R v Mann - [2020] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
Question of Law Reserved (NO 1 OF 2020)
R v MANN
[2020] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
17 July 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Case stated by a Judge of the District Court following the acquittal of the respondent on a charge of maintaining an unlawful sexual relationship with a child between September 2010 and August 2011, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The Judge stated the following case for this Court’s consideration on the question of the nature of the relationships which fall within s 50 of the CLCA:
1. Does a conviction for the offence of Maintaining an Unlawful Sexual Relationship with a Child (‘MUSR’) contrary to s 50 of the CLCA require proof that:
a. First, there was a relationship between the accused and the complainant. That is separate from/outside of the alleged unlawful sexual acts?
b. Second, the accused maintained that relationship?
c. Third, the accused did so knowingly?
2. On the facts as I found them to be, was I correct to find, for the purposes of the offence of MUSR:
a. that it is inherent in the nature of a ‘relationship’ that it will extend over a period of time and be of a continuous nature?
b. that the limited interactions between the accused and the complainant over the alleged offending period and the former relationship between them were in combination insufficient to constitute a ‘relationship’ over the alleged offending period?
c. that even if there was a ‘relationship’ over the alleged offending period, in the circumstances of this case because the interactions between the accused and complainant were confined to visits to the house a handful of times – such that the accused arrived late at night, stayed overnight, the complainant provided breakfast three times and they played once with a bouncy ball – a relationship had not been ‘maintained’?
3. On the facts as I found them to be, was I correct to find:
a. that the prosecution is not required to prove that the accused maintained the same relationship over the relevant period as that which existed prior to the alleged sexual acts?
b. that the prosecution is not required to prove that the relationship was a ‘mutual one’ in the sense that both the accused and the complainant wanted a relationship?
4. If a relationship must be of a ‘continuous nature’, can a ‘connection’ or ‘association’ be characterised as a (continuous) relationship where there is a change in the nature of the relationship during the period in which the alleged sexual acts occur?
5. On the facts as I found them to be, was I correct to approach the question as to whether a ‘relationship’ existed, and whether it had been ‘maintained’, by considering only interactions between the complainant and the accused other than the alleged sexual acts?
Held per Kourakis CJ (Kelly and Peek JJ agreeing), answering the questions reserved as follows:
1(a) No. The relationship element of s 50 of the CLCA must comprise something more than the alleged unlawful sexual acts alone, but in considering whether or not there is a relationship for the purposes of s 50 of the CLCA, all of the circumstances of the association between the accused and the alleged victim, including the evidence of any unlawful sexual conduct, must be taken into account.
1(b) Yes. The prosecution must prove that the accused maintained the relationship.
1(c) Yes. The prosecution must prove that the accused had knowledge of the acts he or she performed and the contextual circumstances in which he or she performed the acts which comprise the relationship.
2(a) It is inherent in the nature of a relationship that it will extend over a period of time, but it is not possible to be prescriptive about the length of that period because, ultimately, whether or not there is a relationship is a question of fact. A relationship may be resumed after a period of absence and may evolve over time.
2(b) It is inappropriate to decide whether or not the ultimate factual conclusion of the Judge was correct.
2(c) See the answers to questions 2(a) and 2(b).
3(a) Yes. It is not necessary for the prosecution to prove that the accused maintained the same relationship with the victim as he had maintained before the period over which the offences are alleged to have been committed.
3(b) A relationship, by definition, is mutual but it need not be pursued or desired by both parties.
4. There is a relationship for the purposes of s 50 of the CLCA even if there is a change in the nature of the relationship during the period of time the subject of the charge.
5. No. In making a factual finding as to whether or not a relationship existed, all interactions between the persons involved must be considered.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Mann [2020] SADC 47; R v M, DV (2019) 133 SASR 470, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"relationship"

Question of Law Reserved (NO 1 OF 2020)
R v MANN
[2020] SASCFC 69
Court of Criminal Appeal: Kourakis CJ, Kelly and Peek JJ

KOURAKIS CJ: This is a case stated by a Judge of the District Court following the acquittal of Mr Mann, the respondent, on a charge of maintaining an unlawful sexual relationship with a child, SW, between September 2010 and August 2011, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).[1] The questions seek guidance on what is a relationship for the purposes of that section.
[1] R v Mann [2020] SADC 47.
SW is the daughter of the respondent’s former de facto partner. She was born in December 2002. SW’s mother, M, commenced a tempestuous relationship with the respondent in 2008. Over the next two years they resided in Para Vista, Wynn Vale and Williamstown. On 10 June 2010, the respondent was taken into custody for assaulting M and an interim intervention order was made for her protection. In September 2010, whilst the respondent was still in custody, M moved to a home in Ridgehaven, hoping that he would not find them on his release.
The move was to no avail. The respondent was released from custody on 1 October 2010 and soon found M’s Ridgehaven residence. On the first occasion on which he visited, he banged on the windows and rattled the doors. He left but returned later that night with an air‑conditioning unit, hoping to ingratiate himself with M. M relented and allowed him in. In what the Judge described as ‘reluctant acquiescence’,[2] M subsequently allowed the respondent to visit and to stay overnight. The Judge found that in the period of about six months from October 2010 to March 2011, the respondent visited the Ridgehaven house on four to seven occasions. The offending was alleged to have occurred on almost every one of those occasions. The Judge found that after the first occasion, the respondent generally visited late, was never there for dinner, but he did stay overnight. Her Honour found that there was one occasion on which the respondent visited during the day.
[2] R v Mann [2020] SADC 47 at [86].
M described her relationship with the respondent in the period between October 2010 and 2011 as a sexual one.
SW testified that on the occasions of the respondent’s night time visits, he came into her bedroom, lay on her bed with his clothes on and sexually assaulted her. SW gave evidence that on a couple of the occasions on which the respondent entered her room she left and climbed into her mother’s bed, but the respondent followed her and assaulted her there whilst M slept. She testified that she was assaulted on no less than five occasions. SW also gave evidence that on one occasion the respondent visited during the day and they played with a ball in the kitchen. In the course of that game, the respondent pushed the ball between her legs. SW testified that on another occasion the respondent told her not to tell anybody about the sexual offending.
SW gave evidence that she had a good relationship with the respondent when he first commenced living with her mother. She saw him as a father figure and he looked after her when M worked at night. He cooked her meals, watched television with her and put her to bed. On weekends, SW and M watched the respondent play football. The respondent sometimes took her to school.
M testified that over the period she resided with the respondent he sometimes took SW to play in the park. At night, they would occasionally watch a movie together in M’s bed and fall asleep.
The respondent gave evidence that he involved SW in activities with his son.
The Judge was not satisfied beyond reasonable doubt that the respondent had committed unlawful sexual acts against SW, and was not satisfied that there was a ‘relationship’ between SW and the respondent within the meaning of that term in s 50 of the CLCA. The Judge stated the following case for this Court’s consideration on the question of the nature of the relationships which fall within s 50 of the CLCA:
QUESTIONS RESERVED
1. Does a conviction for the offence of Maintaining an Unlawful Sexual Relationship with a Child (‘MUSR’) contrary to section 50 of the Criminal Law Consolidation Act 1935 (‘CLCA’) require proof that:
a.   First, there was a relationship between the accused and the complainant. That is separate from/outside of the alleged unlawful sexual acts?
b.   Second, the accused maintained that relationship?
c.   Third, the accused did so knowingly?
2.   On the facts as I found them to be, was I correct to find, for the purposes of the offence of MUSR:
a.   that it is inherent in the nature of a ‘relationship’ that it will extend over a period of time and be of a continuous nature?
b.   that the limited interactions between the accused and the complainant over the alleged offending period and the former relationship between them were in combination insufficient to constitute a ‘relationship’ over the alleged offending period?
c.   that even if there was a ‘relationship’ over the alleged offending period, in the circumstances of this case because the interactions between the accused and complainant were confined to visits to the house a handful of times – such that the accused arrived late at night, stayed overnight, the complainant provided breakfast three times and they played once with a bouncy ball – a relationship had not been ‘maintained’?
3.       On the facts as I found them to be, was I correct to find:
a.   that the prosecution is not required to prove that the accused maintained the same relationship over the relevant period as that which existed prior to the alleged sexual acts?
b.   that the prosecution is not required to prove that the relationship was a ‘mutual one’ in the sense that both the accused and the complainant wanted a relationship?
4.   If a relationship must be of a ‘continuous nature’, can a ‘connection’ or ‘association’ be characterised as a (continuous) relationship where there is a change in the nature of the relationship during the period in which the alleged sexual acts occur?
5.   On the facts as I found them to be, was I correct to approach the question as to whether a ‘relationship’ existed, and whether it had been ‘maintained’, by considering only interactions between the complainant and the accused other than the alleged sexual acts?
(Footnotes omitted; emphasis in original)
I answer each question separately in [35] below. It suffices for now to foreshadow that the word ‘relationship’ bears its ordinary meaning, and that whether or not a relationship has been proved is a question of fact alone. I would expect that circumstances like those in which SW and the respondent were placed will generally be found to be a relationship for the purposes of s 50 of the CLCA. My reasons follow.
The legislation
Section 50 of the CLCA 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.
(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.
…
(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;
…
(13) For the purposes of this section, a person is in a position of authority in relation to a child if—
(a)     the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or
(b)     the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
(c)     the person provides religious, sporting, musical or other instruction to the child; or
(d)     the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or
(e)     the person is a health professional or social worker providing professional services to the child; or
(f)      the person is responsible for the care of the child and the child has a cognitive impairment; or
(g)     the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or
(ga)    the person is employed or providing services in a licensed children’s residential facility (within the meaning of the Children and Young People (Safety) Act 2017), or a residential care facility or other facility established under section 36 of the Family and Community Services Act 1972, or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or
(h)     the person is an employer of the child or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment or to terminate the child’s employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
The elements of the offence – question 1
In R v M, DV,[3] this Court held that it was an element of the offence that the accused maintained a relationship with the alleged victim, and that that element required more than proof alone of the commission of two or more unlawful sexual acts. In my reasons, with which Lovell J agreed, I held:[4]
[1]… 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.
(Emphasis in original)
[3] (2019) 133 SASR 470.
[4] R v M, DV (2019) 133 SASR 470 at [1].
The reasons given for that construction of the section were as follows:[5]
[10]I would adopt the second construction of the section for the following reasons. First, the words ‘in which’ in subs (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). That section and s 50 of the CLCA are in broadly similar terms.
[11]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.
…
[16]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.
(Footnotes omitted; emphasis in original)
[5] R v M, DV (2019) 133 SASR 470 at [10]-[11], [16].

Lovell J contrasted the commission of two or more unlawful sexual acts with the relationship element of the offence as follows:[6]
[179]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 two or more unlawful sexual acts occur within that relationship. What would qualify as a relationship for the purpose of the section is not defined.
…
[184]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 two or more unlawful sexual acts.
[185]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.
[6] R v M, DV (2019) 133 SASR 470 at [179], [184]-[185].
The cited paragraphs emphasise the need for there to be more to the relationship than the alleged unlawful sexual acts, but do not exclude the evidence of the particularised sexual acts from the consideration of whether a relationship has been proved. There can only ever be a single relationship between any two persons even though it may have multiple aspects. There is no textual basis in s 50 of the CLCA on which to dissect a relationship into its component parts. It should be observed in this context that even though the jury must unanimously, or by majority, agree that the relationship has been proved beyond reasonable doubt, the evidence on which they come to that conclusion may vary as between them.
Moreover, it must be remembered that the purpose of the offence created by s 50 of the CLCA is to relax the strictness of the requirement for particularisation on the charging of discrete sexual offences. If protracted and repeated sexual conduct were to be excluded from a consideration of whether there is a relationship for the purposes of s 50, that very purpose would be undermined.
On the appeal, the Director of Public Prosecutions (the Director) submitted that the elements of the offence are that:
1.the accused maintained a relationship with the complainant;
2.whilst that relationship was in existence the accused intentionally committed unlawful sexual acts with, or toward, the complainant;
3.that at the time the accused committed the unlawful sexual acts he was an adult;
4.that at the time the accused committed the unlawful sexual acts the complainant was a child.
The Judge, in her reasons, qualified the first element as follows:[7]
[41]…
1. The accused knowingly maintained a relationship with the complainant. There are three parts to this element.
First, there was a relationship between the accused and the complainant. That is separate from/outside of the alleged unlawful sexual acts.
Second, the accused maintained that relationship.
Third, the accused did so knowingly.
[7] R v Mann [2020] SADC 47 at [41].
It follows from the preceding discussion of R v M, DV that the first of the Judge’s qualifications, which requires proof of a relationship apart from the alleged sexual acts, must be rejected.
The mental element identified by the Judge is elliptically expressed whereas the first element proposed by the Director makes no reference to the mental element at all. I would hold that knowledge is the necessary state of mind for the element of maintaining the relationship. The required knowledge is of those acts of the accused, and the contextual circumstances in which they are performed, which have the effect of maintaining a relationship, within the meaning of that term in s 50 of the CLCA. It is not necessary to prove that the accused desired, or subjectively thought of himself or herself as being in, a relationship of any kind. Nor is it necessary that the accused knew that, or adverted to whether, his or her conduct fell within the element of maintaining a relationship for the purposes of s 50 of the CLCA. Knowledge or awareness of the unlawfulness of conduct is seldom an element of an offence, and it is not an element of s 50 of the CLCA.
The nature of the relationship – questions 2 to 5
It is common ground on the appeal that whether or not there is a relationship is a question of fact. No judicial gloss should be put on the statutory language. Juries should be directed that whether or not there is a relationship is a question of fact which is for them to determine. It follows that questions 2 to 5 can only be approached by considering whether the various factual considerations referred therein are probative or not of the existence of a relationship.
The Macquarie Dictionary gives the following definitions of ‘relationship’:[8]
1.   connection; a particular connection.
2.   connection by blood or marriage.
3.   an emotional connection between people, sometimes involving sexual relations. …
[8]    Macquarie Dictionary (Online, 2020).
The Oxford English Dictionary gives the following definitions:[9]
1.   The state or fact of being related; the way in which two things are connected; a connection, an association. Also: kinship.
…
2.   A connection formed between two or more people or groups based on social interactions and mutual goals, interests, or feelings. Also in extended use.
…
[9]    Oxford English Dictionary (Online, 2020).
Plainly enough, the relationship proscribed by s 50 of the CLCA is not limited to connections by blood or marriage (the second Macquarie Dictionary definition) or to kinship (the first Oxford English Dictionary definition). Nor can the relationship referred to in s 50 of the CLCA be merely a temporal, algebraic, geographic or other abstract connection in the sense of the first Macquarie Dictionary definition. If that were the meaning of the term in s 50 of the CLCA, random interactions may suffice.
In a provision dealing with interactions between people involving sexual conduct, it is the third Macquarie Dictionary and second Oxford English Dictionary definitions which are most apt. So much is confirmed by the relationships by reference to which a person in a position of authority is defined by s 50(13) of the CLCA.
The category of relationships falling within s 50 of the CLCA can never be closed because relationships vary widely and the very concept evolves over time with societal changes. The wide range of social and interpersonal relationships falling within the term include:
·familial, legal and de-facto, relationships;
·residential relationships;
·working relationships;
·sporting and recreational relationship; and
·professional relationships.
The duration, frequency, nature and continuity of the interactions between two persons all relevantly bear on the question of whether a relationship exists or not. A single brief meeting with another person does not constitute a relationship. A predatory attack, in which an offender, otherwise unknown to the victim, forces himself on her, without more, is unlikely to constitute a relationship, even though the victim may have been stalked for some time and the attack repeated.
Relationships are generally characterised by repeated interactions which generate patterns of interpersonal behaviour. The frequency and length of interpersonal interactions may change and may even be completely interrupted by absence for a period of time, but nonetheless the relationship may subsist and interactions resume, albeit perhaps not in the same form, when contact is made again.
Importantly, what might colloquially be referred to as a ‘bad relationship’ may nonetheless still be a relationship. Relationships may be sympathetic or antagonistic, collaborative or competitive. They may be hierarchial or homogenous. The relative power and control exercised by one person over the other, and the relative independence or interdependence of the parties to a relationship, may also vary.
In this case, there was strong evidence of a relationship. The Judge correctly found that the respondent, in many respects, fulfilled the role of a father for SW before he was taken into custody for the assault of M. A relationship of that kind is unlikely to be ephemeral. The relationship between the respondent and SW would necessarily have generated patterns of behaviour and attitudes towards each other which characterised their quasi-parental relationship. SW resumed a pattern of behaviour associated with a relationship of that kind when she brought her mother and the respondent breakfast in bed. The ball game SW and the respondent played on the occasion of his daytime visit, albeit corrupted by the respondent’s indecent assault of SW, is yet another example of the re-emergence of behaviours engaged in as part of the earlier quasi-filial relationship. Importantly, it was the authority and acceptance associated with that relationship which allowed the respondent free access within M’s home and to SW’s room in particular. It was the power imbalance associated with that relationship which in part explains why SW did not resist more strongly in her own room and in M’s bed.
In deciding whether or not there is a relationship between an accused and an alleged victim for the purposes of s 50 of the CLCA, questions of fact and degree will necessarily arise. As I have already observed, the offender and the victim of a single predatory rape are not in a relationship. On the other hand, sexual offending against children is generally committed by taking opportunistic advantage of a relationship with them.
The definition of persons in a position of authority in s 50(13) of the CLCA is an indication of the breadth of the concept of relationship for the purposes of s 50 of the CLCA. For example, a teacher, where the victim is a pupil at the school but not of that teacher, or a religious leader of a religious or spiritual group, may have very little personal interaction with the alleged victim other than the alleged sexual acts. Nonetheless, it is clear that s 50 of the CLCA necessarily contemplates that an accused in that position may be found to have a relationship with the victim for the purposes of s 50(1) of the CLCA. That relationship is formed by school discipline and the expected behaviours of students and teachers as a body, which are adopted by each member of the school community. So too for persons providing services in a correctional institution or a licensed residential facility. Sexual activity between a victim and a person in a position of authority, as defined, is engaged in in the context of the social, hierarchical and legal relationships so described. Moreover, the commission of two or more sexual offences against a victim, by a person in a prescribed position of authority, necessarily constitutes an important facet of their particular relationship, even if in other respects they had relatively few interactions.
Returning to the facts of this case, persons sharing a home are necessarily in a domestic relationship. A boarder, from the commencement of his or her cohabitation, comes into a domestic relationship with the other occupants of the home for the period of the cohabitation. I acknowledge that the respondent was a visitor and not a boarder. However, a visitor to a home may interact sufficiently with a child to establish a relationship with him or her. Moreover, the respondent came to the home as a visitor with a pre-existing quasi-familial relationship with M and SW.
I would have concluded on the facts as found that the respondent and SW were in a relationship for the purposes of s 50 of the CLCA. Of course, if a finding had been made that the respondent had sexually assaulted SW in her room, and M’s room, at night, the position would be even clearer. However, the ultimate question being one of fact, it is neither appropriate nor necessary on a case stated to pronounce finally on the ‘correctness’ of the Judge’s conclusions.
I would, therefore, answer the questions reserved as follows:
1(a)No. The relationship element of s 50 of the CLCA must comprise something more than the alleged unlawful sexual acts alone, but in considering whether or not there is a relationship for the purposes of s 50 of the CLCA, all of the circumstances of the association between the accused and the alleged victim, including the evidence of any unlawful sexual conduct, must be taken into account.
1(b)Yes. The prosecution must prove that the accused maintained the relationship.
1(c)Yes. The prosecution must prove that the accused had knowledge of the acts he or she performed and the contextual circumstances in which he or she performed the acts which comprise the relationship.
2(a)It is inherent in the nature of a relationship that it will extend over a period of time, but it is not possible to be prescriptive about the length of that period because, ultimately, whether or not there is a relationship is a question of fact. A relationship may be resumed after a period of absence and may evolve over time.
2(b)It is inappropriate to decide whether or not the ultimate factual conclusion of the Judge was correct.
2(c)See the answers to questions 2(a) and 2(b).
3(a)Yes. It is not necessary for the prosecution to prove that the accused maintained the same relationship with the victim as he had maintained before the period over which the offences are alleged to have been committed.
3(b)A relationship, by definition, is mutual but it need not be pursued or desired by both parties.
4There is a relationship for the purposes of s 50 of the CLCA even if there is a change in the nature of the relationship during the period of time the subject of the charge.
5No. In making a factual finding as to whether or not a relationship existed, all interactions between the persons involved must be considered.
KELLY J: I agree with the answers proposed by the Chief Justice and with his reasons.
PEEK J: I agree with the answers proposed by the Chief Justice and with his reasons.