BDO v The Queen [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.