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Court of Criminal Appeal 20 September 2005

Aiken v R

[2005] NSWCCA 328

Also reported as (2005) 63 NSWLR 719
Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Aiken [2005] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 20 September 2005
Judge(s): Studdert J, Kirby J, Howie J

Background

The appellant had observed a complainant attempting to steal items from a K-Mart store. He approached her, implied he was an undercover security officer (which he was not), and indicated he would report her to security unless she cooperated sexually. The complainant, believing him to be a security officer and fearing the consequences of being caught shoplifting, complied with his requests for sexual acts.

The appellant pleaded guilty in the District Court to three offences from a six-count indictment: sexual intercourse without consent under s 61I of the Crimes Act, assault with act of indecency under s 61L, and stealing. He was sentenced to imprisonment, with a non-parole period of twelve months for the principal sexual offence.

On appeal to the Court of Criminal Appeal, the appellant argued that, as a matter of law, the agreed facts could not sustain convictions for either sexual offence. The Crown's acceptance of guilty pleas was therefore said to have produced a miscarriage of justice.

  • Whether the Court of Criminal Appeal can look behind a guilty plea and quash a conviction where, on the agreed facts, the offence charged could not as a matter of law have been established
  • Whether the complainant's apparent consent to the sexual acts was vitiated for the purposes of s 61I (sexual intercourse without consent), given that she acted under a mistaken belief that the appellant was a security officer
  • Whether the threat to report the complainant for shoplifting constituted a "non-violent threat" under s 65A of the Crimes Act, such that s 65A, rather than s 61I, was the appropriate charging provision
  • Whether the same reasoning applied to the conviction for assault with act of indecency under s 61L

Decision

The Court confirmed the principle, drawn from R v Jackson [2004] NSWCCA 110 and s 6(1) of the Criminal Appeal Act, that a conviction represents a miscarriage of justice if an appellant can demonstrate that, as a matter of law, the offence charged could not properly have been established against him. This jurisdiction applies even where the appellant had entered a plea of guilty.

On the consent question under s 61I, the Court found that the complainant had, in substance, consented to the sexual acts. Her mistaken belief that the appellant was a security officer did not, on the agreed facts, negate her consent for the purposes of that provision. The Court distinguished between types of circumstances that vitiate consent at law and found that being deceived as to the appellant's identity or status did not fall within the relevant categories under s 61I in these circumstances.

Critically, the Court found that the operative factor in the complainant's decision to comply was a threat to report her for shoplifting. That threat fell within the meaning of a "non-violent threat" under s 65A(1) of the Crimes Act. The appropriate provision under which to have prosecuted the appellant was s 65A, not s 61I. A non-violent threat of that kind was not sufficient to vitiate consent for the purposes of s 61I.

The same reasoning applied to the s 61L offence (assault with act of indecency), because that charge equally required proof of non-consent, and s 61R (which modifies the consent provisions in some contexts) did not apply to s 61L offences. The Crown was therefore in no better position on that charge.

Orders Made

  • The appeal against conviction for sexual intercourse without consent (s 61I) was allowed, and that conviction was quashed.
  • The appeal against conviction for assault with act of indecency (s 61L) was allowed, and that conviction was quashed.
  • Judgments of acquittal were entered in respect of both quashed convictions.
  • The separate stealing conviction and sentence were not disturbed by these orders.

Key Takeaways

  • The Court of Criminal Appeal confirmed its jurisdiction to look behind a plea of guilty and enter acquittals where, on the agreed facts, the defendant could not as a matter of law have been properly convicted of the offence charged.
  • A non-violent threat, specifically a threat to report a complainant for shoplifting, does not vitiate consent for the purposes of s 61I (sexual intercourse without consent) of the Crimes Act.
  • Under the Crimes Act as it stood, the appropriate charging provision where sexual intercourse is procured by a non-violent threat is s 65A, not s 61I, and a failure to charge under the correct provision can have significant consequences for a prosecution.
  • Mistaken belief as to the identity or apparent authority of the person making the demand did not, on the facts here, bring the case within the categories of vitiated consent recognised under s 61I.
  • The same consent analysis that applied to s 61I also governed the s 61L offence, since both required proof of non-consent, and no separate statutory modification applied to the latter charge in these circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 61D, 61I, 61L, 61R, 65A, 94
- Criminal Appeal Act (NSW), s 6(1)
- Queensland Criminal Code, s 347

Cases:
- R v Jackson [2004] NSWCCA 110
- Papadimitropoulos v The Queen (1956) 98 CLR 249
- R v Olugjoba (1982) QB 320
- Question of Law (No. 1 of 1993) (1993) 59 SASR 214
- R v O'Neill (1979) 2 NSWLR 582
- R v Liberti (1991) 55 A Crim R 120
- Reg v Dee 14 L.R.Ir 468
- Reg v Clarence (1889) 22 QBD 23
- Reg v Flattery (1876-77) 2 QBD 410
- R v Williams (1923) 1 KB 340
- R v Shaw (unreported, Qld CA, 21 December 1994)