Citation: Jonathan James Aiken v R [2011] NSWCCA 18
Court: Court of Criminal Appeal, New South Wales
Date: 18 February 2011
Judge(s): McClellan CJ at CL, Adams J, Buddin J (judgment delivered by Buddin J, with whom the other judges agreed)
Background
The appellant was convicted on three counts arising from a single incident involving a 14-year-old male complainant: one count of aggravated sexual assault (count 8, alleging fellatio) and two counts of indecent assault (counts 6 and 7, alleging manual stimulation). The offences were alleged to have occurred between December 2008 and January 2009. On the remaining five counts, which related to two earlier alleged incidents, the jury returned verdicts of not guilty.
The complainant gave evidence through two recorded police interviews. He described a pattern of conduct involving the appellant, an adult male who lived nearby, occurring on multiple occasions in the appellant's computer room. The complainant said he had continued visiting the appellant's home partly due to his affection for the appellant's young son.
The appellant challenged all three convictions on grounds including inconsistency with the acquittals on the earlier counts, general unreasonableness, and a misdirection regarding the legal meaning of "sexual intercourse" in the context of count 8.
Legal Issues
- Whether the convictions on counts 6, 7, and 8 were unreasonable or could not be supported having regard to the whole of the evidence, including the acquittals on counts 1 to 5.
- Whether the jury's verdicts were inconsistent, in that convictions on counts relating to the third incident were incompatible with acquittals on counts relating to earlier incidents.
- Whether the trial judge's direction on the meaning of "sexual intercourse" for the purposes of count 8 was correct.
Decision
Grounds 1 and 2: Unreasonable verdicts and inconsistency
The Court dismissed these grounds. It confirmed that an appellate court's function, when asked to find that a verdict is unreasonable, is to examine the evidence and determine whether a jury acting reasonably could have been satisfied of guilt beyond reasonable doubt. The Court found there was sufficient evidence upon which the jury could properly convict in respect of the third incident, which was the subject of counts 6 to 8.
On the inconsistency argument, the Court acknowledged the established principle that verdicts will only be set aside as inconsistent where no rational explanation can be found for the divergence. Here, the Court identified rational bases on which the jury could have distinguished the third incident from the earlier two. The complainant's account of the third incident was more detailed and specific, and the jury was entitled to assess each set of counts separately on the evidence.
Ground 3: Misdirection on "sexual intercourse"
This ground succeeded. The trial judge had directed the jury on the definition of "sexual intercourse" under the Crimes Act 1900 in terms that the Court found to be in error in the context of count 8. The conduct alleged (fellatio performed on the complainant by the appellant) did constitute sexual intercourse as defined by the Act, but the Court found the direction had introduced a risk of misapplication. Because the complainant's evidence as to the act itself was accepted and the essential conduct was established, the Court substituted a conviction for the lesser offence of indecent assault under s 61M(2) of the Crimes Act rather than ordering a retrial.
Sentencing consequences
Because the substituted conviction on count 8 altered the sentencing landscape materially, and because the trial judge had expressly indicated that the sentences on counts 6 and 7 had been constrained by the more serious count 8 conviction, the Court granted leave to appeal against those sentences and remitted all three matters for resentencing.
Orders Made
- Appeals against conviction on counts 6 and 7 dismissed.
- Appeal against conviction on count 8 allowed; conviction quashed.
- Verdict of guilty substituted for the offence of indecent assault under s 61M(2) of the Crimes Act 1900.
- Leave granted to appeal against sentences on counts 6 and 7; those sentences quashed.
- All three matters remitted to the trial judge for resentencing.
Key Takeaways
- Inconsistent jury verdicts will not automatically warrant the setting aside of a conviction. The Court of Criminal Appeal confirmed that a rational explanation for the divergence is sufficient to uphold the convictions, and differences in the quality and specificity of evidence across separate incident groups can provide that explanation.
- A conviction may be upheld as reasonable even where the complainant's evidence is uncorroborated, delayed, and contains some inconsistencies, provided the jury could rationally have been satisfied of guilt beyond reasonable doubt.
- Where a trial judge misdirects a jury on the definition of "sexual intercourse" under the Crimes Act 1900, but the evidence clearly establishes a lesser included offence, the Court of Criminal Appeal may substitute a verdict of guilty for that lesser offence rather than order a retrial.
- Substituting a less serious conviction can have flow-on consequences for related sentences. Where a sentencing judge has expressly linked sentences on lesser counts to the severity of a more serious conviction, appellate intervention on the serious count may require the entire sentencing exercise to be reconsidered.
- Under s 61M(2) of the Crimes Act 1900, indecent assault carries different sentencing parameters than aggravated sexual assault under s 61J(1), and the distinction between those offences depends in part on whether the conduct satisfies the statutory definition of "sexual intercourse."
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Louizos v R [2009] 194 A Crim R 223
- M v R (1994) 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- R v Preval [1984] 3 NSWLR 647
- R v Sloane (2001) 126 A Crim R 188
- TK v R [2009] NSWCCA 151