Stinson v Regina [2006] NSWCCA 191

New South Wales Court of Criminal Appeal

CITATION: Stinson v Regina [2006] NSWCCA 191 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15/06/06

JUDGMENT DATE: 22 June 2006

JUDGMENT OF: Grove J at 1; Hidden J at 2; Kirby J at 3

DECISION: Appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - 5 counts of sexual intercourse without consent - not guilty verdicts on 2 counts and rejection of circumstance of aggravation - were verdicts of guilty inconsistent - were verdicts unreasonable.

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

M v The Queen (1994) 181 CLR 487 McKenzie v The Queen (1996) 190 CLR 348 CASES CITED: R v Stone (unreported, 13.12.54) Jones v The Queen (1997) 191 CLR 439 R v Kirkman (1987) 44 SASR 591

PARTIES: David Sherwood Stinson (Appl) Regina (Resp)

FILE NUMBER(S): CCA 2006/408

COUNSEL: Ms S Kluss (Appl) Ms J Girdham (Resp/Crown)

SOLICITORS: Ross Hill & Assocs (Appl) S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0251

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

LOWER COURT DATE OF DECISION: 10/06/05

IN THE COURT OF AMENDED 11/7/06 CRIMINAL APPEAL 2006/408

GROVE J HIDDEN J KIRBY J

Thursday 22 June 2006 DAVID SHERWOOD STINSON v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 HIDDEN J: I agree with Kirby J. 3 KIRBY J: David Sherwood Stinson (the appellant) was charged with a number of offences, arising out of a complaint by a person who will be referred to as "Ms A" (the complainant). The indictment may be summarised as follows: Count 1: That, on 4 October 2002, he had sexual intercourse without consent in circumstances of aggravation, namely, that he maliciously inflicted actual bodily harm upon the complainant. Count 2: Further, that on 4 October 2002, he had sexual intercourse with the complainant without her consent (in that he inserted his fingers in her anus). Count 3: Further, that on 4 October 2002, he had sexual intercourse with the complainant without her consent (namely, vaginal intercourse). Count 4: Further, that on 4 October 2002, he had sexual intercourse with the complainant without her consent (namely, vaginal intercourse). Count 5: Further, that on 4 October 2002, he attempted to have sexual intercourse with the complainant without her consent (namely, attempted to insert his penis into her mouth). 4 Mr Stinson pleaded not guilty to each charge. He stood trial before Phelan DCJ and a jury in Wollongong. He was convicted of an alternative charge in respect of count 1, namely, sexual assault, contrary to s61I Crimes Act 1900, being vaginal intercourse without consent. He was also convicted on counts 3 and 4. He was acquitted on counts 2 and 5. He appeals against his convictions in respect of counts 1, 3 and 4, asserting that they are unreasonable and cannot be supported on the evidence.