R v BDO

In the case of R v BDO, the appellant, who was convicted of various sexual offences against his younger sister, sought leave to appeal against both his conviction and sentence. The appeal against conviction raised issues relating to misdirection and non-direction of the jury regarding the capacity of the appellant to understand the wrongfulness of his actions under s 29 of the Code and whether there was a misdirection regarding the age of consent under s 349 of the Code. The appeal against sentence claimed errors in the sentencing process, specifically the failure to consider the appellant's belief in the complainant's consent and an error in determining the appellant's age at the time of the offences. The court examined whether these errors amounted to a miscarriage of justice or warranted a re-exercise of the sentencing discretion.

The court held that the trial Judge had adequately directed the jury on the applicable law, including the capacity to know the wrongfulness of the acts under s 29 of the Code, and there was no requirement to explain the capacity in relation to each specific count. The court found that the jury could have reasonably concluded that the appellant knew the acts were wrong, based on the evidence presented. Regarding the age of consent under s 349 of the Code, the court determined that while there was an error in the jury direction, it did not occasion a miscarriage of justice as the evidence supported the conclusion that the charges were proven beyond reasonable doubt. The court also found no latent ambiguity or duplicity in the particulars of counts 13 and 14.

As for the appeal against sentence, the court accepted that there was an error in not considering whether the appellant believed the complainant was consenting to the act, as required by s 387 of the Youth Justice Act 1992 (Qld). The court further acknowledged that there was an error in determining the appellant's age at the time of the offences, which should have been at least 17 years. The court granted leave to appeal against the sentence but ultimately dismissed the appeal against sentence, finding that the sentence imposed reflected the overall criminality of the conduct and all relevant circumstances.

1. The appeal against conviction be dismissed.
2. Leave to appeal against sentence be granted.
3. The appeal against sentence be dismissed.