AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 March 2022

R v CB

[2022] NSWDC 223

Sexual offences
CRIME CHILD SEX OFFENCES PERSISTENT SEXUAL ABUSE OF A CHILD

Citation: R v CB [2022] NSWDC 223
Court: District Court of New South Wales
Date: 15 March 2022
Judge(s): Marien SC ADCJ

Background

The accused faced an indictment including a count of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). During the trial, a significant preliminary question arose about the proper elements of the offence, specifically what the Crown must prove to establish that an accused maintained an "unlawful sexual relationship" with a child.

Similar persistent sexual abuse offences exist in Queensland (s 229B of the Criminal Code) and South Australia (s 50 of the Criminal Law Consolidation Act 1935), and both States have developed distinct appellate interpretations. Those interpretations diverge in a material way: the Queensland courts require proof of "habituation and continuity" of a sexual relationship in addition to the commission of unlawful sexual acts, while the South Australian courts do not impose that additional requirement.

The question before the court was which interpretive approach should apply to s 66EA, a provision in materially identical terms to the South Australian provision, and which had not previously received appellate consideration in New South Wales.

Legal Issues

  • What is the proper construction of "unlawful sexual relationship" in s 66EA(2) of the Crimes Act 1900 (NSW)?
  • Does the prosecution need to prove, beyond the two or more unlawful sexual acts, that there was also "habituation and continuity" of an ongoing sexual relationship between the accused and the child?
  • What meaning should be given to the word "relationship" in the definition of "unlawful sexual relationship"?

Decision

Issue 1: The correct interpretive approach to s 66EA

The court held that the proper construction of s 66EA has not previously been considered by an appellate court in New South Wales (at [1]). Faced with competing approaches from Queensland and South Australia, the court preferred the South Australian construction, as expressed by Chief Justice Kourakis in R v Mann [2020] SASCFC 69 and R v M, DV (2019) 133 SASR 470 (at [2], [13]-[16]). The South Australian provision is in precisely the same terms as s 66EA, making that body of authority directly apposite.

Issue 2: The meaning of "relationship" in the definition of "unlawful sexual relationship"

The court held that "relationship" in s 66EA(2) carries its ordinary everyday meaning: some connection between an adult and a child that is emotional, familial, residential, or arises through other circumstances such as a teacher-student dynamic (at [5]). The definition does not require the relationship itself to be sexual in nature. The legislature chose to define "unlawful sexual relationship" as a "relationship" in which two or more unlawful sexual acts occur, not as a "sexual relationship" in which those acts occur. That choice was deliberate and should be given effect (at [27]).

Issue 3: Rejection of the Queensland "habituation and continuity" requirement

The court rejected the Queensland Court of Appeal's approach, which requires proof of "habituation and continuity" of a sexual relationship in addition to the commission of the requisite number of unlawful sexual acts (at [6], [12], [25]). The court observed that Queensland courts developed and then retained this requirement even after the legislative amendment removed the language that originally supported it. The court held that importing such an additional element into s 66EA is not supported by the plain language of the statute and is not supported on policy grounds (at [25], [27]). The court also noted that sexual acts between the adult and the child may nevertheless be considered when determining whether a "relationship" in the ordinary sense existed (at [23]).

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), an "unlawful sexual relationship" is established by proof that an adult engaged in two or more unlawful sexual acts with or towards a child over any period, within a relationship in its ordinary everyday sense (at [4]-[5]).

  • The District Court held that the Crown is not required to prove "habituation and continuity" of an ongoing sexual relationship as an additional element beyond the commission of the unlawful sexual acts themselves (at [25]).

  • "Relationship" in s 66EA carries its ordinary meaning and can encompass connections that are emotional, familial, residential, or role-based, such as teacher and student. It need not be a sexual relationship (at [5]).

  • Queensland appellate authority requiring proof of a continuing sexual relationship was expressly rejected as incompatible with the plain statutory language of s 66EA and inapposite on policy grounds, particularly given that s 66EA was enacted following recommendations of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse (at [24]-[27]).

  • Although the relationship element does not require sexual acts, those acts may still be taken into account when assessing whether an ordinary relationship existed between the adult and the child (at [23]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA
- Criminal Law Consolidation Act 1935 (SA), s 50
- Criminal Code (Qld), s 229 B
- Evidence Act 1995 (NSW) , s 165B

Cases
- R v DAT [2009] QCA 181
- S v The Queen [1989] HCA 66
- R v Mann [2020] SASCFC 69
- R v M, DV (2019) 133 SASR 470
- Binns v R [2017] NSWCCA 280