BV v R

1. [1]

   BELL CJ: I agree with the reasons for judgment of N Adams J and the orders her Honour proposes.

2. [2]

   WARD P: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant stood trial in the District Court before a jury and Judge C Smith SC between 11 and 26 March 2024. He was charged on an indictment with eight counts of sexual offending committed against three complainants, each of whom were members of his extended family. The complainants were aged between 5 and 11 years old at the time each of them was sexually assaulted. The applicant was born on 20 November 2003. He was aged between 13 and 18 years old during the period of offending on the indictment. On 26 March 2024, the jury returned guilty verdicts for all counts with the conviction on count 7 being to the statutory alternative.

4. [4]

   On 25 June 2024, the applicant was sentenced to an aggregate term of imprisonment of 6 years and 1 month with a non-parole period of 3 years and 7 months commencing on 24 March 2024. The non-parole period expires on 23 October 2027, and the aggregate term expires on 23 April 2030.

5. [5]

   By notice of appeal filed on 26 May 2025, the applicant seeks leave to appeal against his conviction on count 8 alone, an offence of sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW). This count was the earliest in time on the indictment, alleged to have been committed between 20 March 2017 and 21 March 2019 when the applicant was aged between 13 and 15 years old. The indicative sentence for this count was 2 years’ imprisonment.

6. [6]

   The applicant’s sole ground of appeal is that the jury’s verdict on count 8 was unreasonable and cannot be supported by the evidence. The applicant contends that the evidence at trial was insufficient for the Crown to rebut the presumption that he was doli incapax at the time of the commission of count 8.

7. [7]

   The applicant requires leave to appeal as the ground of appeal does not involve a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Should the appeal be allowed, the applicant seeks that his conviction on count 8 and his aggregate sentence be quashed and that the matter be remitted to the District Court for re-sentence.

8. [8]

   Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A(2) of the Crimes Act, statutory non-publication orders apply to the names of or any matter which could identify the complainants, the applicant and any children connected with the proceedings. The three complainants will be referred to as BV, OD and AD throughout my reasons.

The Crown case

1. [9]

   Although the applicant only challenges one of his seven convictions, it is convenient briefly to summarise the Crown case in relation to all of the counts upon which he was convicted.

2. [10]

   The complainant with respect to count 1 was the applicant’s first cousin. The offending was alleged to have occurred on 4 March 2018 when the complainant was 11 years old and the applicant was 14 years old. At trial, the complainant’s pre-recorded police interview was played to the jury as her evidence-in-chief and she also gave oral evidence in the proceedings.

3. [11]

   On the Crown case, the complainant, the applicant and his younger sister were on a bed in a shed at the back of their grandmother’s house late at night, watching videos on the applicant’s iPad. Whilst watching the videos, the applicant put his hand on the complainant’s back and started rubbing the inside of her leg. He then started touching and rubbing her vagina under her clothes with the tip of his fingers. The complainant said, “stop and he didn’t stop”. The applicant’s sister was asleep at this time and the complainant tried unsuccessfully to wake her.

4. [12]

   The complainant then tried to go to sleep and asked the applicant to “please hop in [his] bed” but he refused. She lay down on the bed, “trying to not lay near him”. The applicant then moved towards her and put his hand around her again. The complainant told him to stop “heaps of times”, but “he just kept doing it” and “started putting his legs around [her] like tight on [her]”. The complainant then ran out of the shed and locked herself in the toilet inside the main house. She texted her sister that the applicant “was touching me”. She also made a complaint to her grandmother and her mother that same night.

5. [13]

   The complainant was interviewed by police on 13 March 2018, but no charges were laid at that time.

6. [14]

   The complainant with respect to counts 2 to 7, OD, is the applicant’s niece, being the daughter of the applicant’s adult half-sister. The incidents the subject of the six counts pertaining to her were alleged to have occurred between 22 May 2018 and 30 January 2022 when the complainant was between 5 and 8 years old, and the applicant was between 14 and 18 years old. At trial, the recordings of the complainant’s three police interviews were played to the jury as her evidence-in-chief and she also gave unsworn oral evidence in the proceedings.

7. [15]

   On the Crown case, when the complainant was 5, 6 or 7 years old, she was in the applicant’s bedroom laying on her side and the applicant was laying behind her facing towards her. The applicant pulled her pants down and then pulled his own pants down too. The complainant “felt a pointy thing in my bum bum” which went “back and forwards”. The applicant asked her, “[OD] does it feel good?”. When recalling these events, the complainant told police that “it hurt” and that “it had happened heaps of times” since she was 5 years old. The first of these occasions gave rise to count 2.

8. [16]

   It was the Crown case that in 2021, the applicant told the complainant to “grab his front rude part” which was outside his clothes. She did so. When interviewed by police, she demonstrated a hand movement consistent with masturbation. The complainant told police that this took place in the applicant’s bedroom and that this happened about five times. Again, the first of these occasions gave rise to count 3.

9. [17]

   On the Crown case, the incidents giving rise to counts 4 and 5 occurred on the same day in 2021. The applicant and the complainant were in the applicant’s bedroom when he pulled down his pants and told the complainant to “suck on his doodle” and that “it’s like a sausage” (count 4). The complainant did nothing, so the applicant put his pants back on. After this incident, the complainant was laying on her stomach on the applicant’s bed. He got on top of her and “put his doodle in [her] bum”, which “really hurt” (count 5).

10. [18]

    The incidents giving rise to counts 6 and 7 took place on the same day in January 2022 on the Crown case. The complainant and the applicant were in the pool at the house of the complainant’s grandparents (and the applicant’s parents). The applicant “tickled [her] front rude part” with his finger on the outside of her pants (count 6). Straight after that, the applicant “did it inside” her “rude part” while putting her “on the floaty” in the pool (count 7). The complainant said that it hurt on her “front rude part”. She said that it “takes forever to get on the floaty” and “he did it for that much time”. As stated above, with respect to count 7 the applicant was convicted of the statutory alternative of attempting to insert his finger in the complainant’s vagina.

11. [19]

    The complainant also told the police about some incidents taking place in a caravan in the backyard of her grandparent’s house which the applicant slept in. On one of these occasions, the complainant said that “Aunty Abby came in”, referring to the applicant’s sister, but the applicant “would still do it”. The applicant’s sister gave evidence at trial that she had never been in the caravan with the applicant and the complainant. These incidents were not the subject of any count on the indictment.

12. [20]

    The complainant with respect to count 8, AD, is the applicant’s nephew, being the son of the applicant’s half-sister and the brother of OD. The complainant called the applicant “Uncle”. The offending was alleged on the indictment to have occurred between 20 March 2017 to 21 March 2019. During this period, the complainant was 6 or 7 years old. The applicant was aged between 13 years, 4 months and 15 years, 4 months, turning 14 years old on 20 November 2017. At trial, a recording of the complainant’s interview with police on 11 May 2022 when he was 11 years old was played to the jury as his evidence-in-chief. He also gave oral evidence at the trial aged 12.

13. [21]

    The Crown case was that one evening after dinner, the complainant was playing with Nerf guns with the applicant at the applicant’s house. The complainant and the applicant decided to build a cubby house in a room next to the kitchen. The cubby house was described as having a blue bed cover as a roof and a blanket functioning as the door. There was a mattress underneath that they could lay on. After making the cubby house, the complainant lay down inside on his side, “fake sleeping”. The applicant lay behind him facing the same way. The applicant pulled down the complainant’s pants and put his “rude part in [the complainant’s] bum” for about 10 seconds. The complainant tried to move but it started “hurting [his] bottom”. It hurt “[r]eally bad”. After the complainant started crying, the applicant started saying, “Shush”. The complainant said “stop” but the applicant did not stop. The applicant’s brother then knocked and came in and the applicant “just quickly stopped”.

14. [22]

    The complainant first disclosed the incident to his mother on 10 May 2022, after his mother asked him about the incidents involving OD and whether anything had happened to him. The complainant did not tell anyone before then because he “didn’t know what it was” and he was “too scared to speak”.

The applicant’s case at trial

1. [23]

   At trial, the applicant’s case was that each of the alleged incidents did not take place. The applicant did not give evidence.

2. [24]

   Specifically in relation to count 8, the applicant relied on the evidence of his brother denying that he had ever seen the applicant and the complainant build a cubby house or that he had interrupted “something happening” between the applicant and AD. The applicant also suggested that the complaint was fabricated because the complainant was “told something by someone in relation to [OD’s] allegation, and then repeated a similar allegation to the police”. In addition, the applicant relied on the lack of any contemporaneous complaint by the complainant, the evidence that the complainant “eagerly and happily went and remained at Dondingalong [where the alleged incident took place] whenever the occasion allowed it”, and the implausibility of the alleged incident taking place in “a busy household” in which there were “two adults largely present” together with other family members and visitors.

Legal principles

1. [25]

   The first limb of s 6(1) of the Criminal Appeal Act provides that a jury’s verdict will be set aside if “it is unreasonable, or cannot be supported, having regard to the evidence”. As set out in M v The Queen (1994) 181 CLR 487 at 493-5; [1994] HCA 63 and affirmed in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]-[9] and recently in The King v ZT [2025] HCA 9; 99 ALJR 676 at [7], the function to be performed by an appellate court under s 6(1) is as follows:

2. [26]

   In New South Wales, it is conclusively presumed that no child who is under the age of 10 years can be guilty of an offence: Children (Criminal Proceedings) Act 1987 (NSW), s 5. Further, there is a rebuttable presumption at common law that a child aged between 10 and 14 years lacks the capacity to be criminally responsible for his or her acts and is said to be doli incapax. The burden rests on the prosecution to rebut this presumption beyond reasonable doubt.

3. [27]

   The operation of the presumption of doli incapax in NSW is governed largely by the decision of the High Court in RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 (“RP”). As the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) observed, the rationale for the presumption is that a child aged under 14 years is “not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea” (at [8]). Their Honours went on to explain the relevant test as follows at [9]:

4. [28]

   Gageler J similarly noted at [38] that:

5. [29]

   More recently, in BDO v The Queen (2023) 277 CLR 518; [2023] HCA 16 (“BDO”) the High Court (Kiefel CJ, Gordon, Steward, Gleeson and Jagot JJ) explained the scope of the test in this way at [13]:

6. [30]

   Although the scope of the test is well settled since the decision in RP, the question of how the prosecution is to rebut the presumption in practical terms remains a somewhat vexed one. I shall consider both the decision in RP and the types of evidence capable of rebutting the doli incapax presumption in further detail in my consideration below.

The evidence adduced by the Crown to rebut doli incapax at trial

1. [31]

   Mr Scott Edwards gave evidence at trial about classes the applicant would have completed in Years 7 and 8 in the subject Personal Development, Health and Physical Education (“PDHPE”). Mr Edwards had been the “leader of learning” for PDHPE at the applicant’s religious high school since 2010.

2. [32]

   Mr Edwards identified two units offered as part of teaching in PDHPE that dealt with “relationships and sexual development”. First, a unit in Year 7 was described by Mr Edwards as covering:

3. [33]

   Secondly, in Year 8, there was a “relationships” unit which was about “basic, respectful relationships” and covered topics like the “legal and moral obligations of sexting” as an example of “what’s right and wrong”. Mr Edwards identified that in 2017 this unit would have been taught in Term 2 in May and June. It would have been the only topic taught during PDHPE theory lessons during the ten weeks of this term.

4. [34]

   Through the evidence of the officer-in-charge, Detective Senior Constable Peter Deas, the Crown adduced the applicant’s school attendance records from 27 April 2017 to 29 August 2017, which became Exhibit 19 at trial. These records show a number of full-day absences, including one for family reasons (4 May) and 12 unexplained absences (16, 18, 19, 24, 31 May and 1, 8, 9, 20, 28, 29, 30 June). There are also several partial absences where the applicant has attended school late.

5. [35]

   Through DSC Deas, the Crown also adduced photographs taken of the applicant’s residence in 2023 and video of a “walk through” in March 2024, which became Exhibits 9 and 10 at trial.

6. [36]

   Although the applicant’s mother was called by the Crown as a witness at the trial, she was not asked any questions relevant to the doli incapax presumption.

7. [37]

   After the closure of the defence’s case, trial counsel and the trial judge discussed the relevant evidence and appropriate directions addressing the presumption of doli incapax. While the date range for count 8 on the indictment covered a period in which the applicant was aged 14 years and above, the Crown conceded that there was insufficient evidence to exclude the reasonable possibility that the accused was 13 years old at the time of the offending and therefore that it bore the onus of rebutting the presumption. The Crown also accepted that the evidence available to rebut the presumption was “comparatively limited”. The Crown suggested that the jury may be given “a fairly robust direction is relation to that” so that they “fully appreciate what has to be established and the extent or limited extent of the evidence the Crown has available to rebut that”.

8. [38]

   Prior to the closing addresses, the Crown prosecutor provided an outline of the evidence he relied on to rebut doli incapax (MFI 25). This outline made reference to, inter alia, the fact that the accused attended a “religious school” and that “photographs of the accused’s house in 2023 and the video in 2024 demonstrate that, at least as far as the interior, the house was orderly and well maintained”. Defence counsel took issue with these two matters, querying the relevance of the applicant attending a religious school as opposed to a comprehensive school and whether photographs and video footage of the applicant’s residence from 2023 and 2024 could assist the jury. A footnoted copy of the outline was later provided by the Crown, referencing relevant case law (MFI 25A).

9. [39]

   The following day, immediately prior to the closing addresses, the trial judge raised concerns with the Crown concerning these matters in its outline of evidence. His Honour queried the relevance of the religious nature of the applicant’s school. He identified that there was no evidence of how the house was kept at the relevant time to speak to the applicant’s “home environment”, as the photographs were taken approximately six years after the period of alleged offending. His Honour stated that he was “not confident” that “those two topics should be a subject that I should direct the jury about”. In response, the Crown submitted that “the decision to send [the applicant] to a religious school rather than a state high school does say something about the home environment in which he was raised” and that it “indicates a particular attitude to his education”. His Honour stated:

10. [40]

    His Honour did not make any ruling at that time but was rather merely “alerting” counsel to these two issues.

11. [41]

    In its closing address, the Crown removed references to the “religious nature” of the applicant’s school and did not rely on the photographs of the applicant’s house to demonstrate that it was orderly or well-maintained given they significantly postdated the relevant events. Otherwise, the Crown relied on the following nine matters to rebut the presumption:

    1. (1)

       The applicant was in Year 8 at the time, having completed his first year of high school in 2016.

    2. (2)

       The applicant progressed through school consistently with his age, meaning that he was in the “correct academic year for his age” and had “not been repeating any years or … held back”.

    3. (3)

       The applicant had attended a religious high school throughout Year 7 and Year 8.

    4. (4)

       The applicant would have completed a subject in Year 7 (in 2016) that covered aspects of “personal sexual development and puberty”.

    5. (5)

       By May 2017, in the beginning of the second term of Year 8, the applicant would have commenced a unit on healthy relationships, which addressed matters such as consent and appropriate conduct in relationships.

    6. (6)

       The applicant was “towards the upper end of the age range of being under 14” at the start of the period covered by count 8, being 13 years and 4 months. The Crown stated that “his development would reflect that”. The Crown accepted that on its own, this circumstance “probably says very little” but relied on it in combination with the applicant’s orderly progression through school and his PDHPE subjects.

    7. (7)

       The complainant’s parents were familiar with the applicant’s household and were “content to take the children there and leave them there”. This was said to demonstrate that they were “obviously satisfied” with the way the children had been raised in that household. This was consistent with the applicant progressing through school in an orderly fashion.

    8. (8)

       The physical act comprising count 8 was “quite a significant sexual act”. This “may say nothing on its own” but was said to be relevant in combination with the other matters.

    9. (9)

       The circumstances of the offending included that during the act the applicant:

    10. (10)

        The Crown accepted that “on its own, that’s not sufficient” but relied on this matter in combination with the other matters.

12. [42]

    The applicant’s counsel made no reference to the issue of doli incapax in his closing address.

13. [43]

    In summing-up, the trial judge directed the jury that “the prosecution must prove beyond reasonable doubt that the accused knew at the time that doing the act was seriously wrong as distinct from his awareness that the act was merely naughty or mischievous”. The trial judge directed that “no matter how obviously wrong the alleged act may be”, the presumption cannot be rebutted merely as an inference from the doing of the act and must be rebutted by evidence that the “accused’s development was such that he knew that it was morally wrong to engage in the conduct alleged”. This was said to direct “attention to the child’s education and the environment in which he was raised”.

14. [44]

    The trial judge then summarised the evidence relied upon by the Crown to rebut the presumption. The jury was directed that the evidence summarised was “the only evidence the Crown relies upon” and that they were “not to take into account any other evidence at all when considering this element”. The trial judge also directed the jury that they were not permitted to take into account any of the alleged acts committed by the accused against the other two complainants when considering this element, a direction that was earlier requested by defence counsel.

15. [45]

    In summarising the evidence relied upon by the Crown, the trial judge made no reference to the third and seventh matters in the Crown’s closing address above.

16. [46]

    While concluding his directions on the presumption of doli incapax, his Honour stated:

17. [47]

    The direction that the evidence was “limited and perhaps very limited” was consistent with the Crown’s earlier concession that the evidence was “comparatively limited”, as set out above.

18. [48]

    There were no objections to the trial judge’s directions to the jury as to doli incapax at trial and no issue is taken with them on appeal. No application was made by the applicant for there to be a directed verdict in respect of count 8.

Ground 1

1. [49]

   The applicant submitted that the evidence at trial was insufficient to rebut the presumption that he was doli incapax at the time of the alleged offending constituting count 8. The applicant addressed each of the matters relied on by the Crown at trial, as outlined above, and submitted that they were either inconsistent with authorities urging caution in placing weight on certain matters or otherwise insufficient to rebut the presumption.

2. [50]

   First, with respect to the nature of the alleged offending, the applicant submitted that it is clear from the High Court’s decision in RP that the presumption cannot be rebutted merely as an inference from the doing of the relevant act or acts. The applicant also compared these facts with the nature of the offending considered in RP and BDO which were of themselves not sufficient to rebut the presumption.

3. [51]

   Secondly, the applicant submitted that there was an inherent difficulty with relying on the fact that the applicant was in Year 8 and had progressed through school consistently with his age. This matter was said to rise no higher than that the applicant was a “typical 13 year old” and was the age to which the presumption applied. As submitted, “[o]ne cannot logically rebut a presumption by demonstrating the presumption properly applied”.

4. [52]

   The applicant submitted that there was otherwise no evidence tendered of the applicant’s actual performance at school, such as report cards, evidence called from any teacher that could have addressed the applicant’s engagement in class, or any evidence from the applicant’s mother. Instead, on the applicant’s submission, the only evidence of educational engagement was the applicant’s school attendance records from April 2017 to August 2017 (Exhibit 19) which demonstrated that the applicant persistently attended school late.

5. [53]

   Thirdly, with respect to the courses taught at the applicant’s school, the applicant identified a number of problems with relying on this evidence to rebut the presumption. It was submitted that this was generalised evidence of courses at the applicant’s high school; Mr Edwards never actually taught the applicant and there was no evidence of the applicant’s results or how he engaged with the content. Indeed, given the applicant’s attendance records, it was suggested that it may be reasonably inferred that he did not attend the relevant classes.

6. [54]

   Further, the applicant submitted that the class in Year 7 only covered personal sexual development and did not address inappropriate sexual behaviour. The class in Year 8 took place around May 2017 and therefore may have been after the relevant conduct constituting count 8. It was also submitted that there was no evidence that the course covered inappropriate sexual behaviours other than “sexting”.

7. [55]

   Finally, with respect to the applicant’s age being closer to 14 years old, the applicant relied on the statement of the plurality in RP that it is the particular child’s development that is relevant because children do not mature at a uniform rate. As submitted by the applicant, “there was no evidence the applicant’s development did reflect his age” (emphasis in original).

8. [56]

   The applicant emphasised that witnesses who could have given evidence of the applicant’s particular development and upbringing, namely the applicant’s mother and siblings, were not asked any questions on the issue by the Crown.

9. [57]

   The Crown submitted that while it accepts, as it did below, that the evidence to rebut the presumption was “comparatively limited”, the evidence taken cumulatively and as a whole was sufficient to establish to the criminal standard that the applicant knew his conduct was seriously wrong. The evidence said to have rebutted the presumption was divided into two broad categories: the circumstances of the offending and the applicant’s home life.

10. [58]

    In relation first to the circumstances of the offending, the Crown submitted that the presumption may be rebutted in whole or in part by the circumstances or manner of the offending. Orally, counsel relied on BC v R [2019] NSWCCA 111 (“BC”) at [53] for the proposition that the circumstances of the offending do not need to be considered in combination with other matters to rebut the presumption.

11. [59]

    The Crown drew the Court’s attention to four relevant features of the offending. First, the applicant told the complainant to “[s]hush” when he began to cry. Secondly, the applicant persisted with sexual intercourse despite the fact that the complainant was crying. Thirdly, the applicant persisted even after the complainant told him to stop and tried to move. Finally, the applicant immediately ceased upon the arrival of a third party, his brother, who was approximately seven years his senior.

12. [60]

    These circumstances were submitted to support two inferences: that the applicant was concerned to avoid detection and that the applicant knew what he was doing was causing distress to the complainant and, as such, that it was seriously wrong. The Crown relied on the decision of Hodgson JA (with whom Adams and Johnson JJ agreed) in BP v R; SW v R [2006] NSWCCA 172 (“BP”) that evidence of the complainant “crying and screaming and struggling and asking [the appellant] to stop” was capable of supporting an inference that the 12-year-old appellant “knew that what he was doing was causing great distress to another human being and as such was seriously wrong” (at [30]).

13. [61]

    The Crown further submitted that there was evidence that the applicant had a good home life: he lived with both of his parents and his three siblings, which included two older siblings, and he had regular engagements with his siblings and his extended family, seeing them “a lot” for day trips and sleepovers where they would engage in group sports, fishing and other activities. The Crown relied on the decision of Leeming JA, Schmidt and Wilson JJ in AL v R [2017] NSWCCA 34; 266 A Crim R 1 (“AL”). Their Honours relied on evidence of the applicant’s “home life” in their conclusion that the presumption had been rebutted, finding (at [150]):

14. [62]

    While the trial judge omitted reference to the applicant’s home environment in his Honour’s summing-up, the Crown submitted that there was no ruling preventing those matters from going to the jury and this Court remains entitled to take account of those matters as part of its independent assessment of the whole of the evidence.

15. [63]

    The Crown further relied on evidence that the applicant was educated through Years 7 and 8 at his religious high school, which “provides some limited evidence that the applicant was schooled in a formal, structured education environment with teachers and peers”. In relation to the applicant’s attendance records, the Crown submitted that they are very limited records, only covering a four-month period from April to August 2017, and while they do not disclose perfect attendance, the applicant generally attended school regularly.

16. [64]

    With respect to the PDHPE courses taught at the applicant’s school, the Crown submitted that it was not necessary to adduce evidence of the applicant’s particular results in the courses for them to inform the jury’s consideration of his moral development. The Crown relied on this Court’s description of PDHPE in AL at [139] as “a subject that the jury, drawing on their ordinary experience of the world, may have considered educated students about matters connected with personal and sexual development”. The applicant’s suggestion that he may not have been in attendance at those PDHPE classes was submitted to not be a reasonable inference arising on the evidence.

17. [65]

    Finally, it was submitted that, even if this Court were to experience a doubt as to whether the evidence was sufficient to rebut the presumption, this doubt would be capable of being resolved by making full allowance for the advantage of the jury in assessing whether the applicant understood his conduct to be seriously or gravely wrong.

Consideration

1. [66]

   The determination of this appeal turns on the sufficiency of the evidence adduced by the Crown to rebut the presumption of doli incapax. It was necessary for the Crown to prove, beyond reasonable doubt, that the applicant understood that his acts were “seriously wrong” or “gravely wrong” and not merely naughty or mischievous: RP at [9]. The question is whether it was open to the jury to be satisfied of this based on the evidence adduced at the trial. Before turning to consider the evidence, it is helpful to return to the decision in RP and, in particular, to the High Court’s consideration of the possible sources of evidence to rebut the presumption.

2. [67]

   In addition to the observation at [9] extracted at [27] above, the plurality in RP emphasised that the evidence that will be sufficient to rebut the presumption will vary from case to case “according to the nature of the allegation and the child”. Evidence that may go to rebut the presumption was identified as follows at [12]:

3. [68]

   Further, their Honours cautioned against placing too much weight on the particular age of the child and how close he or she is to the age of 14 because children do not mature at a uniform rate. Instead, attention should be directed to (at [12]):

4. [69]

   The relevant convictions that were quashed by the High Court in RP were two counts of sexual intercourse in which the applicant, who was 11 and a half years old at the time, had penile/anal intercourse with his younger brother. The Crown had relied on the following evidence to rebut the presumption:

   1. (1)

      RP had been left alone in charge of the complainant (who was 6 years and 9 months old) and his two other younger siblings while their father was at work.

   2. (2)

      After a fight, RP locked the complainant in a room as punishment. When the complainant asked to be let out, RP went into the room and said, “if you wanna come out, you gotta let me do this to ya”.

   3. (3)

      RP then put a condom on his penis, took hold of the complainant and threw him onto a bed, pulled the complainant’s pants and underpants down and inserted his penis into the complainant’s anus and commenced intercourse.

   4. (4)

      The complainant was crying and protesting, saying “no….no”.

   5. (5)

      RP put his hand over the complainant’s mouth.

   6. (6)

      When RP heard the sound of an adult returning to the home, he withdrew his penis and said to the complainant “don’t say nothin”.

   7. (1)

      Three weeks later the complainant and RP were left alone at their father’s workplace. RP took the complainant to an office where he exposed his penis to him.

   8. (2)

      The complainant tried to run away but RP blocked the door.

   9. (3)

      The complainant “went to call out for” his sister, but RP took hold of him and put him face down on a pile of clothing on the floor.

   10. (4)

       RP then pulled the complainant’s pants down and commenced having anal intercourse with him. This continued for two or three minutes until RP heard their father returning to the office.

5. [70]

   At the request of RP’s counsel, the Crown also tendered two reports: a Job Capacity Assessment Report prepared in connection with RP’s social security benefit when he was 17 years old; and a report of a clinical psychologist, Ms Champion, prepared when RP was 18 years old to assess whether he was fit to plead on unrelated offences. RP was assessed as being in “borderline range of intellectual functioning” in the first report and placed on a disability support pension. In the second report, Ms Champion assessed RP as being at the top of the borderline disabled range and was of the view that that RP’s “educational and social deprivation” may have contributed to his low scores, together with his “innate limitation”. Further, RP may have been a victim of sexual assault as a child.

6. [71]

   The High Court found that the two convictions were unreasonable because the Crown had not adduced sufficient evidence to rebut the doli incapax presumption. There was no evidence apart from the “circumstances of the offences” to establish that, despite his cognitive deficits, RP’s development was such that he understood the “moral wrongness” of his acts. The plurality then noted the following at [33]:

7. [72]

   As for the relevance of the fact that RP used a condom, the plurality observed the following (at [34]):

8. [73]

   As for the inferences from the evidence that RP must have known that what he was doing was seriously wrong because of the complainant’s distress and lack of consent, the High Court observed at [35] that:

9. [74]

   The plurality went on to observe that there was “no evidence about the environment in which the appellant had been raised or from which any conclusion could be drawn as to his moral development” and “[n]o evidence of the appellant's performance at school as an 11-year-old” (at [36]). It was the absence of evidence on these subjects which led the Court to find that it was not open to conclude beyond reasonable doubt that RP understood that his conduct in engaging in sexual intercourse with his younger brother was seriously wrong in a moral sense.

10. [75]

    Gageler J broadly agreed with the plurality, observing at [38] that the relevant understanding required to be established:

11. [76]

    Gageler J disagreed that the evidence of the use by RP of a condom was relevant but otherwise agreed with the plurality that the prosecution evidence was insufficient to discharge the onus of proof. His Honour was satisfied that the following inferences were available from the evidence:

    1. (1)

       RP knew that his brother did not want to engage in intercourse;

    2. (2)

       RP used force on his brother;

    3. (3)

       RP was aware that his brother was crying and in pain;

    4. (4)

       RP put his hand over his brother's mouth to stop him calling out so as to avoid detection;

    5. (5)

       RP persisted knowing that he was causing great distress to his brother;

    6. (6)

       RP only stopped when an adult returned to the home; and

    7. (7)

       RP afterwards told his brother not to say anything.

12. [77]

    Gageler J went on to note that whatever conclusion might be drawn from these available inferences, it had to be considered in the context of the subsequent evidence of RP’s mental capacity. As his Honour observed at [43]:

13. [78]

    It is clear from the decision of Gageler J (at [38]) that a combination of evidence of the acts constituting the offence and evidence of the surrounding circumstances alone could be sufficient to rebut the presumption, but this is less clear from the decision of the plurality.

14. [79]

    At [9], the plurality stated that:

15. [80]

    At [16], the plurality stated that:

16. [81]

    At [32], the plurality again noted that:

17. [82]

    It is arguable that, following RP, in the absence of any evidence of cognitive or intellectual impairment, evidence of both the acts of the offence(s) relied upon in combination with the circumstances of the offending could be sufficient to rebut the presumption. As will be seen below, that was the approach taken by this Court in BC.

18. [83]

    In practical terms, the effect of RP is that the question of whether the child knew that his or her conduct was morally or seriously wrong cannot be established merely by inferences arising from the fact that the child engaged in the act or acts which constituted the alleged offence, no matter how serious that offending behaviour was. That does not mean that those inferences cannot be taken into account, but simply that the presumption cannot be rebutted by having regard to them alone and that there needs to be more evidence such as evidence of the surrounding circumstances, the child’s intellectual and moral development and education and/or the child’s home life.

19. [84]

    In BDO, the High Court confirmed, in the context of considering the test in the Queensland Criminal Code 1899, that doli incapax is concerned with the state of a child’s intellectual and moral development, continuing to approve the distinction between knowledge of wrongfulness and knowledge of naughtiness. It is to be noted that the Queensland provision is relevantly different to the common law in that it propounds a test based upon a child’s capacity to know, as opposed to the child’s knowledge: s 29(2) of the Queensland Criminal Code Act makes this clear.

20. [85]

    The High Court in BDO observed the following as to the evidence that the child offender had received sexual education at school (at [44]):

21. [86]

    Further, the High Court cautioned against drawing an inference from the child offender being secretive about the conduct, stating (at [48]):

22. [87]

    In addition to the principles derived from these decisions, assistance can be gained from the following decisions of this Court.

23. [88]

    In BP, Hodgson JA (with whom Adams and Johnson JJ agreed) held that evidence of the complainant “crying and screaming and struggling and asking [the appellant] to stop” was capable of supporting an inference that the 12-year-old appellant “knew that what he was doing was causing great distress to another human being and as such was seriously wrong” (at [30]). Although that decision pre-dates the decision in RP, I do not consider anything in it to be contrary to what the High Court held in RP.

24. [89]

    There were two offenders in BP: BP (12 years old) and SW (11 years old) who were convicted of sexually assaulting a 16-year-old girl. In relation to SW, there was a statement of a psychologist, Ms Liva, whose opinion was that SW understood the difference between appropriate and inappropriate sexual behaviour. In relation to BP, a statement was tendered from the assistant principal of his primary school, Ms Dockrill, as to BP’s academic potential, that there had been incidents of verbal and physical violence towards other students and that she had often spoken to BP about his inappropriate behaviour and he appeared to understand that what he was doing was wrong. There was no evidence before the Court that either offender had any cognitive impairment.

25. [90]

    At [29], Hodgson JA observed the following:

26. [91]

    As noted above at [61], in AL, Leeming JA, Schmidt and Wilson JJ relied on evidence of the applicant’s “home life” in their conclusion that the doli incapax presumption had been rebutted (see [150]).

27. [92]

    In BC, the Court (Leeming JA, Ierace J and Hidden AJ) quashed the applicant’s convictions on three counts of sexual intercourse with a child. The applicant was 13 years old at the time. The Court held that the Crown had failed to adduce evidence capable of satisfying the jury to the criminal standard that the doli incapax presumption had been rebutted. There was no evidence adduced as to the applicant’s contemporaneous maturity or intelligence. Reliance was placed on the passage in BP at [29] extracted above to conclude that the fact that when the applicant thought an adult was going to discover what he was doing he said to the complainant, “Quickly stop, stop”, was equally consistent with the applicant believing his conduct was simply naughty. The only other relevant evidence was that the applicant told the victim that he would get into trouble if he told anyone about the sexual acts.

28. [93]

    Despite the fact that the Court in BC did not consider that sufficient evidence had been put before the court to rebut the doli incapax presumption, in considering the relevant evidence the Court said this (at [53]):

29. [94]

    More recently in R v IP [2023] NSWCCA 314, the Court (Harrison CJ at CL, Wright and Wilson JJ) observed the following in relation to the doli incapax test more generally at [25]:

30. [95]

    Having regard to the principles derived from these cases, it is clear that in some matters it will be easier for the prosecution to obtain relevant material to rebut the presumption than others. If a child has been disciplined at school, there may be records of teachers having explained to them why their behaviour deserved punishment. If a child has learning difficulties at school, there may be reports prepared setting out the child’s intellectual functioning. If the Department of Communities and Justice has been involved with the child’s family, there may be official reports prepared as to the child’s home life. If the child has appeared in the Children’s Court before, there may be Youth Justice reports available, including those prepared in relation to rebutting the doli incapax presumption. If a complaint, such as a complaint of child sexual assault, is made contemporaneously, then a statement may be able to be obtained from their teacher as to any interactions with the child’s parents but if allegations are made much later (as often occurs in child sexual assault matters), teachers may have moved schools or not remember the child.

31. [96]

    The difficulty posed for the prosecution in the present case is that there was no evidence that the applicant had been in trouble before so there were no reports prepared in relation to doli incapax or his background generally. There was no evidence of any interactions with any Government department regarding his family circumstances and nor had he been disciplined at school. There is no evidence that the applicant had been referred for any psychological or cognitive testing at school. Further, the complaint was not made until six years later. Although the prosecution adduced evidence from Mr Edwards that students of the age of the applicant would have been taught about respectful relationships, given the effluxion of time it would not have been possible to have established whether the applicant actually attended that class, given he was late for school and/or absent on a number of occasions during that period.

32. [97]

    This case highlights some of the practical difficulties which can arise for the prosecution in obtaining evidence to rebut the doli incapax presumption. Given that, generally, parents are not compellable to give evidence against their children (s 18 of the Evidence Act 1995 (NSW)), it is difficult to see how evidence can be adduced of a child’s family life unless there have been interactions with Government departments, Youth Justice or teachers. A child is not required to participate in a police interview during which these issues could be explored. Nor is the child obliged to agree to be psychologically assessed by the prosecution.

33. [98]

    In the present matter the Crown accepted that the evidence to rebut the presumption was “comparatively limited”. Significant reliance was placed upon the circumstances of the offending. That evidence certainly is troubling: the applicant told the complainant to “[s]hush” when he began to cry, persisted in anally penetrating the young child despite the fact that he was crying, persisted even after the complainant told him to stop and tried to move, and immediately ceased upon the arrival of his older brother.

34. [99]

    It is to be accepted that in BC this Court proceeded on the basis that the doli incapax presumption may be rebutted by “the circumstances of the offending”, without evidence of the accused’s contemporaneous character or maturity; but the Court in BC was not satisfied that such evidence was sufficient to rebut the presumption on the facts in that case. In none of the decisions discussed above, was the presumption rebutted without some evidence being adduced (in addition to the facts and circumstances) as to the applicant’s contemporaneous character or maturity. In the present matter, the only additional evidence was that the applicant had missed school on a number of occasions, may have been present for a PDHPE class when questions of “consent” and respectful relationships were explored, had a “good home life” in that he lived with both of his parents and his three siblings, and was involved in family outings with extended family from time to time .

35. [100]

    Having considered the evidence carefully, I have arrived at the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant understood that his acts were “seriously wrong” or “gravely wrong” and not merely naughty or mischievous in relation to count 8. To put this another way, I am not satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt on that issue. Nor do I consider that the jury’s advantage in seeing and hearing the evidence going to the issue of doli incapax is capable of resolving my doubt, given its limited nature.

36. [101]

    By way of final observation, since the hearing of this appeal the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 (NSW) was passed on 27 November 2025 and assented to on 3 December 2025. It is described as an Act to, inter alia, “make further provision about the age of criminal responsibility of children between 10 years and 14 years of age”. The amendment followed an independent review of the operation of doli incapax in NSW for children under 14 years of age by the Honourable Geoffrey Bellew SC and Mr Jeffrey Loy APM published in August 2025. [1] Section 5 of the Children (Criminal Proceedings) Act 1987 will be amended to, inter alia, enact the doli incapax presumption as explained in RP.

Orders

1. [102]

   I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the conviction on count 8 and enter an order of acquittal on that count.

   4. (4)

      Remit the matter to Judge C Smith SC for re-sentence on counts 1, 2, 3, 4, 5, 6, and 7.