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Court of Criminal Appeal 3 February 2023

RW v R

[2023] NSWCCA 2

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION PERSISTENT SEXUAL ABUSE WHETHER VERDICT OF GUILTY UNREASONABLE

Citation: RW v R [2023] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 3 February 2023
Judges: Basten AJA; Harrison J; Fagan J

Background

The applicant was convicted in the District Court of a single count of maintaining an unlawful sexual relationship with his daughter, then a child under 10, contrary to s 66EA of the Crimes Act 1900 (NSW). The charged period ran from January 2013 to May 2016. The indictment specified six particulars of conduct, each constituting a separate unlawful sexual act, with those same acts pleaded as alternative counts in the event the jury acquitted on count 1.

The jury returned a guilty verdict on count 1, and the alternative counts did not proceed. The applicant was sentenced on 1 April 2021, with the trial judge independently determining which of the six particulars had been proved beyond reasonable doubt. He accepted all but one.

The applicant sought leave to appeal against both conviction and sentence on multiple grounds, including that the verdict was unreasonable and that the trial judge had misdirected the jury on the elements of the s 66EA offence.

  • Whether the guilty verdict was unreasonable or unsupported by the evidence
  • Whether the trial judge erred by failing to direct the jury that s 66EA requires proof of a "sexual relationship" as an element separate from and in addition to the commission of two or more unlawful sexual acts
  • Whether the applicant could rely on ground 6 (the misdirection ground), given it was raised late and based on reasoning that post-dated the trial
  • Whether the sentencing approach was consistent with High Court authority on how judges must sentence for offences of this type

Decision

The Court divided on the misdirection ground (ground 6), and it was this ground that ultimately determined the appeal. A majority (Harrison J and Fagan J) upheld the appeal on the basis that the trial judge's directions to the jury failed to address a requirement articulated in the Court's subsequent decision in R v RB [2022] NSWCCA 142, namely that proof of an "unlawful sexual relationship" under s 66EA demands something beyond the mere commission of two or more unlawful sexual acts.

Basten AJA dissented on ground 6. His Honour reasoned that the relevant passage in R v RB was obiter and thus not binding, and expressed doubt as to its correctness. On his Honour's analysis of the statutory text, s 66EA's definition of "unlawful sexual relationship" in subs (2) defines the concept exhaustively as a relationship in which an adult engages in two or more unlawful sexual acts. To extract the words "sexual relationship" from the defined term and treat them as importing an additional requirement would be circular and inconsistent with the legislature's drafting approach. Basten AJA would have dismissed the conviction appeal.

On the unreasonable verdict ground, all three judges were satisfied that the evidence was capable of supporting the guilty verdict and declined to disturb it on that basis. The remaining grounds (2 through 5) were not upheld by any member of the Court.

On sentence, the applicant argued that the trial judge was required, consistently with the High Court's reasoning in Chiro v The Queen and KMC v DPP (SA), to proceed on the assumption that only the two least serious particulars had been proved. The Court (following its own approach in R v RB) treated those High Court authorities as distinguishable given differences between s 66EA and the equivalent South Australian provision. Leave to appeal against sentence was refused.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction quashed; new trial ordered
  • Proceedings listed for mention in the Sydney District Court arraignments list on 17 February 2023

Key Takeaways

  • A majority of the Court of Criminal Appeal held that the trial judge's directions on the elements of s 66EA were deficient, resulting in the quashing of the conviction and the ordering of a new trial.
  • The decision in R v RB [2022] NSWCCA 142, which addressed the requirements for proving an "unlawful sexual relationship," was handed down nearly two years after the trial judge's summing-up; the Court expressly noted that the misdirection involved no fault on the part of the trial judge.
  • Basten AJA identified a significant unresolved question of statutory construction: whether s 66EA requires proof of a "sexual relationship" as an element beyond two or more unlawful sexual acts, or whether the definition in subs (2) exhaustively defines the concept so that no additional relational element is needed.
  • The relevant passage in R v RB was treated by Basten AJA as obiter, meaning its authority on the elements of s 66EA remains a live question not authoritatively settled by this appeal.
  • Under the approach confirmed in R v RB, the High Court's sentencing principles from Chiro and KMC do not automatically apply to s 66EA offences given structural differences between the NSW and South Australian provisions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(3)
- Criminal Procedure Act 1986 (NSW), s 293
- Criminal Code (Qld), s 229B
- Criminal Law Consolidation Act 1935 (SA), s 50

Cases
- R v RB [2022] NSWCCA 142
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; [2020] HCA 6
- Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Jackmain v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- R v Mann (2020) 135 SASR 457; [2020] SASCFC 69
- R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59
- BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48
- Dansie v The Queen [2022] HCA 25