MK v R; RB v R [2023] NSWCCA 180

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MK v R; RB v R [2023] NSWCCA 180 Hearing dates: 21 June 2023 Date of orders: 19 July 2023 Decision date: 19 July 2023 Before: Ward P at [1] Beech-Jones CJ at CL at [2] Price J at [122] Wilson J at [123] Lonergan J at [124] Decision: In relation to the application for leave to appeal by MK against his conviction and sentence: (1) The applicant be granted leave to raise his sole ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW); (2) To the extent necessary, the applicant be granted leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to raise his sole ground of appeal against his convictions; (3) The appeal be dismissed; (4) Stand over the application for leave to appeal against sentence to a call over before the Registrar of the Court of Criminal Appeal on 14 December 2023; (5) Grant the parties liberty to apply to the Registrar of the Court of Criminal Appeal on 3 days' notice to restore the application for leave to appeal against sentence to the call over list. In relation to the application by RB for an extension of time to appeal his conviction: (1) The extension of time be refused; (2) The application be dismissed. Catchwords: CRIMES — appeals — appeal against conviction — persistent sexual abuse of a child — where offending occurred against MK's three "stepsons" and RB's daughter — statutory construction — Crimes Act 1900 (NSW), s 66EA — whether proper construction is that offence made out by proof of two or more unlawful sexual acts (the "first construction"), the existence of a relationship "in which" the unlawful sexual acts were committed (the "second construction") or the existence of a sexual relationship over and above the unlawful sexual acts (the "third construction") — text of s 66EA favours second construction — legislative context and purpose do not suggest any other construction — s 66EA(2) plainly states what converts a "relationship" into an "unlawful sexual relationship" is the commission of two or more unlawful sexual acts in the course of that relationship ("in which") — the word "maintains" in s 66EA(1) does not add anything to the actus reus of the offence beyond satisfaction of s 66EA(2) — earlier judgments favouring third construction are "plainly wrong" and should be overruled — whether trial judges erred in giving directions on elements of a s 66EA offence — directions conformed with second construction notwithstanding it was superfluous for the juries to determine a "continuity or habituality of sexual conduct" — no "real chance" directions affected either jury's verdict — leave to appeal allowed for MK — extension of time to appeal refused for RB as proper construction of s 66EA is fatal to merits of appeal — appeals dismissed Legislation Cited: Acts Interpretation Act 1954 (Qld), s 35 Children (Criminal Proceedings) Act 1987 (NSW), s 578 Commonwealth Constitution Crimes 1900 (ACT), s 56 Crimes Act 1900 (NSW), ss 61, 66EA Criminal Appeal Act 1912 (NSW), s 6 Criminal Code Act 1899 (Qld), s 229 Criminal Law Amendment Act 1997 (Qld) Criminal Law Consolidation Act 1935 (SA), s 50 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Interpretation Act 1987 (NSW), s 35 Judiciary Act 1903 (Cth), s 78 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) Supreme Court (Criminal Appeal) Rules 2021 (NSW) The Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld) Cases Cited: AC v R [2023] NSWCCA 133 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9 Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212; (2013) 302 ALR 101 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 Henry v The Queen [2022] SASCA 60; (2022) 403 ALR 369 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KN v R (2019) 14 ACTLR 289; [2019] ACTCA 37 R v BBH [2007] QCA 348 R v CAZ [2012] 1 Qd R 440; [2011] QCA 231 R v DAT [2009] QCA 181 R v Kemp (No 2) [1997] 1 Qd R 383 R v Kemp (No 2) [1998] 2 Qd R 510 R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59 R v Mann (2020) 135 SASR 457; [2020] SASCFC 69 R v RB [2022] NSWCCA 142 R v S [1999] 2 Qd R 89; [1998] QCA 71 RW v R [2023] NSWCCA 2 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 Xerri v The Queen [2021] NSWCCA 268; (2021) 292 A Crim R 355 Texts Cited: Explanatory Notes, Sexual Offences (Protection of Children) Amendment Bill 2002 (Qld) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 (Second Reading, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)) Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (June 2017) Queensland, An Inquiry into Sexual Offences Involving Children and Related Matters (1985) Category: Principal judgment Parties: MK (Applicant) RB (Applicant) R (Respondent) Representation: Counsel: T Ramrakha (for MK) S Odgers SC; S Kluss (for RB) H Roberts SC; B Hatfield (Respondent)