R v MCH

[2016] QCA 61

COURT OF APPEAL

MORRISON JA
BODDICE J
BURNS J

CA No 223 of 2015
DC No 107 of 2008

THE QUEEN

MCH Appellant

BRISBANE

TUESDAY, 15 MARCH 2016

JUDGMENT

MORRISON JA: On 24 July 2008, the appellant was convicted on his own plea of guilty of three counts of incest involving his niece. The niece was 17 years old at the time of the alleged offences. The indictment charged the offences under s 222(1) of the Criminal Code. The appellant was sentenced to two years’ imprisonment on each count, to be suspended after serving six months, with an operational period of two years.

On 31 July 2015, the appellant received legal advice that the convictions should be challenged and applied for an extension of time to appeal. On 22 October 2015, this Court extended the time to appeal against the conviction.

At the time of the alleged offence, s 222(1) of the Code relevantly provided:

“This section does not apply to carnal knowledge between persons who are entitled to be lawfully married.”

The relationship between an uncle and a niece was not then within the defined categories of “prohibited relationship” under s 23B(2) of the Marriage Act 1961. As a consequence, for the reasons given by this Court in R v Rose [2010] 1 Qd R 87, the appellant and the niece were, at the time of the alleged offences, “persons entitled to be lawfully married”.

It follows that the appellant could not have been charged under s 222 of the Code. The respondent properly concedes that the appellant could not have been lawfully convicted of the offences of incest, therefore, the convictions cannot stand and it would be a miscarriage of justice to let them remain; see R v Wade [2012] 2 Qd R 31.

The appellant filed a notice of abandonment on 1st March 2016. For the reasons above, that notice should be set aside. The Court proposes the following orders, and it will make the following orders:

The notice of abandonment dated 1 March 2016 is set aside.
The appeal is allowed.
The verdicts of guilty entered on 24 July 2008 are set aside.
On each count, a verdict of acquittal is entered.

They are the orders of the Court. Nothing arising out of anything I’ve said?
MR ALLEN:No, your Honour.

MORRISON JA: Thank you very much, adjourn the court.

CaseChat Overview and Summary

The appellant in this case was convicted in 2008 of three counts of incest involving his niece, who was 17 years old at the time of the alleged offences. He was sentenced to two years' imprisonment on each count, to be suspended after serving six months, with an operational period of two years. The appellant subsequently received legal advice that the convictions should be challenged and applied for an extension of time to appeal, which was granted. The central issue before the court was whether the appellant could be lawfully convicted under section 222(1) of the Criminal Code for the alleged incest offences. The court determined that at the time of the alleged offences, the appellant and the niece were "persons entitled to be lawfully married" as their relationship was not within the defined categories of "prohibited relationship" under section 23B(2) of the Marriage Act 1961. Consequently, the court held that the appellant could not have been lawfully convicted of the offences of incest and that the convictions constituted a miscarriage of justice. The court set aside the appellant's notice of abandonment and allowed the appeal, entering a verdict of acquittal on each count. The court's orders were that the notice of abandonment dated 1 March 2016 is set aside, the appeal is allowed, and a verdict of acquittal is entered on each count.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established