R v BDF

This appeal involved two interesting, and interrelated questions of law that split the Court of Appeal 2:1. Namely, (1) whether an unlawful relationship can be maintained by an adult if the relationship involves unlawful sexual acts where the principal offender is not the defendant; and (2) whether the deeming effect of s 7 Code results in an unlawful sexual act of another being that of a defendant for the purposes of s 229B Code. Writing the joint, majority judgment, Mullins JA and Mazza AJA answered both questions in the affirmative. McMurdo JA dissented.

McMurdo and Mullins JJA and Mazza AJA

29 April 2022

Background

The appellant was convicted by a judge sitting without a jury in respect of six counts: three counts of rape (counts 2-4), one count of indecent treatment of a child under 12, who is a lineal descendant, under care (count 5) and one count of deprivation of liberty (count 6). [19].

On counts 2, 3 and 4, the appellant’s criminal responsibility arose under the party provisions (s 7 Code) “in that the defendant either did an act for the purposes of aiding; and/or aided; and/or counselled or procured the commission of the offence”. [2], [24]. On count 5 (and that count alone) the appellant was convicted as the “principal” offender – in that the acts were her own. [2].

As a result of the appellant’s convictions on counts 2–5, the trial judge also convicted the appellant of one count of maintaining a sexual relationship with a child (count 11). [19]. His Honour reasoned that, proof of the substantive counts (that is, counts 2, 3, 4 and 5) established all the elements of count 11: (1) the defendant was an adult (over 18); (2) the complainant was at the time a child under 16; (3) there was more than one unlawful sexual act over the period of the indictment; and (4) the relationship was maintained in the sense of carried on, kept up, or continued; there was continuity or habituality. [3].

The legal issues

The Court asked for legal submissions on two questions of law, framing them as follows: [20]:

1. whether an unlawful sexual relationship can be maintained by an adult, if the relationship involves unlawful sexual acts where the principal offender is not the defendant; [20(a)]; and
2. whether the effect of s 7 Code results in an unlawful sexual act of another being that of a defendant for the purposes of s 229B Code. [20(b)].

Consideration

Mullins JA and Mazza AJA, in joint reasons, held that the question of law could be answered in terms that, [48],

“an unlawful sexual relationship can be maintained by an adult even if the unlawful sexual acts on which the offence of maintaining is based includes the unlawful sexual act or acts of other persons for which the liability of the adult arises from the application of paragraphs (b), (c) or (d) of s 7(1) of the Code as the deeming effect of s 7(1) … results in the unlawful sexual act or acts of the other person being that of the adult for the purpose of s 229B of the Code.”

Their Honours reasoned that the “gravamen of an offence against s 229B is the maintaining by the offender of an unlawful relationship of a sexual nature” with the complainant, which requires the proof of “some degree of habituality or continuity…”. [29].

The High Court’s analysis of ss 7 and 8 in the Criminal Code (WA) in Pickett v Western Australia (2020) 94 ALJR 629 assisted their Honours’ consideration of the question of law. In particular, their Honours referred to the observation of the joint judgment that: “s 7 expressly attributes to the persons mentioned in s 7 the acts or omissions that constitute the offence”. [38]. And, that for the purpose of ss 7 and 8 of the Code, the word ”offence” is used to denote the element of conduct (an act or omission) which, if accompanied by the prescribed circumstances, renders a person liable to punishment. [29].

Their Honours continued: [45]: (emphasis added).

“Section 7 of the Code was relevant in the appellant’s trial in respect of the offence of maintaining in determining whether the appellant committed the unlawful sexual acts charged as counts 2-4, even though the actual sexual act the subject of each count was committed by an unknown and different man. That is because s 7 of the Code applies to the definition of an ‘unlawful sexual act’ in s 229B(10) of the Code in that it is an act that constitutes an offence of a sexual nature as defined in the specified sections of the Code… It is an offence for the purpose of the definition of “unlawful sexual act” even if the liability for the sexual act is under s 7(1)(b), (c) or (d)…”.

While section 7 was not relevant in proving against the appellant the “continuity” or “habituality” element of the offence of maintaining (the prosecution having relied upon her acts personally), the Court confirmed that, for the purpose of s 229B Code, continuity can be proved for acts that include those for which the offender is liable under s 7(1) Code, even if the actual sexual act is committed by a different person on each occasion. [46].

Justice McMurdo dissented.

In his Honour’s opinion, that the deeming provisions of s 7 did not extend to attribute to the appellant the acts which constituted the offences charged by counts 2, 3 and 4. The prosecution failed to prove the matter required by s 229B(3), and the appellant should have been acquitted on count 11. [18].

Z Brereton of Counsel