AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 19 July 2023

MK v R; RB v R

[2023] NSWCCA 180

Also reported as (2023) 112 NSWLR 96
Sexual offences

Citation: MK v R; RB v R [2023] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 19 July 2023
Judges: Ward P, Beech-Jones CJ at CL, Price J, Wilson J, Lonergan J

Background

Two appellants, each convicted of maintaining an unlawful sexual relationship with a child contrary to s 66EA of the Crimes Act 1900 (NSW), challenged their convictions on the ground that the trial judges had misdirected their respective juries on the elements of the offence. The first appellant (MK) was convicted of three counts after a jury found he had sexually abused three boys aged 10 to 12, the sons of his former partner, over a period of approximately eight months in 2017 to 2018. He was sentenced to an aggregate 28 years imprisonment with a 21-year non-parole period.

The second appellant (RB) was convicted of one count of the s 66EA offence and one count of aggravated indecent assault, arising from offending against his daughter between 2013 and 2016 when she was aged 8 to 11. He received 10 years imprisonment with a non-parole period of 7 years for the s 66EA offence, a sentence that was itself the subject of a successful Crown appeal.

A five-judge bench was convened because both appeals turned on a contested question about the proper construction of s 66EA: specifically, what the prosecution must prove to establish the offence.

  • What does s 66EA require the prosecution to prove? Three competing constructions were argued:
  • First construction: proof of two or more unlawful sexual acts is sufficient
  • Second construction: proof of a relationship "in which" two or more unlawful sexual acts were committed
  • Third construction: proof of a sexual relationship existing over and above the commission of two or more unlawful sexual acts
  • Whether two earlier Court of Criminal Appeal decisions adopting the third construction should be overruled
  • Whether the trial judges' jury directions on the elements of s 66EA contained reversible error
  • Whether RB should be granted an extension of time to bring his conviction appeal

Decision

On the proper construction of s 66EA, the Court unanimously adopted the second construction, as articulated by Basten AJA in the earlier decision of RW v R [2023] NSWCCA 2. Section 66EA(2) defines an "unlawful sexual relationship" as a relationship in which an adult engages in two or more unlawful sexual acts with a child. What transforms an ordinary relationship into an unlawful sexual one, the Court held, is the commission of those acts within it. The word "maintains" in s 66EA(1) adds nothing to the actus reus beyond what s 66EA(2) already requires.

The Court expressly overruled two prior decisions of the Court, R v RB [2022] NSWCCA 142 and the majority in RW v R [2023] NSWCCA 2, both of which had favoured the third construction (requiring proof of a sexual relationship beyond the acts themselves). The Court found those decisions to be "plainly wrong," with compelling reasons to depart from them. The relevant relationship need not be independently established as sexual: it might be an existing relationship such as parent and child or teacher and student, corrupted by the commission of two or more unlawful sexual acts, or in some cases a relationship arising from the circumstances of the acts themselves.

On the directions issue for MK, the trial judge's directions included a requirement that the jury be satisfied of a "continuity or habituality of sexual conduct." That element was superfluous under the correct construction of s 66EA. However, the Court found there was no real chance those directions affected the jury's verdict to MK's prejudice, given that the relationship between MK and the complainants was not in dispute and any unlawful sexual acts clearly occurred within it. Leave to appeal was granted but the appeal was dismissed.

On RB's application, the Court refused the extension of time needed to bring the conviction appeal. Because the correct construction of s 66EA was fatal to the merits of any ground RB could advance, there was no basis to exercise the discretion to extend time. RB's conviction appeal did not proceed.

Orders Made

  • Leave to appeal against conviction granted to MK; conviction appeal dismissed
  • MK's sentence appeal stood over pending the outcome of the High Court appeal from Xerri v The Queen [2021] NSWCCA 268
  • Extension of time to appeal conviction refused for RB; RB's conviction appeal dismissed

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), the prosecution must prove the existence of a relationship in which two or more unlawful sexual acts were committed. No further or separate sexual dimension to the relationship need be established beyond those acts.

  • The Court of Criminal Appeal, sitting as a five-judge bench, expressly overruled R v RB [2022] NSWCCA 142 and the majority reasoning in RW v R [2023] NSWCCA 2, finding those decisions "plainly wrong" in their adoption of a third construction requiring an independent sexual relationship.

  • A "relationship" for the purposes of s 66EA is broad: it typically encompasses an existing connection such as a familial, domestic, or supervisory one, but may also arise from the facts and circumstances surrounding the unlawful sexual acts themselves.

  • Superfluous jury directions, asking the jury to determine a "continuity or habituality of sexual conduct," did not constitute reversible error where the undisputed facts meant the directions carried no real chance of prejudicing the outcome.

  • Refusing an extension of time to appeal is appropriate where the correct legal construction of the relevant provision defeats the merits of the proposed appeal at the outset.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 66EA
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Code Act 1899 (Qld), s 229B
- Criminal Law Consolidation Act 1935 (SA), s 50
- Interpretation Act 1987 (NSW), s 35

Cases:
- R v RB [2022] NSWCCA 142 (overruled)
- RW v R [2023] NSWCCA 2 (majority overruled; Basten AJA dissent approved)
- AC v R [2023] NSWCCA 133
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Henry v The Queen [2022] SASCA 60; (2022) 403 ALR 369
- R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59
- Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26