The correct test for rebutting the presumption of doli incapax under s 29(2) of the Criminal Code (Qld) is proof beyond reasonable doubt that the accused had the capacity to know that he ought not to do the act — not proof of actual knowledge, and not requiring 'strong and pregnant evidence'. Circumstantial evidence of surrounding circumstances of the offence, including false alibis, steps to prevent identification, and steps to prevent summoning of assistance, is admissible to prove capacity. Evidence of previous convictions and dealings with police is admissible to rebut the presumption even though it does not qualify as similar fact evidence, subject to a rare discretionary exclusion where prejudicial effect exceeds probative value.
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