Grant v R

JUDGMENT

1. DAVIES J: I agree with McNaughton J.
2. N ADAMS J: I agree with McNaughton J for the reasons provided by her Honour.
3. McNAUGHTON J: On 3 August 2022, Gaye Grant, the appellant, pleaded guilty to an offence of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). She was sentenced on 20 December 2022 by Haesler SC DCJ at Wollongong District Court (R v Grant [2022] NSWDC 718 ("SJ")) to a sentence of imprisonment of 6 years and 9 months, with a non-parole period of 3 years and 4 months, due to expire on 19 April 2026.
4. Despite her plea of guilty, the appellant now appeals against her conviction, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) as a result of a decision delivered by this Court on 12 February 2024: Lam v R [2024] NSWCCA 6. In Lam, the Court held that an offence contrary to s 81 of the Crimes Act (now repealed, but in force at the time of the relevant events) is incapable of being committed by a woman. This is relevant because the "unlawful sexual acts" relied upon to establish the "unlawful sexual relationship" in the instant case were said to have constituted offences contrary to s 81, namely the indecent assault of a male.
5. The appellant's conviction arises from events that took place between April 1977 and June 1979 when the victim was aged between 10 and 11 years old. The appellant admitted to having a sexual relationship with the victim. The relationship ceased at the victim's instigation after the victim entered high school. The victim reported the appellant's sexual abuse to police in 2021.
6. The single ground of appeal relied upon by the appellant is that a miscarriage of justice occurred because the appellant, a woman, was convicted of a charge which was founded on charges for which she could never lawfully be convicted.
7. On 1 March 2024, this Court granted the appellant leave to file her Notice of Appeal after the expiry of the filing period: Grant v R [2024] NSWCCA 30. The appellant was granted bail pending appeal, conditional upon her being of good behaviour and appearing in court when required to do so.
8. The respondent accepts that the construction of s 81 of the Crimes Act determined by this Court in Lam confines the scope of conduct capable of constituting that offence to male homosexual conduct. The respondent stated in its written submissions: "Accordingly, notwithstanding the moral repugnancy of the appellant's conduct, the respondent accepts as a matter of law that she could not have been convicted of the offence to which she pleaded guilty, given that the 'unlawful sexual acts' she admitted to committing were founded upon conduct said to be contrary to s 81 of the Crimes Act."
9. The respondent accepts that it would be open to this Court to find that a miscarriage of justice has been established in connection with the appellant's conviction for the s 66EA offence. If the Court so found, the respondent contends, the appropriate order would be to quash the appellant's conviction and acquit her of that charge.
10. I am of the view that notwithstanding the egregious and abhorrent nature of the appellant's conduct, the decision in Lam makes it clear that a miscarriage of justice has occurred in this case. Accordingly, this Court must quash the appellant's conviction and acquit her of the s 66EA charge.
11. It is appropriate to set out more detail underpinning this conclusion.

Factual overview

1. The appellant was sentenced in accordance with agreed facts which the sentencing judge summarised at SJ [5]-[23].
2. The appellant was employed as a teacher at a Catholic school between 1967 and 1998. The victim attended the school and was taught by the appellant in 1977 when he entered Year 5. The victim's family also knew the appellant socially outside of school.
3. The appellant's sexual abuse of the victim first commenced in April 1977. She arranged for the victim to attend her home while her husband and children were elsewhere. She invited the victim to sit on her lap and encouraged him to fondle her breasts. This sexual activity progressed to another room and involved fondling and sucking on the appellant's breasts.
4. Incidents such as this occurred between April and October 1977 on multiple occasions. Such occasions involved the appellant kissing the victim and masturbating his penis. This then led to penile/vaginal intercourse. The first such incident occurred in October 1977 and continued until June 1979. By that time, the victim had commenced high school and started to realise the abnormality of his sexual relationship with the appellant. He started to distance himself from her and eventually informed her that he intended to end their relationship. This news caused the appellant to be visibly upset.
5. Over 40 years later, in December 2019, the victim disclosed the appellant's sexual abuse to his wife. He later also told his parents in October 2020, however, he felt unsupported by their reaction and believed they were more concerned about their standing in the Catholic community.
6. The victim reported the appellant's abuse to police in 2021. In June 2021, a surveillance device warrant was granted authorising the use of surveillance devices by the victim. Between 21 and 22 June 2021, the appellant was covertly recorded in several telephone conversations during which she admitted that they had had a sexual relationship.
7. On 24 June 2021, the appellant participated in an electronically recorded interview with police, having declined the offer of legal advice. Police put multiple allegations of misconduct to her. She denied any specific recall of the incidents but later admitted to having sexual intercourse with the victim and confirmed she was aware of how young he was at the time.

Procedural history

1. The appellant was initially charged on 24 June 2021 with 22 counts of indecent assault of a male contrary to the now repealed s 81 of the Crimes Act.
2. On 28 February 2022, the Director of Public Prosecutions ("DPP") approved the institution of proceedings against the appellant for the s 66EA Crimes Act offence (pursuant to s 66EA(14)).
3. On 2 March 2022, a charge certificate was filed by the DPP at Wollongong Local Court certifying the s 66EA offence against the appellant. The charge certificate particularised the following unlawful sexual acts: kissing the victim; masturbating the victim's penis; performing fellatio on the victim; and penile/vaginal intercourse.
4. The appellant entered a plea of guilty on agreed facts to the s 66EA offence on 3 August 2022 at Wollongong Local Court. The appellant was committed for sentence at Wollongong District Court, with 16 further offences contrary to s 81 certified by the prosecutor as back up offences. These back up offences were transferred to the Wollongong District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
5. The appellant was convicted and sentenced for the s 66EA offence by Haesler SC DCJ on 20 December 2022. On that day the s 81 back up offences were withdrawn and dismissed.

Single ground of appeal: A miscarriage of justice occurred because the appellant, a woman, was convicted of a charge which was founded on charges for which she could never lawfully be convicted

1. Section 6(1) of the Criminal Appeal Act reads as follows: 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
2. Given there was a plea of guilty in the case, in order to allow an appeal against conviction, the Court must be of the opinion, in the context of s 6(1) that "on any other ground whatsoever there was a miscarriage of justice".
3. As stated by Dawson J in Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 at 157: "The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he [or she] was guilty of it or if upon the facts admitted by the plea he [or she] could not in law have been guilty of the offence". (Emphasis added)
4. See also R v Liberti (1991) 55 A Crim R 120 at 121-122 and Livbuild Pty Ltd v Willoughby City Council [2017] NSWCCA 255 at [13] (Beech-Jones J, Ward CJ in Eq and Price J agreeing).

Consideration

1. At the time of the alleged offending s 81 of the Crimes Act read as follows: 81 Indecent assault on male Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.
2. In this case, the appellant contends that her conviction should be set aside as a consequence of this Court's decision in Lam. That decision involved a relevantly similar situation, whereby charges for purported offences contrary to s 81 of the Crimes Act were brought against a female. Four complainants alleged they had been sexually abused by Ms Lam in 1978 when they were aged between 13 and 16 years old and she was a teacher. The nature of the conduct alleged to be criminal was similar to the instant case.
3. The proceedings in Lam came before this Court on an interlocutory basis seeking leave to appeal a decision by a District Court judge refusing her application to quash her indictment. This Court unanimously granted leave to appeal and ordered that the indictment be quashed.
4. Meagher JA (Weinstein J agreeing) stated at [2]: "[…] properly construed, s 81 of the Crimes Act 1900, a provision enacted in 1900, based on English legislation from 1861, and which was repealed and replaced in 1984, does not apply and has never applied to conduct committed by a female upon a male. Section 81 was relevantly directed to the crime of sodomy upon a male and other male homosexual conduct".
5. After closely considering the history of the provision Meagher JA stated at [120]-[122]: "However, the criminal act proscribed by s 81, although described as an 'indecent assault' upon a male, includes conduct which is indecent notwithstanding that the participants mutually consent to the doing of the relevant act or acts, and irrespective of whether they are adults and able freely to give such consent. Thus, unlike sexual conduct between a male and a female, which may in 1978 have involved an 'indecent assault' upon a female under s 76 depending on her age and whether she is consenting, the 'indecent' activity to which s 81 is directed must be capable of being so characterised irrespective of whether or not consent has been given and irrespective of the age of the male upon whom the act is committed. In other words, s 81 is directed to activity which of its nature, and without regard to the age of the participants and whether they were both consenting, is 'indecent'; whereas s 76 is directed to activity which is not of its nature necessarily indecent, but may constitute an indecent assault by reason of the age of the participants and whether or not there is consent. The only sexual conduct capable of constituting an assault upon a male which of its nature alone was necessarily regarded as 'indecent' at the time s 81 was enacted was male homosexual conduct. Accordingly, the additional words in s 81 make plain that it is concerned with the 'unnatural', sodomitical and other male homosexual conduct proscribed in express terms by ss 79 and 80."
6. Justice Garling, in a separate judgment agreeing with the result, made these observations at [146]: "Consistency in the application of this section according to its terms has the consequence, if it applies to a female perpetrator, of potentially criminalising all consensual sexual conduct engaged in by a female upon a male in private, including conduct which does not involve any threat, hostility, menace or any type of battery. Such a consequence would mean that the interpretation now contended for by the Crown would be absurd."
7. As observed in obiter remarks by Simpson J in JAD v R [2012] NSWCCA 73 at [98], cited in Lam at [91] and [151]: "No recognition appears to have been given to the possibility of heterosexual intercourse between an adult female, or a female in a position of authority, and a young male; or, if such a possibility were contemplated, it was not perceived as calling for criminal penalty".
8. Any prosecution of a female for offences contrary to s 81 of the Crimes Act is thus invalidated following Lam. The appellant's conviction for the s 66EA offence which was based on particularised "unlawful sexual acts" contrary to s 81 of the Crimes Act is thus invalid.
9. Given such offences could not be committed by a female, and no alternative offences are available under the Crimes Act, the appellant's sexual acts against the victim do not meet the threshold of being "unlawful" such as would constitute an offence in contravention of s 66EA.
10. I must acknowledge the significant distress no doubt being experienced by the victim in this matter, especially where the appellant had admitted to having a sexual relationship with him when he was just a child, and in circumstances where she had pleaded guilty and had been sentenced to a significant custodial penalty. It is an understatement to say that this is a regrettable situation. However, whilst the offences contrary to s 66EA were intended to apply retrospectively, the Second Reading Speech introducing the amending legislation containing this and other provisions on 6 June 2018 contained the following clear statement: "The offence will apply retrospectively as long as the sexual acts that make up the unlawful sexual relationship were illegal at the time they were committed. This was a key part of the royal commission's recommendation".1
11. The construction of s 81 of the Crimes Act as set out by this Court in Lam means that the appellant's sexual relationship with the victim was not criminalised by that provision. As such, the relationship cannot be categorised as "unlawful" within the meaning of s 66EA(2) of the Crimes Act.
12. As there is no operative offence provision, it is not necessary for the appellant to withdraw her plea of guilty in order to succeed on appeal. It is clear that the appellant's conviction of the offence contrary to s 66EA is a miscarriage of justice, and the conviction must be quashed.
13. Given there is no other offence available on the facts as found which would justify a conviction, it is appropriate to enter an acquittal.
14. The orders I propose are therefore: 1. Ground 1 be upheld. 2. The appeal be allowed. 3. The appellant's conviction for the offence contrary to s 66EA Crimes Act 1900 (NSW) be quashed. 4. In lieu thereof, an order of acquittal is entered.

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