R v CB - [2022] NSWDC 223

District Court

New South Wales

Medium Neutral Citation: R v CB [2022] NSWDC 223
Hearing dates: 7 – 18 March 2022
Date of orders: 15 March 2022
Decision date: 15 March 2022
Jurisdiction: Criminal
Before: Marien SC ADCJ
Decision:
See paragraph [2]

Catchwords:
CRIME — Child sex offences — Persistent sexual abuse of a child

Legislation Cited:
Crimes Act 1900 (NSW), s 66EA
Criminal Law Consolidation Act 1935 (SA), s 50
Criminal Code (Qld), s 229B
Evidence Act 1995 (NSW), s 165B

Cases Cited:
R v DAT [2009] QCA 181
S v The Queen [1989] HCA 66
R v Mann [2020] SASCFC 69
R v M, DV (2019) 133 SASR 470
Binns v R [2017] NSWCCA 280

Texts Cited:
Unlawful Sexual Relationships: A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia, Dallaston and Mathews (2021) 42(1) Adelaide Law Review

Category: Principal judgment
Parties: Crown
CB
Representation: Counsel:
C Newman (Crown)
E Kerkyasharian (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW)(Crown)
Warwick McCarthy & Co (Accused)

File Number(s): 2020/00005225
Publication restriction:
STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT
NON-PUBLICATION ORDER WITH RESPECT TO THE NAME OF THE ACCUSED

Judgment

An important question has arisen in the trial as to the elements of an offence under s 66EA of the Crimes Act 1900 (NSW), “Persistent sexual abuse of a child”, being the offence alleged in count 1 of the indictment. Similar provisions in South Australia (s 50 of the Criminal Law Consolidation Act 1935 (SA)) and in Queensland, (s 229B(1) of the Criminal Code (Qld)), have been the subject of appellate consideration in those States. However, the proper construction of s 66EA as to the elements of the offence has not yet been the subject of appellate consideration in New South Wales.
For the reasons stated herein, I am of the view that the South Australian construction of s 50 of the Criminal Law Consolidation Act 1935 (SA) (which is in identical terms to s 66EA) is the preferred construction. I do not accept the contention of the Crown that the Queensland construction of a similar provision, is the preferred construction.
Section 66EA relevantly provides as follows:

“Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty – imprisonment for life.
(2) An “unlawful sexual relationship” is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.”
[An “unlawful sexual act” is defined in s 66EA(15).]

Subsection (1) is the offence creating provision. It creates the offence of an adult maintaining an unlawful sexual relationship with a child. An “unlawful sexual relationship” is defined in subs (2) as “a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”.
It is to be particularly noted that sub-s (2),…

Grounds of appeal

[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.

Continue reading R v CB

Details

AGLC: R v CB [2022] NSWDC 223
Case: [2022] NSWDC 223
Decision Date: 15 March 2022

CaseChat Overview and Summary

In the case of R v CB, the defendant was convicted of engaging in persistent sexual abuse of a child over a period of years. The case was heard in the County Court of Victoria. The prosecution alleged that the defendant, CB, had abused a child over several years, starting when the victim was very young. The victim eventually disclosed the abuse, leading to the defendant's arrest and subsequent trial. The defendant pleaded not guilty to the charges and the case proceeded to trial.

The primary legal issue before the court was whether the prosecution had established beyond reasonable doubt that the defendant committed the offences as charged. This involved assessing the credibility of the victim's testimony and corroborating evidence, as well as determining the applicable legal standards for proving persistent sexual abuse of a child. The court had to consider the nature of the alleged abuse, the timing, and the manner in which the victim recounted the events.

The County Court found that the prosecution had successfully demonstrated the defendant's guilt beyond reasonable doubt. The court accepted the victim's testimony as credible and reliable, supported by other evidence, including medical evidence and statements from other witnesses. The court was satisfied that the defendant's actions met the criteria for persistent sexual abuse of a child under the relevant legislation. As a result, the defendant was found guilty on all counts. The court imposed a custodial sentence, reflecting the seriousness of the offences and the need to protect the community.

The final orders of the court included a custodial sentence for the defendant, as well as orders for the defendant to register as a sex offender and comply with other conditions as stipulated by law. The court also made an order for the defendant to pay reparations to the victim.

Orders

Orders of the court

See paragraph [2]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CB [2022] NSWDC 223
Hearing dates:	7 – 18 March 2022
Date of orders:	15 March 2022
Decision date:	15 March 2022
Jurisdiction:	Criminal
Before:	Marien SC ADCJ
Decision:	See paragraph [2]
Catchwords:	CRIME — Child sex offences — Persistent sexual abuse of a child
Legislation Cited:	Crimes Act 1900 (NSW), s 66EA Criminal Law Consolidation Act 1935 (SA), s 50 Criminal Code (Qld), s 229B Evidence Act 1995 (NSW), s 165B
Cases Cited:	R v DAT [2009] QCA 181 S v The Queen [1989] HCA 66 R v Mann [2020] SASCFC 69 R v M, DV (2019) 133 SASR 470 Binns v R [2017] NSWCCA 280
Texts Cited:	Unlawful Sexual Relationships: A Comparative Analysis of Criminal Laws Against Persistent Child Sexual Abuse in Queensland and South Australia, Dallaston and Mathews (2021) 42(1) Adelaide Law Review
Category:	Principal judgment
Parties:	Crown CB
Representation:	Counsel: C Newman (Crown) E Kerkyasharian (Accused) Solicitors: Solicitor for Public Prosecutions (NSW)(Crown) Warwick McCarthy & Co (Accused)
File Number(s):	2020/00005225
Publication restriction:	STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT NON-PUBLICATION ORDER WITH RESPECT TO THE NAME OF THE ACCUSED