Maintain unlawful sexual relationship with a child

Crimes Act 1900 (NSW), s 66EA

[5-700] Introduction

Under s 66EA(1) of the Crimes Act 1900, it is an offence for an adult to maintain an unlawful sexual relationship with a child. Section 66EA, in its current form, commenced on 1 December 2018. It is in the form recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and is largely modelled on the Queensland offence found in s 229B of the Criminal Code (Qld).

The new s 66EA extends to relationships existing wholly or partly before 1 December 2018, provided the accused’s acts were unlawful sexual acts during the period of the relationship: s 66EA(7). “Unlawful sexual act” is defined as any act that constitutes, or would constitute, one of the numerous sexual offences listed in s 66EA(15).

[5-710] Suggested procedure before empanelling jury and formally arraigning accused

Given the nature of this offence, it is expected the Crown would adopt the preferable, and more straightforward, course of including any alternative counts on the indictment as it is anticipated the question of alternative verdicts will arise in every case. It is also anticipated that the unlawful sexual acts making up the s 66EA offence would be particularised in the indictment.

However, if the indictment only contains a substantive s 66EA count, it is good practice to ask the parties, preferably before arraignment, whether, and what, alternative verdicts will be relied on because the directions at the end of the trial must address the elements of those offences comprising the unlawful sexual acts the subject of the charge.

It is also good practice to identify with the parties precisely what is in issue in the trial, as the content of the summing-up may vary significantly.

Whether or not separate tendency directions may be required in an individual case should also be discussed with the parties as such a direction may be necessary when addressing alternative verdicts.

[5-720] Suggested direction — maintain unlawful sexual relationship with child

The following direction is suggested largely on the basis of the text of s 66EA. Matters of potential controversy in a particular trial may concern the concepts of “maintain” and “unlawful sexual relationship”. The suggested direction should be modified as considered appropriate.

The accused is charged with maintaining an unlawful sexual relationship with the complainant between the dates identified on the indictment.

Before you can find the accused guilty of the offence, the Crown must prove beyond reasonable doubt each of the following elements:

1. 

that the accused, being an adult

2. 

maintained an unlawful sexual relationship with the complainant

3. 

who was a child.

If you are not satisfied the Crown has proved each of these elements beyond reasonable doubt then you must find the accused not guilty.

The law says an adult is a person of or above the age of 18 years and that a child is a person who is under the age of 16 years. In this case, there is no dispute that the accused was an adult and the complainant was a child under 16 during the period specified on the indictment. [This will require adaptation if the complainant’s age is in dispute].

The critical issue is whether the Crown has proved beyond reasonable doubt that the accused maintained an unlawful sexual relationship with the complainant.

“Maintained” carries its ordinary meaning. That is, carried on, kept up or continued.

An unlawful sexual relationship is a relationship that involves two or more unlawful sexual acts over any period. An “unlawful sexual act” means an act that constitutes an offence of a sexual nature [explain by reference to the particular acts alleged by the Crown].

The Crown must prove there was an ongoing relationship of a sexual nature between the accused and the complainant. It must prove there were unlawful sexual acts committed by the accused, not merely in isolated circumstances or sporadically, but with a degree of continuity or repetition that amounted to a sexual relationship.

[Summarise the Crown and defence cases concerning this element of the offence].

In determining whether the relationship was an unlawful sexual relationship, you must be satisfied beyond reasonable doubt that the accused committed at least two unlawful sexual acts with or towards the complainant during the period identified in the indictment. The Crown case is that the unlawful sexual acts in this case are [summarise the evidence the Crown relies on to prove the alleged unlawful sexual acts and summarise the elements of each of those offences]. See s 66EA(2).

[If the circumstances of the particular case require it: Some sexual offences require the Crown to prove that the complainant was not consenting. But where the alleged offence involves a child, consent is irrelevant. The law says that children cannot consent to sexual activity.]

You do not need to be satisfied that the Crown has proved that every unlawful sexual act alleged against the accused occurred. All you need to be satisfied of beyond reasonable doubt is that the accused committed two or more of the unlawful sexual acts with or towards the complainant. Further, you do not all need to agree about which two unlawful sexual acts constitute the unlawful sexual relationship. This means [give examples from the Crown case to illustrate that each juror may be satisfied of two or more different unlawful sexual acts.]. If you have to consider whether the Crown has established one of the alternative counts on the indictment then the situation is different and I will talk to you about the approach you must take then. See s 66EA(5).

[Where applicable if certain of the unlawful sexual acts were committed outside of NSW]: In this case, the Crown case is that some of the unlawful sexual acts did not occur in New South Wales but in [identify the different location/s of unlawful sexual acts]. Before you can find the accused guilty, you must be satisfied beyond reasonable doubt that at least one unlawful sexual act occurred in New South Wales. You cannot find the accused guilty if all the unlawful sexual acts you are satisfied occurred took place outside New South Wales. See s 66EA(3)]

[Summarise defence case on the unlawful sexual acts].

Alternative verdicts – s 66EA(13)

See note 14 below which addresses issues for consideration when determining the appropriate direction with respect to alternative verdicts

If the Crown has failed to prove one of the essential elements of the offence, then you must find the accused not guilty and will be required to return verdicts in respect of the alternative charges. I will now explain what the Crown must prove before you can return a verdict of guilty in relation to those charges.

[5-730] Notes

1. 

An offence against s 66EA is a “prescribed sexual offence”: see s 3, Criminal Procedure Act 1986. Accordingly, those provisions of the Criminal Procedure Act and the Crimes Act concerning how complainants may give evidence apply: see further Evidence given by alternative means at [1-360]ff, and Closed court, suppression and non-publication orders at [1-349].

2. 

An “unlawful sexual relationship” is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period: s 66EA(2). As the suggested direction indicates, the summing-up must also address the elements of the offences which comprise the alleged unlawful sexual acts: JJP v R [2021] SASCA 53 at [157].

3. 

An “unlawful sexual act” is comprehensively defined in s 66EA(15) as an act that constitutes, or would constitute, one of the many offences listed and includes former sexual offences which are identified in Column 1 of Sch 1A of the Act.

4. 

Of the words “sexual relationship” and “maintains” in s 66EA(1), Fagan J (Harrison and Wright JJ agreeing) said, in R v RB [2022] NSWCCA 142 at [54]:

“sexual relationship” … would, according to ordinary usage, refer to multiple sexual acts committed reasonably frequently as part of an ongoing course of conduct. … According to ordinary English meaning, the word “maintains” when used in relation to a sexual relationship … would refer to successive acts committed frequently enough to provide an element of connection and continuity so that the coherent course of activity that they constitute may be seen to be maintained by the perpetrator.

5. 

In R v RB at [60], Fagan J said s 66EA(2) stipulated a minimum criterion of an unlawful sexual relationship for the purposes of an offence against s 66EA, but expressed some doubt that an “unlawful sexual relationship” would be sufficiently established by proof, without more, of the commission of at least two unlawful sexual acts because then the use of the word “maintains” in s 66EA(1) would be incongruous: at [55]–[56], [60].

6. 

An adult is defined as someone 18 years or older and a child is a person under 16 years old: s 66EA(15).

7. 

Consent is not a defence: s 80AE. Notwithstanding the operation of s 80AE, in certain circumstances it may be prudent to direct a jury that a child cannot consent to an unlawful sexual act. In R v Nelson [2016] NSWCCA 130 at [23], Basten JA explained why consent was not an element of an offence against s 66C of the Crimes Act 1900: see also R v McClymont (unrep, 17/12/92, NSWCCA); R v Woods [2009] NSWCCA 55 at [53]. Although those are sentencing cases, the way the issue has been articulated is uncontroversial as they explain the legislative policy underpinning offences of this type.

8. 

An offence against s 66EA is a “course of conduct offence” and it is an element of the offence that the multiple unlawful sexual acts must have been perpetrated with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity: R v RB at [62]; see also R v CAZ [2011] QCA 231 at [53].

9. 

The approach in R v RB, and in Queensland, as it relates to proof of a particular relationship between the accused and the complainant differs from that taken in South Australia in respect of s 50 of the Criminal Law Consolidation Act 1935 (SA), which is in broadly similar terms to s 66EA. In R v M, DV (2019) 133 SASR 470, the SA Court of Appeal held, by majority, that over and above proving two or more unlawful sexual acts, there was a separate requirement for the Crown to prove there was a relationship between the accused and the complainant: at [10], [183]–[184]; cf, Blue J at [84]; R v Mann [2020] SASCFC 69 at [21]. In R v Mann, the court described the actus reus of the offence as the maintenance of a relationship in the course of which an adult engages in two or more unlawful sexual acts with a child, observing that the words “in which” in s 50(2) of the Act (which is replicated in s 66EA(2)) differentiate the relationship from the unlawful sexual acts: [12]–[13]; R v M, DV at [1], [9]–[10]. Although not addressed expressly, the approach taken in R v RB suggests there is no such separate requirement because the character of the relationship is directly derived from the use of the word “sexual” in s 66EA(2): [54]–[57].

10. 

The jury must be satisfied beyond reasonable doubt that there was an unlawful sexual relationship but are not required to be satisfied of the particulars of any unlawful sexual act that they would have to be satisfied of if the act, or acts, were charged as separate offences: s 66EA(5). Particulars in this sense refers to particulars as to time and place: JJP v R at [145], [154]. However, it is still necessary to prove the general nature or character of those acts by reference to the elements of the relevant sexual offences; merely establishing the relevant acts were of a sexual or indecent nature is not sufficient: JJP v R at [154]

11. 

The jury is not required to agree about which two unlawful sexual acts constitute the unlawful sexual relationship: s 66EA(5)(c). The combined effect of ss 66EA(2) and 66EA(5)(c) was considered in R v RB. Fagan J said the fact each individual juror must be satisfied that at least two unlawful sexual acts were committed during the charge period did not derogate from the necessity for the Crown to prove beyond reasonable doubt that the accused maintained a sexual relationship with the complainant according to the ordinary understanding of the words “maintains” and “sexual relationship”: R v RB at [60]. See also note 4 above. Conduct which might assist a jury to find that an accused maintained the particular unlawful sexual relationship would commonly be inferred from: the inherent nature of adult sexual activity with a child, the recurrence of sexual acts and the imbalance of influence and sexual awareness existing between an accused and a complainant: [63].

12. 

The degree of continuity necessary to constitute a sexual relationship and to demonstrate it was being maintained by the accused is a question for the jury and will be evaluated on the facts of each case: R v RB at [63]–[64].

13. 

A separate tendency direction may be necessary when giving a jury an alternative verdict direction: see Tendency, coincidence and background evidence at [4-200]ff.

14. 

The direction to be given with respect to alternative verdicts depends on the issues in the particular trial. The importance of identifying the issues with the parties before the trial commences has been dealt with above at [5-710].

15. 

Generalised offences such as this create the potential for unfairness to an accused. It is therefore necessary to ensure the summing up includes whatever directions are necessary to ensure the accused’s trial is fair: KRM v The Queen (2001) 206 CLR 221 at [97]–[101] (dealing with a similar Victorian provision); see also ARS v R [2011] NSWCCA 266 at [35]–[37] per Bathurst CJ (James and Johnson JJ agreeing) with respect to the previous form of s 66EA.