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.