Criminal liability and capacity — 11 sexual assault offences, five of which were alleged to have been committed when the appellant was under 14 years of age — s 29(2) Criminal Code (Qld) provides that a person under 14 is not criminally responsible for an act, unless it is proved the person had capacity to know that they ought not act (no NSW equivalent) — presumption of incapacity under s 29(2) not equivalent to moral wrongness required by common law (RP v The Queen (2016) 259 CLR 641) but is informed by it — difference between what is meant by a person's capacity to know and their knowledge — distinction between ability to understand moral wrongness with what in fact they know or understand — appeal allowed, convictions quashed for the relevant five counts and remitted for resentencing.

Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) — doli incapax — where respondent aged between 10 and 14 at time of alleged offending — knowledge and development for doli incapax purposes — whether evidence if admitted would substantially weaken the Crown case — appeal allowed.

Young offender — aged 10 years and 5 months at time of first offence — 72 offences — range of seriousness — prosecution failed to rebut the presumption of doli incapax beyond reasonable doubt.

Trial by judge alone — accused 13 at time of alleged offending — presumption of doli incapax — whether accused knew his conduct was seriously wrong in a moral sense — consideration of moral development of a child — expert psychiatric and psychological evidence — RP v The Queen (2016) 259 CLR 641 — BDO v The Queen [2023] HCA 16 — Crimes Act 1958 (Vic) s 324 — Children, Youth and Families Act 2005 (Vic) s 534.

Conviction appeal — appellant 13-and-a-half years old — found guilty of charges of robbery armed with offensive weapon and dishonestly obtain a financial advantage by deception — diagnosed with Autism Spectrum Disorder, Attention Deficit/Hyperactivity Disorder and Oppositional Defiant Disorder — use of alcohol and drugs — emotional maturity is similar to that of someone aged between 10 and 12 years of age — lacks capacity to understand the impact of his actions on others — numerous suspensions from schools, homeless, and un-medicated at time of offence — not satisfied that the Crown has proved beyond reasonable doubt that appellant knew, at the time of the offence, that what he was doing was seriously or gravely wrong — Crown has not rebutted the presumption of doli incapax beyond reasonable doubt — appeal upheld.

Sexual assault offences — ss 7(b), (c), 8, 29 Criminal Code (WA) — group of eight males, including a child aged 11 years, assaulted victim — child offender inflicted fatal stab wound — under s 29 Criminal Code child offender could not be criminally responsible for acts unless he had capacity to know he ought not to do act — no evidence to establish capacity — Crown alleged seven males, who did not stab victim, deemed to have taken part in committing offence under ss 7(b), (c) or 8 — regardless of one person having an immunity from criminal responsibility, ss 7 and 8 is not prevented from operating against the other persons — ss 7 and 8 expression “an offence is committed” taken to include not only an act or omission which renders the actor liable to criminal punishment but also an act or omission which, but for the actor or omitter being excused of criminal responsibility, would be an “offence” — appellants’ liability does not depend upon proof beyond reasonable doubt either that child offender had capacity to know that he ought not to strike the blow, or that he did not strike that blow — appeal dismissed.

Conviction appeal — applicant sentenced for 20 counts of child sexual assault offences — applicant was aged between 11–13 at the time of committing three counts of child sexual assault offences — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — guilty verdicts unreasonable for counts 1–3 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — applicant’s convictions quashed in respect of counts 1–3 and re-sentenced — imposition of a new sentence deferred until further hearing on tendency evidence.

Criminal liability and capacity — doli incapax — appellant convicted of two counts of sexual intercourse with a child under 10 — the appellant’s brother is the complainant — appellant was 11 years and six months at time of offending — appellant found to be of very low intelligence — prosecution required to point to evidence from which an inference can be drawn beyond reasonable doubt that child’s development is such that he/she knew that it was morally wrong to engage in conduct — prosecution did not adduce any evidence to establish appellant’s understood the moral wrongness of his acts — appellant’s conduct went well beyond ordinary childish sexual experimentation, but not conclusive that he understood his conduct was seriously wrong in a moral sense, as distinct from being rude or naughty — appellant knew about anal intercourse and to use a condom which strongly suggests he had been exposed to inappropriate sexually explicit material or subjected to sexual interference — earlier convictions unreasonable because rebuttal of presumption the appellant was doli incapax was not established to criminal standard — appeal allowed — convictions quashed — appellant acquitted.

Young offender — incest involving biological sister attributed to the respondent when he was aged 16 — prosecution sought to lead other acts of misconduct when he was aged between 11 and 13 as “context evidence” — whether exclusion of “context evidence” would substantially weaken the prosecution case — trial judge ruled against admissibility — whether error in treating presumption of doli incapax as relevant when assessing admissibility of the “uncharged” acts — presumption not relevant in way in which invoked — appeal allowed — matter remitted to trial judge for reconsideration.

Young offender — sexual intercourse with a child under 10 years — accused aged between 11 and 12 years, 3 months — accused was older half-brother of victim — doli incapax — whether presumption rebutted — what acts may be considered — whether surrounding circumstances of first offence could be used in assessing if presumption rebutted for later offences — ground of appeal asserting unreasonable verdict — how Court of Criminal Appeal considers unreasonable verdict ground in a judge-alone trial — accused occupied a position of trust — see also RP v The Queen (2016) 259 CLR 641.

Conviction and sentencing appeal — sexual intercourse with a younger half-brother under 10 years of age — aggravated indecent assault — accused aged between 11 and 12 years at the time of offending — judge-alone trial — sole issue at trial was doli incapax — not open to his Honour to conclude that the Applicant was in a position of trust with respect to the complainant — trial judge did not err in failing to take into account s 22A Crimes (Sentencing Procedure) Act 1999 — power to reduce penalties for facilitating the administration of justice — not necessary to consider whether sentence imposed was manifestly excessive — necessary to consider whether lesser sentence warranted after an independent exercise of sentencing discretion — see also RP v The Queen (2016) 259 CLR 641 and RP v R (2015) 90 NSWLR 234.

Doli incapax — age of criminal responsibility — defacing a wooden bench with a graffiti item — presumption that child between 10 and 14 years not criminally responsible — whether presumption of no criminal responsibility of child rebutted — previous findings of guilt — whether issue of doli incapax requires urgent attention by the legislature — s 4(1) Graffiti Control Act 2008.

Young offender — intellectual disability — aggravated indecent assault upon a person under 16 — offender approximately 13 years and 1 month at time of the alleged offence — sexual harm counselling prior to alleged offending conduct — development of a safety plan — offender of low intelligence but on the evidence the offender possessed an appreciation of the seriousness of his conduct — presumption of doli incapax rebutted — offender had knowledge of conduct as being gravely or seriously wrong in a moral sense.

Children — criminal — young offenders — appeal — doli incapax — age of criminal responsibility — break-in at a country fire station — child aged 12 when offence occurred — presumption that child between 10 and 14 years not criminally responsible — whether presumption of no criminal responsibility of child rebutted — use of subjective test to determine whether presumption rebutted — see also RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 at [9-1140].

Offender aged 12 —aggravated break and enter — break and enter at an emergency services building (a country fire station) in the company of another — issue on appeal whether prosecution rebutted presumption of doli incapax — whether the magistrate erred in law in finding that there was evidence capable of rebutting beyond a reasonable doubt the presumption of doli incapax — whether the magistrate erred in law in applying an objective test to the question of whether the presumption of doli incapax was rebutted beyond reasonable doubt — whether the magistrate erred in law in relying on factual matters that constituted no more than the commission of the offence itself to rebut the presumption of doli incapax — a doli incapax cannot be rebutted merely by virtue of the commission of the offence itself — sufficient evidence to rebut presumption — see also RH v DPP (NSW) [2014] NSWCA 305.

Doli incapax — sexual intercourse without consent — in circumstances of aggravation, namely being in the company of another person — appeal — the Crown must prove beyond reasonable doubt that the child (aged between 10–14 years) knew the act was seriously wrong as distinct from an act of mere naughtiness or mischief — the directions given in the case were sufficient — court not satisfied that the jury’s verdict was unreasonable.