R v Rose

[2009] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rose [2009] QCA 83

PARTIES:

R
v
ROSE, Barry Allan
(applicant/appellant)

FILE NO/S:

CA No 28 of 2009
CA No 292 of 2008
DC No 253 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore on 19 February 2009
Further order and reasons delivered on 9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009, 19 February 2009

JUDGES:

McMurdo P, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore 19 February 2009

1.   Application for extension of time granted

2.   Appeal allowed

3.   Convictions quashed

4.   Further orders reserved

Delivered 9 April 2009

1.   Verdicts of acquittal entered on counts 1, 3, 4, 5, 6

     and 8

CATCHWORDS:

CRIMINAL LAW – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – appellant charged and convicted of incest with de facto daughter under s 222 of Criminal Code 1899 (Qld) – s 222(8) contained a defence to incest if the persons involved were lawfully married or entitled to be married – complainant was 17 at the time of counts 1, 3, and 4 and 18 at the time of counts 5, 6 and 8 – whether the appellant and complainant were entitled to be lawfully married – whether appellant had a defence against incest under s 222(8)

Commonwealth Constitution, s 109
Judiciary Act 1903 (Cth), s 78B
Marriage Act 1961 (Cth)

Acts Interpretation Act 1954 (Qld), s 32DA
Criminal Code 1899 (Qld), s 222(1), s 222(5), s 222(6), s 222(8)

Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55, cited
Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151; [1943] HCA 41, cited
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435; [1998] QCA 282, considered

COUNSEL:

M O'Sullivan for the appellant
S G Bain for the respondent

SOLICITORS:

Stephens & Tozer for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. :McMURDO P On 19 June 2008 in the District Court at Ipswich, the appellant pleaded not guilty to eight counts of incest. The appellant's trial before a judge and jury commenced on 13 October 2008. At the close of the prosecution case, the appellant was discharged on counts 2 and 7. On the fourth day of the trial, the jury returned guilty verdicts on all remaining six counts of incest. He was sentenced to four and a half years imprisonment with parole release eligibility set at 16 January 2011. The appellant initially applied only for leave to appeal against his sentence, contending that it was manifestly excessive. At the hearing of that application on 9 February 2009, the Court expressed concern about the guilty verdicts because of the terms of s 222(8) Criminal Code 1899 (Qld). The matter was adjourned to allow the…