AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 24 May 2024

Grant v R

[2024] NSWCCA 78

Sexual offences
CRIME HISTORICAL SEXUAL ACTS

Citation: Grant v R [2024] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 24 May 2024
Judge(s): Davies J, N Adams J, McNaughton J (McNaughton J delivering the leading judgment)

Background

The appellant, a former teacher at a Catholic school, pleaded guilty in the District Court in August 2022 to maintaining an unlawful sexual relationship with a child, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The conduct underlying the charge occurred between April 1977 and June 1979, when the victim was aged between 10 and 11 years old. The appellant was sentenced in December 2022 to six years and nine months' imprisonment, with a non-parole period of three years and four months.

The charge under s 66EA was founded on 22 particularised "unlawful sexual acts," each said to constitute the offence of indecent assault of a male under the now-repealed s 81 of the Crimes Act. In February 2024, the Court of Criminal Appeal handed down its decision in Lam v R [2024] NSWCCA 6, holding that an offence under s 81 was incapable of being committed by a woman. This intervening decision prompted the appellant to appeal her conviction despite her earlier guilty plea.

The respondent (the Crown) accepted that, as a matter of law, the appellant could not have been convicted of the s 66EA offence given the construction of s 81 confirmed in Lam, and agreed that a miscarriage of justice had occurred.

  • Whether the appellant's conviction under s 66EA constituted a miscarriage of justice in circumstances where the particularised "unlawful sexual acts" were founded on s 81 of the Crimes Act, an offence that could not lawfully be committed by a woman.
  • Whether, absent valid underlying offences, the sexual acts in question could satisfy the requirement of being "unlawful" within the meaning of s 66EA(2).
  • Whether quashing the conviction and entering an acquittal was the appropriate remedy.

Decision

The Court unanimously upheld the appeal. McNaughton J, with whom Davies J and N Adams J agreed, applied the reasoning in Lam v R to find that any prosecution of a female for an offence under s 81 of the Crimes Act is invalid. Because the s 66EA charge was constructed entirely upon particularised acts said to constitute s 81 offences, and those offences could not be committed by a woman, the conviction was itself invalid.

The Court acknowledged the significance of s 66EA's retrospective operation. However, that retrospectivity was expressly conditioned, in the Second Reading Speech introducing the provision, on the underlying sexual acts having been illegal at the time they were committed. Under the construction of s 81 confirmed by Lam, the appellant's conduct was not criminalised by that provision, and so could not satisfy the "unlawful" threshold in s 66EA(2).

The Court found no alternative offence provision under the Crimes Act capable of rendering the appellant's sexual acts "unlawful" for the purposes of s 66EA. With no operative charging basis available, it was not necessary for the appellant to withdraw her guilty plea in order to succeed on the appeal.

McNaughton J acknowledged the profound distress this outcome would cause the victim, describing the situation as one of "moral repugnancy" and characterising the result as deeply regrettable. Nonetheless, the Court held that a miscarriage of justice had plainly occurred and that the conviction had to be quashed, with an acquittal entered in its place.

Orders Made

  • Ground 1 upheld.
  • The appeal allowed.
  • The appellant's conviction for the offence contrary to s 66EA of the Crimes Act 1900 (NSW) quashed.
  • An acquittal entered in lieu of the conviction.

Key Takeaways

  • The Court of Criminal Appeal confirmed and applied Lam v R [2024] NSWCCA 6: a charge under the now-repealed s 81 of the Crimes Act 1900 (NSW) could not lawfully be committed by a woman, and any such prosecution is invalid.
  • A conviction under s 66EA (maintaining an unlawful sexual relationship with a child) depends on the underlying sexual acts having been criminalised at the time they occurred. Where those acts cannot constitute a valid offence, the s 66EA charge cannot stand.
  • Under s 66EA, retrospective application of the offence is conditioned on the acts in question having been "unlawful" when committed. The Second Reading Speech accompanying the provision expressly confirmed this limitation.
  • An accused may succeed on a conviction appeal despite a guilty plea where the conviction is legally invalid. The Court held that withdrawal of the guilty plea was not a prerequisite for relief.
  • In dismissing any prospect of a lesser or alternative conviction, the Court noted there was no other available offence on the established facts, making an acquittal the only available order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA, 81
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Grant v R [2024] NSWCCA 30
- JAD v R [2012] NSWCCA 73
- Lam v R [2024] NSWCCA 6
- Livbuild Pty Ltd v Willoughby City Council [2017] NSWCCA 255
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- R v Grant [2022] NSWDC 718
- R v Liberti (1991) 55 A Crim R 120