(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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MK v R; RB v R [2023] NSWCCA 180
Case
[2023] NSWCCA 180
Decision Date
CaseChat Overview and Summary
The case of MK v R; RB v R involved two appellants, MK and RB, who were convicted of persistent sexual abuse of children. MK was convicted of offences against his three stepsons, while RB was convicted of offences against her daughter. Both appellants sought leave to appeal their convictions, arguing that the trial judges had provided erroneous directions to the jury regarding the elements of the offence under section 66EA of the Crimes Act 1900 (NSW). The primary legal issue before the court was the proper construction of section 66EA, which defines the offence of persistent sexual abuse of a child.
The court considered whether the offence was 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). The court concluded that the text of section 66EA, along with the legislative context and purpose, favoured the second construction. The court found that the word "maintains" in section 66EA(1) did not add anything to the actus reus of the offence beyond the commission of two or more unlawful sexual acts in the course of a relationship. The earlier judgments that favoured the third construction were deemed to be plainly wrong and were overruled.
The court also examined whether the trial judges had erred in giving directions to the jury about the elements of the offence. The court held that the directions conformed with the second construction, even though it was superfluous for the juries to determine a continuity or habituality of sexual conduct. The court found that there was no real chance that the directions affected either jury's verdict. Consequently, leave to appeal was granted to MK, while the extension of time to appeal was refused to RB as the proper construction of section 66EA was fatal to the merits of her appeal. Both appeals were ultimately dismissed.