BDO v The Queen

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.