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Court of Criminal Appeal 27 October 2023

Lin v R

[2023] NSWCCA 268

Sexual offences

Citation: Lin v R [2023] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 27 October 2023
Judges: Adamson JA (with Davies J agreeing); Rothman J (separate reasons)

Background

The appellant was convicted by jury of maintaining an unlawful sexual relationship with a child contrary to s 66EA of the Crimes Act 1900 (NSW). The offending occurred over a period of approximately three years when the complainant was between 9 and 12 years old. The appellant was a long-term boarder in the family home where the complainant lived with her mother and younger brother, and was in an intimate relationship with the complainant's mother, of which the complainant was unaware.

The appellant received a sentence of seven years and six months imprisonment with a non-parole period of four years. He did not challenge the sentence, focusing his application solely on the adequacy of the jury directions given at trial.

Notably, at trial the appellant's counsel had expressly accepted the directions as proposed by the trial judge. On appeal, the appellant's counsel conceded those directions accorded with the Court of Criminal Appeal's decision in MK v R; RB v R [2023] NSWCCA 180. The stated purpose of the application was to preserve the appellant's rights pending the outcome of a special leave application to the High Court in those proceedings.

  • Whether leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) was required, given the ground concerned a question of law.
  • Whether leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was required and warranted, given the appellant's counsel had expressly accepted the impugned directions at trial.
  • Whether the jury directions on the elements of maintaining an unlawful sexual relationship under s 66EA were erroneous or inadequate.
  • Whether, if the reasoning in MK v R; RB v R were wrong, the particular directions given at trial would nonetheless have been sufficient.

Decision

On leave requirements (Adamson JA, Davies J agreeing): The majority held that leave under s 5(1)(b) of the Criminal Appeal Act was not required because the ground of appeal concerned a question of law alone, namely the elements of the offence under s 66EA. However, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules was required because the appellant's counsel had not only failed to object at trial but had expressly accepted the proposed directions.

On whether leave under r 4.15 should be granted (Adamson JA, Davies J agreeing): The majority declined to grant leave. The Court reasoned that granting leave in circumstances where the direction complied with existing Court of Criminal Appeal authority would implicitly suggest some tentativeness about the Court's own decisions, merely because a special leave application was on foot. The Court emphasised that MK v R; RB v R remained the law unless and until the High Court said otherwise.

Rothman J (separate reasons, dismissing the appeal): Rothman J would have granted leave under r 4.15, accepting there was good reason why the issue was not raised at trial, given that a judge and trial counsel are bound by and focused on existing Court of Criminal Appeal authority. His Honour also considered the issue to be one of important and contentious statutory construction. However, Rothman J concluded that the ratio in MK v R; RB v R was plainly correct. Additionally, and independently, Rothman J found the trial judge's directions were not inconsistent: the direction required both the existence of a continuing relationship and the commission of two or more unlawful sexual acts, with the word "also" making those requirements cumulative rather than contradictory. On that basis, even if MK v R; RB v R had been wrongly decided, the appeal would have failed.

Orders Made

• Grant leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules to the extent necessary
• Dismiss the appeal

Key Takeaways

  • The Court of Criminal Appeal confirmed that directions on the elements of s 66EA of the Crimes Act 1900 in the form approved by MK v R; RB v R [2023] NSWCCA 180 represent the current correct statement of the law, and that position stands unless disturbed by the High Court.

  • Where trial counsel expressly accepts jury directions as proposed by the trial judge, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 is required to challenge those directions on appeal, even where the underlying ground involves a question of law alone.

  • In dismissing the leave application, the majority held that granting leave on grounds that accord with existing Court of Criminal Appeal authority tends to imply uncertainty about that authority, which the Court declined to do simply because a special leave application was pending in the High Court.

  • A pending special leave application to the High Court challenging a Court of Criminal Appeal decision does not, of itself, provide a basis for this Court to grant leave to appeal against a conviction based on directions that correctly followed that decision.

  • Under the analysis of Rothman J, jury directions on s 66EA that separately identify the requirement for a continuing relationship and the requirement for two or more unlawful sexual acts, and treat those requirements as cumulative, are not internally inconsistent and will satisfy the elements of the offence as properly construed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66DB, 66DC, 66DD, 66DE, 66EA
- Criminal Appeal Act 1912 (NSW), s 5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- MK v R; RB v R [2023] NSWCCA 180
- RW v R [2023] NSWCCA 2
- Gould v R [2023] NSWCCA 103
- R v RB [2022] NSWCCA 142
- Lowe v R [2015] NSWCCA 46; (2015) 249 A Crim R 362
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26