to capacity in relation to a later charge. But, in this case, the reverse does not hold true. Given the charge period, no backward reasoning was permissible by reference to later acts and later capacity for an earlier charge or charges. In this appeal, it is not necessary to undertake the exercise of reviewing further the directions in relation to each of counts 7, 8, 4, 2 and 3, because there was insufficient evidence tendered by the prosecution to rebut the presumption of incapacity beyond reasonable doubt in respect of each of counts 7, 8, 4, 2 and 3. The primary ground of appeal is made out for those counts.[36]RP v The Queen (2016) 259 CLR 641 at 649 [9], 650-651 [12]; RYE v Western Australia (2021) 288 A Crim R 174 at 184 [55].Conclusion and orders The appellant had a further ground of appeal. It concerned the issue of the complainant's consent, relevant to the sexual acts alleged. The trial proceeded on the mistaken basis that for the entire period of the indictment the Code deemed that a child under 12 could not consent to such acts. The provision in question (Code, s 349(3)) did not come into force until midway through the charge period. The trial judge did not correct the mistake and gave directions on an incorrect premise. The further ground concerns counts 2, 3, 7 and 8. Since the appeal must be allowed on the first ground with respect to the convictions on those counts, as well as count 4, it is not necessary to consider the further ground. The appellant submits that the appropriate order to be made is an acquittal on each of those counts[37], rather than for a retrial[38]. An order for a retrial would be appropriate were the evidence tendered at trial sufficiently cogent to justify a conviction on the counts in question. This is not possible given the absence of evidence from which a jury may reasonably draw an inference that the appellant had the capacity to know that his actions were morally wrong in a serious respect. Even if it were possible to adduce further evidence to enable such an inference to be drawn, the prosecution should not be given an opportunity to supplement its case on a retrial given the manner in which the prosecution chose to prove the charges in this case[39].[37]See Criminal Code (Qld), s 668E(2).[38]Criminal Code (Qld), s 669.[39]King v The Queen (1986) 161 CLR 423 at 429, 433. See also RYE v Western Australia (2021) 288 A Crim R 174 at 187 [79].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GORDON, STEWARD, GLEESON AND JAGOT JJ

Full text does not contain this section.