Published by Geoff Harrison | 28 October 2023
The offence of Persistent Sexual Abuse of a Child is set out in s66EA of the Crimes Act 1900. The offence carries a maximum sentence of imprisonment for life. Issues are currently on foot regarding the construction of the section in relation to the use of the word "maintain" and the definition of an "unlawful sexual relationship" being a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
The decision of MK v R; RB v R is currently before the High Court for a special leave application as to the construction of the section, the construction of the section was considered by Beech-Jones CJ at CL (as he then was) in MK v R; RB v R at [95] and [96]:
A consideration of the text of s 66EA favours the (second) construction preferred by Basten AJA in RW. His Honour’s construction respects the difference between a “relationship”, as used in ss 66EA(2) and (7), and the defined term “unlawful sexual relationship” as used throughout the provision. Section 66EA(2) plainly states that what converts “a relationship” into an “unlawful sexual relationship” is the commission of two or more unlawful sexual acts in the course of that relationship (“in which”). Typically, that may involve an established relationship such as parent and child, teacher and student or coach and player which is corrupted by the commission of two or more unlawful sexual acts within that relationship (Mann at [16] and [26] per Kourakis CJ). In some cases, as contemplated by Kourakis CJ in Mann, the “relationship” might be something that arises from the facts and circumstances of the commission of the unlawful sexual acts themselves (and what connects them) so that the provision “excludes from the scope of the offence a person who commits unlawful sexual acts with a child with whom he or she has no relationship” (RW at [15] per Basten AJA). The word “maintains” in s 66EA(1) does not add anything to the actus reus of the offence beyond satisfaction of s 66EA(2).
Neither the Royal Commission Report nor the Second Reading Speech warrant any departure from this construction. The use to which such material may be put has its limits (Interpretation Act, s 34). As noted, it is common to refer to such material in an endeavour to ascertain the purpose of the relevant provision or the “mischief” it was intended to address including whether it was designed to address the effect of a particular judicial decision (Sydney Seaplanes at [38]−[39] per Bell P). The purpose or mischief that this aspect of the Royal Commission Report was addressing is clear, namely, the perceived difficulty in providing particulars and securing unanimity amongst the jury in cases where evidence of repeated sexual abuse is given by children as required by decisions such as KBT and S v The Queen. However, the Royal Commission Report did not identify any problem or “mischief” that would be overcome by creating an offence that required the establishment of a sexual relationship between the offender or victim over and above the commission of the unlawful sexual acts.[37] This is exemplified by the apparent contradiction between the Royal Commission Report’s discussion of the effect of s 229B of the Criminal Code (Qld) and the Queensland cases that construed it (or its predecessor) as requiring the establishment of such a sexual relationship and the Report’s own recommendation that contended that “an unlawful sexual relationship is established by more than one unlawful sexual act”.
Other Sources:
CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) BILL 2018 - Second Reading Debate
CRIMINAL LEGISLATION AMENDMENT (CHILD SEXUAL ABUSE) BILL 2018 - Second Reading Speech
Royal Commission into Institutional Responses to Child Sexual Abuse
Criminal Trial Courts Bench Book: Maintain unlawful sexual relationship with a child
Cases:
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Extracted Legislation:
CRIMES ACT 1900 - SECT 66EA
Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty--Imprisonment for life.
(2) An
"unlawful sexual relationship" is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4) In proceedings for an offence under this section, the prosecution--
(a) 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) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5) In order for the accused to be convicted of an offence under this section--
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, 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) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).
(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.
(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.
(9) A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act 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.
(10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).
(11) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with 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.
(12) For the purposes of subsections (9)-(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.
(14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(15) In this section--
"adult" means a person who is of or above the age of 18 years.
"child" means a person who is under the age of 16 years.
"predecessor offence" means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 .
"relevant amendments" means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 .
"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), any of the following offences--
(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b),
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c),
(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)-(d).
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