Maintain unlawful sexual relationship with a child
Crimes Act 1900 (NSW), s 66EA
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).
[5-910] 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.
[5-915] Suggested direction — maintain unlawful sexual relationship with child
The following direction is suggested on the basis of the text of s 66EA and without the benefit of any appellate consideration of its terms. Matters of potential controversy include the concepts of “maintain” and “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:
that [the accused], being an adult
maintained an unlawful sexual relationship with [the complainant]
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].
As you will appreciate, a relationship is a way of describing the nature of the connection between two or more people. In the circumstances of this offence it concerns two people — you are considering whether there is a relationship between [the accused] and [the complainant]. The Crown case on this aspect of the offence is that you would be satisfied that the following evidence proves beyond reasonable doubt the relationship in this case [describe evidence Crown relies on to prove the relationship: eg familial; position of authority].
In determining whether the relationship was an unlawful sexual relationship, you must also be satisfied beyond reasonable doubt that [the accused] committed two or more 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 say that children cannot consent to sexual activity.]
Although the Crown relies on the unlawful sexual acts I have just summarised, in determining whether the Crown has established beyond reasonable doubt that [the accused] maintained an unlawful sexual relationship with [the complainant], 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].
In the context of considering whether you are satisfied [the accused] maintained an unlawful sexual relationship with the complainant, maintained has its ordinary everyday meaning. That is, carried on, kept up or continued. [Summarise how Crown puts its case on this aspect of offence].
[Where there is a dispute as to whether the offence was “maintained”:
The Crown must prove beyond reasonable doubt that there was an ongoing relationship of a sexual nature between [the accused] and [the complainant]. An isolated incident is not enough. You must be satisfied beyond reasonable doubt that the evidence establishes some continuity or habituality of sexual conduct. [Summarise the Crown and defence cases concerning this element of the offence]. If you are not satisfied of this beyond reasonable doubt then you must find [the accused] not guilty.]
If you are satisfied beyond reasonable doubt that the Crown has established that at least two of the unlawful sexual acts occurred, then because of the way the law defines an “unlawful sexual relationship” the Crown will have proved the existence of an unlawful sexual relationship between [the accused] and [the complainant]. [If the circumstances of the case warrant it: A consequence of that finding, if you come to it, is that you will not then need to return verdicts for the alternative counts in the indictment.]
See note 8 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.
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].
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.
An adult is defined as someone 18 years or older and a child is a person under 16 years old: s 66EA(15).
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  NSWCCA 130 at , 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  NSWCCA 55 at . 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.
In the Second Reading Speech for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, the Attorney General said of the new offence that it:
will provide that it is an offence to maintain an unlawful sexual relationship with a child under 16. A person will have maintained an unlawful sexual relationship if they have engaged in two or more unlawful sexual acts with a child…
In R v M, DV (2019) 133 SASR 470, where the SA Court of Appeal considered the South Australian equivalent provision in s 50 of the Criminal Law Consolidation Act 1935 (SA), the court held, by majority, that over and above proving two or more unlawful sexual acts, the Crown must also prove there was a relationship between the accused and the complainant: at ; –; cf Blue J at .
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). Nor is the jury required to agree about which two unlawful sexual acts constitute the unlawful sexual relationship: s 66EA(5)(c).
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.
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 [5-910]. It is necessary to consider alternative verdicts where:
the issue in the trial concerns “maintaining” the relationship, and/or
the jury is not satisfied the Crown has proved the occurrence of two or more unlawful sexual acts.
If “maintaining” the relationship is in issue, because the central issue concerns only the continuity of the relationship, when it comes to considering the alternative counts the jury may return a verdict with respect to one or more of the alternative counts. The position is different if the issue concerns the existence of an unlawful sexual relationship. It is logical to conclude that, given the definition of an unlawful sexual relationship in s 66EA(2), once a jury is satisfied beyond reasonable doubt that two or more unlawful acts occurred then the Crown has proved that part of its case. If they are not so satisfied then the Crown has not proved an essential aspect of its case and the jury then needs to consider the alternatives. However, in such a case, if the jury is not satisfied that two or more unlawful sexual acts occurred, then they could only return a verdict in respect of one of the alternative counts.
In cases where both scenarios arise, the directions will need to address both.
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 – (dealing with a similar Victorian provision); see also ARS v R  NSWCCA 266 at – per Bathurst CJ (James and Johnson JJ agreeing) with respect to the previous form of s 66EA.