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Court of Criminal Appeal 12 December 2025

BV v R

[2025] NSWCCA 217

Sexual offences

Citation: BV v R [2025] NSWCCA 217
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2025
Judges: Bell CJ, Ward P, and N Adams J (unanimous)

Background

The applicant was convicted by a jury in the District Court of eight counts of sexual offending against three members of his extended family. The complainants were aged between 5 and 11 years at the time of the offending. The applicant was sentenced to an aggregate term of six years and one month imprisonment, with a non-parole period of three years and seven months.

The applicant sought leave to appeal against one count only: count 8, an offence of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW). The offending the subject of count 8 was alleged to have occurred between March 2017 and March 2019, when the applicant was between 13 and 15 years old.

The applicant's sole ground of appeal was that the jury's verdict on count 8 was unreasonable and could not be supported by the evidence. Specifically, he argued that the Crown had failed to rebut the presumption of doli incapax, which applies to children aged between 10 and 14 years and presumes they lack criminal capacity.

  • Whether the jury's verdict on count 8 was unreasonable given the available evidence on doli incapax
  • Whether the Crown had adduced sufficient evidence to rebut the presumption of doli incapax beyond reasonable doubt
  • What standard and type of evidence is required to prove that a child accused understood that his acts were seriously or gravely wrong, as distinct from merely naughty or mischievous

Decision

N Adams J (with Bell CJ and Ward P agreeing) granted leave to appeal and allowed the appeal. The court confirmed that to rebut the presumption of doli incapax, the Crown must prove beyond reasonable doubt that the child understood his acts were seriously or gravely wrong, not merely naughty or mischievous. This is the standard established by the High Court in RP v The Queen (2016) 259 CLR 641.

The court emphasised that the mere fact a child committed the acts constituting the offence cannot, by itself, establish that the child possessed the necessary moral understanding. Additional evidence is required, such as evidence of the surrounding circumstances, the child's intellectual and moral development and education, and the child's home life.

The only evidence the Crown adduced beyond the facts of the offending itself was that the applicant had missed school on a number of occasions, may have attended a PDHPE class covering consent and respectful relationships, lived with both parents and three siblings, and participated in family outings. The Court of Criminal Appeal found this evidence was not sufficient, in nature or quality, to enable the jury to be satisfied beyond reasonable doubt that the applicant understood his acts were seriously or gravely wrong.

The court also noted that the jury's advantage in having seen and heard the evidence going to doli incapax could not resolve the doubt, given how limited that evidence was. A final observation noted that the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025 (NSW), assented to on 3 December 2025, will amend s 5 of the Children (Criminal Proceedings) Act 1987 to enact the doli incapax presumption as explained in RP, following an independent review of its operation in NSW.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction on count 8 quashed and an acquittal entered on that count
  • Matter remitted to the sentencing judge for re-sentence on counts 1, 2, 3, 4, 5, 6, and 7

Key Takeaways

  • To rebut the presumption of doli incapax, the Crown must prove beyond reasonable doubt that the child understood his or her acts were seriously or gravely wrong, not merely naughty or mischievous. This standard, affirmed in RP v The Queen, was confirmed and applied by the Court of Criminal Appeal in this decision.
  • Proof of the acts constituting the offence alone is not sufficient to rebut the presumption. The Crown must adduce additional evidence going to the child's intellectual and moral development, education, home environment, or surrounding circumstances.
  • Evidence that a child attended school (with some absences), may have been present for a PDHPE lesson on consent, and lived in a stable family home was held to fall short of the evidence required to rebut doli incapax beyond reasonable doubt.
  • Where the evidence going to doli incapax is limited in nature and quality, the jury's conventional advantage in assessing evidence by sight and hearing will not necessarily cure the insufficiency.
  • Legislatively, the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025 (NSW), passed in late November 2025, will codify the doli incapax presumption in line with RP for children aged between 10 and 14 years in NSW.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 18
- Criminal Code Act 1899 (Qld), s 29(2)
- Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025 (NSW)

Cases
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- BDO v The Queen (2023) 277 CLR 518; [2023] HCA 16
- The King v ZT [2025] HCA 9; 99 ALJR 676
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- AL v R [2017] NSWCCA 34; 266 A Crim R 1
- BC v R [2019] NSWCCA 111
- BP v R; SW v R [2006] NSWCCA 172
- R v IP [2023] NSWCCA 314