Jonathan James Aiken v R [2011] NSWCCA 18

Jonathan James Aiken v R [2011] NSWCCA 18

The convictions on counts 6 and 7 were not unreasonable because the jury could rationally distinguish the last incident from the earlier incidents: the last incident was the freshest in the complainant's memory, was the subject of the initial complaint, and on any version occurred within the indictment period, whereas the jury could have had a reasonable doubt whether the incidents underlying counts 1 to 5 occurred within that period. The matters relied on as causing a miscarriage of justice did not make the verdicts on counts 6 to 8 unreasonable. However, count 8 could not stand because the direction that placing a mouth on a penis was sufficient to constitute sexual intercourse was...

Jurisdiction
Australia
Judgment Date
18 February 2011
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal
Outcome
Appeals against conviction on counts 6 and 7 dismissed; appeal against conviction on count 8 allowed and conviction quashed; substituted verdict of guilty of indecent assault entered; leave to appeal against sentence granted; appeals against sentences on counts 6 and 7 allowed; sentences on counts 6 and 7 quashed;...
Legal Topics
['aggravated Sexual Assault' 'indecent Assault' 'inconsistent Verdicts' 'unreasonable Verdict' 'sexual Intercourse Definition' 'jury Directions' 'substituted Verdict' 'remittal for Sentence']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['aggravated Sexual Assault' 'indecent Assault' 'inconsistent Verdicts' 'unreasonable Verdict' 'sexual Intercourse Definition' 'jury Directions' 'substituted Verdict' 'remittal for Sentence']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence in the NSW Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the guilty verdicts on counts 6, 7 and 8 were unreasonable or could not be supported having regard to the evidence and the acquittals on counts 1 to 5.' 'Whether a miscarriage of justice arose from delay in complaint, inconsistencies in complaints and trial evidence, absence of corroboration, and alleged inconsistent verdicts.' 'Whether the trial judge erred in directing the jury that placing the mouth of a person on the penis of another was sexual intercourse at law for count 8.' 'Whether the evidence on count 8 was sufficient to establish sexual intercourse within s61H(1)(b) of the Crimes Act 1900.' 'Whether, after quashing count 8, a verdict of guilty of indecent assault should be substituted and the sentencing proceedings remitted.']

Ratio Decidendi

The convictions on counts 6 and 7 were not unreasonable because the jury could rationally distinguish the last incident from the earlier incidents: the last incident was the freshest in the complainant's memory, was the subject of the initial complaint, and on any version occurred within the indictment period, whereas the jury could have had a reasonable doubt whether the incidents underlying counts 1 to 5 occurred within that period. The matters relied on as causing a miscarriage of justice did not make the verdicts on counts 6 to 8 unreasonable. However, count 8 could not stand because the direction that placing a mouth on a penis was sufficient to constitute sexual intercourse was...

Court Disposition

Appeals against conviction on counts 6 and 7 dismissed; appeal against conviction on count 8 allowed and conviction quashed; substituted verdict of guilty of indecent assault entered; leave to appeal against sentence granted; appeals against sentences on counts 6 and 7 allowed; sentences on counts 6 and 7 quashed;...

Orders

  • ['The appeals against conviction in respect of counts 6 and 7 be dismissed.' 'The appeal against conviction in respect of count 8 be allowed and the conviction quashed.' 'In substitution therefor a verdict of guilty in respect of the offence of indecent assault pursuant to s 61M(2) of the Crimes Act be entered.'...