Grant v R [2024] NSWCCA 78

Grant v R [2024] NSWCCA 78

The conviction for the s 66EA offence was a miscarriage of justice because the particularised unlawful sexual acts founding the charge were offences alleged under s 81 of the Crimes Act 1900 (NSW), but Lam v R [2024] NSWCCA 6 established that s 81 was incapable of being committed by a woman. As no alternative offences were available under the Crimes Act to make the appellant's sexual acts against the victim unlawful for the purposes of s 66EA(2), the appellant could not in law have been guilty of the s 66EA offence; the conviction had to be quashed and an acquittal entered.

Jurisdiction
Australia
Judgment Date
24 May 2024
Procedural Posture
Criminal Appeal Against Conviction Pursuant to S 5(1) of the Criminal Appeal Act 1912 (nsw) / Appeal to the Court of Criminal Appeal From a Conviction and Sentence in the District Court of New South Wales After a Guilty Plea
Outcome
Appeal allowed; conviction quashed; acquittal entered.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'historical Sexual Offences' 'maintaining an Unlawful Sexual Relationship With a Child' 'indecent Assault on Male' 'statutory Construction of Repealed Offence Provision' 'effect of Guilty Plea']
['criminal Law' 'criminal Procedure'] ['appeal Against Conviction' 'miscarriage of Justice' 'historical Sexual Offences' 'maintaining an Unlawful Sexual Relationship With a Child' 'indecent Assault on Male' 'statutory Construction of Repealed Offence Provision' 'effect of Guilty Plea']

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Procedural Posture

Criminal Appeal Against Conviction Pursuant to S 5(1) of the Criminal Appeal Act 1912 (nsw) / Appeal to the Court of Criminal Appeal From a Conviction and Sentence in the District Court of New South Wales After a Guilty Plea

Legal Issues

  1. 1 ['Whether a miscarriage of justice occurred where the appellant, a woman, pleaded guilty to an offence under s 66EA of the Crimes Act 1900 (NSW) founded on alleged unlawful sexual acts contrary to s 81 of that Act.' 'Whether, following Lam v R [2024] NSWCCA 6, offences contrary to s 81 of the Crimes Act 1900 (NSW) could lawfully be committed by a woman.' "Whether the appellant's conviction under s 66EA of the Crimes Act 1900 (NSW) should be quashed and an acquittal entered."]

Ratio Decidendi

The conviction for the s 66EA offence was a miscarriage of justice because the particularised unlawful sexual acts founding the charge were offences alleged under s 81 of the Crimes Act 1900 (NSW), but Lam v R [2024] NSWCCA 6 established that s 81 was incapable of being committed by a woman. As no alternative offences were available under the Crimes Act to make the appellant's sexual acts against the victim unlawful for the purposes of s 66EA(2), the appellant could not in law have been guilty of the s 66EA offence; the conviction had to be quashed and an acquittal entered.

Court Disposition

Appeal allowed; conviction quashed; acquittal entered.

Orders

  • ['Ground 1 be upheld.' 'The appeal be allowed.' "The appellant's conviction for the offence contrary to s 66EA Crimes Act 1900 (NSW) be quashed." 'In lieu thereof, an order of acquittal is entered.']