• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Legislation Cited: Court Procedure Rules 2006 (ACT) r 5531 Crimes Act 1900 (ACT) ss 55, 55A, 56, 92EA (repealed) Crimes (Amendment) Act (No 3) 1991 (ACT) s 3 Criminal Code Act 1899 (Qld) s 229B Criminal Law Consolidation Act 1935 (SA) s 50 Human Rights Act 2004 (ACT) s 24 Legislation Act 2001 (ACT) ss 137, 138, 139, 141, 142, table 142

Cases Cited: BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 GW v The Queen [2015] ACTCA 15; (2015) 306 FLR 104 KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417 KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 2976 Perara-Catchart v The Queen [2017] HCA 9; (2017) 260 CLR 595 Picken v The Queen [2007] NSWCCA 319 R v CAZ [2011] QCA 231; [2012] 1 Qd R 440 R v DU [2018] ACTSC 281 R v FAL [2017] QCA 22 R v Kemp (No 2) [1996] QCA 514; [1998] 2 Qd R 510 R v KN (No 2) [2019] ACTSC 5 R v M, DV [2019] SASCFC 59 R v McCarthy (2015) SASR 190 Re Bolton Ex parte Beane (1987) 162 CLR 514 Richardson v The Queen [2013] NSWCCA 218 S v The Queen (1989) 168 CLR 266 Stubbs v The Queen [2017] ACTCA 58

Texts Cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 October 1991 Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) South Australia, Parliamentary Debates, Legislative Council, 19 October 2017 Queensland, Parliamentary Debates, Legislative Council, 6 November 2002

Parties: KN (Appellant) The Queen (Respondent)

Representation: Counsel K Archer (Appellant) R Christensen (Respondent)

Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number(s): ACTCA 67 of 2018

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 30 January 2019 Case Title: R v KN (No 2) Citation: [2019] ACTSC 5

MURRELL CJ AND RANGIAH J

The appeal

1. The appellant appealed against six convictions for sexual misconduct:

(a) One conviction for maintaining a sexual relationship with a young person, LL, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) (the relationship offence).

(b) Four convictions for engaging in sexual intercourse (fellatio) with LL, contrary to s 55 of the Crimes Act.

(c) One conviction for engaging in sexual intercourse (fellatio) with another young person, SN, contrary to s 55 of the Crimes Act.

2. The appellant was sentenced to a total term of seven years and six months’ imprisonment, from 4 October 2018 to 3 April 2026: R v KN (No 2) [2019] ACTSC 5 (Elkaim J) (KN). The primary judge fixed a nonparole period of five years’ imprisonment, expiring on 3 October 2023.

3. The appeal raises the question of whether, in relation to LL, it was permissible for the appellant to be convicted of both maintaining a sexual relationship with LL and committing specific offences of sexual intercourse against her in circumstances where the specific offences were relied upon to establish the relationship offence. To answer this question, we must first decide the elements that comprise a relationship offence.

4. Section 56 of the Crimes Act is set out in Annexure A. It relevantly provides:

56 Maintaining sexual relationship with young person or person under special care (1) A person who is an adult and who maintains a sexual relationship with a young person or a person under the special care of the adult is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person. … (4) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that a sexual relationship existed. (5) However, in a proceeding for an offence against subsection (1), there is no requirement for— (a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or (b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence if the trier of fact is satisfied the nature and character of a person’s conduct was consistent with a sexual act; or (c) if the trier of fact is a jury—members of the jury to agree on which sexual acts constitute the sexual relationship. … (8) A person may be charged on a single indictment with, and convicted of and punished for, both— (a) an offence against subsection (1); and (b) 1 or more sexual offences committed by the person against the same young person … during the alleged period of the sexual relationship. (9) Except as provided by subsection (8), a person cannot be convicted of an offence— (a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or …

5. At the trial, the prosecution relied upon the alleged sexual offences that were the subject of the four s 55 charges concerning LL to satisfy the sexual act requirements of s 56(2). The prosecution also led evidence that there had been many other sexual acts of fellatio between the appellant and LL, which, like the charged acts, had been part of a particular “game”.

6. In directing the jury on the s 56 relationship charge, the primary judge said:

Count 2 is maintaining a sexual relationship. In a sense, that should come later, because you would need to be satisfied of the other counts before there is any kind of relationship.

7. This direction was developed as follows:

Count 2. Accused is an adult, not too much doubt about that. He maintained a sexual relationship with another person, and the other person is, of course, [LL]. [Over two or] more occasions over the period in the indictment he engaged in a sexual act. So the sexual acts, as you know, are the occasions of oral sex, and a sexual relationship existed. So what’s a sexual relationship? Well, obviously, it has to have the component of sex and it has to be a relationship. But for a relationship like a husband and wife, it’s a connection between two people. It’s an ongoing course of activity between [them]. And finally, the other person was a young person. Well, again, no one seems to put that in issue.

8. The first substantial issue on the appeal is whether, for a relationship offence, in addition to establishing that a “sexual act” occurred on two or more occasions, the prosecution must prove that there was a “sexual relationship” between the accused and the young person (as the primary judge stated in his directions to the jury).

9. The second principal issue is whether s 56(9) of the Crimes Act permits an accused to be prosecuted for or convicted of a relationship offence if they have been convicted of substantive offence(s) relied upon to support the relationship conviction (or vice versa). The appellant said that—having regard to the terms of s 56(9)—in this case the relationship offence should not have been prosecuted as the relevant s 56(2) “sexual acts” were the subjects of Counts 3, 4, 5 and 6.

10. For the reasons explained below, the s 56(9) issue is related to the larger issue of whether a conviction under s 56(1) only requires proof of two or more “sexual acts”, or whether it requires proof of the additional element of a “sexual relationship”.

11. The appellant sought orders that the verdicts be set aside and a verdict of not guilty be entered on each count. Alternatively, he asked that the matters be remitted for retrial.

Leave to pursue additional ground of appeal

12. The appellant sought leave to appeal on the additional basis that, in relation to Count 2, the primary judge had failed to clearly direct the jury that the prosecution simply had to establish that he had engaged in sexual acts on two or more occasions and that, in relation to such acts, the prosecution was confined to the specific acts that were the subjects of Counts 3 to 6. Rather, so the appellant argued, the primary judge had erroneously directed the jury that the prosecution must also establish that there was a “sexual relationship” between LL and, for the purpose of doing so, the prosecution could rely upon the specific sexual acts that were charged.

13. As the proposed ground of appeal sought to challenge the primary judge’s directions in circumstances where no challenge was made at the time of the trial, the appellant required leave to pursue it.

14. Rule 5531 of the Court Procedure Rules 2006 (ACT) (CPR) provides that, in relation to any alleged misdirection by a trial judge, an appellant who failed to take objection at the time of the trial requires leave to argue the matter on appeal.

15. Generally, leave should be granted if the alleged misdirection may have resulted in a miscarriage of justice, in the sense that the appellant lost a real chance (a chance fairly open) of acquittal: GW v The Queen [2015] ACTCA 15 at [15], Richardson v The Queen [2013] NSWCCA 218 at [97] (Latham J), Picken v The Queen [2007] NSWCCA 319 at [20]–[21] (Mason P, with Hidden and Harrison JJ agreeing), Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 2976 at [72] (McHugh J).

16. In this case, the appellant was convicted of both the relationship offence under s 56(1) and the specific sexual offences that were relied upon under s 56(2). If proof of the specific sexual offences was all that was required to establish the s 56(1) relationship offence and/or s 56(9) precludes convictions for both a s 56 offence and the foundational “sexual acts”, then there may have been a miscarriage of justice in that the appellant has been wrongly convicted.

17. Consequently, we grant leave under r 5531 of the CPR.

Further matter raised on the appeal

18. On the appeal, the appellant also complained that the primary judge had failed to clearly direct the jury that, before it could find him guilty of the charge of maintaining a sexual relationship, it would first have to find him guilty of engaging in a sexual act with LL on two or more occasions, being an act that was an offence at the time when it occurred.

19. The primary judge did inform the jury that the specific sexual offences were the first matters that should be considered. His Honour said:

In a sense, [consideration of the relationship charge] should come later, because you would need to be satisfied of the other counts before there is any kind of relationship.

20. More importantly, in the circumstances of this case, nothing flowed from the failure to give the direction in question. The jury must have been satisfied that the appellant was guilty of at least two sexual offences comprising sexual acts because it returned verdicts of guilty on each of Counts 3 to 6. Those Counts constituted the entirety of the conduct upon which the prosecution relied to establish that there had been “sexual acts” as required by s 56(2). It is not necessary for a direction to be given about a non-issue: Stubbs v The Queen [2017] ACTCA 58 at [44], applying Perara- Catchart v The Queen [2017] HCA 9 at [66].

21. We turn to consider the more important issues raised by the appellant.

Approach to interpretation of s 56

22. The dilemma in construing s 56 is that s 56(2) baldly states that an adult maintains a sexual relationship with a young person “if on two or more occasions and over any period the adult engages in a sexual act” with the young person, i.e. that all that is required is proof that there were two occasions when a “sexual act” occurred (relevantly, for present purposes, a sexual offence occurred). But if that is all that is required, what purpose is served by s 56(4)? Why describe the offence as “maintaining a sexual relationship” or even use the word “relationship” when, ordinarily, one would not describe two encounters as a “relationship”? And, more fundamentally, could the legislature have intended that a person could be convicted and sentenced to 25 years’ imprisonment in circumstances where the jury had not agreed upon the essential conduct comprising the offence?

23. This dilemma must be resolved having regard to the following principles that are applicable to statutory interpretation in this jurisdiction.

(a) Common law presumptions operate in conjunction with the statutory provisions in Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act): ss 137(3) and (4) Legislation Act.

(b) In working out the meaning of an Act (including resolving ambiguity, confirming or displacing apparent meaning, or finding meaning where the apparent meaning results in absurdity or unreasonableness), the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: ss 138 and 139 Legislation Act.

(c) Non-legislative material may be considered, but in deciding whether it should be considered and the weight that should be given to it, account must be taken of the desirability of being able to rely on the ordinary meaning of the provision in question, having regard to its purpose and read in the context of the Act as a whole: ss 141(1) and (2)(a) Legislation Act.

(d) Non-legislative material that may be considered includes any relevant report of a Royal Commission and any explanatory statement relating to the bill as well as the presentation speech made to the Legislative Assembly during the passage of the bill: s 142 and Table 142 Legislation Act.

24. It is instructive to consider s 56 of the Crimes Act in the context of its evolution and that of similar provisions.

Legislative and case history

S v The Queen

25. In S v The Queen (1989) 168 CLR 266 (S v The Queen), a child complainant had failed to identify when, in the course of a lengthy incestuous relationship, particular sexual acts had occurred. The majority allowed the appeal against conviction, referring to the fact that there was latent ambiguity because the court record did not clearly reflect the offences of which the accused had been convicted (per Gaudron and McHugh JJ) and observing that the accused had been unable to identify with particularity the case that he had been required to meet (per Dawson and Toohey JJ).

26. To address the difficulty highlighted in S v The Queen—that many young complainants experience difficulty in clearly identifying when and where particular sexual acts occurred in the context of a long sexual relationship—in 1991, the ACT introduced a new offence of maintaining a sexual relationship in s 92EA of the Crimes Act. Later, this provision was renumbered as s 56. However, for the purpose of distinguishing the earlier s 92EA/s 56 from the current s 56, we will refer to the earlier form of the relationship provision as s 92EA.

27. Section 92EA was introduced by the Crimes (Amendment) Act (No 3) 1991 (ACT) (now repealed). When Mr Collaery introduced it as part of a private member’s bill, he made it clear that the proposed provision was a response to the High Court’s decision in S v The Queen. During the debate on 16 October 1991, at Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 October 1991, 3784–5 (Bernard Collaery MLA), Mr Collaery said: Mr Speaker, on 21 December 1989, the High Court decided in S v. the Queen, reported in volume 64 of the Australian Law Journal Reports, page 126, that there was a need for specificity in counts of an indictment relating to alleged multiple acts of incest. In simple language, the case highlighted the difficulty of securing a conviction when a child cannot remember the dates of sexual abuse … Where a decision is properly taken to pursue an offender in the courts, this proposed amendment to the law will overcome the legal difficulty highlighted by the High Court decision in S v. the Queen …

28. Section 92EA is set out in Annexure B.

KBT v The Queen and s 229B of the Queensland Code

29. In R v Kemp (No 2) [1998] 2 Qd R 510, the accused had been charged under s 229B of the Criminal Code Act 1899 (Qld) (Queensland Code, as it then was) with maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years. Section 229B(1) made it an offence for an adult to “maintain an unlawful relationship of a sexual nature with a child”. However, s 229B(2) provided that an adult could not be convicted of the offence “unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship initially with the child, done an act defined to constitute an offence of a sexual nature in relation to the child… on three or more occasions”. The Queensland Court of Appeal held that part of the actus reus of the offence was that the accused had maintained a sexual relationship, being an interaction involving both habituality or continuity of contact and sexual content: Macrossan CJ at 511, Mackenzie J at 518, 522–3.

30. In KBT v The Queen (1997) 191 CLR 417 (KBT), the High Court disagreed, holding that the actus reus of the offence was not a continuing course of conduct. Rather, it was the doing, as an adult, of an act that constituted an offence of a sexual nature in relation to the child on three or more occasions: per Brennan CJ, Toohey, Gaudron, and Gummow JJ at 422. Consequently, a person could not be convicted unless the jury had agreed on the same three or more acts constituting offences of a sexual nature.

31. In KRM v The Queen (2001) 206 CLR 221 (KRM), the High Court considered a Victorian provision that was similar to s 229B of the Queensland Code and applied the decision of the plurality in KBT, holding that the provision required proof of three acts constituting offences and it was those acts, not the maintaining of a relationship, that constituted the actus reus of the offence; that position was most clearly articulated by McHugh J at [41], and see Gummow and Callinan JJ at [64] and [67] and Hayne J at [137] .

32. In BBH v The Queen (2012) 245 CLR 499, the High Court considered the admissibility of evidence in connection with an offence against s 229B(1) of the Queensland Code (as at 1997). The Court adopted the approach taken in KBT and KRM, proceeding on the basis that it was the doing of the sexual offences that constituted the actus reus of the offence, not the maintaining of a sexual relationship: French CJ at [15], and see Crennan and Kiefel JJ at [144]–[145].

33. In 2003, s 229B of the Queensland Code was amended. During the Second Reading Speech (Queensland, Parliamentary Debates, Legislative Council, 6 November 2002, 4443–4), the Queensland Attorney-General said:

The offence as redrafted removes the requirement to prove three particular acts of a sexual nature. Instead the offence is established by proof of the relationship. For a person to be convicted of the offence, the jury must be satisfied beyond a reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, but they do not have to agree unanimously on particular acts comprising it.

34. The amended s 229B is set out in Annexure C. In part, s 229B provides:

229B Maintaining a sexual relationship with a child (1) Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime. (2) An unlawful sexual relationship is a relationship that involves more than one unlawful sexual act over any period. (3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed. (emphasis added)

35. Queensland courts have conducted trials on the assumption that, under this provision, two or more unlawful sexual acts do not, without more, constitute an “unlawful sexual relationship”; while an “unlawful sexual relationship … involves” two or more unlawful sexual acts, it is not constituted solely by two or more unlawful sexual acts. In R v CAZ [2012] 1 Qd R 440, it was common ground that an offence against s 229B of the Queensland Code required both proof of unlawful sexual acts and proof that the accused had maintained a “sexual relationship” with the child: Fraser JA at [46], with Chesterman and White JJA agreeing. In R v FAL [2017] QCA 22, it was again assumed that an unlawful sexual relationship under s 229B entailed more than proof of two or more sexual acts over a period; rather, the issue was what constituted a relationship. At [32], Gotterson JA (with whom Morrison and Philippides JJA agreed) said:

It is the continuity or habituality of sexual contact that may give rise to a relationship. It is unnecessary that the contact have some minimum, yet unspecified, degree of invasiveness or frequency in order to give rise to it.

The Royal Commission into Institutional Responses to Child Sexual Abuse

36. In the Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) (Royal Commission Report), the Royal Commission approved the Queensland provision, stating at pts III–IV, 68:

We consider that the Queensland offence, in making the actus reus the relationship rather than the individual occasions of abuse, provides the best opportunity to charge repeated or ongoing child sexual abuse in a manner that is more consistent with a sort of evidence the complainant is more likely to be able to give. Many children who are subjected to repeated occasions of child sexual abuse in similar circumstances are unlikely to be able to distinguish the particular occasions of abuse from each other. Many children may have composite memories of repeated occasions of abuse and may recall events and give evidence in that form …

37. The Commissioners considered that the Queensland offence could be improved upon, but only by giving it retrospective operation, so that the offence captured conduct that had occurred before the commencement of the offence.

38. At 71, the Commissioners continued:

Apart from the absence of retrospectivity, the only concern we have with the current Queensland offence is its name: “maintaining an unlawful sexual relationship”. The language of “relationship” does not sit easily with the exploitation involved in child sexual abuse offending. However, it may help to emphasise that the actus reus of the Queensland offence – and what the jury need to be satisfied of – is the existence of the relationship and not particular underlying acts. … We appreciate that “relationship” may also act as a limitation – as, for example, in the Queensland case where the court held that seven instances of improper touching inside and outside of clothes over five years did not amount to “maintaining a relationship”. Perhaps offending that is alleged to have occurred this infrequently (barely more than once a year) would need to be charged as individual offences unless there was a more intensive period of offending that could be charged as maintaining a relationship, with additional isolated occasions of offending charged as individual offences.

39. The Commissioners were referring—with apparent approval—to the Queensland case of R v DAT [2009] QCA 181 (DAT), which had been discussed at 23 of the Royal Commission Report. In DAT, reference was made to the indicia of maintaining a relationship, including the duration of the alleged relationship, the number of acts, and the nature of the acts: Holmes JA (Muir JA agreeing) at [13], McMurdo J at [22].

40. At 74, the Commission made the following recommendation:

41. Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that: a. the actus reus is the maintaining of an unlawful sexual relationship b. an unlawful sexual relationship is established by more than one unlawful sexual act …

42. We note the inconsistency between the apparent adoption of the position that isolated sexual interactions should not constitute a “relationship” (that the actus reus of the offence is the maintaining of an unlawful sexual relationship) and the recommendation that an unlawful sexual relationship “is established” by more than one unlawful sexual act.

43. The Royal Commission proposed a Model Provision for the offence of maintaining an unlawful sexual relationship with a child: Royal Commission Report at Annexure H. The Model Provision is set out at Annexure D.

ACT Response to the Royal Commission Report Recommendation

43. In response to the Royal Commission Report, by the Crimes Legislation Amendment Bill 2017 (No 2) (ACT), the ACT amended s 56 as it then was (to which we have referred as s 92EA), but did so in a manner that differed significantly from the Model Provision and which seemingly failed to achieve the intention expressed in the Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) (Explanatory Statement).

44. The Explanatory Statement said (at 14–15):

Under the original ACT provision, an accused is taken to have maintained a sexual relationship with a young person if they have engaged in a sexual act in relation to the young person on three or more occasions. There is no utility in using this provision over charging specific incidents: if a complainant cannot recall specific incidents but is able to give an account of repeated sexual abuse a charge cannot be proved under [s 92 EA and the old s 56]. The Royal Commission conducted a detailed review of all Australian persistent child abuse offences and recommended that each state and territory government introduced legislation to amend its persistent child sexual abuse offence so that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence in accordance with the Model Provision. … … Section 56(4) … is intended to clarify that the prosecution must prove the existence of the unlawful relationship, not the individual sexual acts, beyond reasonable doubt. (Citations omitted)

Comparison of s 56 with s 92EA and the Model Provision

45. A comparison of s 92EA (Crimes Act, repealed provision), the Model Provision, and s 56 (Crimes Act, current provision) emphasises their textual similarities and differences.

46. As to similarities, all three provisions proscribe (or proscribed) the conduct of an adult “who maintains a sexual relationship with a young person”: see s 92EA(2), s 56(1), and cl 3(1) of the Model Provision. The Model Provision refers to the maintenance of “an unlawful sexual relationship”, but that is not a difference of substance.

47. Both the Model Provision and s 56 provide that a “sexual act” (or “unlawful sexual act”) is a sexual offence (or an act that would be a sexual offence if it could be particularised as to time and place). Section 92EA contained a loosely similar provision; s 92EA(4) provided that evidence of a sexual act was “not inadmissible” just because there was no evidence of the date or exact circumstances in which the act had occurred.

48. The first and most significant difference between s 92EA, the Model Provision, and s 56 is between those parts of the provisions that are similar to s 56(2).

49. Section 92EA(3) provided that “For the purposes of subsection (2), an adult shall be taken to have maintained” a sexual relationship “if the adult has engaged in a sexual act in relation to the young person on three or more occasions” (with no qualification as to period). Section 56(2) echoes s 92EA(3) but then adds a reference to a period: “For subsection (1), an adult maintains a sexual relationship” “if on two or more occasions and over any period the adult engages in a sexual act with the young person”. In contrast, without directly referencing the provision creating the offence, cl 3(2) (the equivalent part of the Model Provision) says that an unlawful sexual relationship “is a relationship in which an adult engages in 2 or more unlawful sexual acts” with a child “over any period” (emphasis added throughout paragraph).

50. In effect, s 92EA(3) and s 56(2) state that the offence of maintaining a sexual relationship with young person is committed if an adult engages in the requisite number of sexual acts with the young person. On the other hand, rather than defining the offence itself, the Model Provision defines an “unlawful sexual relationship”. It speaks of “a relationship in which” an adult engages in two or more unlawful sexual acts, arguably drawing a distinction between “unlawful sexual relationship”, “relationship” and “sexual acts” occurring within a relationship.

51. The second difference is that s 56(4) of the Crimes Act and cl 3(4) of the Model Provision provide that the trier of fact must be satisfied beyond reasonable doubt that a sexual relationship (or unlawful sexual relationship) “existed”. Section 92EA contained no equivalent provision.

52. The third difference is that cl 3(5)(c) of the Model Provision and s 56(5)(c) of the Crimes Act each provides that there is no requirement for the members of a jury to agree on which sexual acts “constitute” the sexual relationship (or unlawful sexual relationship). Section 92EA contained no equivalent provision.

53. Finally, the provisions differ in relation to the treatment of charges laid in the same indictment. These differences are discussed below.

54. We note that, although the Royal Commission approved the Queensland Code provision, the Model Provision does not mirror s 229B of the Queensland Code. The Queensland Code focuses more clearly on the actus reus of the relationship rather than the underlying sexual acts; it speaks of a relationship “involving” sexual acts. Another difference is that the Model Provision and s 56 state that members of a jury are not required to agree on the unlawful sexual acts that “constitute” the “(unlawful) sexual relationship”, whereas the Queensland Code simply says that the members of the jury are not required to be satisfied “about” the same unlawful sexual acts.

R v M, DV

55. In R v M, DV [2019] SASCFC 59 (DV), the South Australian Court of Criminal Appeal was required to construe s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).

56. Section 50 of the CLCA is set out at Annexure E. Sections 50(1), (2), and (3) enact cls 3(1), (2), and (4) of the Model Provision. In s 50(12), the CLCA repeats the contents of s 3 (2) of the Model Provision by defining “unlawful sexual act” in identical terms.

57. In DV, the Court identified three reasonably available alternative constructions of s 50 of the CLCA (Blue J at [48], cited by Kourakis CJ at [9]):

(a) The proscribed relationship is constituted by the multiple unlawful sexual acts themselves.

(b) As well as the multiple unlawful sexual acts themselves, there must be a relationship (not necessarily a sexual one) between the accused and the complainant.

(c) As well as the multiple unlawful sexual acts themselves, there must be a sexual relationship between the accused and the complainant.

58. The members of the bench preferred different constructions. Kourakis CJ (with whom Lovell J agreed) preferred the second construction but Blue J preferred the first.

59. In adopting the second construction, Kourakis CJ reasoned that:

(a) The words “in which” in s 50(2) differentiated the “relationship” from the unlawful sexual acts themselves, in the same way as did the words “that involves” found in the Queensland Code: at [10].

(b) The addition of sub-para (c) to s 50(4) (providing that the members of the jury are not required to agree on which unlawful sexual acts have been proved) meant that, in the absence of a further element, there would be no conduct element requiring jury unanimity. This would be a radical departure from the “cardinal principle” of Australian criminal law that the jury, as an institution, must be satisfied that an offence has been proved beyond reasonable doubt: at [12]–[16], at [14] quoting Kourakis CJ in R v McCarthy (2015) SASR 190 at [5].

(c) The requirement of an additional “relationship” element was consistent with s 50(11) of the CLCA (which enables the sentencing judge to decide the nature or character of the unlawful sexual acts); while the jury must be unanimously satisfied of the relationship, as individual jurors might differ in their views as to what multiple unlawful sexual acts are established, it was for the sentencing judge to decide that matter: at [18].

(d) It was clear from the Second Reading Speech that the legislature had intended to adopt the Royal Commission recommendation that the actus reus of the offence should be the maintaining of a sexual relationship rather than the particular unlawful sexual acts underlying the relationship: at [19]–[21].

(e) The third alternative construction was inconsistent with the definition of “unlawful sexual relationship”; the definition clearly required only two sexual acts: at [22].

60. We interpolate to observe that, while considerations (b) and (d) apply to the construction of s 56 of the Crimes Act, because of drafting differences between s 56 of the Crimes Act and s 50 of the CLCA, considerations (a), (c), and (e) do not.

61. In DV, Blue J held that the text, content and evident purpose of s 50 supported the first construction. His Honour reasoned that:

(a) The term “unlawful sexual relationship” used in s 50(1) was defined exclusively by s 50(2); there was no separate overt requirement that there be a “sexual” or “unlawful sexual” relationship: at [49].

(b) If there was a separate and undefined requirement for a “sexual relationship” then it would be difficult to attach an objectively definable meaning to the term, which strongly invited subjective interpretation. It was unlikely that the legislature intended to introduce an element involving such complexity and uncertainty: at [50].

(c) An “unlawful sexual relationship” was defined as a relationship “in which” an adult engages in two or more unlawful sexual acts with a child. If there was an additional element of a sexual relationship that arose by virtue of the continuity or habituality of sexual interaction, then, for s 50(2) purposes, one could take into account only those unlawful sexual acts that had occurred after sexual encounters between the adult and the child had become habitual, acquiring the status of a sexual relationship, and sexual acts that had occurred before that time would not count under s 50(2): at [50]. Such an outcome did not sit comfortably with the apparent purpose of the provision.

(d) If it was an element of the offence that there be a “sexual relationship” in ordinary parlance, then there would be no point in the legislative requirement for two or more sexual acts or the reference to the acts occurring “over any period”. The statement that two acts may occur “over any period” must have been introduced to counter a requirement that there be a sexual relationship in ordinary parlance, involving habituality and continuity: at [51]. (e) The s 50(4)(c) reference to the members of the jury not being required to agree on which unlawful sexual acts “constitute” the unlawful sexual relationship was inconsistent with there being a separate element of “unlawful sexual relationship”: at [53].

(f) The fundamental rationale of s 50 – to enable a conviction where a child cannot provide certain particulars of individual sexual offences – was met without the need for an additional requirement of a larger “sexual relationship”. The legislature had deliberately chosen to abrogate the common law requirement for jury unanimity about the conduct constituting an offence: at [54].

(g) The purpose of s 50 did not support an element of “relationship”. The draughtsperson employed the expression “relationship” as a way of describing the requirement for multiple sexual acts as opposed to specific sexual acts: at [58].

(h) Although passages in the second reading speech introducing s 50 of the CLCA (South Australia, Parliamentary Debates, Legislative Council, 19 October 2017) referred to implementing the Royal Commission recommendations and to making the actus reus of the offence the maintenance of an unlawful sexual relationship, those references merely supported the proposition that s 50 was designed to avoid the need for particularity and jury unanimity about which individual sexual offences comprised the offence. In any event, a second reading speech cannot dictate the construction of a provision: at [62], [82].

62. Observations (b), (d), (f) and (h) apply to our consideration of the proper construction of s 56 of the Crimes Act but, because of drafting differences, the other observations do not apply.

Conclusions concerning the elements of the offence

63. Somewhat reluctantly, we are driven to the conclusion that, as s 56(2) of the Crimes Act plainly states, an offence of maintaining a sexual relationship with a young person is committed “if, on two or more occasions and over any period the adult engages in a sexual act” with the young person. The text provides no scope to impose an additional element of the offence. The legislature has decided to retain the approach of s 92EA(3), whereby s 56(2) defines the offence, rather than confining itself to the “sexual relationship” aspect of the offence.

64. The legislature has deliberately chosen to enact s 56(2), although that provision differs substantially from the Model Provision. The Model Provision itself differs significantly from the Queensland Code that was approved in the Royal Commission Report. Arguably, the decision in DV shows that the Model Provision does not achieve its stated purpose; but we are not called upon to decide that question.

65. We concur with the view expressed by Burns J in R v DU [2018] ACTSC 281 (DU) at [29], where his Honour doubted that s 56 created an offence of which the actus reus was the maintenance of a sexual relationship (although, in the proceedings before him, it was unnecessary to determine that question).

66. The words of s 56(2) are clear. The focus on “sexual acts” rather than on the existence of a sexual relationship in the ordinary sense is emphasised by the inclusion of the words “over any period”, which would be quite unnecessary if there was an additional element of “sexual relationship” in the ordinary sense. The reference in s 56(5)(c) to the fact that jurors need not agree “on which sexual acts constitute the sexual relationship” also supports this construction (emphasis added).

67. Any doubt about the meaning of the provision arises only from contextual considerations, and because extraneous material suggests that the provision does not reflect the legislative purpose.

68. In reaching this conclusion, the following considerations have given us pause.

69. First, the provision does away with the “cardinal principle” that there must be jury unanimity about the conduct founding an offence. It does so in circumstances where a convicted person is liable to a maximum penalty of 25 years’ imprisonment.

70. Second, both the Royal Commission Report and the Explanatory Statement associated with the introduction of s 56 emphasised that the purpose of the new provision was to make the unlawful sexual relationship the actus reus of the offence, rather than the underlying sexual acts (regardless of whether the individual sexual acts are offences that can be particularised or “offences” that cannot be particularised). Section 56 does not achieve that purpose.

71. Third, the construction that we have adopted means that s 56(4) has little, if any, work to do.

72. Fourth, as explained below, the construction exposes an accused person to “double jeopardy” and may be contrary to s 24 of the Human Rights Act 2004 (ACT) (HRA) because it enables an accused person to be convicted and punished twice for the same conduct.

Sections 56(8) and (9) considered in R v DU

73. The appellant submitted that, in accordance with the decision in DU, he could not be convicted of both the s 56 offence and the specific sexual offences in Counts 3 to 6 because Counts 3 to 6 duplicated the s 56(2) “sexual acts” supporting the conviction under s 56 and was the only conduct that had to be proved in order to establish the s 56 offence.

74. In DU, the accused had been charged with six offences against s 55A of the Crimes Act. Those six acts were relied upon to support a s 56 relationship charge. The accused had sought a stay of the s 56 charge, submitting that the Crown could not proceed with both the s 56 charge and the substantive charges as it put him in double jeopardy. The argument was largely successful although, for discretionary reasons, Burns J did not order a stay. In part, his Honour reasoned that:

(a) The Explanatory Statement demonstrated that the legislature had been concerned to address the danger of double jeopardy through ss 56(8) and (9). Double jeopardy operated where the elements and critical facts of one offence wholly captured the elements and critical facts of a second offence. In the case of a conviction under s 56(1), it may be difficult to identify from a jury verdict which acts the jury (or, more accurately, individual jurors) had or may have found to be proved. For this practical reason, the principles governing the availability of pleas in bar could not be applied easily where an accused person had been charged both under s 56 and with the substantive offences said to constitute the relationship. Consequently, the legislature had decided to introduce ss 56(8) and (9): at [56].

(b) If ss 56(8) and (9) meant that an accused person would be protected from double prosecution and double punishment only where specific offences were not included in the same indictment as the s 56 offence, the protection against double jeopardy would be at the discretion of the Director of Public Prosecutions: at [63] and [65].

(c) Where used in the Explanatory Statement to explain the operation of s 56(8) (see [77] below), the word “other” suggested a distinction between a s 56 charge (and the acts on which it was based) and the individual sexual offences charged in the same indictment: at [57].

(d) The operation of sexual relationship offences was intended to fill a gap in the prosecution of sexual offences, not to replace existing specific offences or to generally erase the principles governing the prosecution of specific offences: at [70]. The purpose of s 56(8) was to clarify that a s 56 charge does not “cover the field” of sexual offences during the period the subject of the charge; an accused person may be charged on a single indictment both under s 56(1) and with specific offences in the same period, provided that the specific offences alleged acts other than those relied upon under s 56(2): at [68].

75. We take a different view. Although we agree with observation (b), we consider that ss 56(8) and (9) expressly permit an accused person to be convicted of both a s 56 offence and specific sexual offences relied upon as “sexual acts” under s 56(2), provided that all offences are charged in the same indictment.

76. Sections 56(8) and (9) reflect cl 4 of the Model Provision, which provides that a person may be charged on a single indictment and convicted and punished for both maintaining a sexual relationship and sexual offences committed during the period of the relationship (including offences relied upon as sexual acts for the purpose of the unlawful sexual relationship charge), but not otherwise. At pts III–IV, 73, the Royal Commission Report stated:

Clause 4 of the draft provision … allows a person to be charged on the same indictment with both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences against the same child during the period of the alleged unlawful sexual relationship, as may currently occur in relation to the Queensland offence. However, it addresses the risk of “double jeopardy” by otherwise not allowing a person to be convicted of [broadly—an unlawful sexual relationship offence if they have already been convicted or acquitted of an act relied upon to constitute the relationship or vice versa]. (emphasis added)

77. In relation to ss 56(8) and (9), the Explanatory Statement stated (at 16–17):

Section 56 (8) … is based on section 4(1) [sic] of the Model Provision. The section is intended to address the circumstances in which a person may be charged with the unlawful sexual relationship offence and other sexual offences. It allows a person to be charged on the same indictment with both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences against the same child during the period of the alleged unlawful sexual relationship. Section 56 (9) is based on sections 4(2), 4(3) and 4(4) [sic] of the Model Provision. This section is intended to address the risk of “double jeopardy”, protected by s 24 of the HRA, by not allowing a person to be convicted of [broadly—a sexual relationship offence if they have been convicted or acquitted of one of the acts constituting the relationship offence, or vice versa]. (emphasis added in italics)

78. We place no importance on the expression “other sexual offences”; it may be referring to different sexual acts that are the subject of specific sexual offences (as Burns J thought) or it may be referring to the same sexual acts that are the subject of other, specific sexual offence charges.

79. We note that neither cl 4 of the Model Provision nor s 56 expressly prohibits cumulative sentences where a relationship offence and a related sexual offence are charged in the same indictment. In contrast, s 92EA(7) enabled a person to be charged in one indictment with both a relationship offence and specific sexual offences and to be convicted and punished for all offences, but s 92EA(8) provided that sentences could not be cumulative. The Queensland Code also expressly protects against additional punishment by providing that, where an offender is charged in the same indictment and convicted of both a relationship offence and specific offences, sentences cannot be cumulative.

80. Of course, where a sexual relationship offence and the specific sexual offence/s are charged in the same indictment and an accused person is convicted of the relationship offence on the basis of the act/s the subject of the specific charge/s (assuming that it is possible to determine that that was or may have been the case), then the sentencing judge is likely to decide that the sentence for the relationship charge captures the whole of the criminality of the specific charges (or vice versa) and to impose entirely concurrent sentences.

81. That is what occurred in the present case. The decision in DU post-dated the appellant’s trial but was available at the time of sentence and was drawn to the attention of the primary judge. In KN, his Honour acknowledged the “danger of punishing the offender, in effect, twice for the same offence”: at [9]. At [32], his Honour stated:

In addition, although the counts concerning LL involve a rolling up of offences, Count 2 must be seen as part of the same criminal conduct constituted by the other counts. This it [sic] is essentially the point raised in respect of s 56. It is important that I am careful to ensure that the offender is not punished twice for the same offence.

82. We consider that ss 56(8) and (9) unequivocally allow for concurrent charging and conviction, provided that the relationship charge and the specific sexual offence charges are prosecuted in the same indictment.

Conclusions

83. The appellant has established that, contrary to the jury directions given by the primary judge, a s 56(1) relationship offence is established by proving two or more “sexual acts” and there is no additional requirement to prove a “sexual relationship”.

84. However, the otiose direction could not have resulted in a miscarriage of justice. It disadvantaged only the prosecution, by requiring the prosecution to prove an unnecessary element.

85. But for ss 56(8) and (9) of the Crimes Act, the principle of double jeopardy would have applied and would have precluded the appellant being convicted of both the relationship offence and the specific offences against s 55 of the Crimes Act, as the latter offences were relied upon as the “sexual acts” founding the s 56(1) conviction. However, the principle of double jeopardy has been displaced by ss 56(8) and (9). Consequently, there has been no miscarriage of justice in this regard.

Order

86. Appeal dismissed.

I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Rangiah.

Associate:

Date:

MOSSOP J

87. I agree that the appeal must be dismissed and agree with the reasons given by the Chief Justice and Rangiah J. I wish to add some additional remarks in relation to the interpretation of s 56.

88. Section 56(2) defines the maintenance of a sexual relationship by reference only to the engaging in sexual acts. In doing so it repeats the structure of the definition in s 92EA(3) but reduces the required number of sexual acts from three to two. In contrast, the Model Provision (and every other provision set out in the joint reasons) defines the relevant sexual relationship as “a relationship” that “involves” or “in which” the sexual acts occur. The Model Provision therefore defines the relationship as being a relationship that involves a particular number of specified acts rather than making the performance of a number of the specified acts the relationship.

89. The extrinsic materials make it clear that it was the intention of the legislature to implement the recommendations of the Royal Commission. In particular, the Explanatory Statement proceeded on the basis that the amended s 56 would make the actus reus of the offence the maintenance of the unlawful sexual relationship rather than the individual sexual acts. In order to achieve this goal, it would have been simple enough to adopt the language proposed by the Royal Commission in its Model Provisions or, alternatively, the language of the section upon which the Model Provisions were based, namely s 229B of the Queensland Code. Had the drafter of the amended s 56 done so, it would have been clear that the actus reus of the offence was a relationship and that that relationship was required to have the particular characteristic that it “involved” the sexual acts or was one “in which” the sexual acts occurred. However, instead of adopting this straightforward approach, what the drafter has done is to retain the structure of the definition that existed in s 92EA and combine this with the language of the Model Provisions so as to create a new provision which has a substantively different operation.

90. In the Territory, courts are obliged under s 139 of the Legislation Act to adopt an interpretation that best achieves the purpose of the Act in preference to any other interpretation. However, there are limits to the interpretive freedom that such a provision allows. In my view, the clear and deliberate departure from the model provided by the Royal Commission cannot be ignored. For some (unexplained) reason the drafter of the amended s 56 chose to retain the structure of the definition that existed in s 92EA. The fact that the relevant minister and Legislative Assembly do not appear to have been informed of, or otherwise aware of, the subtleties of the drafting and appear to have proceeded on the basis that the legislation as drafted implemented the recommendations of the Royal Commission is not sufficient to permit this court to depart from the language that the legislation actually used: Re Bolton Ex parte Beane (1987) 162 CLR 514 at 518.

I certify that the preceding four [4] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: Annexure A: Crimes Act 1900 (ACT) s 56 56 Maintaining sexual relationship with young person or person under special care (1) A person who is an adult and who maintains a sexual relationship with a young person or a person under the special care of the adult is guilty of an offence. Maximum penalty: imprisonment for 25 years. (2) For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person. (3) For subsection (2)— (a) the period, or any part of the period, may be before the amendment day; and (b) 1 or more of the sexual acts may have occurred before the amendment day; and (c) a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts. (4) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that a sexual relationship existed. (5) However, in a proceeding for an offence against subsection (1), there is no requirement for— (a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or (b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence if the trier of fact is satisfied the nature and character of a person’s conduct was consistent with a sexual act; or (c) if the trier of fact is a jury—members of the jury to agree on which sexual acts constitute the sexual relationship. (6) In a proceeding for an offence against subsection (1), the prosecution is required to allege the particulars of the period of the sexual relationship. (7) For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the amendment day for— (a) an offence against this section; and (b) an offence constituted by a sexual act alleged to constitute the sexual relationship. (8) A person may be charged on a single indictment with, and convicted of and punished for, both— (a) an offence against subsection (1); and (b) 1 or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship. (9) Except as provided by subsection (8), a person cannot be convicted of an offence— (a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or (b) constituted by a sexual act in relation to a young person or person under the special care of the person if the sexual act is alleged to have occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the young person or person under their special care. (10) For subsection (9), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside. (11) The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section. (12) For this section and to remove any doubt, any sexual act alleged to constitute a sexual relationship must constitute, or have constituted (if particulars of the time and place at which the act took place were sufficiently particularised), an offence at the time the act occurred. (13) In this section: amendment day means the day the Crimes Legislation Amendment Act 2018, section 4 commenced. employer, of a person, includes someone authorised to— (i) decide or vary the terms of the person’s employment; or (ii) end the person’s employment. foster carer—see the Children and Young People Act 2008, section 518(2). health service—see the Human Rights Commission Act 2005, section 7. health service provider—see section 55A(5). sexual act— (a) means— (i) an act that constitutes an offence against this part; or (ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or (iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or (iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence; but (b) does not include an act referred to in— (i) section 55(2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55(3) that would be a defence if the person had been charged with an offence against section 55(2); or (ii) section 61(2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61(3) that would be a defence if the person had been charged with an offence against section 61(2). special care—a person is under the special care of an adult if— (a) the person is not yet an adult; and (b) the adult— (i) is a parent, grandparent, step-parent, foster carer or legal guardian of the person; or (ii) is the domestic partner of a parent, grandparent, step-parent, guardian or foster carer of the person; or (iii) is a teacher at a school, or an adult with responsibility for students at a school, and the person is a student at the school; or (iv) has an established personal relationship with the person in relation to the provision of religious, sporting, musical or other instruction to the person; or (v) is the person’s employer; or (vi) provides professional counselling to the person; or (vii) is a health service provider and the person is the adult’s patient; or (viii) is a custodial officer and the person is a young detainee in the officer’s care, custody or control; or (ix) if the person has impaired decision-making ability—is a carer for the younger person. young detainee—see the Children and Young People Act 2008, section 95. young person means a person who is under the age of 16 years. Annexure B: Crimes Act 1900 (ACT) s 92EA (repealed) 92EA Maintaining a sexual relationship with a young person (1) In this section— ‘adult’ means a person who has attained the age of 18 years; ‘sexual act’ means an act that constitutes an offence under this Part but does not include an act referred to in subsection 92E (2) or 92K (2) if the person who committed the act establishes the matters referred to in subsection 92E (3) or 92K (3), as the case may be, that would be a defence if the person had been charged with an offence against subsection 92E (2) or 92K (2), as the case may be; ‘young person’ means a person who is under the age of 16 years. (2) A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence. (3) For the purposes of subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions. (4) In proceedings for an offence under subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred. (5) Subject to subsection (6), a person who is convicted of an offence under subsection (2) is liable to imprisonment for 7 years. (6) If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence under this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence under subsection (2) is punishable by imprisonment— (a) if the other offence is punishable by imprisonment for less than 14 years—for 14 years; or (b) if the other offence is punishable by imprisonment for a period of 14 years or more—for life. (7) Subject to subsection (8), a person may be charged in 1 indictment with an offence under subsection (2) and with another offence under this Part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged. (8) Notwithstanding subsection 443 (3), where a person convicted of an offence under subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence under this Part committed during the course of the relationship, the court shall not direct that those sentences be cumulative. (9) A prosecution for an offence under subsection (2) shall not be commenced except by, or with the consent of, the Director of Public Prosecutions. Annexure C: Criminal Code Act 1899 (QLD) s 229B 229B Maintaining a sexual relationship with a child (1) Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime. Maximum penalty—life imprisonment. (2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period. (3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed. (4) However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship— (a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and (b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and (c) all the members of the jury are not required to be satisfied about the same unlawful sexual acts. (5) If the child was at least 12 years when the crime was alleged to have been committed, it is a defence to prove the adult believed on reasonable grounds the child was at least the age of 16 years. (6) An adult can not be prosecuted for the crime without a Crown Law Officer’s consent. (6A) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for the crime. (7) An adult may be charged in 1 indictment with— (a) the offence of maintaining an unlawful sexual relationship with a child (the maintaining offence); and (b) 1 or more other offences of a sexual nature alleged to have been committed by the adult in relation to the child in the course of the alleged unlawful sexual relationship (the other offence or offences). (8) The adult charged in 1 indictment as mentioned in subsection (7) may be convicted of and punished for any or all of the offences charged. (9) However, if the adult is— (a) charged in 1 indictment as mentioned in subsection (7); and (b) sentenced to imprisonment for the maintaining offence and for the other offence or offences; (c) the court imposing imprisonment may not order that the sentence for the maintaining offence be served cumulatively with the sentence or sentences for the other offence or offences. (10) In this section— offence of a sexual nature means an offence defined in section 210 (other than section 210(1)(e) or (f)), 215, 222, 349, 350 or 352. unlawful sexual act means an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature. (Notes omitted) Annexure D: Model Provision proposed by the Royal Commission

3 Offence of maintaining unlawful sexual relationship with child (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. (3) An unlawful sexual act is any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence. (4) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. (5) However: (a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and (b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts, and (c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (6) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (7) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section. (8) A court that imposes a sentence for an unlawful sexual relationship offence constituted by an unlawful sexual relationship that is alleged to have existed wholly or partly before the commencement of this section must, when imposing sentence, take into account: (a) the maximum penalty for the predecessor offence, if the predecessor offence was in force during any part of the alleged period of the unlawful sexual relationship, and (b) the maximum penalty for the unlawful sexual acts that the unlawful sexual relationship is alleged to have involved, during the period of the unlawful sexual relationship, if the unlawful sexual relationship is alleged to have existed wholly or partly before the commencement of the predecessor offence.

4 Charging both unlawful sexual relationship offence and sexual offences (1) A person may be charged on a single indictment with, and convicted of and punished for, both: (a) an offence of maintaining an unlawful sexual relationship with a child, and (b) one or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship. (2) Except as provided by subsection (1), a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship. (3) Except as provided by subsection (1), a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence. (4) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence. (5) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. Annexure E: Criminal Law Consolidation Act 1935 (SA) s 50

50—Persistent sexual abuse of child (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Maximum penalty: Imprisonment for life. (2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. (3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. (4) However— (a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and (b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and (c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (5) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section. (7) A person may be charged on a single indictment with, and convicted of and punished for, both— (a) an offence of maintaining an unlawful sexual relationship with a child; and (b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship. (8) Except as provided by subsection (7)— (a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and (b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship. (9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence. (10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. (11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt). (12) In this section— adult means a person of or over the age of 18 years; child means— (a) a person who is under 17 years of age; or (b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age; predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment; sexual offence means— (a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or (b) an attempt to commit, or assault with intent to commit, any of those offences; or (c) a substantially similar offence against a previous enactment unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence; unlawful sexual relationship offence means an offence against subsection (1). (13) For the purposes of this section, a person is in a position of authority in relation to a child if— (a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or (b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or (c) the person provides religious, sporting, musical or other instruction to the child; or (d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or (e) the person is a health professional or social worker providing professional services to the child; or (f) the person is responsible for the care of the child and the child has a cognitive impairment; or (g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (ga) the person is employed or providing services in a licensed children's residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or (h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).