R v AS[2016] QDC 80

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   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.

2. [2]
   The charge alleges that on a date unknown between September 1987 and September 1990 the defendant committed incest with the complainant QE.

3. [3]
   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

4. [4]
   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.”

5. [5]
   This section was substantially amended in 1997 and now reads:^[1]

“222 Incest

3. (1)
   Any person who—

1. (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

2. (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.

3. (2)
   Any person who attempts to commit the crime of incest is liable to imprisonment for 10 years.

3. (3)
   It is immaterial that the act or attempted act of carnal knowledge happened with the consent of either person.

3. (4)
   It is a defence to a charge under this section to prove that the accused person was, at the time when the act or attempted act of carnal knowledge happened, acting under the coercion of the other person.

3. (5)
   A reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that is a half, adoptive or step relationship.

3. (6)
   For subsection (5), a reference to a step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement.

3. (7)
   Also, for subsection (5), a reference to a step relationship does not include a step relationship that first arose after the relevant persons became adults.

(7A) Also, if a parentage order is made under the Surrogacy Act 2010, a reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that—

1. (a)
   existed before the making of the order; or

2. (b)
   came into existence as a result of the making of the order regardless of whether the order has been discharged.

3. (8)
   This section does not apply to carnal knowledge between persons who are—

1. (a)
   lawfully married; or

2. (b)
   if both persons are adults—entitled to be lawfully married.”

Does “sister” include an adopted sister?

6. [6]
   It may be seen that the categories of incest were considerably widened and, indeed, the word “sibling” was included and was defined to include an adoptive or step relationship. Of course, the new provision does not apply to the instant case.

7. [7]
   In the explanatory memorandum to the 1997 Act it was said:

“The types of sexual relationships covered by the offence of incest will be widened to include uncles, aunts, nephews, nieces and a limited category of half, step or adoptive relations.”

I consider I should have regard to the explanatory memoranda as extrinsic evidence of the meaning of the term “sister” in the Code^[2] due to the ambiguity of the word sister.

8. [8]
   To my mind there is no doubt that “sister” is a full blood or a half-sister. So much is clear from R v Reid. ^[3]  In that case the Full Court of the Western Australian Supreme Court held that “sister” includes a half-sister.  One reason was under ecclesiastical law sister did include half-sister.

9. [9]
   The particular purpose of the incest provisions was because of it being morally wrong, an offence against religion and the genetic risk that certain diseases were more likely to occur.^[4] 

10. [10]
    In R v Geddeson^[5] Cooper J of the New Zealand Supreme Court held that “father” did not include a stepfather and the indictment including a charge of incest was quashed.  His Honour held that in New Zealand “incest” was limited to inter alia brothers and sisters of the whole or half-blood.  

11. [11]
    Indeed in R v Thompson^[6] the Queensland Court of Criminal Appeal held that a half-sister was a “sister” for the purposes of s 222.

12. [12]
    In R v Miller^[7] the News South Wales Court of Criminal Appeal held that that a de facto relationship did not give rise to the relationship of stepfather and step-daughter for the purposes of an allegation that the offender had carnal knowledge with his step-daughter. It was held that statutes such as this should be strictly construed.   

13. [13]
    It is submitted that the provisions of s 28 of the Adoption of Children Act 1964 (Q) has altered the position.  That section provided:

14. [14]
    In R v Stanley^[8] the NZ Court of Appeal had to consider whether a father by adoption was a father for the purpose of the incest provision.  In New Zealand the Adoption of Children Act 1881 (NZ) provided inter alia that:

“When such order has been made the adopted child shall for all purposes, civil, criminal and otherwise howsoever, be deemed in law to be the parent of such adopted child, and subject to all liabilities affecting such child as if such child had been born to such adopting parent in lawful wedlock.”   

It was held that the words of the section were unequivocal and the adopting parent was to stand in the same position as the natural parent.

15. [15]
    I consider the words used in that Act far more certain than in the instant case.

16. [16]
    A single judge of the Tasmanian Supreme Court considered the matter in R v Campbell.^[9]  In that case it was held that an adopted daughter is the daughter within the meaning of the Tasmanian incest provision.  However, in that particular case s 8 of the Adoption of Children Act 1920 (Tas) provided:

“(1)  …An order of adoption made under this Act shall confer the surname of the adopting parent on the adopted child, in addition to the proper name of the child; and the adopted child shall for all purposes, civil and criminal, and as regards all legal and equitable liabilities, rights, benefits, privileges and consequences of the natural relation of parent and child, be deemed in law to be child born in lawful wedlock of the adopting parent…

3. (2)
   Where such order of adoption has been made, the adopting parents shall for all purposes, civil, criminal or otherwise, be deemed in law to be the parent of such adopted child and be subject to all liabilities effecting such a child as if such a child had been born to such adopting parent in lawful wedlock; and such order of adoption shall thereby terminate all the rights and legal responsibilities and incidents existing between the child and his natural parents, except the right of the child to take property as heir or next of kin of his natural parents directly or by representation.”

17. [17]
    These provisions were similar to the New Zealand provisions. As Burberry CJ noted at p 40: “These provisions are unequivocal and are in unqualified terms”.

18. [18]
    I do not consider the provisions of s 28 to be so clear.

19. [19]
    However despite this the Full Court of the Supreme Court in South Australia in R v R, WD^[10] considered a very similar provision. That provision was almost identical to the Queensland provision.

20. [20]
    The issue in that case was whether the appellant was the guardian of the adopted step-daughter. It was held that the provisions were not materially different from those referred to in Campbell. Sulan J held that the effect of the Adoption Act provisions was to “bring about a relationship of parent and child for the purposes of s 72 of the CLCA … [and] was in law KM’s parent and was her father in the eyes of the law he was her guardian…”  

21. [21]
    Whilst not bound by a South Australian decision I should follow it unless I consider it clearly wrong. I do not consider it clearly wrong.

22. [22]
    I therefore consider that by virtue of section 28 of the Adoption Act the defendant was in the eyes of the law, the natural brother of the complainant.

23. [23]
    I rule that the charge is therefore valid.

Section 11 of the Code and the Marriage Act

24. [24]
    Further, and in any event, one must have regard to the provisions of s 11 of the Criminal Code.  This section provides:

“11 Effect of changes in law

1. (1)
   A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.

3. (2)
   If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”

25. [25]
    The present s 222 of the Code provides a defence, namely:

“(8)  This section does not apply to carnal knowledge between persons who are—

1. (a)
   lawfully married; or

2. (b)
   if both persons are adults—entitled to be lawfully married.”

26. [26]
    By virtue of the provisions of s 11 such a defence would apply here. The section has received recent consideration in R v Rose^[11] and R v MCH.^[12] 

27. [27]
    Turning then to the Marriage Act 1961 (Cth), s 23^[13] provides:

“(2)  Marriages of parties within a prohibited relationship are marriage:

1. (a)
   between a person and an ancestor of descendent of the person; or

2. (b)
   between a brother and a sister (whether of the whole blood or the half-blood).

3. (3)
   Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adopted parent, or each of the adoptive parents, of the child, shall be deemed to be or to have been the natural relationship of the child and parent.”

28. [28]
    The apparent effect of the Marriage Act is to deem the relationship of the defendant and complainant as sister and brother and therefore within a prohibited relationship.

29. [29]
    In my view, therefore, s 222(8) does not provide a defence to the defendant here.

Conclusion

30. [30]
    In my view, therefore, the defendant is open to be convicted of the incest count.