MK v R; RB v R

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.