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

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

Section 66EA is properly construed as requiring proof of a 'relationship' in which an adult engages in two or more unlawful sexual acts with or towards a child; there is no need for an additional category of 'sexual relationship' or a requirement of continuity or habituality beyond the commission of those acts. The word 'maintains' in s 66EA(1) does not add to the actus reus beyond satisfaction of s 66EA(2). Jury directions in the applicants' trials substantially conformed with this proper construction; any surplus reference to 'continuity or habituality of sexual conduct' was superfluous and did not result in a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
19 July 2023
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Conviction and Sentence (mk); Application for Extension of Time to Appeal Against Conviction (rb)
Outcome
MK: Leave to appeal against conviction granted, appeal dismissed, sentence appeal stood over. RB: Extension of time to appeal conviction refused, application dismissed.
Legal Topics
['appeals' 'persistent Sexual Abuse of a Child' 'statutory Construction' 'jury Directions' 'elements of Offence']
['criminal Law'] ['appeals' 'persistent Sexual Abuse of a Child' 'statutory Construction' 'jury Directions' 'elements of Offence']

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Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Conviction and Sentence (mk); Application for Extension of Time to Appeal Against Conviction (rb)

Legal Issues

  1. 1 ['What is required to establish an offence under s 66EA of the Crimes Act 1900 (NSW): proof of two or more unlawful sexual acts; proof of a relationship in which unlawful sexual acts were committed; or proof of a sexual relationship over and above the acts (proper construction issue)' "Whether the trial judges' directions to the jury in relation to s 66EA were erroneous (directions issue)"]

Ratio Decidendi

Section 66EA is properly construed as requiring proof of a 'relationship' in which an adult engages in two or more unlawful sexual acts with or towards a child; there is no need for an additional category of 'sexual relationship' or a requirement of continuity or habituality beyond the commission of those acts. The word 'maintains' in s 66EA(1) does not add to the actus reus beyond satisfaction of s 66EA(2). Jury directions in the applicants' trials substantially conformed with this proper construction; any surplus reference to 'continuity or habituality of sexual conduct' was superfluous and did not result in a miscarriage of justice.

Court Disposition

MK: Leave to appeal against conviction granted, appeal dismissed, sentence appeal stood over. RB: Extension of time to appeal conviction refused, application dismissed.

Orders

  • ['MK granted leave to raise ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)' 'MK granted leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to raise ground against conviction (if necessary)' "MK's appeal against conviction dismissed" "MK's application for...