Lin v R

JUDGMENT

1. ADAMSON JA: Bingquan Lin (the applicant) seeks leave to appeal against his conviction, following a trial by jury, of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW) (count 1). He was also charged, in the alternative, with offences of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act (count 2) and two counts of sexual touching of a child aged above 10 years and under 16 years contrary to s 66DB(a) of the Crimes Act (counts 3 and 4). Counts 2, 3 and 4 were relied on as particulars of count 1.
2. Each of the counts concerned offences alleged to have been committed by the applicant against the complainant between 1 January 2017 and 16 October 2020 when the complainant was between 9 and 12 years old. The applicant was a long-term boarder in the house where the complainant lived with her mother and younger brother. He was in an intimate relationship with the complainant's mother of which the complainant was unaware. For present purposes, it is not necessary to go into the facts in any further detail.
3. The applicant relies on a single ground of appeal: that "the trial Judge's directions to the jury on the elements of the offence were erroneous and inadequate". He does not appeal against the sentence imposed upon him.
4. The trial commenced on 31 January 2022 before Mahony SC DCJ (the trial judge) and a jury. On 8 February 2022, the trial judge provided the parties with written versions of the directions which his Honour proposed to give. Later that day, the prosecutor and counsel for the applicant indicated that neither had any objection to the proposed directions.
5. In the course of the summing up, the trial judge gave the following directions regarding count 1: "I am now going to give you a number of directions of law. The first concerns Count 1, the offence of maintaining an unlawful sexual relationship with a child. The accused is charged with maintaining an unlawful sexual relationship with [the complainant] between the dates identified in Count 1 on the Indictment. Before you can find the accused guilty of the offence, the Crown must prove beyond reasonable doubt each of the following elements: 1. That the accused, being an adult, 2. maintained an unlawful sexual relationship with the complainant, 3. who was a child. … The critical issue is whether the Crown has proved beyond reasonable doubt that the accused maintained an unlawful sexual relationship with the complainant. A relationship is a way of describing the nature of a connection between two or more people. In the circumstances of this offending it concerns two people. You are considering whether there is a relationship between the accused and the complainant in the relevant period. The Crown case on this aspect of the offence is that you would be satisfied that the evidence has established beyond reasonable doubt that, in respect of the complainant, the accused was in a position of authority, being a boarder in the home of the complainant, who was in an intimate relationship with her mother and who assisted [the complainant's mother] with the care of the complainant and her brother. In determining whether the relationship was an unlawful sexual relationship, you must also be satisfied beyond reasonable doubt that the accused committed two or more unlawful sexual acts with or towards the complainant during the period identified in the Indictment. The Crown case is that the unlawful sexual acts in this case are: 1. That the accused kissed [the complainant] on the breasts; 2. That the accused kissed [the complainant] on the vagina; 3. That the accused touched [the complainant] on the breasts; 4. That the accused inserted his penis into [the complainant's] mouth; and 5. That the accused inserted his fingers into [the complainant's] vagina. Although the Crown relies on the unlawful sexual acts referred to in the alternative counts, in determining whether the Crown has established beyond reasonable doubt that the accused maintained an unlawful sexual relationship with the complainant, you do not need to be satisfied that the Crown has proved that every unlawful sexual act alleged against the accused occurred. All you need to be satisfied of beyond reasonable doubt is that the accused committed two or more of the unlawful act with or towards the complainant. Further you do not all need to agree about which two unlawful sexual acts constituted the unlawful sexual relationship. This means one juror could believe that the accused kiss[ed] [the complainant] on the breast and the vagina and another juror could believe that the accused touched [the complainant] on the breast and then inserted his penis into [the complainant's] mouth. … In the context of considering whether you are satisfied the accused maintained an unlawful sexual relationship with the complainant, 'maintained' has its ordinary everyday meaning. That is, it means carried on, kept up or continued. The Crown seeks to establish this by virtue of the evidence that the accused carried out the acts particularised in Count 1 on the Indictment between 2017 and 2020 while he boarded at her family home. The Crown must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between the accused and the complainant. An isolated incident is not enough. You must be satisfied beyond reasonable doubt that the evidence establishes some continuity or habituality of sexual conduct. The Crown relies on the evidence of the complainant to establish this element beyond reasonable doubt. If you are not satisfied of this beyond reasonable doubt then you must find the accused not guilty of Count 1. If you are satisfied beyond reasonable doubt that the Crown has established that at least two of the unlawful acts occurred then, because of the way the law defines an unlaw[ful] sexual relationship, the Crown will have proved the existence of an unlawful sexual relationship between the accused and the complainant in respect of Count 1."
6. On 10 February 2022, the jury returned a verdict of guilty in respect of count 1. As the remaining counts were alternative counts the jury was not required to return verdicts on them.
7. On 15 July 2022, the applicant was sentenced to a term of imprisonment of 7 years and 6 months commencing on 16 October 2020 and expiring on 15 April 2028, with a non-parole period of 4 years commencing on 16 October 2020 and expiring on 15 October 2024.
8. Mr Woods KC, who appeared on behalf of the applicant in this Court, accepted that the directions given by the trial judge accorded with the directions approved by this Court in MK v R; RB v R [2023] NSWCCA 180 (Beech-Jones CJ at CL, Ward P and Price, Wilson and Lonergan JJ agreeing). Accordingly, Mr Woods accepted that this Court would either refuse leave to appeal or grant leave and dismiss the appeal. The stated purposes of the application for leave to appeal were, first, to preserve the applicant's rights in the event that the High Court overturned MK v R; RB v R and found that the direction this Court approved in that decision was erroneous; and, second, to enable the applicant to join in the pending special leave application by MK and RB. Indeed, I understood Mr Wood to submit that he would prefer leave to be granted and the appeal dismissed so that the applicant could also seek special leave to appeal and join in the applications already filed.
9. The Crown submitted that it would be open to this Court to determine that leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) was not required because the appeal raised a question of law alone. However, the Crown submitted that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was still required as the applicant had not submitted in the Court below that a different direction ought to have been given and, indeed, approved the direction proposed by the trial judge which was circulated to the parties before it was given. The Crown submitted that this was significant in circumstances where, at the time the trial was conducted, neither the decisions of this Court which were held in MK v R; RB v R to be plainly wrong (R v RB [2022] NSWCCA 142 and RW v R [2023] NSWCCA 2), nor had MK v R; RB v R itself been decided. Thus, in effect, the applicant was seeking the opportunity of obtaining the benefit if MK v R; RB v R were to be found to be wrong, in circumstances where he did not contend for a different direction to be given at trial.
10. I do not consider that leave to appeal under s 5(1)(b) is required. The direction concerned the elements of an offence under s 66EA of the Crimes Act. The identification and articulation of the elements of an offence is logically anterior to their application to the facts of the case and is therefore a question of law alone: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [27] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing). Although there is reference to the facts in the direction extracted above, the challenge to the direction is limited to the recitation of the law as to the elements of the offence.
11. However, I accept the Crown's submission that leave is required under r 4.15 as no objection was taken at trial to the direction by the applicant, whose counsel expressly accepted the form of the direction proposed by the trial judge.
12. I do not consider a grant of leave under r 4.15 to be warranted. This Court has determined that a direction in the same form as given by the trial judge is the correct direction for an offence under s 66EA of the Crimes Act. This remains the law. A grant of leave by this Court in these circumstances tends to imply that there is something tentative about this Court's decisions until the High Court has finally dealt with a special leave application (if it is dismissed) or an appeal (if special leave to appeal is granted). Further, if special leave to appeal is granted, there is no reason to suppose that counsel for the appellants (MK and RB) will not be in a position to put all that might be put to persuade the High Court that the appeal ought be allowed and this Court's decision in MK v R; RB v R ought be overturned.
13. If MK v R; RB v R is overturned and the direction approved by this Court in that case, and in the trial in the present case, disapproved by the High Court, it will be open to the applicant to seek leave to appeal to this Court against his conviction: see Gould v R [2023] NSWCCA 103 at [52]-[53] (Bell CJ, Rothman and Garling JJ agreeing) and [161] (Rothman J), following Postiglione v The Queen (1997) 189 CLR 295 at 305 (Dawson and Gaudron JJ) (see also Kirby J at 333); [1997] HCA 26 and Lowe v R [2015] NSWCCA 46; (2015) 249 A Crim R 362 at [117]-[123] (Davies J, Ward P and Simpson J agreeing).

A non-publication order made in respect of the applicant

1. On 24 June 2022, the trial judge made an order that the applicant be referred to by a pseudonym, BQL. This Court was informed by the parties and I accept that there was no need for the pseudonym order. Accordingly, the pseudonym order ought be set aside.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Refuse leave under r 4.15 of the of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to allow the single ground raised by the applicant as a ground of appeal. 2. Set aside the pseudonym order made by Mahony SC DCJ on 24 June 2022 which required the applicant to be referred to as BQL.
2. ROTHMAN J: I have had the advantage of reading in draft the reasons of Adamson JA. I do not agree that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) should be refused.
3. First, I accept that the ground of appeal raises a question of law alone. The question is whether the directions given by the trial judge were legally correct (or accorded with the law) in so far as they direct as to the meaning of "unlawful sexual relationship".
4. To the extent that, on appeal, a party seeks to submit that principles followed at trial were incorrect and, in so doing, qualify a prior judgment of this Court, there is good reason why, at trial, the issue was not raised. First, at trial, a judge in this State is bound by an existing Court of Criminal Appeal judgment. Secondly, counsel at trial is concerned not with the expositions of principle but with the practical steps that can be taken that will have effect in the trial on the jury.
5. Thirdly, even though this trial occurred before the reasoning in MK v R; RB v R [1] and RW v R [2] was available or likely to have been read, given the agitation of principle and a contentious and important construction of the criminal provision, if leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules were necessary, it should be granted.
6. The substance of the appeal turns on an attempt to re-argue that which was determined by this Court in MK & RB, supra, and to request the Court to adopt the reasoning in RW, supra. Accepting without deciding that the Court is able to depart from the ratio of its previous judgment without finding that the previous judgment was plainly wrong, [3] the Court is being asked to determine the correct construction of the provision.
7. The relevant provision is s 66EA of the Crimes Act 1900 (NSW), which is in the following terms: "66EA PERSISTENT SEXUAL ABUSE OF A 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."
8. The term "relationship" is, when referring to two persons, in this context, an inapt expression. It generally connotes some form of mutuality, such as an emotional association. Given the nature of this offence, such a meaning is most inappropriate.
9. The dissenting judgment of Basten AJA on the construction of "unlawful sexual relationship" in RW is, in my view, compelling, as is the judgment of the Court delivered by Beech-Jones CJ at CL in MK & RB on the same issue. This is the same construction.
10. An alternative which required the term "relationship" to have an effect over and above that which is defined in s 66EA(2) of the Crimes Act would not only be circular, but would require a perversion of the ordinary meaning of the term "relationship". The ratio on this issue in MK & RB is plainly correct.
11. However, the foregoing construction of "unlawful sexual relationship" or "relationship" does not conclude the matter. If all that was necessary were engagement in two or more sexual acts, then an offender who committed two sexual assaults on a child, without more, would be guilty of the offence under s 66EA of the Crimes Act, regardless of the circumstances or the period over which they occurred.
12. Thus, on the foregoing unqualified analysis, if an offender raped a child twice over a period of two hours (or less) the offender would be guilty, even though there were no other circumstances of association. Similarly, if an offender raped a child opportunistically and then, in the following years, coincidentally raped the child again, the offender would be guilty of this offence, even though there was no physical contact or communication between offender and victim before the first rape, between the offences, or after the second offence.
13. Of course, the offender would be guilty of two different offences, [4] but the question is: has the offender "maintained" an unlawful sexual relationship? The term "maintains" in s 66EA(1) of the Crimes Act implies a degree of continuity of association between offender and victim in the period between the two sexual acts and the proper construction requires some form of continuing association and two sexual acts that do not occur in the course of the same assault. [5]
14. I turn then to the effect of the foregoing on the appeal. While I understand why the majority in this case, as a result of the High Court challenge to MK & RB might feel compelled to make the orders suggested, I cannot agree with them.
15. It is necessary to deal with the particular directions. The learned trial judge directed the jury that it was required to find that there was "a relationship between the accused and the complainant". This was described as the issue the jurors were required to consider.
16. Further, the trial judge directed the jury that "the relationship was [required to be] an unlawful sexual relationship" and that, in so doing, they "must also be satisfied … that the accused committed two or more unlawful sexual acts". (Emphasis added.) The judge directed that both the occurrence of two sexual acts and the existence of a continuing or ongoing relationship were required. [6]
17. The use of the word "also" makes the different directions cumulative and not inconsistent. As a consequence, even if the analysis in MK & RB were wrong and RW were correct, or the approach taken above were adopted, this appeal would, in my view, fail. I would grant leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules to the extent necessary and dismiss the appeal.
18. DAVIES J: I agree with Adamson JA.

Endnotes

1. MK v R; RB v R ("MK & RB") [2023] NSWCCA 180 (27 July 2023).
2. RW v R [2023] NSWCCA 2 (3 February 2023).
3. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.
4. See, for example, Crimes Act 1900 (NSW), ss 66DC, 66DD and 66DE.
5. See Crimes Act 1900 (NSW), s 66EA(4)(b).
6. See Crimes Act 1900 (NSW), s 66EA(5). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2023