R v Aiken [2005] NSWCCA 328

R v Aiken [2005] NSWCCA 328

The only threat made by the appellant was to inform security that the complainant had been observed shoplifting. That was a non-violent threat within s 65A and did not vitiate consent for the purposes of s 61I. On the agreed facts a jury could not have convicted the appellant of sexual intercourse without consent under s 61I. Because the Crown was in no better position to prove lack of consent for the s 61L assault with act of indecency charge, both convictions involved a miscarriage of justice and had to be quashed.

Jurisdiction
Australia
Judgment Date
20 September 2005
Procedural Posture
Criminal Appeal / Appeal Against Convictions for Sexual Intercourse Without Consent and Assault With Act of Indecency, and Application for Leave to Appeal Against Sentence, From the District Court After Guilty Pleas and Sentence
Outcome
Appeal in relation to the conviction for sexual intercourse without consent and in relation to the conviction for assault with act of indecency allowed; those convictions quashed; judgments of acquittal entered.
Legal Topics
['sexual Intercourse Without Consent' 'consent' 'non Violent Threats' 'assault With Act of Indecency' 'guilty Plea' 'miscarriage of Justice']
['criminal Law'] ['sexual Intercourse Without Consent' 'consent' 'non Violent Threats' 'assault With Act of Indecency' 'guilty Plea' 'miscarriage of Justice']

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Procedural Posture

Criminal Appeal / Appeal Against Convictions for Sexual Intercourse Without Consent and Assault With Act of Indecency, and Application for Leave to Appeal Against Sentence, From the District Court After Guilty Pleas and Sentence

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal could go behind guilty pleas where the appellant stood convicted of offences of which, as a matter of law, he could not properly be convicted' 'Whether a perceived non-violent threat to report the complainant for shoplifting vitiated consent for an offence under s 61I of the Crimes Act' 'Whether the conviction for assault with act of indecency under s 61L could stand where the Crown was in no better position to prove lack of consent']

Ratio Decidendi

The only threat made by the appellant was to inform security that the complainant had been observed shoplifting. That was a non-violent threat within s 65A and did not vitiate consent for the purposes of s 61I. On the agreed facts a jury could not have convicted the appellant of sexual intercourse without consent under s 61I. Because the Crown was in no better position to prove lack of consent for the s 61L assault with act of indecency charge, both convictions involved a miscarriage of justice and had to be quashed.

Court Disposition

Appeal in relation to the conviction for sexual intercourse without consent and in relation to the conviction for assault with act of indecency allowed; those convictions quashed; judgments of acquittal entered.

Orders

  • ['That the appeal in relation to the conviction for sexual intercourse without consent and in relation to the conviction for assault with act of indecency be allowed.' 'That such convictions be quashed.' 'That in lieu thereof, judgments of acquittal be entered.']