Qld man's incest conviction quashed

A Queensland man charged with incest involving his niece has had his conviction quashed after arguing he was legally entitled to marry her.

The man was in 2008 convicted on his own guilty plea of three counts of incest involving the 17-year-old girl.

He was handed a sentence of two years behind bars that would become suspended after six months.

But in July last year, he received legal advice the convictions should be challenged by arguing that, at the time of the offence, the charge in the criminal code didn't apply to "carnal knowledge between persons who are entitled to be lawfully married".

The Australian Marriage Act 1961 prohibits marriages with minors, more than one person at once, a parent, grandparent, child, grandchild, brother or sister and a person of the same sex.

It does not exclude nieces or nephews from marrying aunties or uncles.

"It follows that the appellant could not have been charged under s222 of the Code," Court of Appeal Justice Phillip Morrison said in a written judgment published on Tuesday.

"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."

The court ordered the verdicts of guilty entered in July 2008 be set aside and replaced with acquittals.