Jonathan James Aiken v R [2011] NSWCCA 18

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jonathan James Aiken v R [2011] NSWCCA 18 Hearing dates: 4 February 2011 Decision date: 18 February 2011 Before: McClellan CJ at CL at [1] Adams J at [2] Buddin J at [3] Decision: (a) The appeals against conviction in respect of counts 6 and 7 are dismissed. (b) The appeal against conviction in respect of count 8 is allowed and the conviction is quashed. (c) In substitution therefor a verdict of guilty in respect of the offence of indecent assault pursuant to s 61M(2) of the Crimes Act is entered. (d) Leave to appeal against sentence is granted and the appeals against the sentences imposed in respect of counts 6 and 7 are allowed. (e) The sentences imposed in respect of counts 6 and 7 are quashed. (f) All three matters are remitted to the trial judge for sentence. Catchwords: CRIMINAL LAW - appeal against conviction - various offences of aggravated sexual intercourse and indecent assault - whether verdicts of guilty on some counts inconsistent with other verdicts of acquittal - whether evidence established that the appellant's conduct constituted "sexual intercourse" Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: 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 Category: Principal judgment Parties: Jonathan James Aiken (Appellant) Regina (Respondent) Representation: G Farmer (Appellant) G Willis (Appellant) S Kavanagh (Solicitor for Public Prosecutions) File Number(s): 2009/137300 Decision under appeal Date of Decision: 2010-05-14 00:00:00 Before: Quirk DCJ File Number(s): 2009/137300