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District Court 16 September 2020

R v CEM

[2020] NSWDC 537

Sexual offences

Citation: R v CEM [2020] NSWDC 537
Court: District Court of New South Wales
Date: 16 September 2020
Judge: Priestley SC DCJ

Background

The accused stood trial on an indictment containing eleven counts arising from allegations of sexual offending against a child (referred to as "X"). The primary charge, under section 66EA of the Crimes Act 1900 (NSW), alleged that the accused maintained an unlawful sexual relationship with X during a period between January 2007 and December 2010, when X was aged between 8 and 12.

X and her family lived in a house backing onto the accused's property. X was close friends with one of the accused's children, K, and the two children regularly had sleepovers at each other's homes. The Crown alleged that some of the occasions when X slept over at the accused's home provided the opportunity for a range of sexual offences, including indecent acts, indecent assault, and digital penetration. Sexual offending was also alleged to have occurred when X passed through the accused's backyard on her way to tend to her family's horses.

Ten alternative counts accompanied the primary persistent abuse charge. These served a dual purpose: to particularise the specific unlawful sexual acts said to underpin the section 66EA charge, and to stand as standalone charges in their own right if the evidence established the required elements.

  • Whether the Crown established beyond reasonable doubt that two or more unlawful sexual acts occurred as particularised, so as to make out the persistent sexual abuse charge under section 66EA of the Crimes Act 1900 (NSW).
  • Whether proof of two or more unlawful sexual acts, without more, is sufficient to establish an unlawful sexual relationship under section 66EA, or whether the Crown must also prove that such a relationship was maintained.
  • Whether an unlawful sexual act not particularised in the indictment, but falling within the broad categories pleaded in count 1, could constitute a foundational act for the purposes of section 66EA.
  • Whether the evidence of the complainant was sufficiently reliable to support convictions on the individual alternative counts, including counts involving indecency, indecent assault, and sexual intercourse.
  • How the principles in Pell v The Queen [2020] HCA 12 applied to the assessment of the complainant's evidence.

Decision

His Honour acquitted the accused on all eleven counts. Although the court found the complainant to be honest in most respects, it was ultimately not satisfied that the evidence was reliable enough to establish the alleged unlawful sexual acts beyond reasonable doubt.

On the section 66EA charge, the court confirmed that proving two or more unlawful sexual acts is necessary but not sufficient. The Crown must also establish that a relationship existed and was maintained. The court rejected the Crown's submission that an unparticularised sexual act falling within the broad categories pleaded in count 1 could constitute a foundational act. Following ARS v R [2011] NSWCCA 266, the court held that the nature of each foundational act must be stated with reasonable precision in the indictment and proved accordingly. Amendments to section 66EA since ARS did not alter this requirement.

The court identified a range of factors undermining the reliability of the evidence. Dates on some charges were not made out. Evidence was wholly absent for four of the ten alternative counts. A fifth count lacked evidentiary support. Counts 5, 6, and 9 each contained serious elements of unreliability. There was also evidence of reconstruction in the complainant's account. Scant evidence was led going to the necessary "relationship" element, and there were doubts about how frequently the accused was even present in the house during the relevant sleepovers.

The court noted that these doubts persisted even applying the lower threshold under section 66EA(5), which does not require satisfaction of the full particulars of an alleged instance. The doubts also remained sufficient to preclude conviction even if the conduct alleged amounted only to an attempt at the relevant unlawful sexual act.

Orders Made

  • Count 1: Not guilty
  • Count 2: Not guilty
  • Count 3: Not guilty
  • Count 4: Not guilty
  • Count 5: Not guilty
  • Count 6: Not guilty
  • Count 7: Not guilty
  • Count 8: Not guilty
  • Count 9: Not guilty
  • Count 10: Not guilty
  • Count 11: Not guilty

Key Takeaways

  • Under section 66EA of the Crimes Act 1900 (NSW), proof of two or more unlawful sexual acts is a necessary but not sufficient condition for a conviction: the Crown must separately establish that a sexual relationship existed and was maintained.
  • A foundational unlawful sexual act relied upon for a section 66EA charge must be stated with reasonable precision in the indictment and proved to that standard, even where section 66EA(5) reduces the level of particularity required to prove the details of that act. An unparticularised act cannot be substituted simply because it falls within a broad category pleaded in the charge.
  • The District Court applied ARS v R [2011] NSWCCA 266 to confirm that subsequent amendments to section 66EA affect the need to prove particulars but do not remove the requirement to identify and prove the type of unlawful sexual act alleged.
  • A finding that a complainant was honest does not compel a finding of guilt: reliability of the evidence remains a distinct and essential consideration, and the court's assessment of unreliability across multiple counts contributed to acquittals on all charges.
  • Where alternative counts serve both as standalone charges and as particularisations of the persistent abuse count, the absence of evidence supporting several of those alternatives will directly undermine the foundational elements of the section 66EA charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61N, 66C, 66EA
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- ARS v R [2011] NSWCCA 266
- Fleming v R (1998) 197 CLR 250
- R v Markuleski (2001) 52 NSWLR 82
- R v O'Toole [2020] NSWDC 423
- Pell v The Queen [2020] HCA 12