Criminal law – capacity

High Court casenotes

In BDO v The Queen [2023] HCA 16 (17 May 2023), the High Court considered the requirements for rebutting the presumption of incapacity – for a person between 10 and 14 years – under s29 of the Criminal Code (Qld) (the code).

Section 29(1) of the code provides that a person under 10 is not criminally responsible for any act or omission. Similarly, section 29(2) of the code provides that a person under 14 cannot be held criminally responsible, “unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission”.

The appellant was charged with 15 counts of rape and one count of indecent treatment of a child. The offences were alleged to have occurred over a nine-year period.

In this period the appellant was aged between nine and 19 years. The complainant was the appellant’s sister who was five years younger than him. All but one of the particularised offences were said to have taken place on a unknown date during the nine-year period.

The counts were not listed in chronological order; and evidence was not led at trial in chronological order either. The trial judge directed the jury to determine whether the prosecution proved, in respect of each charge, that the appellant was at least 14. Further, if less than 14, whether the prosecution proved the appellant had the capacity to know he ought not do what was alleged.

Later, in answer to questions from the jury, the judge directed the jury that the prosecution need not prove the appellant knew it was a criminal offence – only that he had the capacity to know the act was seriously wrong, according to the ordinary principles of ‘reasonable’ adult people.


The appellant was convicted of 11 counts of rape and unsuccessfully appealed to the Court of Appeal. The Court of Appeal considered the judge’s directions to the jury to be sufficient.

On appeal to the High Court, the appellant contended, among other things, that the Court of Appeal had misapplied the principles in RP v The Queen (2016) 259 CLR 641, which states the common law position on the criminal responsibility of minors.

The High Court (Keifel CJ, Gordon, Steward, Gleeson and Jagot JJ) unanimously allowed the appeal. In a joint judgment their Honours observed, at [13], that the common law requires a child is shown to have “knowledge of the moral wrongness of an act or omission, before the presumption can be rebutted”.

At [15] and [22], their Honours noted the language used in s29(2) of the code is that of ‘capacity’ – not ‘knowledge’. They also observed there is clear difference between a person’s capacity to know and their knowledge. Although, as they went on to note, the difference may be small when applied to the facts of a particular case.

Their Honours, at [24], concluded that the trial judge and the Court of Appeal had not erred in their approach to the requirements of s29(2). But, at [52], they held that – to rebut the presumption – the prosecution had to point to evidence from which an inference could be drawn, beyond reasonable doubt, that the appellant had the capacity to know each act was seriously wrong at the time. Further, critically, “That could not be done globally”.

Their Honours allowed the appeal and, at [55], held that, given the paucity of evidence in respect of the appellant’s capacity on each of the counts, a retrial would be inappropriate. They instead ordered the four counts be set aside; and that a judgment and verdict of acquittal on those counts be entered.


Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email The full version of these judgments can be found at

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