MK v R; RB v R - [2023] NSWCCA 180 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

MK v R; RB v R

[2023] NSWCCA 180

Court of Criminal Appeal (NSW)|2023-06-21|Before: Ward P, Beech-Jones CJ, Price J, Wilson J, Lonergan J, Legislation Amendment J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-06-21

Before

Ward P, Beech-Jones CJ, Price J, Wilson J, Lonergan J

Catchwords

[2009] HCA 41 BBH v The Queen (2012) 245 CLR 499
[2012] HCA 9 Chiro v The Queen (2017) 260 CLR 425
[2017] HCA 37 Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212
(2013) 302 ALR 101 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 41 BBH v The Queen (2012) 245 CLR 499[2012] HCA 9 Chiro v The Queen (2017) 260 CLR 425[2017] HCA 37 Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212(2013) 302 ALR 101 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297[1981] HCA 26 Edwards v The Queen (2021) 273 CLR 585[2021] HCA 28 Gett v Tabet (2009) 109 NSWLR 1[2009] NSWCA 76 Henry v The Queen [2022] SASCA 60(2022) 403 ALR 369 Hofer v The Queen [2021] HCA 36(2021) 95 ALJR 937 KBT v The Queen (1997) 191 CLR 417[1997] HCA 54 Kelly v The Queen (2004) 218 CLR 216[2004] HCA 12 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 KN v R (2019) 14 ACTLR 289[2019] ACTCA 37 R v BBH [2007] QCA 348 R v CAZ [2012] 1 Qd R 440[2019] SASCFC 59 R v Mann (2020) 135 SASR 457[2020] SASCFC 69 R v RB [2022] NSWCCA 142 R v S [1999] 2 Qd R 89[1998] QCA 71 RW v R [2023] NSWCCA 2 S v The Queen (1989) 168 CLR 266

Judgment (15 paragraphs)

[1]

Background - MK's Case

On 23 November 2020, MK [2] was arraigned in the District Court on an indictment that charged him with three counts under s 66EA allegedly committed against three complainants (ML, MS and JD). The indictment contained 24 alternative counts of sexual and indecent assaults against the complainants referable to specific occasions. MK pleaded not guilty and his trial ensued. On 9 December 2020, he was found guilty of the three counts under s 66EA. On 30 April 2021, he was sentenced to an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years.
MK filed an application seeking leave to appeal against his conviction and sentence. His sole ground of appeal against his conviction is that the directions to the jury on the s 66EA offences were erroneous and caused a miscarriage of justice. The basis for that contention is that the directions given by the trial judge to the jury did not conform to the third construction of s 66EA noted above.
Although the Crown accepted (and contended) that the third construction was correct, it did not accept that the directions given to the jury at MK's trial departed from it. The Crown further contended that, if the directions were affected by an error occasioning a miscarriage of justice, then the "proviso" to s 6(3) of the Criminal Appeal Act 1912 (NSW) should be applied and the appeal dismissed. [3]
The summing up from MK's trial is addressed below. MK also sought leave to appeal against his sentence on various grounds. The sentencing judge accepted that the maximum sentence for MK's offences under s 66EA was life imprisonment, although the unlawful sexual acts relied on by the Crown predated the commencement of the current form of s 66EA on 1 December 2018. The previous form of s 66EA carried a maximum penalty of 25 years imprisonment.
In Xerri v The Queen [2021] NSWCCA 268; (2021) 292 A Crim R 355 ("Xerri"), a majority of this Court (Bell CJ, Price J; Hamill J contra) held that in such circumstances the maximum penalty is life imprisonment (at [1] and [111]−[112]). However, on 16 June 2023, Kiefel CJ and Jagot J granted special leave to appeal from Xerri. Although the grounds of appeal against sentence do not presently include any complaint about the applicable maximum penalty, in the event that the appeal against Xerri succeeds it is likely that an application to amend the notice of appeal will follow. Ultimately it was accepted that, in the event that MK's challenge to his conviction failed, then his sentence appeal would be adjourned pending the outcome of Xerri. [4]

[2]

Background - RB's case

After a trial, on 21 September 2020 RB was found guilty of one offence against s 66EA and one offence of aggravated indecent assault (the circumstance of aggravation being that the child was under 16 years) contrary to s 61M(2) of the Crimes Act. On 4 June 2021, RB was sentenced to imprisonment for 10 years with a non-parole period of 7 years for the s 66EA offence. For the offence against s 61M(2), he was sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years. The combined effective sentence was imprisonment for 12 years with a non-parole period of 9 years.
Both the Crown and RB appealed against the sentence for the offence against s 66EA. RB's appeal was dismissed. The Crown's appeal was allowed with the matter remitted to the District Court for resentence (RB (No 1) at [78]). Resentencing has yet to occur.
The judgment in RB (No 1) was published on 29 June 2022. On 18 August 2022, RB filed a notice of appeal and an application to extend time to appeal. The sole ground of the appeal against conviction is that the "trial judge's directions with respect to the elements of the s 66EA offence were in error in that they failed to direct the jury regarding the requirement for a 'sexual relationship' over and above the requirement for two or more unlawful sexual acts". [5] The premise of this ground is that the directions given to the jury should have, but did not, conform with the third construction of s 66EA.
As with MK, the Crown accepted (and contended) that the third construction was correct, did not accept that the summing up did not conform with it and otherwise relied on the proviso. [6]
The material aspects of the summing up in each applicant's case are addressed below. At this point it suffices to state that counsel for each of the applicants conceded that, if the Court adopted the second construction, then their appeals against their respective convictions must be dismissed. [7]

[3]

Section 66EA of the Crimes Act 1900 (NSW)

Section 66EA of the Crimes Act, as in force from 1 December 2018, relevantly provides: 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. (3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales. (4) In proceedings for an offence under this section, the prosecution - (a) 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) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (5) In order for the accused to be convicted of an offence under this section - (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, 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) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5). (7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. (8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. … (13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly. (14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions. (15) In this section - adult means a person who is of or above the age of 18 years. child means a person who is under the age of 16 years. predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. 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), any of the following offences - (a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A, (b) an offence under a provision of this Act set out in Column 1 of Schedule 1A, (c) an offence of attempting to commit an offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c), (e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)-(d)." (italicised bold in original; italicised emphasis added)

[4]

Queensland

In S v The Queen (1989) 168 CLR 266; [1989] HCA 66, the High Court set aside three convictions for incest, each of which was said to have been committed in successive years. The trial judge had declined to order the Crown to particularise or identify the acts the subject of each count. The complainant gave evidence of the first occasion where her father had sexual intercourse with her. She said there were further occasions "[e]very couple of months for a year" during each of the three years the subject of the particular counts but could not provide any further details (at 268 per Brennan J and at 273 per Dawson J). The convictions were set aside because, inter alia, it was found that there was a "latent ambiguity" (or "duplicity") in that each count on the indictment could refer to multiple acts within a given year. It was not known which act of sexual intercourse was referable to each count (at 277−278 per Dawson J, at 282 per Toohey J and at 287−288 per Gaudron and McHugh JJ).
Prior to the decision in S v The Queen, on 3 July 1989 the Queensland Parliament inserted s 229B into the Criminal Code Act 1899 (Qld) in response to a report [8] that anticipated the difficulties that might be caused from insisting on particulars of sexual offences involving very young children (see BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 at [8]−[10] per French CJ; "BBH"). [9] Section 229B(1) made it an offence to "maintain an unlawful relationship of a sexual nature with a child under the age of sixteen years" for which the offender was liable to punishment to imprisonment for 7 years. Section 229B(1) as enacted provided as follows: "A person shall not be convicted of the offence defined in [subsection (1)] 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 in issue 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 and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions." (emphasis added)
After the decision in S v The Queen, various other legislatures enacted statutory provisions designed to address the problem posed by evidence given by children about being subject to repeated sexual abuse who had difficulty identifying a specific time or location when the individual acts occurred. These offences required proof, inter alia, of a minimum number of underlying sexual offences or unlawful sexual acts (see BBH at [10], fn 25 per French CJ).

[5]

The Royal Commission Report

In or about June 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse published its "Criminal Justice Report" (the "Royal Commission Report"). Chapter 11 of the Royal Commission Report addressed "Particulars and persistent child sexual abuse offences". The introduction to Ch 11 noted that "it is often difficult for victims or survivors to give adequate or accurate details of the offending against them" for various reasons, including that "young children may not have a good understanding of dates, times and locations or an ability to describe how different events relate to each other across time", "delays in reporting causing memories to fade" and "the abuse may have occurred repeatedly and in similar circumstances, so the victim or survivor is unable to describe specific or distinct occasions of abuse". [14]
Section 11.4 surveyed the persistent child sexual abuse offences enacted by the States and Territories. It noted the decision in KBT concerning the version of s 229B set out at [20]. It also noted the version of s 229B as in force from 2003 (i.e. at [29]) and summarised the effect of certain Queensland decisions. In particular, it noted that: "Decisions of the Queensland Court of … Appeal establish that …[i] the unlawful relationship provides the key element of the offence … [ii] the indicia of maintaining a relationship include the duration of the alleged relationship, the number of acts and the nature of acts engaged in. (The court held that seven instances of improper touching inside and outside of clothes over five years did not amount to 'maintaining a relationship')." (citations omitted) [15]
The authority cited for the second proposition in this extract was DAT. As noted, DAT concerned the version of s 229B as in force prior to 1 May 2003 and appears to be inconsistent with KBT and BBH.
The final part of Ch 11 addressed a form of offence that would be "most effective" to "allow for prosecutions - and convictions where the evidence warrants convictions - that: do not require particularisation in a manner inconsistent with the ways in which complainants remember the child sexual abuse they suffered [and] allow for the effective charging and successful prosecution of repeated but largely indistinguishable occasions of child sexual abuse". [16] The Royal Commission Report identified the Queensland offence [i.e. 229B] "to be the most effective of the current forms of persistent child sexual abuse offences". [17] The Royal Commission Report identified a concern with s 229B because it contained the word "relationship" and continued: [18] "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 needs to be satisfied of - is the existence of the relationship and not particular underlying acts. Tasmania, the Australian Capital Territory and the Northern Territory also use 'relationship' in the name of their offences. Although we are uncomfortable with the language of 'relationship', we are content to adopt it in the interests of achieving the most effective form of offence. 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." (emphasis added)

[6]

South Australia

From 2008 to 2017, s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the "CLCA") provided that "[a]n adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence". Section 50(2) specified that "an act of sexual exploitation is an act in relation to [a] child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence". Self-evidently, this offence did not require the establishment of any form of "relationship" between the offender and victim.
With effect from 24 October 2017, s 50 of the CLCA was amended so that it relevantly corresponded with the model provision suggested by the Royal Commission Report (above at [44]) save that subs (3) of the model provision was not included (see R v M, DV at [8] per Kourakis CJ). Thus, s 50(1)−(2) (save for the applicable maximum penalty) is identical to s 66EA(1)−(2), and s 50(3)−(4) is not materially different to ss 66EA(4)(a) and (5). It also included a provision to the following effect: "(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)."
In R v M, DV (at [48]), Blue J identified the three possible constructions of the provision (see above at [3]) and adopted the first construction (at [64]). Kourakis CJ adopted the second construction. His Honour held that the "actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which (in the sense of in the course of which) an adult engages in two or more unlawful sexual acts with a child" (at [1]; emphasis in original). Lovell J agreed with Kourakis CJ on this issue (at [175] and [183]).
In R v M, DV, Kourakis CJ excluded the first construction because his Honour considered it a "strained use of the language to describe the victim and the perpetrator of two sexual offences as being in a relationship by those acts alone" (at [10]). His Honour also concluded that the first construction involved a radical departure from fundamental principle in that it would dispense with the necessity for the jury to agree, unanimously or by majority, on any conduct element of the offence (at [14]).

[7]

The Australian Capital Territory

In KN v R (2019) 14 ACTLR 289; [2019] ACTCA 37 ("KN") the Court of Appeal of the Australian Capital Territory construed the form of s 56 of the Crimes Act 1900 (ACT) as in force prior to 1 September 2020, [20] which created an offence of maintaining a sexual relationship with a young person or person under special care in accordance with the first construction (at [63] and [83] per Murrell CJ and Rangiah J and at [87] per Mossop J). This construction was adopted even though the secondary materials concerning the introduction of s 56 indicated that it was meant to give effect to the Royal Commission Report (at [89] per Mossop J). However, s 56(1) (in its then form) created the offence of "maintain[ing] a sexual relationship with a young person" but s 56(2) provided that "[f]or subsection (1), an adult maintains a sexual relationship with a young person… if on 2 or more occasions and over any period the adult engages in a sexual act with that person". Section 56(2) does not refer to or even imply the existence of any relationship between the offender and the victim. Given the differences between ss 56(2) and 66EA(2), KN is of little assistance to the issue raised by this application.

[8]

New South Wales - RB (No 1) and RW

Section 66EA was introduced into the Crimes Act by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) with effect from 1 December 2018. It repealed the former s 66EA, which was drafted in similar terms to the former s 50 of the CLCA described above (at [49]) save that, under the former s 66EA(1), it was necessary to prove the commission of a sexual offence "on 3 or more separate occasions occurring on separate days during any period".
The Attorney-General's Second Reading Speech (the "Second Reading Speech") concerning the Bill that introduced the revised s 66EA referred to the Royal Commission Report, including its "recommendations for a new way of formulating the offence, based on the offence currently provided under Queensland law, which has also been adopted in South Australia". [21] The Attorney-General stated: "The new section 66EA will provide that it is an offence to maintain an unlawful sexual relationship with a child under 16. A person will have maintained an unlawful sexual relationship if they have engaged in two or more unlawful sexual acts with a child. The prosecution will be required to specify over what period the unlawful sexual relationship is alleged to have occurred, but will not be required to specify the particulars of the unlawful sexual acts with the same degree of detail as they would if the acts were charged as separate offences. The jury will be required to unanimously agree beyond reasonable doubt that the unlawful sexual relationship took place, but will not be required to necessarily agree on the same unlawful acts that make up the relationship. (emphasis added)
If anything, the second sentence reflects the first construction. It is materially different to the text of s 66EA(2) as it does not contain the word "relationship".
As noted, the proper construction of s 66EA was considered in RB (No 1) which determined an appeal by both the Crown and RB against sentence. An issue arose as to whether, following a conviction for an offence under s 66EA, a sentencing judge must sentence the offender on the basis that the offender committed the two least serious unlawful sexual acts particularised in the indictment, as was said to have been required by Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 ("Chiro"), or form their own view about what unlawful sexual acts were committed (RB (No 1) at [24]). To address this issue, Fagan J construed s 66EA. In doing so, his Honour referred to s 229B of the Criminal Code (Qld), the decision in CAZ (at [48]) and the Royal Commission Report (at [51]−[52]). His Honour then specified various reasons for rejecting the first construction (at [54]−[59]) before addressing his Honour's preferred construction.

[9]

The Parties' Submissions

As noted, both applicants and the Crown urged the Court to follow RB (No 1) [23] and, in effect, adopt the third construction of s 66EA although, as noted, the Crown submitted that the Court should not adopt that part of Fagan J's judgment that referred to the necessity for the Crown to prove "multiple unlawful sexual acts" (i.e. RB (No 1) at [62]).
MK's written submissions noted that the conflict in the authorities about which of the three constructions to adopt "stems from whether s 66EA] defines the elements of the offence in s 66EA". [24] At one level, that contention is correct and has been addressed. Section 66EA(2) clearly is a definition and courts do not have the authority to reduce a definition to having a "negligible function". MK's written supplementary submissions filed just prior to the hearing also contended that a reason for preferring the third construction is that the "practical effect of the second construction is to make the actus reus of the offence the commission of the two or more unlawful sexual acts on which there is no need for jury unanimity", which "may reanimate the constitutional issue that was settled in [CAZ]", whereas the adoption of the third construction would avoid such an outcome. [25] No notice was issued under s 78B of the Judiciary Act 1903 (Cth) raising any constitutional issue. In oral submissions, counsel for MK disclaimed any reliance on any constitutional argument. Otherwise, as noted, the challenge to the constitutional validity of s 50 of the CLCA interpreted in accordance with the second construction was rejected in Henry (at [94]−[100]).
RB's supplementary submissions contended that, "if it was Parliament's intention that an 'unlawful sexual relationship' for the purposes of s 66EA(1) would be sufficiently established by proof, without more, of the commission of at least two unlawful sexual acts as defined in s 66EA(15) there would have been no reason to structure the offence across the two subsections, s 66EA(1) and s 66EA(2)". [26] This contention overlooks the presence of the word "relationship" in s 66EA(2) and that the provision is clearly a definition (of "unlawful sexual relationship"). Taken to its logical conclusion, this submission means that no legislation would ever contain any definition, but instead the meaning of particular phrases would be spelled out ad nauseum throughout the entirety of the legislation. RB and the Crown's submissions also relied on the Second Reading Speech and Royal Commission Report. [27] They are further addressed below, but in summary, they do not advance the third construction.

[10]

The Proper Construction of Section 66EA

The task of interpreting a statutory provision such as s 66EA must "begin with a consideration of the text itself", although ascertaining the "meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; see also Interpretation Act 1987 (NSW), s 33). The interpretation of a statute does not involve only considering the text of the particular section relied on but involves a consideration of the text of the statute as a whole (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 304 per Gibbs CJ and at 320 per Mason J; [1981] HCA 26). Moreover, a consideration of the "context" of a statute can extend to the existing state of the law, the legislative purpose and any mischief which the statute was intended to remedy (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [30] per Bell P with Leeming JA and Emmett AJA agreeing; "Sydney Seaplanes").
A consideration of the text of s 66EA favours the (second) construction preferred by Basten AJA in RW. His Honour's construction respects the difference between a "relationship", as used in ss 66EA(2) and (7), and the defined term "unlawful sexual relationship" as used throughout the provision. Section 66EA(2) plainly states that what converts "a relationship" into an "unlawful sexual relationship" is the commission of two or more unlawful sexual acts in the course of that relationship ("in which"). Typically, that may involve an established relationship such as parent and child, teacher and student or coach and player which is corrupted by the commission of two or more unlawful sexual acts within that relationship (Mann at [16] and [26] per Kourakis CJ). In some cases, as contemplated by Kourakis CJ in Mann, the "relationship" might be something that arises from the facts and circumstances of the commission of the unlawful sexual acts themselves (and what connects them) so that the provision "excludes from the scope of the offence a person who commits unlawful sexual acts with a child with whom he or she has no relationship" (RW at [15] per Basten AJA). The word "maintains" in s 66EA(1) does not add anything to the actus reus of the offence beyond satisfaction of s 66EA(2).

[11]

MK's Conviction Appeal

The three complainants at MK's trial, ML, MS and JD, are brothers. Around the middle of 2017, MK commenced a relationship with their mother, JL. JL said that by August 2017, MK had commenced living with her and her sons, [38] although there was a period in October 2017 when he returned to his parents' home. [39] By December 2017, he had resumed living with JL. [40] The relationship ended on 17 August 2018. Throughout the period of December 2017 to August 2018, being when the unlawful sexual acts were alleged to have been committed, ML, MS and JD were aged between 10 and 12 years.
ML said that from around January 2018 until August 2018, MK would come into his room at night "maybe like two times a week" and sexually abuse him in different ways. [41] The first incident he described was said to have occurred around January 2018 about four weeks after MK moved in. ML said that at one point MK grabbed ML's penis and inserted it into MK's anus and then started masturbating. [42] This constituted alternative counts 4 and 2 on the indictment. Shortly afterwards, MK attempted to penetrate ML with his penis. [43] This constituted alternative count 3 on the indictment. ML gave evidence of similar acts constituting alternative counts 5−13 on the indictment.
MS estimated that MK attempted to anally penetrate him "more than 30 times" [44] and in fact "50 times" [45] before MS "cracked it". As with ML, he gave evidence of specific occasions of abuse that supported the alternative counts (15−18) being attempted penetration, MK masturbating himself in MS's presence and MK having MS lick his penis.
Similarly, JD said that MK sucked JD's penis "every morning and night" for a "couple of weeks" after he moved in. [46] As with ML and MS, JD described specific acts that made up the alternative counts on the indictment, including MK inserting his finger into JD's anus and then penetrating JD's anus with his penis (counts 20, 21 and 27), [47] further acts of anal penetration of JD by MK's penis (counts 22 and 23), MK fellating JD (counts 23 and 24) and MK having JD fellate him (count 26). [48]
All of the incidents of sexual abuse recounted by the three complainants either took place at their home while MK lived there or in a motor vehicle driven by MK with the relevant complainant present during the period that MK lived with JL and the three complainants.

[12]

RB's Case

The offences of which RB was convicted concerned a single complainant, GB. GB is RB's daughter. She was born in January 2005. RB married GB's mother in 2004. However, they separated in December 2011. RB then moved in with a friend, although GB and her younger brother would sometimes visit. During the period from 2013 until 2016, RB would sometimes stay at the unit GB lived at with her mother and brother (the "home unit") even though RB was no longer in a relationship with GB's mother. Sometimes RB would sleep on the couch at the unit and on other occasions he would sleep in a bed with GB while GB's mother slept on the couch.
The indecent assault count was alleged (and found) to have occurred between January 2011 and January 2012 when GB stayed at the home of RB's friend. GB said that she woke up to find RB touching her vagina.
The count on the indictment that charged RB with an offence under s 66EA was as follows: "[B]etween [30 January 2013] and [28 December 2016]… [RB] did maintain an unlawful sexual relationship with [GB], then a child under the age of 16, namely 8-11 years of age, in which the accused engaged in the following two or more unlawful sexual acts: a) [RB] frequently digitally penetrating the complainant's vagina with his fingers [at the home unit] between 31 January 2013 and 30 January 2014; b) [RB] attempting to have penile-anal sexual intercourse with the complainant on three or four occasions [at the home unit] between 31 January 2013 and 30 January 2014; c) [RB] making the complainant masturbate his penis on one occasion [at the home unit] between 31 January 2013 and 30 January 2014; d) [RB] frequently having penile-vaginal intercourse with the complainant [at the home unit] between 31 January 2014 and 27 December 2016; e) [RB] making the complainant perform fellatio on him on one occasion [at the home unit] between 1 January 2015 and 31 December 2015; f) [RB] making the complainant perform fellatio on him on one occasion [at the home unit] between 1 January 2016 and 27 December 2016; g) [RB] having penile-vaginal intercourse with the complainant on one occasion [at a house in XXX] between 1 January 2016 and 27 December 2016; h) [RB] frequently attempting to perform cunnilingus on the complainant [at the home unit] between 31 January 2013 and 27 December 2016."
In broad terms, the recorded interviews and evidence of GB were consistent with these particulars. Save for the conduct particularised at (g), all of this conduct was said to have occurred at the home unit. In relation to the incident at a house referred to in (g), there was evidence before the jury that sometime around 2016 RB had an arrangement with the occupant of that house that RB would stay at that home with his children every alternative week. [52]

[13]

Proposed Orders

I propose the following orders: In relation to the application for leave to appeal by MK against his conviction and sentence: (1) The applicant be granted leave to raise his sole ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW); (2) To the extent necessary, the applicant be granted leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to raise his sole ground of appeal against his convictions; (3) The appeal be dismissed; (4) Stand over the application for leave to appeal against sentence to a call over before the Registrar of the Court of Criminal Appeal on 14 December 2023; (5) Grant the parties liberty to apply to the Registrar of the Court of Criminal Appeal on 3 days' notice to restore the application for leave to appeal against sentence to the call over list. In relation to the application by RB for an extension of time to appeal his conviction: (1) The extension of time be refused; (2) The application be dismissed.
PRICE J: I have had the considerable advantage of reading the reasons of Beech-Jones CJ at CL in draft. For the reasons that his Honour gives, I am persuaded that RB (No 1) and RW are "plainly wrong" and there are compelling reasons to depart from these decisions. I agree with the orders proposed by his Honour in each appeal.
WILSON J: I also agree with the Chief Judge at Common Law. For the reasons given by him, I have similarly concluded that RB (No 1) and RW are, respectfully, "plainly wrong" and further, that there are compelling reasons to depart from them. I agree with the orders his Honour has proposed.
LONERGAN J: I agree with Beech-Jones CJ at CL, and with the orders his Honour proposes for the reasons his Honour has given.

[14]

Endnotes

Criminal Code Act 1899 (Qld), s 229B as in force from 1 May 2003.
The publication of any information that would identify the child victim of the applicant's offences is prohibited (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A). Given the familial relationship that existed between each of the applicants and their respective victims that prohibition extends to the publication of their names or identities. Instead, they will be referred to as MK and RB.
Crown's submissions on conviction for RB at [5].
Tr 21/06/2023 p 52.14; 59.23.
AB 8.
Crown's submissions for MK at [68]−[71].
Tr 21/06/2023 p 5.15; p 23.14.
Queensland, An Inquiry into Sexual Offences Involving Children and Related Matters (1985).
The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld), cl 23.
Section 229B was amended on 1 July 1997 so that s 229B(1) provided that "[a]ny adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years" (Criminal Law Amendment Act 1997 (Qld), cl 33). Section 229B(1A) became s 229B(2).
As amended in the manner described in fn 10 above.
See fn 10.
By the Sexual Offences (Protection of Children) Amendment Act 2003 (Qld), cl 18.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (June 2017), Criminal Justice Executive Summary and Parts I-II, Ch 11, 10.
Ibid at 23.
Ibid at 66.
Ibid.
Ibid at 71.
Ibid at 74.
Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT), cl 6.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 (Second Reading, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)) at 5.
RB's supplementary submissions at 4(b).
MK's written submissions at [185]−[187]; RB's written submissions at [9]; RB's supplementary submissions at [2]−[4].

[15]

Amendments 19 July 2023 - [1] - Citation added 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: 19 July 2023

Legislation Cited (21)

Criminal Law Amendment Act 1997(Qld)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018(NSW)

Royal Commission Criminal Justice Legislation Amendment Act 2020(ACT)

Sexual Offences (Protection of Children) Amendment Act 2003(Qld)

Other Acts Amendment Act 1989(Qld)

(Acts Interpretation Act 1954(Qld)

(Interpretation Act 1987(NSW)

(Crimes Act 1900(NSW)

(Criminal Law Amendment Act 1997(Qld)

By the Sexual Offences (Protection of Children) Amendment Act 2003(Qld)

Supreme Court (Criminal Appeal) Rules 2021(NSW)

Criminal Appeal Act 1912(NSW)

Crimes Act 1900(NSW)

Acts Interpretation Act 1954(Qld)

Children (Criminal Proceedings) Act 1987(NSW)

Criminal Code Act 1899(Qld)

Criminal Law Consolidation Act 1935(SA)

Interpretation Act 1987(NSW)

Judiciary Act 1903(Cth)

Crimes Act 1900(ACT)

Jury Act 1977(NSW)

Cases Cited (47)

Judiciary Act 1903 (Cth), s 78 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) Supreme Court (Criminal Appeal) Rules 2021 (NSW) The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld) Cases Cited: AC v R [2023] NSWCCA 133 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212; (2013) 302 ALR 101 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 Henry v The Queen [2022] SASCA 60; (2022) 403 ALR 369 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KN v R (2019) 14 ACTLR 289; [2019] ACTCA 37 R v BBH [2007] QCA 348 R v CAZ [2012] 1 Qd R 440; [2011] QCA 231 R v DAT [2009] QCA 181 R v Kemp (No 2) [1997] 1 Qd R 383 R v Kemp (No 2) [1998] 2 Qd R 510 R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59 R v Mann (2020) 135 SASR 457; [2020] SASCFC 69 R v RB [2022] NSWCCA 142 R v S [1999] 2 Qd R 89; [1998] QCA 71 RW v R [2023] NSWCCA 2 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 Xerri v The Queen [2021] NSWCCA 268; (2021) 292 A Crim R 355 Texts Cited: Explanatory Notes, Sexual Offences (Protection of Children) Amendment Bill 2002 (Qld) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 (Second Reading, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)) Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (June 2017) Queensland, An Inquiry into Sexual Offences Involving Children and Related Matters (1985) Category: Principal judgment Parties: MK (Applicant) RB (Applicant) R (Respondent) Representation: Counsel: T Ramrakha (for MK) S Odgers SC; S Kluss (for RB) H Roberts SC; B Hatfield (Respondent)

Cited By (7)

His Honour referred to s 66EA(2) as stipulating a minimum criterion of an unlawful sexual relationship for the purposes of the offence but concluded that it "does not specify sufficient facts to constitute such a relationship on their own" (at [60]). His Honour continued: "61 On this view, subs (2) performs a negligible function. The definition of unlawful sexual act in subs (15) refers to a wide range of offences encompassing every conceivable kind of sexual misconduct towards a child. A jury would not be able to find that an accused maintained a sexual relationship with a child without finding multiple sexual acts that would necessarily fall within the definition in subs (15). The minimum criterion specified in subs (2) would always be incidentally satisfied. The principle of statutory interpretation according to which the Court usually does not assign a meaning that would render some words redundant must in this instance give way to the other considerations to which I have referred. Subsection (2) appears to be an unnecessary and ineffectual carryover from subs (1) of the previous iteration of s 66EA… 62 I conclude that s 66EA is to be interpreted as requiring that in order to return a verdict of guilty on a count laid under the section, a jury would have to be satisfied that for some duration within the charge period the accused committed against the complainant child multiple unlawful sexual acts, as defined in subs (15), with a frequency and continuity of the same order as that which the Queensland Court of Appeal has held to be required under s 229B of the Criminal Code (Qld). It is an element, indeed it is the gravamen, of the offence that multiple unlawful sexual acts must have been perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity. This may be characterised as a course of conduct offence, comparable with offences of trafficking in drugs or keeping a disorderly house, as referred to by Brennan CJ, Toohey, Gaudron and, Gummow JJ in KBT v The Queen at p 42. 63 In accordance with the general law of criminal procedure the jury must be satisfied of the requisite degree of continuity either unanimously or by majority under s 55F of the Jury Act 1977 (NSW). The jury must find that the accused maintained the relationship. Conduct amounting to maintaining would commonly be inferred from the inherent nature of adult sexual activity with a child, from the recurrence of sexual acts and from the imbalance of influence and sexual awareness that would exist between an adult accused and a child complainant. A sexual relationship with a child would almost self-evidently be maintained by the adult." (emphasis added)

In RW, Basten AJA did not accept the Crown's concession (at [5]). His Honour addressed RB (No 1) and construed the provision as follows (at [13]−[15]): "13 Ground 6 assumed that these provisions included a requirement for a 'sexual relationship' over and above the requirement for two or more unlawful sexual acts. That proposition derived its force from the fact that subs (1) identifies the offence as being committed when an adult 'maintains an unlawful sexual relationship with a child'. However, the phrase 'unlawful sexual relationship' is then defined in subs (2) as 'a relationship in which' a person engages in unlawful sexual acts. To extract the two words 'sexual relationship' from the defined term and to construe the definition by reference to the ordinary meaning of those words would be 'to construe the words of a definition by reference to the term defined', an approach described as 'quite circular' by the High Court in Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc. 14 While there may be circumstances in which words used in a defined term are relevant to understanding the definition, the assumption underlying the present contention turns on adopting the common meaning of two words (sexual relationship), rather than one word (relationship). By contrast the definition identifies a kind of 'relationship'. Further, the use of the term 'relationship' explains the choice of verb in sub (1), namely 'maintains'. 15 On its face, the definition in subs (2) assumes 'a relationship', identifying it as one 'in which' the adult engages in sexual acts. Thus, the accused person must have a relationship with a child, but that relationship will be an 'unlawful sexual relationship' if the adult engages in the unlawful sexual acts over any period. It would not only be circular, but inconsistent with the terms of the definition to require that there be some form of sexual relationship with a child beyond one in which two or more unlawful sexual acts are committed. Indeed, the concept of a sexual relationship with a child which is not in some sense unlawful is inherently problematic. What is clear from the definition is the intention of the legislature to impose no constraint on the scope of an unlawful sexual relationship other than that it involves at least two unlawful sexual acts with or towards the one child. In that sense, the term 'relationship' has work to do: it excludes from the scope of the offence a person who commits unlawful sexual acts with a child with whom he or she has no relationship, and perhaps does not know that the victim is in each case the same child." (citations omitted)

In the relevant part of the summing up concerning the offences under s 66EA, the trial judge stated: [49] "[1] The critical issue in this trial is whether the Crown has proved, beyond a reasonable doubt, that the accused maintained an unlawful sexual relationship with the complainant. As you will appreciate, a relationship is a way of describing the nature of the connection between two or more people. In the circumstances of this offence, it concerns two people and you are considering whether there is a relationship between the accused, on the one hand, and [ML], [MS] and [JD] on the other. [2] The Crown case is that you would be satisfied that, on the evidence, there was, in fact, a relationship that existed between the accused and the children and, in this particular case, that relationship really was, as it seems to be, that of stepfather and stepsons. The accused, in his interview, tells police he saw himself in that light. When you look at the evidence of the boys and their mother, you would come to the conclusion that he acted in that way towards them and that they saw him in that way. At least, that is the Crown case and it is really not disputed by the defence. [3] The real issue, then, is, was the relationship which clearly existed, transformed into an unlawful sexual relationship by the accused. To answer that question, you must be satisfied, beyond a reasonable doubt, that the accused committed two or more unlawful sexual acts with or towards the complainant who you are looking at during the period identified in the indictment. … [4] Although the Crown relies on the unlawful sexual acts that are set out there in MFI 31, it is important that you understand that, as far as the charge of maintaining is concerned, you do not need to be satisfied that the Crown has proved that every unlawful sexual act occurred. All you need to be satisfied of, beyond a reasonable doubt, is that the accused committed two or more of the unlawful sexual acts, with or towards the complainant, and, further, in respect of the particular complainant that you are looking at, you do not all need to agree about which two unlawful sexual acts constituted the unlawful sexual relationship. … [5] … The word 'maintaining' simply means that the relationship that is unlawful and of a sexual kind has been carried on, kept up or continued over time. In other words, maintained has its ordinary, everyday meaning. One of the things you should appreciate is this: the defence case is, in respect of each complainant, none of it happened at all. The defence are not saying, 'Look, if some of these things happened, you would still have a doubt about whether or not the relationship was being maintained.' They are saying there was no unlawful sexual relationship at all. The Crown says, not only would you be satisfied beyond a reasonable doubt of what you needed to be, namely, that there were, in respect of each complainant, two unlawful sexual acts which occurred, the Crown says it was a habit of the accused which he kept up and continued through time, and as such that you would be satisfied, as a matter of fact, that there was more than just the two [acts] that the law requires you to be satisfied of, beyond a reasonable doubt. [6] You do have to understand that an isolated incident is not enough, as far as the element of maintaining is concerned. There does have to be some continuity or habituality of sexual conduct, but, as I have said, no-one is arguing that, as far as the element of maintaining is concerned, that that is the real issue in the trial." (emphasis added; paragraph references added)

The relevant part of the summing up was as follows: "[1] Let me just deal with the concept of a relationship. A relationship is a way of describing the nature of the connection between two or more people. In the circumstances of this trial, it concerns two people, [RB] and [GB]. So you are considering whether there is a relationship between [RG] and [GB]. [2] Now the Crown case is that you would be satisfied beyond reasonable doubt that the relationship is one of father and daughter. Of course that is not disputed by anyone. That is a familial relationship, so it satisfies that element of the offence. The term 'maintain' has its ordinary, everyday meaning. It means to carry on or keep up or continue. [3] The Crown must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between [RB] and [GB]. The Crown case is that [RB's] evidence, if you accept it, establishes an habitual, continuous course of sexual activity between herself and [RB]. [4] Now, as you will appreciate, the critical issue in this trial is whether you are satisfied beyond reasonable doubt that there was an unlawful sexual relationship between [RB] and [GB]. An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child, over any period. [5] You will see from the indictment, that the Crown set out eight separate allegations, each of which satisfies the definition of law of an unlawful sexual act. … [6] In determining whether the relationship was an unlawful sexual relationship, you must be satisfied beyond reasonable doubt that [RB] committed two or more of those unlawful sexual acts with or towards [GB] during the period identified in the indictment. [7] Now, although the Crown relies on the unlawful sexual acts that I have just referred to, in determining whether the Crown established beyond reasonable doubt that [RB] maintained an unlawful sexual relationship with [GB], you do not need to be satisfied that the Crown has proved that every unlawful sexual act alleged against [RB] occurred. All you need to be satisfied of, beyond reasonable doubt, is that [RB] committed two or more of those unlawful sexual acts and further, importantly, you do not all need to agree about which two unlawful sexual acts constitute the unlawful sexual relationship. … [8] The point I'm making is that, provided you are all satisfied beyond reasonable doubt, that at least two of the unlawful sexual acts, outlined under count 2, took place, even if you do not all agree on which two or more acts have been proved, beyond reasonable doubt, that is sufficient to prove the element of unlawful sexual relationship." (emphasis added; paragraph references added)

HEADNOTE [This headnote is not to be read as part of the judgment] On 9 December 2020, following a trial MK was found guilty of three counts of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The offending occurred over the period between December 2017−August 2018 against three complainants (ML, MS and JD) aged between 10−12 years old who were sons of MK's former partner and lived in the same house as MK. On 30 April 2021, he was sentenced to an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. On 21 September 2020, following a trial RB was found guilty of one count contrary to s 66EA and one count of aggravated indecent assault of a child under 16 years contrary to s 61M(2) of the Crimes Act. The offending occurred over the period between 2013−2016 against RB's daughter who was aged between 8−11 years old at the time. On 4 June 2021, he was sentenced to a total effective sentence of 12 years imprisonment with a non-parole period of 9 years. RB was sentenced to 10 years imprisonment with a non-parole period of 7 years for the s 66EA offence. Both the Crown and RB appealed against the sentence for the s 66EA offence. On 29 June 2022, the Crown's appeal was allowed. He is yet to be resentenced. Both MK and RB sought to appeal their convictions for the s 66EA offence on the ground that the trial judge, McLennan SC DCJ and Latham ADCJ respectively, erred in giving directions on the elements of the s 66EA offence. MK also sought to appeal his sentence. Ultimately it was common ground that, if MK's conviction appeal failed, his sentence appeal should be stood over to await the outcome of the appeal to the High Court from the decision in Xerri v The Queen [2021] NSWCCA 268; (2021) 293 A Crim R 355. Section 66EA in its current form took effect from 1 December 2018. Section 66EA(1) provides that "[a]n adult who maintains an unlawful sexual relationship with a child is guilty of an offence". Section 66EA(2) states that "[a]n 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" (italicised bold in original). With such an offence, 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" (s 66EA(4)(a)) nor must the jury be satisfied of such particulars (s 66EA(5)(b)) or "agree on which unlawful sexual acts constitute the unlawful sexual relationship" (s 66EA(5)(c)). The principal issues on appeal were:

whether an offence under s 66EA is established by: a. proof of the commission of two or more unlawful sexual acts (the "first construction"); or b. proof of the existence of a relationship "in which" two or more unlawful sexual acts were committed (the "second construction"); or c. proof of the existence of a sexual relationship over and above the commission of two or more unlawful sexual acts (the "third construction") (the proper construction issue); and
whether the trial judges erred in their respective directions to the jury (the directions issue). The Court held (per Beech-Jones CJ at CL, Ward P, Price, Wilson and Lonergan JJ agreeing), allowing MK leave to appeal against his convictions but dismissing his appeal and dismissing RB's extension of time to appeal his conviction: As to the proper construction issue
A consideration of the text of s 66EA favours the second construction being that preferred by Basten AJA in RW v R [2023] NSWCCA. A consideration of the context of the statute, including the origins of the provision, its legislative purpose and the "mischief" it was intended to address does not suggest any other meaning or construction: [95] and [101] per Beech-Jones CJ at CL (Ward P agreeing at [1]; Price J agreeing at [121]; Wilson J agreeing at [122]; Lonergan J agreeing at [123]). Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204, considered.
Section 66EA(2) provides that what converts "a relationship" into an "unlawful sexual relationship" is the commission of two or more unlawful sexual acts in the course of that relationship ("in which"). Typically, that may involve an established relationship, such as a parent and child, teacher and student or coach and player, which is corrupted by the commission of two or more unlawful sexual acts within that relationship. In some cases, the "relationship" might be something that arises from the facts and circumstances of the commission of the unlawful sexual acts themselves. The word "maintains" in s 66EA(1) does not add anything to the actus reus of the offence beyond satisfaction of s 66EA(2): [95]−[96] per Beech-Jones CJ at CJ (Ward P agreeing at [1]; Price J agreeing at [121]; Wilson J agreeing at [122]; Lonergan J agreeing at [123]). R v DV, M (2019) 133 SASR 470; [2019] SASCFC 59; R v Mann (2020) 135 SASR 457 [2020] SASCFC 69, approved. S v The Queen (1989) 168 CLR 266; [1989] HCA 66; KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54; R v Kemp (No 2) [1998] 2 Qd R 510; R v DAT [2009] QCA 181; R v CAZ [2012] 1 Qd R 440; [2021] QCA 231; BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9; Henry v The Queen [2022] SASCA 60; (2022) 403 ALR 369, considered. R v RB [2022] NSWCCA 142; RW v R [2023] NSWCCA 2, disapproved.
Two previous decisions of the Court, R v RB [2022] NSWCCA 142 and RW v R [2023] NSWCCA 2 which adopted the third construction, are "plainly wrong" and there are "compelling reasons" to depart from them: [99]−[100] per Beech-Jones CJ at CL (Ward P agreeing at [1]; Price J agreeing at [121]; Wilson J agreeing at [122]; Lonergan J agreeing at [123]). Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; AC v R [2023] NSWCCA 133; Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212; (2013) 302 ALR 101 considered. Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied. As to the directions issue
With respect to MK's trial, it was not in dispute that there was a "relationship" between MK and the complainants at the relevant time and, if the unlawful sexual acts were committed, it was clearly a relationship "in which" they were committed. It was superfluous for the jury to determine whether there was a "continuity or habituality of sexual conduct". However, there is not a "real chance" the trial judge's directions to that effect affected the jury's verdict to the prejudice of MK nor did it have the "capacity for practical injustice" or "capab[ility] of affecting the result of the trial": [107]−[109] per Beech-Jones CJ at CL (Ward P agreeing at [1]; Price J agreeing at [121]; Wilson J agreeing at [122]; Lonergan J agreeing at [123]). Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28, applied.
With respect to RB's trial, it was not in dispute there was a "relationship" between RB and GB, being father and daughter, that the jury were instructed in terms that required them to be satisfied beyond reasonable doubt of two or more unlawful sexual acts and that, if the acts were committed, it was clearly a relationship "in which" they were committed. In circumstances where the proper construction of s 66EA is fatal to the merits of the appeal, leave to extend time to appeal should be refused: [117]−[120] per Beech-Jones CJ at CL (Ward P agreeing at [1]; Price J agreeing at [121]; Wilson J agreeing at [122]; Lonergan J agreeing at [123]). Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

JUDGMENT

WARD P: For the reasons of Beech-Jones CJ at CL which follow, I am of the view that the construction adopted by the Court in R v RB [2022] NSWCCA 142 and by the majority in RW v R [2023] NSWCCA 2 (RW) of s 66EA of the Crimes Act 1900 (NSW), as to what is required to establish the offence of maintaining an unlawful sexual relationship is, with all due respect to their Honours, plainly wrong and that the proper construction is that which was adopted by Basten AJA in RW and is consistent with the reasoning of Kourakis CJ in the South Australian decisions to which Beech-Jones CJ at CL has referred. I agree that there are compelling reasons to depart from the construction adopted in the two decisions of this Court referred to above. Accordingly, I agree with the orders proposed by Beech-Jones CJ at CL.
BEECH-JONES CJ at CL: This judgment concerns two applications for leave to appeal against convictions for offences of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). A bench of five judges of this Court was constituted to resolve a question that arises in both applications concerning the elements of an offence under s 66EA.
It is not in dispute that to establish an offence under s 66EA, it is necessary to prove that the accused committed two or more "unlawful sexual acts" (as defined) against the same child. However, the question that arises in each application is whether proof of the commission of two or more unlawful sexual acts is sufficient to make out the offence (the "first construction"), or whether the prosecution must also prove the existence of a relationship "in which" the unlawful sexual acts were committed (the "second construction") or alternatively prove the existence of a sexual relationship between the accused and a child over and above the commission of the unlawful sexual acts (the "third construction"). It can be accepted that, for many, the use of the phrases "relationship", "sexual relationship" or unlawful sexual relationship" in the context of adults and children is inappropriate or even offensive. However, that is the language of the statute and this Court's function is to interpret it accordingly.
Both applicants for leave to appeal contended for the third construction. They embraced a formulation of what that construction requires as that enunciated by Fagan J in a previous sentence appeal concerning one of the applicants, namely R v RB [2022] NSWCCA 142 ("RB (No 1)"). In RB (No 1), Fagan J, with whom Harrison and Wright JJ agreed, held that the third construction requires proof by the Crown of "multiple unlawful sexual acts… perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity" (at [62]). The applicants also sought to rely on RW v R [2023] NSWCCA 2 ("RW"), in which both Harrison and Fagan JJ adhered to the (third) construction adopted in RB (No 1). Basten AJA dissented in RW and adopted the second construction, which is consistent with decisions of the Full Court of the Supreme Court of South Australia which construed a very similar provision to s 66EA (R v Mann (2020) 135 SASR 457; [2020] SASCFC 69; "Mann"; R v M, DV (2019) 133 SASR 470; [2019] SASFC 59; Henry v The Queen [2022] SASCA 60; (2022) 403 ALR 369; "Henry").
The Crown also urged this Court to adopt the third construction. However, it submitted that the better formulation of what is required is that enunciated by the Queensland Court of Appeal in relation to a similar provision to s 66EA, [1] namely, that there be an "ongoing relationship of a sexual nature between the defendant and the complainant" and "some continuity or habituality of sexual conduct [and] not just isolated incidents" (R v CAZ [2012] 1 Qd R 440; [2011] QCA 231 at [46]; "CAZ").
For the reasons that follow, I consider that the correct construction is the second construction which was adopted by Basten AJA in RW. To the extent that the decision in RB (No 1) and the judgments of Harrison and Fagan JJ in RW differ, then they are, with respect, "plainly wrong" and should not be followed. As the directions given by the trial judge in each of the applicants' cases conformed with the second construction, it follows that the challenge by both applicants to their convictions for offences against s 66EA fail.