DISTRICT COURT OF QUEENSLAND

Ruling during trial

1. [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.

2. [2]
   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).

3. [3]
   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." 

4. [4]
   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.

5. [5]
   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, as it were, and I think there is some force in that proposition in the abstract, but not in the way in which it was advanced by counsel for the prosecution.

6. [6]
   The ordinary meaning of a lineal descendant would be someone who is a descendant of the accused, in the direct line. That is to say, children, or children of children, and so on.

7. [7]
   It would, I think, not extend to someone whose relationship to the deceased was established only by a process which involved, to some extent, moving back up the family tree to establish a common ancestor before moving down to establish the actual relationship. That, I think, would be more naturally described as a collateral relationship, and probably not as a descendant at all.

8. [8]
   The expression, in my opinion, giving it its ordinary meaning, would only extend to children, children of children, and so on, to the extent that that arises in the circumstances of a particular case. It does not include here, nephew or niece, whether or not it is a nephew or niece where there was a blood relationship.

9. [9]
   I should say that if there was any doubt about the matter, in accordance with ordinary principles, a statute of this nature should be interpreted on the narrow understanding of the term, but I do not really think it is necessary particularly to rely on that. It seems to me that in its ordinary meaning, the term would not extend to a nephew or niece. There is no reason to construe it differently.

10. [10]
    I therefore find there is no case to answer in respect of each of the counts with the circumstance of aggravation, although there is no reason to think there is not a case to answer in respect of the counts without the circumstance of aggravation.

(A directed verdict of not guilty was taken on the three counts with the circumstance of aggravation.  The trial proceeded and the jury convicted on the three counts without the circumstance of aggravation.)