R v HJP

[2010] QDC 215

DISTRICT COURT OF QUEENSLAND

CITATION:

R v HJP [2010] QDC 215

PARTIES:

THE QUEEN

V

HJP

Defendant

FILE NO/S:

Rockhampton Indictment 169/09

DIVISION:

PROCEEDING:

Ruling during trial.

ORIGINATING COURT:

District Court, Rockhampton

DELIVERED ON:

13 May 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

13 May 2010

JUDGE:

McGill DCJ

ORDER:

No case to answer on each charge with the circumstance of aggravation alleged.

CATCHWORDS:

CRIMINAL LAW – Indecent dealing – circumstance of aggravation – complainant lineal descendant – does not include niece.

WORDS AND PHRASES – “lineal descendant”.

Criminal Code s 210(4).

R v. D [2003] QCA 455 – considered.

COUNSEL:

I A Munsie for the Crown

D A Funch for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

McGowran Lawyers for the defendant

Ruling during trial

1. In this matter, the accused is charged with three counts of indecently dealing with a child under 16 years, in each case with a circumstances of aggravation that the complainant was, to his knowledge, his lineal descendent.  The evidence, which has not been disputed, is that the complainant was the niece of the accused, that is, that she was the daughter of the brother of the accused.

1. The term "lineal descendent" is not defined in the Code, either in section 210, which relevantly establishes the defence, or in section 1, which contains a number of definitions.  The term was included as a result of amendments made in 1997, which introduced the aggravating circumstance in subsection (4).

1. The Court of Appeal considered the question of whether lineal descendent included persons in a step relationship in R v. D [2003] QCA 455. In that matter, McPherson JA, with whom the other members of the Court agreed, said at [9], "The expression was, however, not defined by statute in the case of section 210, as it was in the case of incest (Code section 222 (5)), to include step relationships. On the face of it, the expression "lineal descendent" would, according to its ordinary meaning, therefore not include a relationship constituted only as a result of marriage."

1. The particular issue which arises here was not considered by the Court in that matter, but the judgment suggests that the Court considered that the term had its ordinary meaning where it appears in section 210(4), and also helpfully drew attention to the terms of section 222. That section which was also introduced by, it seems, the same amending legislation in 1997, provides in subsection (1)(a) that a person who has carnal knowledge with, or of, the person's offspring or other lineal descendant, or various specified categories of person, including nephew or niece, commits a crime.

1. The use of the term “niece” as well as the expression “lineal descendant” in section 222(1)(a) supports the view that the legislature in 1997 did not intend that the term, lineal descendant, extended to a niece, or for that matter, nephew.  The argument was advanced that the term was intended to extend to anyone who was lower down the family tree,…