On an appeal on a question of law alone under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW), where the magistrate has applied the wrong legal test, the conviction must be set aside unless, applying the correct test, only one conclusion was open; it is not sufficient for the appellate court to find merely that the conclusion was 'open' on the evidence. The presumption of doli incapax for children aged 10-14 requires a subjective assessment of the particular child's knowledge that the act was seriously wrong, and cannot be rebutted by reference to what a normal child of that age would have known. Section 65 of the CAR Act does not save a conviction where the error is the application of the wrong legal test to the central issue.
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