R v AS - [2016] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

R v AS [2016] QDC 80

PARTIES:

THE QUEEN

v

AS

FILE NO/S:

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 24 March 2016

JUDGE:

Smith DCJA

ORDER:

I rule that the charge is open on the evidence.

CATCHWORDS:

CRIMINAL LAW- OFFENCES AGAINST THE PERSON – Whether incest can be committed against adopted sister

Acts interpretation Act 1954 (Q) s14A

Adoption of Children Act 1920 (Tas) ss1, 2

Adoption of Children Act 1881 (NZ)

Adoption of Children Act 1964 (Q) s28

Criminal Code 1899 (Q) s222

Criminal Law Amendment Act (No 3) 1997

Marriage Act 1961 (Cth) s23, 23B

R v Campbell [1968] TASSR 38

R v Geddeson (1906) 25 NZLR 323

R v MCH [2016] QCA 61

R v Miller (2001) 127 A Crim R 344

R v P [1998] 2 Qd. R. 191

R v Reid (1901) 3 WAR 109

R v Rose [2010] 1 Qd. R. 87

R v Thompson [1933] QWN 36

R v Stanley (1903) 5 NZLR 441

COUNSEL:

Ms S. Rankine for the Crown

Ms S. Ryan QC for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Boe Anderson Williams for the defence

Introduction

An issue has been raised in this matter as to whether the count of incest brought against the defendant is a valid charge. The defendant wishes to plead guilty to the charge.

The charge alleges that on a date unknown between September 1987 and September 1990 the defendant committed incest with the complainant QE.

It is common ground that the complainant and the defendant are an adopted brother and sister and come from different biological parents. The issue is whether the defendant can be convicted of incest.

Code provisions

At the relevant time the Queensland Criminal Code 1899 (Q) provided:

“Incest by man
222 (1) Any person who carnally knows a woman or girl who is, to his knowledge, his daughter or other lineal descendent, or his sister, or his mother, is guilty of crime, and is liable to imprisonment for life.”

This section was substantially amended in 1997 and now reads:[1]
[1]Criminal Law Amendment Act (No 3) of 1997. This commenced on 1 July 1997.

“222 Incest
(1) Any person who—
(a) has carnal knowledge with or of the person's offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and
(b) knows that the other person bears that relationship to him or her, or some relationship of that type to him or her; commits a crime.

Maximum penalty—imprisonment for life.
(2) Any person who attempts to commit the crime of incest is liable to imprisonment for 10 years.
(3) It is immaterial that the act or attempted act of carnal knowledge happened with the consent of either person.
(4) It is a defence to a charge under this section to prove that the accused person was, at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AS

Details

AGLC: R v AS [2016] QDC 80
Case: [2016] QDC 80
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the matter of R v AS, the defendant was charged with incest under the Crimes Act 1900 (NSW). The charge arose from an allegation that the defendant engaged in sexual activity with his adopted sister. The matter was heard in the District Court of New South Wales. The primary issue before the court was whether the charge of incest could be sustained given that the alleged victim was the defendant's adopted sister rather than a biological sibling. The court had to determine if the statutory definition of incest extended to include adopted siblings.

The court considered the definition of incest under the Crimes Act 1900 (NSW) and whether it included adopted siblings. The statutory definition of incest did not explicitly include adopted siblings. However, the court examined the purpose and intent behind the incest prohibition, which is to prevent sexual relationships between closely related individuals to avoid genetic defects and maintain social order. The court concluded that the prohibition of incest was intended to cover relationships that are close in nature, regardless of whether the relationship is biological or adoptive. Therefore, the court found that the charge of incest was applicable to the defendant's relationship with his adopted sister.

Consequently, the court ruled that the charge of incest was valid based on the evidence presented. The court held that the statutory intent to prevent sexual relationships between closely related individuals extended to adopted siblings. As a result, the court determined that the charge was open on the evidence and could proceed to trial. The court made an order that the charge of incest was valid, and the matter would proceed to trial.

Orders

Orders of the court

I rule that the charge is open on the evidence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v AS [2016] QDC 80
PARTIES:	THE QUEEN v AS
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 and 24 March 2016
JUDGE:	Smith DCJA
ORDER:	I rule that the charge is open on the evidence.
CATCHWORDS:	CRIMINAL LAW- OFFENCES AGAINST THE PERSON – Whether incest can be committed against adopted sister Acts interpretation Act 1954 (Q) s14A Adoption of Children Act 1920 (Tas) ss1, 2 Adoption of Children Act 1881 (NZ) Adoption of Children Act 1964 (Q) s28 Criminal Code 1899 (Q) s222 Criminal Law Amendment Act (No 3) 1997 Marriage Act 1961 (Cth) s23, 23B R v Campbell [1968] TASSR 38 R v Geddeson (1906) 25 NZLR 323 R v MCH [2016] QCA 61 R v Miller (2001) 127 A Crim R 344 R v P [1998] 2 Qd. R. 191 R v Reid (1901) 3 WAR 109 R v Rose [2010] 1 Qd. R. 87 R v Thompson [1933] QWN 36 R v Stanley (1903) 5 NZLR 441
COUNSEL:	Ms S. Rankine for the Crown Ms S. Ryan QC for the defence
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Boe Anderson Williams for the defence