R v CB [2022] NSWDC 223

District Court New South Wales

Medium Neutral Citation: R v CB [2022] NSWDC 223 Hearing dates: 7 – 18 March 2022 Date of orders: 15 March 2022 Decision date: 15 March 2022 Jurisdiction: Criminal Before: Marien SC ADCJ Decision: See paragraph [2] Catchwords: CRIME — Child sex offences — Persistent sexual abuse of a child Legislation Cited: Crimes Act 1900 (NSW), s 66EA Criminal Law Consolidation Act 1935 (SA), s 50 Criminal Code (Qld), s 229B Evidence Act 1995 (NSW), s 165B Cases Cited: 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 Texts Cited: Unlawful Sexual Relationships: A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia, Dallaston and Mathews (2021) 42(1) Adelaide Law Review Category: Principal judgment Parties: Crown CB Representation: Counsel: C Newman (Crown) E Kerkyasharian (Accused) Solicitors: Solicitor for Public Prosecutions (NSW)(Crown) Warwick McCarthy & Co (Accused) File Number(s): 2020/00005225 Publication restriction: STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT

NON-PUBLICATION ORDER WITH RESPECT TO THE NAME OF THE ACCUSED

Judgment 1. An important question has arisen in the trial as to the elements of an offence under s 66EA of the Crimes Act 1900 (NSW), "Persistent sexual abuse of a child", being the offence alleged in count 1 of the indictment. Similar provisions in South Australia (s 50 of the Criminal Law Consolidation Act 1935 (SA)) and in Queensland, (s 229B(1) of the Criminal Code (Qld)), have been the subject of appellate consideration in those States. However, the proper construction of s 66EA as to the elements of the offence has not yet been the subject of appellate consideration in New South Wales. 2. For the reasons stated herein, I am of the view that the South Australian construction of s 50 of the Criminal Law Consolidation Act 1935 (SA) (which is in identical terms to s 66EA) is the preferred construction. I do not accept the contention of the Crown that the Queensland construction of a similar provision, is the preferred construction. 3. Section 66EA relevantly provides as follows: "Persistent sexual abuse of a child (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Maximum penalty – imprisonment for life. (2) An "unlawful sexual relationship" is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period." [An "unlawful sexual act" is defined in s 66EA(15).] 1. Subsection (1) is the offence creating provision. It creates the offence of an adult maintaining an unlawful sexual relationship with a child. An "unlawful sexual relationship" is defined in subs (2) as "a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period". 2. It is to be particularly noted that sub-s (2), in defining an "unlawful sexual relationship", does not refer to a "sexual relationship" in which an adult engages in the prohibited conduct, but rather to a "relationship" in which an adult engages in the prohibited conduct. A "relationship" should bear its ordinary everyday meaning, being some connection, emotional, familial, or residential, or through some other connection, such as teacher and student, where an adult is in a position of authority or power over a child. 3. However, the Court of Appeal in Queensland has, in relation to a similar provision (s 229B(1) of the Criminal Code (Qld)), interpreted "relationship" in the definition of "unlawful sexual relationship" as meaning an ongoing sexual relationship, despite the fact that the offence provision in sub-s (1) does not now (as it did prior to amendment) refer to the maintaining of "an unlawful relationship of a sexual nature" (emphasis added). 4. In R v DAT [2009] QCA 181, the Queensland Court of Appeal was considering the earlier version of the offence described as "Maintaining a sexual relationship with a child under 16" (s 229B of the Criminal Code (QLD)). Subsection (1) of the section at the time of the offence the subject of the appeal provided as follows: "Any adult who maintains an unlawful relationship of a sexual nature with a child under the prescribed age is guilty of a crime and is liable to imprisonment for 14 years." 1. Subsection (2) provided that: "A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the accused person, as an adult, has, during the period in which it is alleged that he or she maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in s 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions." 1. The provision is directed, as are the similar provisions in South Australia and New South Wales, at, inter alia, overcoming the problem identified by the High Court in S v The Queen [1989] HCA 66 concerning the requirement for particulars in sexual assault cases. 2. However, s 229B, as amended, now relevantly provides: "Maintaining a sexual relationship with a child (1) Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime. Maximum penalty – life imprisonment. (2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period." 1. As is apparent, s 229B in its amended form no longer refers to the maintaining of "an unlawful relationship of a sexual nature", but rather, defines an unlawful sexual relationship as "a relationship that involves more than 1 unlawful sexual act over any period" (emphasis added). 2. The former s 229B was interpreted by the Queensland Court of Appeal as requiring not only proof of commission of three or more offences of a sexual nature during the relevant period, but also, in addition to commission of those offences, "habituation and continuity" of a sexual relationship. This was because of the reference in former sub-s 229B(1) to the maintaining of "an unlawful relationship of a sexual nature" (emphasis added). Despite the amendment of the section, appellate decisions in Queensland have continued to require the Crown to prove, in addition to the commission by an accused of more than 1 unlawful sexual acts, "habituation and continuation" of a sexual relationship between the accused and a child. 3. However, in R v Mann [2020] SASCFC 69, Chief Justice Kourakis in the South Australian Court of Criminal Appeal, in considering s 50 of the Criminal Law Consolidation Act 1935 (which is in precisely the same terms as s 66EA in New South Wales), referred to the following statement he made concerning s 50 in R v M, DV (2019) 133 SASR 470 at [1]: "…I would hold that the actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which (in the sense of in the course of which) an adult engages in two or more unlawful sexual acts with a child." (emphasis added) 1. The Chief Justice also referred in R v Mann to his statement in R v M, DV at [10] as to why he adopted this construction of a s 50 offence: "First, the words 'in which' in subs (2) differentiate the relationship from the unlawful sexual acts. The unlawful sexual acts are not in themselves the relationship, they are acts which occur within it. I acknowledge that the words 'in which' can also be read as 'constituting', that is to say that an unlawful sexual relationship is the commission of the prescribed acts. However, to achieve that result the subsection could simply have read 'an adult who engages in…is in an unlawful sexual relationship with that child'. In the absence of an express deeming of that kind, it is a strained use of the language to describe the victim and the perpetrator of two sexual offences as being in a relationship by reason of these acts alone and in the absence of any other connection. I note here that my preferred construction of the words 'in which' gives those words a similar meaning to 'that involves', which finds expression in the current form of s 229B of the Criminal Code 1899 (Qld). That section and s 50 of the CLCA are in broadly similar terms." 1. The Chief Justice also referred to the following further statement he made in R v M, DV at [11]: "The terms of subparagraph (c) of s 50(4), that the members of the jury are not required to agree on which unlawful sexual acts 'constitute' the unlawful sexual relationship, are not inconsistent with the second construction. A relationship is not an unlawful sexual one unless the adult engages in unlawful sexual acts with a child. In that sense, the relationship will not be constituted an unlawful sexual one unless the jury is satisfied that the adult, in the otherwise innocent relationship, engaged in those acts." 1. The Chief Justice in R v Mann also referred to the judgment of Lovell J in R v M, DV where his Honour at [184] - [185] contrasted the commission of two or more unlawful sexual acts with the relationship element of the offence as follows: "The jury ought to have been directed that they had to be satisfied that a relationship existed between the accused and the complainants outside of the two or more unlawful sexual acts. The relationship here was father/daughter(s). It was clearly maintained. The accused gave evidence acknowledging he was the father of the complainants. While relationship for the purpose of section 50 is not defined, clearly a father/daughter relationship which is genetic and/or familial would be encompassed in that expression." 1. In a helpful paper provided to me by the Crown, "Unlawful Sexual Relationships: A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia" by Dallaston and Mathews (2021) 42(1) Adelaide Law Review, the learned authors carried out a comparative study of appellate decisions in South Australia and Queensland concerning the offence of persistent child sexual abuse. 2. The paper provides, in my view, powerful arguments to support its conclusion that the South Australian construction of the offence is to be preferred to the Queensland construction, for not only reasons of strict statutory construction but also on policy grounds. The authors at page 2 state with respect to the diverging approaches in Queensland and South Australia: "More recent developments in the South Australian law have demonstrated a different approach that does not unduly restrict the application of the offence, and which better reflects the purpose of the provisions and an accurate understanding of the nature of persistent CSA [child sexual abuse]." 1. At page 15 the authors state as follows: "Despite the convergence of the legislation in Queensland and South Australia, the nature and operation of these laws in each State has diverged. The differing operations of the law in each State do not appear to be founded in legislation, but in the construction of that legislation by the respective State supreme courts. The key concept that has been the subject of judicial consideration is a 'relationship', and what it means to 'maintain' such a relationship. Analysis of the case law demonstrates significant differences in judicial interpretation and, consequently, the scope and operation of the laws in each State. In Queensland, conviction requires proof beyond reasonable doubt that the accused has maintained an unlawful sexual relationship, where a 'relationship' is a sexual relationship, and maintenance of that relationship is demonstrated by sexual contact that is "continuous and habitual." In contrast, the construction of the law in South Australia requires proof only of a relationship, including a wide range such as ordinary familial or other relationships, and there is no requirement that continuity of "sexual" interactions be demonstrated." 1. The authors go on to say that maintenance of a relationship; "requires only knowledge of all the circumstances that are said to constitute the relationship, which includes all non-sexual interactions and any positions of authority." 1. The authors are highly critical of the terminology of the offence of persistent child sexual abuse requiring a sexual "relationship" between the accused and the complainant. They state at page 20: "The use of 'relationship' terminology does not reflect an accurate understanding of the nature of child sexual abuse. Child sexual abuse occurs when any adult or child in a position of power over the victim inflicts contact or non-contact sexual acts, to seek or obtain physical or mental sexual gratification for themselves or another person and whether immediate or deferred in time and space, when the child either does not have capacity to provide consent, or has capacity but does not provide consent. A "sexual relationship", as a normative concept, involves consensual sexual activity, which by its nature must be premised on full, free, and voluntary consent to the acts. On this basis, it is clearly inappropriate to conceive of non-consensual sexual acts inflicted on a child as involving a 'sexual relationship'." 1. Of course, when the authors say the offence relates to non-consensual acts, that is so because under the law, a child does not have the capacity to consent to sexual acts. For completeness I should say that the learned authors remain critical of these provisions even in New South Wales and South Australia in using the language of a "sexual relationship" between an adult and a child, and there are a number of recommendations in the paper for further reform. 2. The South Australian position is in my view the preferred construction, that is, that the relationship being referred to in the offence of maintaining an unlawful sexual relationship is not necessarily a sexual relationship with a child in which unlawful sexual acts occur. I say "not necessarily" because, as acknowledged in R v Mann, sexual acts between an adult and a child could be taken into account when determining whether a "relationship" existed between the adult and the child. 3. It is to be particularly noted that the authors refer to the South Australian provision as being the most recent enactment of a persistent sexual abuse of a child offence in Australia having been enacted following recommendations made by the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. 4. The Queensland interpretation, requiring, in addition to the minimum number of unlawful sexual acts, that there also be "continuity" and "habituality" of a sexual relationship, in my view, is not supported by the proper construction of the provision. Nor is it supported on policy grounds. 5. The following statement of Basten JA in Binns v R [2017] NSWCCA 280 at [10] (in relation to another statutory provision namely s 165B of the Evidence Act 1995 (NSW)) is apposite: "…as so often happens in reliance on statements in the case law, rather than the language of the statute, the fact that the restatement by a judge may involve paraphrase or may be directed towards a particular set of circumstances is lost sight of." 1. I prefer to interpret s 66EA in terms of the clear language of the statute, rather than paraphrased interpretations of a similar provision, as stated in decisions of the Court of Appeal in Queensland. Clearly, had the NSW legislature intended that for a s 66EA offence, the two or more unlawful sexual acts must be engaged in in the context of an ongoing "sexual relationship" between an adult and a child, then an unlawful sexual relationship would have been defined in s 66EA(2) as a "sexual relationship" in which those unlawful sexual acts are engaged in. However, the legislature determined not to do so. No doubt that was a determination made by the legislature on sound policy grounds.