R v M, DV
[2019] SASCFC 59
•30 May 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, DV
[2019] SASCFC 59
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
30 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The appellant was convicted of two counts of maintaining an unlawful sexual relationship with a child in respect of two of his daughters and two counts of indecent assault in respect of his third daughter. He was acquitted of a further count of indecent assault in respect of his niece. He was sentenced to imprisonment for 16 years with a non-parole period of 10 years.
The appellant appeals against his conviction on four grounds:
1. The Judge erred in not directing the jury that it is an independent element of the offence of maintaining an unlawful sexual relationship that there was a sexual relationship between the defendant and complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant.
2. The fair trial of the appellant miscarried as a result of directions as to cross-admissibility of evidence.
3. The fair trial of the appellant miscarried as a result of the joinder of the five counts.
4. The Judge failed to direct the jury as to the use it could make of a doubt about the evidence of one complainant in relation to the evidence of the other complainants.
The appellant seeks permission to appeal against his sentence on three grounds:
1. The sentence was manifestly excessive.
2. The Judge failed to mitigate the sentence on account of his age, medical conditions and the potential burden of imprisonment.
3. The Judge erred in failing to have regard to the extensive delay in relation to the appellant’s lack of offending and his rehabilitation during that period.
Held by the Court (dismissing the appeal against conviction):
1. On its proper construction it is not an element of the offence of maintaining an unlawful sexual relationship created by section 50 of the Criminal Law Consolidation Act 1935 that there was a sexual relationship between the defendant and complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant:
(a) (per Kourakis CJ and Lovell J) It is an element of the offence that there was a relationship (but not necessarily a sexual relationship) between the defendant and complainant in the course of which the defendant engaged in the unlawful sexual acts (at [10] per Kourakis CJ and [183]-[184] per Lovell J).
(b) (per Kourakis CJ and Lovell J) While the Judge failed to direct the jury that this is an element of the offence, the proviso should be applied (at [1] per Kourakis CJ and [185]-[186] per Lovell J) (per Blue J at [87] agreeing if this were the correct construction of section 50).
(c) (per Blue J) It is not an independent element of the offence that there was an overarching relationship between the defendant and complainant in the course of which the defendant engaged in the unlawful sexual acts (at [84]).
(d) (per Blue J, Kourakis CJ and Lovell J agreeing). Even if the construction of section 50 advanced by the appellant were correct, it would be appropriate to apply the proviso (at [89]).
2. The Judge’s directions as to cross-admissibility of evidence were not inadequate (at [140] per Blue J, Kourakis CJ and Lovell J agreeing).
3. The fair trial of the appellant did not miscarry as a result of joinder of the five counts (at [146] per Blue J, Kourakis CJ and Lovell J agreeing).
4. The Judge was not obliged to further direct the jury as to the use it could make of a doubt about the evidence of one complainant in relation to the evidence of the other complainants (at [151] per Blue J, Kourakis CJ and Lovell J agreeing).
5. Appeal dismissed (at [153] per Blue J, Kourakis CJ and Lovell J agreeing).
Held by the Court (granting permission to appeal and allowing the appeal against sentence):
1. The sentence of imprisonment for 16 years was manifestly excessive (at [171] per Blue J, Kourakis CJ and Lovell J agreeing).
2. Permission to appeal granted; appeal allowed; sentence set aside (at [173] per Blue J, Kourakis CJ and Lovell J agreeing).
3. Appellant resentenced to imprisonment for 13 years with a non-parole period of 7 years commencing on 7 December 2017 (at [173] per Blue J, Kourakis CJ and Lovell J agreeing).
Constitution s 80; Crimes Act 1958 (Vic) s 47A; Criminal Code 1899 (Qld) s 229B; Criminal Law Consolidation Act 1935 (SA) ss 50, 56; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1929 (SA) s 34R; Evidence Act 1995 (NSW) s 97; Juries Act 1927 (SA), referred to.
BBH v The Queen (2012) 245 CLR 499; Cheatle v The Queen (1993) 177 CLR 541; El-Haddad v The Queen (2015) 88 NSWLR 93; KBT v The Queen (1997) 191 CLR 417; KRM v The Queen (2001) CLR 221; R v AH [2002] QCA 181; R v CAZ [2012] 1 Qd R 440; R v DAT [2009] QCA 181; R v Kemp (No 2) [1998] 2 Qd R 510; R v Markuleski (2001) 52 NSWLR 82; R v McCarthy (2015) 124 SASR 190; R v S [1999] 2 Qd R 89; Sokolowskyj v The Queen (2014) 239 A Crim R 528, discussed.
Chiro v The Queen (2017) 260 CLR 425; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Pfenning v The Queen (1995) 182 CLR 461; R v A [2002] QCA 536; R v Little (2015) 123 SASR 414; S v The Queen (1989) CLR 266, considered.
R v M, DV
[2019] SASCFC 59Court of Criminal Appeal: Kourakis CJ, Blue and Lovell JJ
KOURAKIS CJ: I gratefully adopt both the summary of the evidence and the issues arising on the appeal set out in the judgment of Blue J. I agree with his Honour’s disposition of the issues raised on the appeal and with his reasons, save with respect, to the construction of s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). On that question, whilst acknowledging the force of his Honour’s reasons, I would respectfully construe it differently and adopt the second of the possible constructions identified by his Honour. I would hold that the actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which (in the sense of in the course of which) an adult engages in two or more unlawful sexual acts with a child. I would nonetheless dismiss the appeal because the victim was the appellant’s daughter who resided with him over the period in which the sexual acts were committed. On the undisputed evidence, therefore, there existed between them a relationship, whether it be described as a familial or residential one, and it is one which the appellant maintained. Accordingly, the failure to direct the jury in accordance with my construction has not occasioned a substantial miscarriage of justice.
Section 50 of the CLCA provides:
(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.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
I interrupt the setting out of s 50 of the CLCA to highlight that the provision is drafted such that the offence is created in s 50(1), but its elements are defined in subsections (2) and (3) in a way which appears to exclude an element of ‘maintaining’ the relationship.
I acknowledge an alternative explanation of s 50(3) of the CLCA. It may have been intended to complement s 50(4)(c). On that construction, s 50(3) ensures that, notwithstanding s 50(4)(c), it is necessary that the jury agree on the existence of a relationship, even though they are not agreed on the particular acts which render it an unlawful sexual one. That would explain the enactment of a provision expressly stipulating the onus of proof when criminal legislation is usually implicitly premised on the application of the common law onus of proof unless the Parliament otherwise provides.
Section 50 of the CLCA continues:
(4)However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
I again interrupt the setting out of the section to contrast s 50(3) of the CLCA with s 50(4)(c). Whilst the former subsection requires the trier of fact, meaning, in a jury trial, the jury unanimously or by majority, to be satisfied beyond reasonable doubt that the unlawful sexual relationship existed, the jury need not be satisfied, institutionally, which unlawful sexual acts constituted or rendered the otherwise lawful relationship, an unlawful sexual one. Section 50 of the CLCA continues:
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(6)This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence of maintaining an unlawful sexual relationship with a child; and
(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(9)A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(10)For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
Subsection 50(11) of the CLCA is of particular importance. It addresses the difficulty sentencing judges experienced under the predecessor section in identifying the sexual offences found by the jury to have been committed so that the factual basis of the sentence was not inconsistent with that finding. That difficulty was exposed by the decision of the High Court in Chiro v The Queen.[1]
[1] (2017) 260 CLR 425.
The predecessor s 50 of the CLCA was entitled ‘persistent sexual exploitation of a child’. However, the offence was defined as the commission of more than one act of sexual exploitation over a period of not less than 3 days; sexual exploitation was defined as an act which could, if properly particularised, be the subject of a charge for a sexual offence. Section 50 of the CLCA, in its current form, was enacted following the recommendations of the Royal Commission into the Institutional Responses to Child Sexual Abuse (the Royal Commission), which considered like provisions across the States and Territories of Australia. It introduced, for the first time in South Australia, the concept, which had found expression in some interstate offences of this kind, of an unlawful sexual relationship.
Blue J has identified the following to be reasonably available alternative constructions of s 50 of the CLCA:
(1)The relationship is constituted by the multiple unlawful sexual acts themselves.
(2)There must be a relationship (not necessarily a sexual one) between the defendant and complainant in addition to proof of the commission of the multiple unlawful sexual acts themselves.
(3)There must be a sexual relationship between the defendant and the complainant which is an additional element to the commission of the multiple unlawful sexual acts.
I would adopt the second construction of the section for the following reasons. First, the words ‘in which’ in subsection (2) differentiate the relationship from the unlawful sexual acts. The unlawful sexual acts are not in themselves the relationship, they are acts which occur within it. I acknowledge that the words ‘in which’ can also be read as ‘constituting’, that is to say that an unlawful sexual relationship is the commission of the prescribed acts. However, to achieve that result the subsection could simply have read ‘an adult who engages in … is in an unlawful sexual relationship with that child’. In the absence of an express deeming of that kind, it is a strained use of the language to describe the victim and the perpetrator of two sexual offences as being in a relationship by reason of these acts alone and in the absence of any other connection. I note here that my preferred construction of the words ‘in which’ gives those words a similar meaning to ‘that involves’, which finds expression in the current form of s 229B of the Criminal Code 1899 (Qld).[2] That section and s 50 of the CLCA are in broadly similar terms.
[2] 229B Maintaining a sexual relationship with a child
The terms of subparagraph (c) of s 50(4), that the members of the jury are not required to agree on which unlawful sexual acts ‘constitute’ the unlawful sexual relationship, are not inconsistent with the second construction. A relationship is not an unlawful sexual one unless the adult engages in unlawful sexual acts with a child. In that sense, the relationship will not be constituted an unlawful sexual one unless the jury is satisfied that the adult, in the otherwise innocent relationship, engaged in those acts.
Secondly, even though subparagraphs (a) and (b) of subsection (4) are in the same form as the predecessor section, subparagraph (c) is an important addition. Subparagraphs (a) and (b) disclose the mischief to which the predecessor of s 50 and its interstate analogues were directed. That mischief was identified in S v The Queen[3] and arose out of the notorious difficulty of victims of sexual abuse to particularise, with the degree of certainty demanded of criminal charges and convictions by the common law, the time, place or circumstances in which the many offences against them were committed. In trials for offences against the predecessor to s 50 of the Criminal Law Consolidation Act 1935, it was common to lead evidence of many more sexual offences than the minimum number it prescribed. Moreover, those offences often included conduct ranging from gross indecency and indecent assaults to penetrative sexual offending. Those offences were often vaguely particularised. The decision of the High Court in KBT v The Queen[4] and this Court in R v Little[5] exposed a fundamental difficulty in that practice because of the requirement of jury unanimity on the particular sexual acts which were committed within the period prescribed when the commission of those acts constitutes the conduct element of the offence. Subparagraph (c) was enacted to address that difficulty.
[3] (1989) 168 CLR 266.
[4] (1997) 191 CLR 417.
[5](2015) 123 SASR 414.
Later, the decision of the High Court in Chiro v The Queen,[6] exposed the difficulty in sentencing a person convicted of the predecessor offence when it could not be known on which, of the many and varied offences described in the evidence, the jury were agreed. Section 50(11) of the CLCA now addresses that problem.
[6] (2017) 260 CLR 425.
If the first of the postulated constructions were adopted, and the prosecution need not prove anything more than the commission of two or more unlawful sexual acts, there would be no conduct element of the offence of persistent sexual abuse on which the jury need be agreed, unanimously or by majority. In R v McCarthy I explained the importance of the jury, as an institution, being satisfied that an offence is proved beyond reasonable doubt:[7]
[5]It is the cardinal principle of Australian criminal law that a charged offence must be proved to the satisfaction beyond reasonable doubt of the tribunal of fact. In my respectful opinion, the test which is most consistent with that principle is to ask — are the alternative bases mutually destructive? The extended jury unanimity issue arises because juries are multi-member tribunals of fact. The principle of logic which has spawned the concept of extended jury unanimity is essentially that a jury, as an institution, cannot be satisfied of guilt beyond reasonable doubt if some of its members, or some of the statutorily prescribed majority of its members, find the offence proved on a factual basis which precludes them from assenting to a verdict on the factual basis found by the remaining members of the jury.
[7] (2015) 124 SASR 190 at [5].
The first postulated construction is a radical departure from that principle. I also observe that legislation having that legal effect would be unconstitutional if applied to federal offences.[8]
[8] Constitution s 80. In Cheatle v The Queen (1993) 177 CLR 541, the High Court, in a judgment of the Court, held that s 80 of the Constitution precluded an accused charged with a Commonwealth offence electing for trail by Judge alone in accordance with the Juries Act 1927 (SA). The Court expressly observed that it would be surprising if s 80 would be satisfied by a jury of two persons (at 549). The Court also linked the need for unanimity to satisfaction of the criminal onus (at 553).
The second construction would resolve the inherent uncertainty in the conduct element of the conviction by requiring unanimity as to the existence of a relationship which whilst it subsisted was corrupted, and constituted an unlawful sexual relationship, by the defendant engaging in two or more unlawful sexual acts. It is not illogical for the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship in that sense existed, even though the jurors themselves are not agreed as a body as to the particular acts, and the time and circumstances, in which they were committed.[9]
[9] In R v CAZ (2011) 253 FLR 186 at [53], Fraser JA (with whom Chesterman and White JJA agreed) said:
In any event, s 229B does not purport to dispense with trial by jury. Indeed, s 229B expressly contemplates trial by jury and requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. The appellant argued that a direction to the jury (in conformity with s 299B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 299B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury’s verdict in respect of each offence must be unanimous. There is no such conflict. The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.
The certainty in the element of the existence of a relationship is ensured by subsection (5), which requires the particularisation of a period of time. Leaving aside a single indictment which charges both a particular sexual offence and the offence of persistent sexual abuse, subsections (8) and (9) ensure that the common law principles of autrefois convict and acquit can properly be applied.
Thirdly, the second of the alternative constructions is also consistent with the operation of s 50(11) of the CLCA because a finding of the sentencing Judge as to the sexual acts which were committed will not be inconsistent with the jury verdict itself. That is so because the jury will have found no more than the existence of a relationship over a particularised period of time, in the course of which sexual offences of the prescribed kind were committed at least twice, but without finding, as a body, when, where and in what circumstances the offences were committed. On the other hand, the first construction fundamentally alters the very basis on which the judicial power to sentence is exercised. That power can only be exercised on the conviction of an offence. A conviction is an adjudication based on a finding of fact, by the tribunal of fact, of conduct, mental state and circumstances which constitute an offence. The judicial power to sentence is only enlivened on the making of such an adjudication, by either a jury or judge, and must be exercised by reference to it. On the first construction, the jury, institutionally as the tribunal of fact, is not required to have made any such finding and even if it happened to have agreed on the same acts, the sentencing Judge is free to sentence by reference to a different, and even an inconsistent, basis.
Fourthly, the Second Reading Speech shows that the legislature had the difficulties occasioned both by the extended unanimity direction, and the need for consistency with the jury verdict in mind. The Minister explained the purpose of the legislation in this way:[10]
The offence of persistent exploitation of a child creates an offence where an adult commits more than one act of sexual exploitation of a child over a period of not less than three days. An act of sexual exploitation of a child is an act of a kind that could be the subject of a charge of a sexual offence if it were able to be properly particularised. The offence is designed to overcome the problem whereby children or adults recounting historical allegations from when they were children are unable to particularise the alleged offending sufficiently to enable the alleged acts to be separately charged. This may be because they are unable to provide specific dates, times or places that the alleged offences took place. It may also be due to the repeated nature of the offending resulting in an inability to delineate two specific offences to provide the degree of specify required to differentiate repeated individual acts from each other.
The offence of persistent sexual exploitation of a child is, therefore, designed so that an offender can be found guilty as long as the jury or other trier of fact is satisfied that more than one sexual act was committed against the child for a period of not less than three days…
The effect of the decision in Chiro is that it will now be difficult to avoid the risk that the accused will only be held accountable for the less serious acts, and will ultimately not be held accountable for the more serious acts. This result can be avoided by substantially adopting the model provisions recommended by the royal commission.
The model provisions provide that the actus reus of the offence is the maintaining of an unlawful sexual relationship – the unlawful sexual relationship established by more than one unlawful sexual act. The trier of fact must be satisfied beyond a reasonable doubt that the unlawful sexual relationship existed. If the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual act constitutes the unlawful sexual relationship.
…
The model provisions go on to provide that, for offending that took place before the predecessor offence was in place, the court should take into account the maximum penalty then applicable for the unlawful sexual acts upon which the unlawful sexual relationship is alleged to have involved.
At this point it should also be noted that the recommendations were made before the High Court delivered the judgment in the Chiro case. The very mischief the relationship offence seeks to address is to remove the requirement to prove particular offences to found the offence. This is achieved by making the maintaining of an unlawful relationship, rather than the particular unlawful sexual acts underlying it, the actus reus of the offence. It also clearly removes the requirement for extended jury unanimity as to the underlying sexual acts.
(Emphasis added)
[10] South Australia, Parliamentary Debates, Legislative Council, 19 October 2017, 8021-8023 (Kyam Maher).
The recommendations of the Royal Commission to which the Minister referred were:[11]
[11] Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) Parts III-VI, 74.
Recommendations
2.1Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that:
a. the actus reus is the maintaining of an unlawful sexual relationship
b. an unlawful sexual relationship is established by more than one unlawful sexual act
c. the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts
d. the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed
e. on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.
2.2The draft provision in Appendix H provides for the recommended reform. Legislation to the effect of the draft provision should be introduced.
2.3State and territory governments (other than Victoria) should consider introducing legislation to establish legislative authority for course of conduct charges in relation to child sexual abuse offences if legislative authority may assist in using course of conduct charges.
2.4State and territory governments should consider providing for any of the two or more unlawful sexual acts that are particularised for the maintaining an unlawful sexual relationship offence to be particularised as courses of conduct.
I have attached the draft provision in Appendix H to these reasons. On the matters of construction relevant to this appeal, there is no material difference between it and s 50 of the CLCA. Having regard to recommendations 2.1(a) and (c) and the Second Reading Speech generally, it is clear that Parliament intended to address the difficulty caused by the extended unanimity requirement and to resolve it by enacting an offence with a conduct element of maintaining an unlawful relationship.
Finally, I would reject the third alternative construction because it is inconsistent with the definition of an unlawful sexual relationship. If no more than two unlawful sexual acts are sufficient to constitute a relationship an unlawful sexual one, no more can be required than the maintenance of a relationship in the course of which such offences were committed. To require more frequent and persistent acts would be inconsistent with that definition. If I had so construed s 50 of the CLCA, I would nonetheless have applied the proviso for the reasons given by Blue J.
A number of authorities have considered interstate analogues of s 50 of the CLCA. None of those authorities precludes the second alternative construction I would adopt because those provisions were enacted, and judicially considered, before any legislative attempt to deal with the jury unanimity and sentencing difficulties occasioned by offences of this kind.
In KBT v The Queen[12] the High Court considered s 229B of the Criminal Code 1989 (Qld). Section 229B(1) made it an offence for an adult to ‘maintain an unlawful relationship of a sexual nature with a child’. However, the very next subsection provided that an adult shall not be convicted of the offence, ‘unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child … on three or more occasions’. It can immediately be seen that even though the offence against s 229B was described as maintaining an unlawful relationship, the elements for the offence were enacted in the next subsection and were no more than the commission of three or more offences. The Queensland Court of Appeal held that it was part of the actus reus of that offence that the defendant or accused maintained a sexual relationship which connoted some habituality. The construction could only be supported if the second subsection incorporated the first by reference.
[12] (1997) 191 CLR 417.
However, on appeal to the High Court, Brennan CJ, Toohey, Gaudron and Gummow JJ held:[13]
… [t]hat the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under section 229B(1A) unless the jury is agreed as to the commission of the same three or more illegal acts.
On the other hand, Kirby J observed:[14]
It is inherent in the nature of a ‘relationship’ that it will extend over a period of time and be at a continuous nature. The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship…
… The jury may find offences of a sexual nature in relation to the child on more than three occasions. But to warrant a verdict of guilty of an offence against the section, the jury must identify to themselves at least three occasions, reach unanimous agreement that the offences on those occasions are of a sexual nature, that they relate to the child and are such as to show the maintenance of the relationship charged and have been proved beyond reasonable doubt.
[13] KBT v The Queen (1997) 191 CLR 417 at 422.
[14] KBT v The Queen (1997) 191 CLR 417 at 428, 433.
The difference between the construction of the plurality and Kirby J did not affect the issue on that appeal, which was whether jury unanimity was required on the particular sexual offences which satisfied the elements of the offence. Perhaps for that reason subsequent Queensland decisions appear to have adhered to the position that it was necessary to prove that an unlawful relationship was maintained over and above the commission of the unlawful sexual acts themselves.[15] It is of some significance that the South Australian Parliament replaced s 50 of the CLCA with a provision which broadly follows s 229B(1) of the Criminal Code Act 1899 (Qld), given the local judicial construction of that provision. On the Second Reading Speech of the Bill to enact s 229B in its current form, the Queensland Attorney-General said:[16]
The offence as redrafted removes the requirement to prove three particular acts of a sexual nature. Instead the offence is established by proof of the relationship. For a person to be convicted of the offence, the jury must be satisfied beyond a reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, but they do not have to agree unanimously on particular acts comprising it.
[15] R v S [1999] 2 Qd R 89; R v A [2002] QCA 536; R v DAT [2009] QCA 181.
[16] Queensland, Parliamentary Debates, Legislative Council, 6 November 2002, 4443-444 (Rodney Welford).
Appeal against sentence
I would allow the appeal. I would join in the orders proposed by Blue J. I agree with his Honour’s reasons.
BLUE J: The appellant M, DV was convicted following a trial before a judge and jury in the District Court of two counts of maintaining an unlawful sexual relationship with a child (counts 1 and 4)[17] and two counts of indecent assault (counts 2 and 3).[18] He was acquitted of a third count of indecent assault (count 5).
[17] Criminal Law Consolidation Act 1935 section 50(1).
[18] Criminal Law Consolidation Act 1935 section 56.
The appellant appeals against his conviction on the following grounds:
1The Judge erred in relation to his directions as to requirements for proof of the offence of maintaining an unlawful sexual relationship in relation to counts 1 and 4.[19]
2The fair trial of the appellant miscarried as a result of directions as to cross-admissibility of the evidence.[20]
3The fair trial of the appellant miscarried as a result of the joinder of the five counts.[21]
4The Judge erred in failing to direct the jury as to the use it could make of a doubt held about proof of the evidence of any one complainant or one count in relation to the evidence of each of the other complainants.[22]
[19] Considered by the single Judge to be a question of law. Ground 1 in the notice of appeal.
[20] Permission granted by the single Judge. Ground 2B in the notice of appeal but argued before ground 2A.
[21] Permission granted by the single Judge. Ground 2A in the notice of appeal.
[22] Considered by the single Judge to be a question of law. Ground 3 in the notice of appeal.
The appellant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to imprisonment for 16 years with a non-parole period of 10 years.
The appellant seeks permission to appeal against his sentence on the following grounds:
1The sentence was manifestly excessive.
2The Judge failed to mitigate the appellant’s sentence on account of his age, medical conditions and the potential burden of imprisonment upon him.
3The Judge erred in failing to have regard to the extensive delay in relation to the appellant’s lack of offending and factors pointing to his rehabilitation during that period.
APPEAL AGAINST CONVICTION
Background
The complainant the subject of count 1, A, is the eldest daughter of the appellant. She was born in 1964. She gave evidence that the family was living in a house at a particular address (the first house) when she started school. Around the time when she started school when she was four or five years old (ie in about 1969), the appellant was in his bedroom with her, she was on the bed, he took off her underwear and lifted her legs into the air and masturbated until he ejaculated onto her vagina, which he then wiped up with his handkerchief. This was the first sexual conduct between the appellant and A. Over the next two years, while the family was still living at that address (ie until about 1971), on numerous occasions the appellant engaged in sexual conduct with A.
A gave evidence that on one occasion when she got into bed with her parents, while her mother briefly left the room the appellant quickly licked her vagina under the blankets before her mother returned. On multiple occasions when she got into bed with her parents the appellant rubbed the outside of her vagina under the blankets, including occasions while her mother was in bed but was unaware of what was happening. On many occasions when there were others in the house the appellant stealthily put his hands down A’s pants and touched her vagina (without penetration). On many occasions the appellant put her on his lap and rubbed his penis against her. On some of the sexual conduct occasions the appellant told her not to tell her mother or he would get in trouble.
A also gave evidence that when she was about 12 she found a set of pornographic playing cards on the top of the wardrobe in her parents’ bedroom.
The complainant the subject of count 4, B, is the second daughter of the appellant. She was born in 1966. She gave evidence that the family was living in a house at a particular address (the second house) when she was around six years old (ie in about 1973). The appellant took her for a drive to a rubbish dumping area, took out his penis, started rubbing it against her, put his hand down her pants and touched her on the outside of her vagina (without penetration) and masturbated until he ejaculated, which he then wiped up with his handkerchief. Over the next eight years until she was almost 15 (ie until 1981), while the family was still living at that address and continuing after the family moved to another house (the third house), on numerous occasions the appellant engaged in sexual conduct with B.
B gave evidence that when they were living at the second house, on several occasions the appellant sat on his bed in front of her and masturbated to ejaculation, which he then wiped up with his handkerchief. When they were living at the third house, on numerous occasions the appellant called her into his bedroom and masturbated in front of her until ejaculation, which he wiped up with his handkerchief, and then gave her $2. This occurred about 20 times a year over about seven years. On about half of these occasions the appellant showed to B pornographic playing cards. On some occasions when the appellant masturbated in the bedroom, he touched B on the outside of the vagina (without penetration). On a few occasions when the appellant masturbated in the bedroom, he touched her on her breasts. On one occasion when B’s friend, E, was playing with B in the lounge room, the appellant called them into the bedroom, showed them pornographic playing cards and went to pull out his penis, at which point E fled and the appellant then masturbated to ejaculation in B’s presence. E gave evidence that corroborated B’s evidence in respect of this occasion.
B also gave evidence that on a few occasions the appellant showed a pornographic video in the lounge room when no one else was home and touched her on her vagina (without penetration) and breasts.
The complainant the subject of counts 2 and 3, C, is the third daughter of the appellant. She was born in 1968. She gave evidence that the family was living in a house at a particular address (the second house) when she was about four years old (ie in about 1972). She was in the lounge room watching television with A and B when the appellant called her up to his bedroom, where he was lying naked on the bed with his penis erect. He took off her knickers and started stroking the outside of her vagina with his hand (without penetration) (this was the subject of count 2). He then used his hand to put her hand on his penis and move it up and down until he ejaculated (this was the subject of count 3), which he wiped up. C gave evidence that she complained to her mother the following day that the appellant made her play with his penis. The appellant’s ex wife, F, gave evidence to the same effect.
C also gave evidence that, when she was little and looking for Christmas presents, she found a pack of pornographic playing cards in the wardrobe in her parents’ bedroom. When she was about 11 or 12 and living in the third house, the appellant called her into his bedroom and showed her a pack of pornographic playing cards. She knew that it was wrong and ran off.
The complainant the subject of count 5, D, is a niece of the appellant. She was born in 1965. She gave evidence that the appellant’s family was living in a house at a particular address (the third house) when she was 12 or 13 years old (ie in about 1977/1978). She was walking past the appellant’s house in company with one or both of two sisters who were friends of hers, G and H. The appellant called her into the house to decode a letter written by A. Her friend or friends stayed outside. She went with the appellant into his bedroom. While she was sitting on the edge of the bed, he reached his arms around from behind her and showed her pornographic playing cards. She felt what she took to be his penis rub on her back as he showed her the cards. She knew that this was wrong and fled.
The trial
The trial proceeded in November-December 2017. The prosecution adduced evidence from the four complainants. Evidence was given by B’s friend E and the defendant’s ex-wife F. Evidence was given by D’s friend G which to some extent corroborated D’s account and in some respects was different and which included evidence that D complained immediately on exiting the appellant’s bedroom that he had showed pornographic cards to her but did not include any reference to rubbing his genital area on her back. Evidence was also given by the investigating police officer and two other witnesses.
The appellant gave evidence in his own defence. He denied any sexual conduct with any of the complainants.
Directions on maintaining unlawful sexual relationship
Ground 1 is that the Judge erred in relation to his directions as to the requirements for proof of the offence of maintaining an unlawful sexual relationship in relation to counts 1 and 4.
The appellant contends that, on its proper construction, there are separate elements of the offence created by section 50 of the Criminal Law Consolidation Act 1935 (SA) (the Act) (in addition to the defendant being an adult and the complainant being a child) that:
1the defendant maintained a sexual relationship with the complainant being of sufficient habituality to comprise a sexual relationship; and
2the defendant engaged in two or more unlawful sexual acts with or towards the complainant.
The appellant contends that in his summing up the Judge failed to identify the first element and directed the jury that he was guilty of the offence if the second element was established (in addition to the appellant being an adult and the complainant being a child, which were not in dispute) and the Judge thereby erred in law.
The proper construction of section 50
Section 50 relevantly provides:
50—Persistent sexual abuse of 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.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
…
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence of maintaining an unlawful sexual relationship with a child; and
(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
…
(11)A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).
(12)In this section—
adult means a person of or over the age of 18 years;
child means—
(a) a person who is under 17 years of age; or
(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
…
Subsections (1) and (2) can be read in composite forms as follows:
An adult who maintains a relationship with a child in which the adult engages in 2 or more unlawful sexual acts with or towards a child over any period is guilty of an offence.
Maximum penalty: Imprisonment for life.
There are three possible alternative constructions of the reference to a relationship in subsection (2):
1The relationship is constituted by the multiple unlawful sexual acts themselves.
2There must be a relationship (not necessarily a sexual relationship) between the defendant and complainant and this is an element of the offence in addition to multiple unlawful sexual acts.
3There must be a sexual relationship between the defendant and complainant and this is an element of the offence in addition to multiple unlawful sexual acts.
The appellant advances the third construction.
Starting with the text of subsections (1) and (2), it does not support the third construction advanced by the appellant. There is no overt requirement that the relationship be sexual. If the legislature had intended that there be a requirement that there be a sexual relationship between the defendant and complainant (over and above the requirement of multiple sexual acts), it may be expected that the legislature would have expressly so provided. While subsection (1) uses the term “unlawful sexual relationship”, this is a defined term the meaning of which is exclusively determined by the definition in subsection (2), which refers to a relationship rather than an unlawful sexual relationship. The word “unlawful” in the definition is given meaning by the reference to unlawful sexual acts and the word “sexual” in the definition is given meaning by the reference to unlawful sexual acts in the definition. There is no reason why the word “relationship” in the definition is not also given meaning by the reference to two or more unlawful sexual acts in the definition. Moreover, if as the appellant contends there must be a “sexual” relationship (over and above the requisite two unlawful sexual acts), there is no textual reason why the requirement is not also that there must be an “unlawful” relationship: yet the adjective “unlawful” would have no meaning independently of the unlawful sexual acts.
The addition of a requirement that there be a sexual relationship between the defendant and complainant (over and above the requisite two unlawful sexual acts) would introduce complexity and uncertainty into the existence of the offence. While the term “sexual relationship” is one that is used in ordinary parlance in relation to consenting adult participants, it does not have a clear or objectively definable meaning even in that context. It involves questions of subjective judgment and degree as to when adult participants might be perceived as having moved from individual sexual acts into a sexual relationship. In the context of an adult and a child (who by definition is incapable of entering into a consensual sexual relationship), the difficulty of identifying what constitutes a sexual relationship (as opposed to individual sexual acts) is even greater. It is unlikely that the legislature intended to create an offence involving such a degree of complexity and uncertainty. Moreover the first and second sexual acts would not generally be regarded as being in the course of a sexual relationship in ordinary parlance if a sexual relationship is defined by continuity or habituality which by definition is not established until there has been repetition. It is highly unlikely that the legislature intended the first sexual acts until a sexual relationship in ordinary parlance has been established to be disregarded. This would also give rise to great uncertainty as to which sexual act is the first in a sexual relationship as opposed to the first simpliciter.
The legislature deliberately formulated the requisite number of sexual acts as “two” and deliberately provided that the sexual acts may be engaged in “over any period” (the predecessor of section 50 had prescribed a period of not less than 3 days, which itself would normally be too short for a sexual relationship in ordinary parlance). This is counter to a requirement that there must be in any event a sexual relationship in ordinary parlance which connotes more than two sexual acts and a relationship over a substantial period of time. If it were an element of the offence in any event that there be a sexual relationship in ordinary parlance, there would have been no point in the legislature prescribing two or more sexual acts or referring to “any period”.
As between the first and second constructions, the text considered in isolation from context and evident purpose is consistent with either construction. In particular, it is consistent with the first construction because it is within a common meaning of the noun “relationship” that there is a relationship between two persons participating in a sexual activity constituted by the participation in and of itself; it is within a common meaning of the verb “maintains’ that an adult who participates in such a relationship maintains it; and the words “in which” are often used in the sense of “constituting”.
Turning to the context of subsections (1) and (2) within section 50 as a whole, section 50(4)(c) refers to the members of the jury not being required to agree on “which unlawful sexual acts constitute the unlawful sexual relationship”. This proceeds on the basis that the two or more sexual acts themselves constitute the sexual relationship, which is inconsistent with the third construction advanced by the appellant.
Subsection 50(4) indicates that the fundamental rationale of section 50 is that often when adults commit multiple sexual offences against children, it is not possible to identify or be satisfied with the requisite degree of certainty the particulars required if individual sexual offences were charged. It should be sufficient to constitute the offence that the trier of fact is satisfied that multiple sexual offences have been committed and where a jury the jurors are so satisfied but not necessarily agreed on the identity of each sexual offence. This rationale does not connote an additional requirement that the multiple sexual offences be committed in the course of a larger sexual relationship.
The evident purpose of section 50 does not support the third construction advanced by the appellant. On the contrary, it would result in child sex offenders escaping punishment when individual offences could not be charged or proved with sufficient particularity to result in convictions and the offender stopped short of engaging in what is characterised in ordinary parlance as a sexual relationship.
Turning to the legislative history of section 50, section 50 in its current form was introduced into the Act in 2017.[23] Its predecessor (former section 50) was introduced into the Act in 2008.[24] Its provisions included the following:
[23] By the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA).
[24] By the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA). Section 50 was enacted in place of section 74, which had been inserted into the Act in 1994 by the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 1994 (SA).
50 Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum Penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
…
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
…
The former section 50 did not refer to a relationship between the defendant and complainant and required only the commission of two sexual offences over at least three days, which would not ordinarily entail a sexual relationship in ordinary parlance. The same applied to the predecessor of former section 50, namely section 74 which had been introduced into the Act in 1994 (which only required three sexual offences on three separate occasions on at least three days). The legislative history of section 50 does not support the third construction advanced by the appellant.
The appellant submits that the use of the noun “relationship” and the verb “maintains” in subsection (1) indicates that the legislature intended that, to constitute the offence, there must be a sexual relationship in addition to the requisite number of unlawful sexual acts. However, as observed above the word “relationship” is protean and capable of an infinite range of meanings depending on context. Among its senses, there is a relationship between two parties to sexual acts. Given the legislature’s emphasis on the need for multiple sexual acts as opposed to the identity of the individual sexual acts (as manifested particularly in subsection (4)), the use by the draftsperson of the concept of relationship is readily explicable. Similarly, the use of the verb “maintains” is readily explicable as the most natural verb to use in reference to a relationship and as being apposite to denote the active role played by the adult (in contrast to the passive role typically played by a child and especially a young child) in the unlawful sexual acts. Moreover, subsection (3) refers to satisfaction beyond reasonable doubt that an unlawful sexual relationship existed, equating the concept of maintenance with existence.
Construed from first principles by reference to its text, context and evident purpose, section 50 does not require the existence of a sexual relationship as used in ordinary parlance over and above the existence of the requisite multiple unlawful sexual acts.
As between the second and third constructions, if there is any additional requirement for the establishment of a relationship over and above the requisite multiple unlawful sexual acts, there is nothing in the text, context or evident purpose of the provision which indicates that it must be a sexual relationship. Typically contraventions of section 50 are committed by adults who are in a pre-existing relationship with the child in question. This includes parent and child, relative and child, family friend and child, teacher and child, priest and child and other relationships which give rise to the opportunity to the defendant to commit the offence. In addition, as noted above the definition of an unlawful sexual relationship in subsection (2) refers only to a relationship and not to a sexual relationship. If the legislature intended that there must be a relationship over and above the requisite multiple unlawful sexual acts, there is no reason to confine the relationship to a sexual relationship such that the requisite relationship cannot comprise the typical relationships in the course of which the offence is commonly committed.
As between the first and second constructions, the reference in section 50(4)(c) to the jury not being required to agree on which sexual acts constitute the unlawful sexual relationship supports the first construction in which the sexual acts do constitute the relationship.
If it be suggested that the common law principle requiring jury unanimity on each element of a criminal offence supports the second construction over the first construction, there are several answers to such a suggestion. First and foremost, the legislature deliberately chose to abrogate the common law requirement for jury unanimity on the identity of the sexual acts required to constitute the offence. While this is a very substantial departure from the common law principle, it is a deliberate one. Secondly, on the first construction there is still a need for jury unanimity on other elements of the offence and in particular on the requirement that the complainant be under 17 years old or, if the defendant is in a position of authority over the victim, be under 18 years old; and on the requirement that the defendant be at least 18 years old. Thirdly it would be a very rare case in which a defendant who is charged with a contravention of section 50 is not in some pre-existing relationship with the complainant and hence the need for jury unanimity on the existence of such a relationship hardly preserves the need for jury unanimity in relation to the conduct the subject of the charge in the face of the legislature’s determination that there need not be unanimity in relation to the sexual acts which render the conduct criminal.
If it be suggested that subsection 50(11) supports the second construction over the first construction because the sentencing judge is empowered to sentence the defendant based on the sentencing judge’s own findings beyond reasonable doubt as to the unlawful sexual acts determined to have been proved beyond reasonable doubt which may differ from or be inconsistent with findings by members of the jury, the power (if it be conferred by subsection 50(11)) is conferred regardless of whether the first, second or third construction applies.
The text, context and evident purpose of section 50 support the first construction rather than the second or third constructions.
Authorities on original Queensland Criminal Code section 229B
Section 229B of the Criminal Code (Qld) was enacted in 1989. It originally relevantly provided:
(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years.
A person shall not be convicted of the offence defined in the preceding paragraph unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child … on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.
…
Section 229B was subsequently amended such that the second paragraph extracted above became subsection (1A) and later became subsection (2).
In R v Kemp (No 2)[25] Kemp was convicted of a contravention of section 229B as well as five individual offences comprising “offences of a sexual nature” as defined for the purpose of subsection (1A). He appealed against his convictions on the ground, among others, that the Judge erred in admitting evidence of sexual acts other than the five acts the subject of the individual offences charged, such evidence being inadmissible propensity evidence. This ground was rejected by the Queensland Court of Appeal because it held that the offence comprised a sexual relationship over the charged period and hence evidence of other sexual acts was evidence of this part of the actus reus of the offence. Mackenzie J (with whom Macrossan CJ and Pincus JA relevantly agreed) said:
[25] [1998] 2 Qd R 510.
The offence created by s 229B is unusual in that it combines the requirements of proving at least some degree of habituality (maintaining a sexual relationship) and of proving at least three acts constituting an offence of a sexual nature, committed during the period over which it is alleged that the sexual relationship was maintained. Both these elements must be proved beyond reasonable doubt. The offence is neither an offence completed upon the commission of three discrete acts of a sexual nature, nor an offence defined solely in terms of a course of conduct or state of affairs. It combines elements of both.
…
Although the exceptions will be factually uncommon, there seems to be no reason to suppose that s 229B(1A) was intended to have the effect that proof of three acts of a sexual nature over a period alleged in the indictment would be automatically sufficient to establish the element of maintenance of a relationship. Circumstances where proof of only three acts might be sufficient can be suggested. For example, if an adult and a child were proved by clear evidence to have arranged to meet for the purpose of having sexual intercourse on each occasion when she was allowed out on leave from boarding school, but their arrangement and evidence of their intention to continue with it was discovered after only three such occasions, such evidence may be sufficient to satisfy a jury beyond reasonable doubt that the adult was maintaining a sexual relationship with the child. On the other hand there is no reason to think that the section was intended to apply if what is proved are three random or opportunistic incidents such as a case where, over a period of time, an adult and a child meet unexpectedly and without arrangement at a place of entertainment and on each occasion decide to have sexual intercourse during the course of the evening.
While both of these examples relate to mutually agreed relationships, a sexual relationship, for the purpose of the section does not need to have that characteristic. The "relationship" with which the section is concerned is some kind of connection with the child, having sufficient habituality and having a sexual content, whether or not the complainant's attitude towards the relationship is favourable or not.[26]
Macrossan CJ added:
Dealing with the matter more broadly, the central element of the general offence is the proof of the existence of an unlawful relationship of a sexual nature during the period alleged. The relationship does not have to be proved exclusively by independent proof of three or more specific sexual offences of the requisite kind. That last requirement is, in effect, made an additional element of the offence.
In the general aspect of its case, the Crown will have to prove that between the complainant and the accused there existed a relationship which had an unlawful sexual nature. Use of the term "relationship" implies a continuity of contact in which both parties are involved; the sexual element will be the particular character of the relationship which will appear. Evidence of conduct occurring between the two parties, if it pointed to the existence of a sexual character in their relationship during the specified period, would be direct evidence of an aspect of this offence. ... Such evidence is not propensity evidence or similar fact evidence subject to the particular rules of exclusion which apply to evidence of that kind, although it could be fair to describe it as context evidence which assists in proof of the necessary sexual element.[27]
Pincus JA added:
The subsection does not say, nor imply, that the offence of maintaining an unlawful relationship must necessarily be held proved if the three acts mentioned in subs (1A) are proved; it is easy to imagine circumstances in which those three acts could be proved without necessitating the conclusion that there was such a relationship as the section contemplates. It is equally clear that the Crown is not confined, in attempting to prove the relationship, to adducing evidence of acts such as are mentioned in subs (1A); evidence of various kinds may go towards the requisite proof...
... Where, as here, there is evidence from the complainant and others of acts of sexual familiarity, they go directly to proof of the relationship alleged. ... Where what has to be proved is not just a single incident, or three incidents, but a s 229B relationship - a situation subsisting over a period of time - acts of the accused tending to show a "guilty passion" at relevant times are directly relevant; in Court as in ordinary life, one deduces that two people have a sexual relationship with one another, wholly or in part from evidence that they engage in acts characteristic of such a relationship.
A question was raised before us as to the relevance of the notion of propensity evidence to charges under s 229B. If a man is charged with having the relationship prohibited by s 229B, then evidence that, for example, he used from time to time touch the complainant in a sexual way does not get in as propensity evidence; it is simply evidence going to prove the case sought to be made - that there was a sexual relationship.[28]
[26] At 518.
[27] At 511.
[28] At 512.
It is to be noted that the structure of original section 229B was very different to that of section 50 and the construction adopted by the Court of Appeal may be understood by reference to its structure.
However, in KBT v The Queen[29] the High Court adopted a different construction of section 229B. Brennan CJ, Toohey, Gaudron and Gummow JJ said:
The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an all adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.[30]
By contrast, Kirby J referred to the elements of the offence in quite different terms to the plurality, saying:
It will be observed that the offence provided by s 229B(1) is of a somewhat unusual character. It relates not to a particular act, matter or thing happening upon a specified date at an identified place. It is inherent in the nature of a "relationship" that it will extend over a period of time and be of a continuous nature. The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship.
…
The jury may find offences of a sexual nature in relation to the child on more than three occasions. But to warrant a verdict of guilty of an offence against the section, the jury must identify to themselves at least three occasions, reach unanimous agreement that the offences on those occasions are of a sexual nature, that they relate to the child and are such as to show the maintenance of the relationship charged and have been proved beyond reasonable doubt. All of these elements must be made out. It is the duty of the judge to explain to the jury the need for each one of them to be proved to their unanimous satisfaction.[31]
[29] (1997) 191 CLR 417.
[30] At 422.
[31] At 428, 433.
The construction of section 229B adopted by the plurality in the High Court was inconsistent with the construction adopted in the previous year by Queensland Court of Appeal.
In R v S[32] the Queensland Court of Appeal considered the construction of section 229B adopted by the High Court in KBT v The Queen. Pincus and McPherson JJA and Muir J quoted from the passage extracted at [69] and said:
The statement in the joint judgment in KBT v The Queen that “the actus reus of that offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship” may, with respect, be capable of producing a somewhat surprising result in a case where, for example, the three acts in question all occurred in the course of the same day, or perhaps even within the same hour of that day. It would in those circumstances be difficult to regard the accused as “maintaining a sexual relationship”, according to the natural meaning of those words, over so short a period. Fortunately, however, we are not faced here with a state of affairs like that.
…
If s.229B(1) is to perform its function in most future prosecutions of this kind, legislative attention is needed to ensure that s.229B(1A), or as it now is s.229B(2), operates only as an evidentiary aid or exclusion and is not expressed in a form capable of being regarded as serving to define the offence or its actus reus under s.229B(1).[33]
However, somewhat cryptically the Court of Appeal said later in its reasons for judgment:
The decision in KBT v The Queen does not relieve the Crown of the need to prove that the sexual relationship specified in s 229B(1) was “maintained” for some period of time rather than being a discontinuous succession of sporadic and isolated incidents.[34]
[32] [1999] 2 Qd R 89.
[33] At 91-92, 94.
[34] At 94.
In R v AH[35] the Court of Appeal held, unsurprisingly, that if specific sexual offences were charged together with contravention of section 229B, the prosecution was not limited on the section 229B offence to relying on the specifically charged offences but could rely on any three sexual offences proved by the evidence. In the course of his reasons for judgment, McPherson JA (with whom Williams JA and Philippides J agreed) quoted from the reasons for judgment of Kirby J extracted in the first paragraph at [69] above and added:
This, with respect, accurately states the purpose of the provision, which was formerly contained in s 229(1A). It is confined to sexual acts that go to constitute the maintaining of a sexual relationship, which are not charged against the accused as specific offences in the indictment. In the case of those acts, but not of others which are specifically charged, precise identification of dates and circumstances is not essential; but evidence of the doing of such an act may be given if otherwise admissible and probative of the relationship alleged. See, generally, R v S, the reasons in which are determinative of the point sought to be raised here.[36]
[35] [2002] QCA 536.
[36] At [9]. (Citation omitted)
In R v DAT[37] the trial judge on a trial by judge alone identified the live issue as being whether there was sufficient continuity or habituality in the activity of a sexual nature to conclude that a sexual relationship was maintained. It was common ground on appeal that the maintenance of a sexual relationship was an element of the offence over and above the occurrence of three offences of a sexual nature. Holmes JA (with whom Muir JA agreed) said:
There is no doubt that, as s 229B(2) of the Criminal Code then required, the appellant committed an offence of a sexual nature in relation to T on three or more occasions; his pleas of guilty to counts 2 to 5 on the indictment established that. That evidence, while going to prove an element of the offence and admissible as proof of the relationship, was not of itself sufficient to establish the maintaining offence…
The Criminal Code offers no definition of “maintains an unlawful sexual relationship”, and further authority as to when conduct reaches the level of maintaining is lacking. It is reasonable to suppose, however, as the appellant’s counsel submitted, that the indicia of maintaining a relationship include the duration of the alleged relationship, the number of acts and the nature of the acts engaged in…
…
The evidence in the case was sparse. There was nothing to suggest any deliberation or any particular course of conduct on the appellant’s part. One could not, on the Crown case, be satisfied beyond reasonable doubt that there were more than seven fleeting incidents of improper touching, some outside the clothing, over five years. Given the nature of the touching described, the limited number of events, the fact that they were spread over such a long period of time, and the absence of any evidence that there was any limitation of opportunity, I do not think it was open to his Honour to be satisfied that these were more than random spontaneous events. The evidence was not sufficient to prove beyond reasonable doubt that the appellant had maintained an unlawful relationship with his daughter.[38]
[37] [2009] QCA 181.
[38] At [12], [13] and [17]. (Footnote omitted) See also McMurdo J at [22].
In KRM v The Queen[39] M was charged with a contravention of section 47A of the Crimes Act 1958 (Vic), which in structure was broadly similar, but contained different wording, to section 229B of the Queensland Act. Subsections (1) and (2) provided:
(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove –
(a) that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and
(b) that such an act also took place between the accused and the child on at least two other occasions during that period.
McHugh J held that proof of the three offences referred to in subsection (2), and not maintaining a sexual relationship, comprised the actus reus of the section 47A offence, applying the decision of the plurality in KBT v The Queen.[40] McHugh J said:
The presence of the s 47A charge requires proof of three acts constituting offences. It is proof of those acts, and not the maintaining of the relationship, that constitutes the actus reus of the offence in s 47A.[41]
[39] [2001] HCA 11, (2001) 206 CLR 221.
[40] (1997) 191 CLR 417.
[41] At [41] citing KBT v The Queen (1997) 191 CLR 417.
In BBH v The Queen[42] evidence was adduced by the prosecution from the complainant’s brother that during the period the subject of the charge he saw the complainant undressed from the waist down bending over and the defendant with his face close to her bottom and his hand on her waist. The Court of Appeal had dismissed BBH’s appeal in relation to that evidence, holding that it was relevant among other things because it tended to establish the maintaining of a sexual relationship between the appellant and the complainant. The High Court by majority (French CJ, Gummow and Hayne JJ dissenting) dismissed BBH’s appeal. All seven Justices treated the evidence as similar fact or propensity evidence (required to pass the test in Pfennig v The Queen[43]) rather than evidence of maintaining a sexual relationship. Crennan and Kiefel JJ referred to KBT v The Queen in the following terms:
[42] [2012] HCA 9, (2012) 245 CLR 499.
[43] (1995) 182 CLR 461.
The maintaining offence under s 229B(1) is not one of a general course of sexual misconduct. It was explained by this Court in KBT v The Queen that the actus reus of the offence is as specified in sub-s (1A). The evidence of W might have been relied upon as evidence of an indecent assault, but it was not. The prosecution case was not conducted on the basis that the evidence of W was relevant to proof of one of the three offences required to be shown in respect of the offence charged under s 229B...
…
The evidence of W was relevant, not to put the evidence of the complainant in perspective or to assist in explaining aspects of it, but to add to the prosecution case and support the complainant's evidence in a particular way. Its relevance was as evidence of the applicant's sexual interest in the complainant or as evidence of the engagement of the applicant in an act similar to the offences charged. In either event, it was relevant to show the applicant's propensity.[44]
French CJ referred to KBT v The Queen and KRM v The Queen in the following terms:
… in KBT. Brennan CJ, Toohey, Gaudron and Gummow JJ held that the actus reus of the offence created by s 229B was not "maintaining an unlawful sexual relationship" but "the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions."...
In KRM v The Queen, the reasoning in KBT was applied to s 47A of the Crimes Act 1958 (Vic), as it stood before 1 January 1998, to reject the proposition that a trial judge must always warn a jury against "propensity" reasoning when the presentment contains a count of maintaining a sexual relationship contrary to s 47A or its equivalents in other jurisdictions. McHugh J said:
"It is true that the offence enacted by s 47A is described as 'maintain[ing] a sexual relationship with a child under the age of 16 …', but the substance of the offence is committing three or more offences of the kind specified".
Gummow and Callinan JJ read the negative reference to "dates" and "exact circumstances" in s 47A(3) to mean that "proof of no more than the actual occurrence of the three acts is necessary." It follows that it was not necessary for the Crown to prove an unlawful relationship in addition to proving the occurrence of three or more offences of the kind referred to in s 229B(1A) and its post-1997 version in s 229B(2).[45]
[44] At [145] and [152]. (Footnotes omitted)
[45] At [15]-[16]. (Footnotes omitted)
The Judge referred to the appellant’s health:
You are not in perfect health and the court has received a report from your GP, as to your current ongoing medical conditions which are being managed with a regime of medication. The court has also received a report from your cardiologist, who reviewed you just over a year ago giving more detail as to your heart and related conditions. Your conditions include ischemic heart disease and hypertension. Your conditions are stable and are being managed on an ongoing basis by your GP although you are at risk of further cardiac events.
The court has full regard to the contents of those reports. There is no suggestion that these conditions could or would not continue to be appropriately managed while in custody.
The Judge referred to the appellant’s age and criminal record:
You have not been in trouble with the law for an extended period. The court has regard to your mature age and the various Supreme Court authorities that discuss sentencing in these circumstances.
The Judge concluded:
Your offending involved the calculated and protracted sexual abuse of three of your own daughters, defenceless children, variously over the course of at least a decade. It was an appalling breach of trust by a father of his own biological children. You, the very person to whom those children should have been able to look to for love and protection, sexually abused them for your own selfish gratification.
Each has been gravely affected by what you did and each still suffers today in the ways mentioned in the victim impact statements, decades after what you did to them.
You have not taken the slightest degree of responsibility for your actions, nor have you shown the slightest remorse so there can be no mitigation of penalty on account of those factors.
The law requires that the court give paramount consideration in cases such as this to the need for general and personal deterrence. This is because people need to understand that, if they take advantage of and sexually abuse children, they will face very severe penalties.
The court has regard to the Supreme Court authorities, including those cited in submissions, such as Law v Deed that apply in cases such as this.
As your offending represents a single decade-long course of conduct it is appropriate that there be a single sentence to reflect the criminality of your actions.
The Judge imposed a single sentence of imprisonment for 16 years pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
Manifest excess
The first ground on which the appellant seeks permission to appeal is that a sentence of imprisonment for 16 years with a non-parole period of 10 years is manifestly excessive.
The appellant’s offending, extending as it did over the course of a decade and involving repeated offending against two of his daughters together with indecently assaulting another of his daughters, was very serious and protracted. However, without diminishing that observation, unlike the vast majority of cases in which a defendant is to be sentenced for contravening section 50, there was no sexual penetration.
The appellant was 74 when sentenced, was suffering from heart disease and had not committed any sexual (or other) offences since 1981. In those circumstances, personal deterrence played a much lesser role than it typically does in cases involving contraventions of section 50.
Taking into account the circumstances of the offending and the appellant’s personal circumstances, including his age and the state of his health, the head sentence of imprisonment for 16 years was manifestly excessive. This ground of appeal is established and accordingly it is necessary to resentence the appellant.
Taking into account the same matters, I would impose a head sentence of imprisonment for 13 years and fix a non-parole period of 7 years.
Conclusion
I would make the following orders on the application for permission to appeal against sentence:
1Permission to appeal granted.
2Appeal allowed and sentence set aside.
3The appellant is resentenced to imprisonment for 13 years, with a non-parole period of 7 years, both deemed to have commenced on 7 December 2017 (when he was taken into custody).
LOVELL J: I gratefully adopt the summary of the evidence and of the issues arising on the appeal as set out in the reasons of Blue J. Ground 1 concerns the proper construction of section 50 of the Criminal Law Consolidation Act 1935 (SA); it is a difficult matter. Like Kourakis CJ, I acknowledge the force of the argument of Blue J as to its proper construction. However like Kourakis CJ I would construe the section differently to Blue J and I would also adopt the second of the possible constructions identified by Blue J.
I generally agree with the reasoning of Kourakis CJ.
The proper construction of section 50
Section 50 relevantly provides:
50—Persistent sexual abuse of 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.
(3)For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(4)However—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and
(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(5)The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
…
(7)A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence of maintaining an unlawful sexual relationship with a child; and
(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(8)Except as provided by subsection (7)—
(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and
(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
…
(12)In this section—
adult means a person of or over the age of 18 years;
child means—
(a) a person who is under 17 years of age; or
(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;
sexual offence means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment;
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;
…
It can be seen that the actus reus of the offence is that contained within section 50(2) namely a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. Identifying the actus reus in this manner however begs the question; what does the expression a “relationship in which” mean in the context of this section?
There are two possible constructions. First, the clause “a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period” could be read as a restrictive relative clause. That is, it spells out or defines what the head noun (phrase) means. To put that another way, it restricts the meaning of Unlawful Sexual Relationship to a subset, and only one subset, of relationships, namely the subset of 2 or more unlawful sexual acts with or towards a child over any period. This interpretation has the practical effect of confining the word “relationship” to that specified in the definition.
The second construction is that the use of the pronoun “which” when preceded by the preposition “in” leads to the opposite conclusion. That is the word “in” is used in the sense that it is expressing the situation of something that is or appears to be enclosed or surrounded by something else. If that is the correct interpretation, the prosecution would have to prove a pre-existing relationship between the offender and the victim, and that the 2 or more unlawful sexual acts occur within that relationship. What would qualify as a relationship for the purpose of the section is not defined.
Support for either argument can be found within other parts of section 50.
While a court is not bound by a minute syntactical dissection of a section, it can be of assistance in determining the meaning of an expression. Given that Unlawful Sexual Relationship has a specific definition, the words of the definition can be, and should be, read into the substantive enactment. Then the substantive enactment should be construed in context, bearing in mind its purpose and the mischief that it was designed to overcome.[62]
[62] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568, 574.
Subsections (1) and (2) can be read in composite forms as follows:
An adult who maintains a relationship with a child in which the adult engages in 2 or more unlawful sexual acts with or towards a child over any period is guilty of an offence.
Maximum penalty: Imprisonment for life.
When section 50 is looked at in this context, I prefer the second construction mentioned. For the reasons expressed by Kourakis CJ, this interpretation accommodates the purpose of the section and the mischief it was designed to overcome. The definition sits comfortably in the text with this interpretation. The requirement of a relationship, over and above the 2 or more unlawful sexual acts becomes part of the actus reus of the offence. Interpreting s 50 in the manner described does not leave any grammatical infelicities to resolve.[63]
[63] Commissioner of Police v Kennedy [2007] NSWCA 29.
The jury ought to have been directed that they had to be satisfied that a relationship existed between the accused and the complainants outside of the 2 or more unlawful sexual acts.
The relationship here was father/daughter(s). It was clearly maintained. The accused gave evidence acknowledging he was the father of the complainants. While relationship for the purpose of section 50 is not defined, clearly a father/daughter relationship which is genetic and/or familial would be encompassed in that expression.
The failure to direct the jury that they had to be satisfied beyond a reasonable doubt of a relationship, in the circumstances where the relationship was admitted, could not have led to a substantial miscarriage of justice. I would apply the proviso. I would dismiss Ground 1 of the appeal.
On the other grounds relating to conviction, I agree with the reasons of Blue J and I would dismiss all remaining grounds of appeal.
In relation to the appeal on sentence, I agree with the reasons of Blue J that the appeal should be allowed and the orders he proposes.
Appendix to the Judgment of Chief Justice Kourakis
Appendix H: Draft provisions in relation to the persistent child sexual abuse offence
Royal Commission into Institutional Responses to Child Sexual Abuse
Persistent Sexual Abuse of Children Model Provisions
1Name of Model Provisions
These Model Provisions are the Persistent Sexual Abuse of Children Model Provisions.
2Definitions
(1) In these Model Provisions:
adult means a person over the age of 18 years.
child means:
(a)a person who is under the age of 16 years, or
(b)a person under the age of 18 years, if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the person is under the special care of the adult in the relationship.
predecessor offence means the offence of persistent sexual abuse of a child.
sexual offence means:
(a)an offence that involves having sexual intercourse with another person, or
(b)an offence that involves an act of indecency on or in the presence of another person, or
(c)an offence that involves procuring a person for unlawful sexual activity, or
(d)an offence that involves compelling another person to engage in any sexual self-manipulation, or
(e)an offence involving the sexual servitude of another person, or
(f)an offence under a previous enactment that is substantially similar to an offence referred to in paragraph (a), (b), (c), (d) or (e), or
(g)an offence that involves an attempt to commit an offence of a kind referred to in paragraph (a), (b), (c), (d), (e) or (f).
unlawful sexual relationship offence means an offence against section 3(1).
(2) For the purposes of these Model Provisions, a person under the age of 18 years (the child) is under the special care of an adult if:
(a)the adult is the parent, step-parent, guardian or foster parent of the child or the de facto partner of a parent, step-parent, guardian or foster parent of the child, or
(b)the adult is a school teacher and the child is a pupil of the school teacher, or
(c)the adult has an established personal relationship with the child in connection with the provision of religious, sporting, musical or other instruction to the child, or
(d)the adult is a custodial officer of an institution of which the child is an inmate, or
(e)the adult is a health professional and the child is a patient of the health professional, or
(f)the adult is responsible for the care of the child and the child has a cognitive impairment.
Jurisdictional note.
The definition of sexual offence is a general description of the types of offences that should be covered by the offence. Each jurisdiction should insert a specific definition of the individual sexual offences that constitute the unlawful sexual relationship offence.
Jurisdictional note.
For the purposes of the offence, a child is a person under the age of 16 years. However, subsection (2) extends the definition of child to a person who is over 16 but under the age of 18 years, to cover sexual offences against younger persons committed by adults who are in a special relationship of trust or authority with the child. Each jurisdiction should tailor the wording of subsection (2) to suit the wording of the relevant offences in that jurisdiction.
Jurisdictional note.
A reference to the predecessor offence is only required in those jurisdictions that currently have an offence of persistent sexual abuse of a child. That offence should be repealed by the new offence. The definition of predecessor offence should refer to the section number of the offence that is repealed.
3Offence of maintaining unlawful sexual relationship with child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty: Imprisonment for 25 years.
(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.
(3) An unlawful sexual act is any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.
(4) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(5) However:
(a)the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b)the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts, and
(c)if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(6) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(7) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.
(8) A court that imposes a sentence for an unlawful sexual relationship offence constituted by an unlawful sexual relationship that is alleged to have existed wholly or partly before the commencement of this section must, when imposing sentence, take into account:
(a)the maximum penalty for the predecessor offence, if the predecessor offence was in force during any part of the alleged period of the unlawful sexual relationship, and
(b)the maximum penalty for the unlawful sexual acts that the unlawful sexual relationship is alleged to have involved, during the period of the unlawful sexual relationship, if the unlawful sexual relationship is alleged to have existed wholly or partly before the commencement of the predecessor offence.
Jurisdictional note.
For jurisdictions that require a fault element to be specified for each physical element of the offence, the intention is that the fault element for the offence is the fault element for each constituent unlawful sexual act.
4Charging both unlawful sexual relationship offence and sexual offences
(1) A person may be charged on a single indictment with, and convicted of and punished for, both:
(a)an offence of maintaining an unlawful sexual relationship with a child, and
(b)one or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(2) Except as provided by subsection (1), a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(3) Except as provided by subsection (1), a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence.
(4) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(5) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(1)Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.
Maximum penalty—life imprisonment.
(2)An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
(3)For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
(4)However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—
(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and
(c) all the members of the jury are not required to be satisfied about the same unlawful sexual acts.
…
(7) An adult may be charged in 1 indictment with –
(a)the offence of maintaining an unlawful sexual relationship with a child (the maintaining offence); and
(b)1 or more other offences of a sexual nature alleged to have been committed by the adult in relation to the child in the course of the alleged unlawful sexual relationship (the other offence or offences).
(8)The adult charged in 1 indictment as mentioned in subsection (7) may be convicted of and punished for any or all of the offences charged.
…
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