Hinch (a pseudonym) v The Queen
[2021] VSCA 214
•5 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0085
| KEVIN HINCH (a pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST, BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 July 2021 |
| DATE OF JUDGMENT: | 5 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 214 |
| JUDGMENT APPEALED FROM: | DPP v [Hinch] (Unreported, County Court of Victoria, Judge Wraight, 17 March 2020) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 12 – Whether conviction unreasonable or cannot be supported having regard to the evidence – Whether complainant’s hand gestures in VARE amounted to evidence of sexual penetration –Finding of sexual penetration not open – Appeal allowed – Conviction for sexual assault of child under 16 substituted – Resentenced to 2 years’ imprisonment with non-parole period 12 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Gillespie-Jones | Joseph Burke Law |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
EMERTON JA:
Overview
Between 10 and 17 March 2020, the appellant was tried before a judge and jury in the County Court on an indictment alleging two charges of sexual penetration of a child under 12,[2] charges 1 and 3; and, in the alternative, two charges of sexual assault of a child under 16,[3] charges 2 and 4.
[2]Crimes Act 1958, s 49A(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment.
At the close of the prosecution case on 13 March 2020, the judge upheld a ‘no case’ submission on charge 3, and a verdict of acquittal was entered on that charge.[4] Later, on 17 March 2020, the jury found the appellant guilty on charge 1 and charge 4. The appellant subsequently was sentenced to a term of imprisonment.[5]
[4]See Criminal Procedure Act 2009, s 241.
[5]Following a plea conducted on 17 March 2020, the judge sentenced the appellant on 8 April 2020 to a total effective sentence of four years and six months’ imprisonment — four years’ imprisonment on charge 1, and 18 months’ imprisonment on charge 4, with cumulation of six months — with a non-parole period of three years.
On 27 October 2020, the appellant was granted leave to appeal[6] against both convictions on a single ground which contends that the verdicts on charges 1 and 4 are ‘unreasonable or cannot be supported having regard to the evidence’.[7]
[6]Hinch (a pseudonym) v The Queen (Unreported, Court of Appeal, Priest JA, 27 October 2020).
[7]Although, prior to the hearing of the appeal, the appellant’s counsel had indicated an intention to rely on a second ground contending that the first charge on the indictment ‘was latently duplicitous’ — a ground upon which leave to appeal had not been granted — that ground was not pressed in oral argument.
In our opinion, that ground must succeed on charge 1 (but not on charge 4). For the reasons that follow, we would: allow the appeal; set aside the conviction on charge 1 and order a judgment of acquittal on that charge; and substitute a judgment of conviction on the alternative charge, charge 2. As will thus be required, we would resentence the appellant in the manner set out below.[8]
[8]At [43].
The evidence at trial
In order to understand the issues in the appeal, it is necessary to provide a brief summary of the evidence.
‘SA’, the complainant, was aged nine years at relevant times. She is the daughter of ‘XJ’, who formed a relationship with the appellant in 2014. The three commenced living together in late 2016. At the time of the alleged offending, the appellant was aged 48.
The four charges on the indictment embraced two separate incidents of offending. SA’s evidence — which was the foundation of each charge — consisted of a VARE[9] interview conducted by police, and evidence she gave at a special hearing.[10]
The second incident: Charge 4
[9]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
[10]See Criminal Procedure Act 2009, s 370.
It is convenient to turn first to the second incident — comprising charges 3 and 4 — which was the catalyst for police involvement.
XJ gave evidence that, in the morning of Saturday, 22 July 2018, SA was scratching her genital area and said: ‘Mummy, I got an itchy bottom’. As a result, XJ applied pawpaw ointment to SA’s genital region. SA then told her mother: ‘Mummy, Daddy actually touched my bottom’. XJ immediately took SA to police, and a VARE interview was conducted.
In the course of the VARE interview, police initially questioned SA about the events of the previous day. SA told them that she and the appellant were in the living room of their home while her mother showered. The appellant was seated next to his computer. SA stood facing him and gave him a hug. The appellant allegedly placed his hand on SA’s lower back under her clothing, then moved his hand down over her buttock and genital area and began ‘playing with [her] bum’.
SA described the incident in the following excerpt from her VARE:[11]
[11]Emphasis added to this and passages following.
Q O.K., yeah. And how – and then you said, like, he – I’ve forgotten the words you said of what he did to you. What – what did he do to you?
A He was playing with my bum.
Q Yeah, O.K. Now I know it – it’s probably a bit embarrassing, a bit difficult to talk about … but tell me in as much detail as possible what you mean by, playing with your bum?
A So, like, he puts his finger and – in .......... in, yeah, and plays with my bum.
Q Have you got clothes on at the time?
A Yes.
Q O.K. And where does he put his fingers?
A He put his fingers, like – like, here – like, here - - -
Q Yeah.
A - - - but then downwards and then – yeah, that’s all.
Q All right. So is – is he touching your body inside your clothing or outside?
A Inside.
Q O.K. And how – if you can tell me in words, how far down? You indicated he’s – has them sort of at the top of your – your bottom cheek, I guess.
A Yep.
Q Tell me how far down it goes.
A I think about that much down.
Q O.K. And so where – where on your body is he then touching?
A I’m not really sure.
…
Q - - - and then I’ll just get you to – to run-through again everything that’s happened. So from when you’ve gone to give him a hug, what’s happened after that?
A And then a few minutes later, he puts his fingers, like, that and then he goes downwards but I’m not exactly – I think about that much down. And I think – and then he just plays with my bum then.
…
Q So what do you describe as your bum?
A Not really sure.
Q No, that’s probably a bit unclear. Can I get you to draw me a picture of – of - - -
A Mm’hm.
Q - - - your – of your backside and where he touches?
A O.K.
…
Q And can you put – can you draw in your – your bottom cheeks – the cheeks of your bottom? O.K., thank you. So you’ve indicated that he’s – sort of the top of the cheeks of your bottom and then I can see a circle that you’ve – yeah. What part’s that?
A That’s where he touches so – yeah.
Q O.K., all right. And do you know the – the name for that? Have you been taught that at school?
A I don’t think so.
Q No, O.K. Can you describe that circle a bit more to me?
A So I’m not really sure – yeah, not really sure.
Q That’s O.K., all right., O.K. So there’s different – you know, different parts to girls - - -
A Mm’hm.
Q - - - and boys.
A Mm’hm.
Q O.K. And girls have – have you heard of a vagina before?
A I don’t think so.
Q No, O.K., no problems, all right. So I guess what I’m asking is when he’s touched your body, has he put his fingers, like, inside you at all?
A No, I don’t think.
Q No. Like – and when he’s touching you, how long does that go on for?
A I think about one minute maybe.
Q And tell me what it feels like.
A It’s uncomfortable and – yeah, it’s uncomfortable.
It is tolerably clear that the circle on SA’s drawing — which became Exhibit P2 on the trial — depicts the anus. Hence, the drawing shows the back, the legs, and the buttocks (including both the horizontal gluteal crease at the point where the posterior upper thighs meet the buttocks, and the vertical intergluteal cleft). In the vertical intergluteal cleft between the buttocks, at approximately the point where the anus anatomically is located, SA drew a circle.
In the course of the special hearing, the prosecutor asked SA about the time that the appellant ‘touched’ her when her mother was in the shower (that is, the morning of 22 July 2018). SA indicated where the appellant had touched her by placing a cross in the area of the anus on a ‘body map’ provided to her for the purpose of the hearing (part of Exhibit P5). There was then the following passage of evidence:
And what body part do you call that, what’s your name for that body part?---Um, the private [sic].
Okay. And does that body part do anything?---Um, it’s where the poo comes out.
Okay. And do you know that body part by any other name?---No, not really.
We pause to note that the judge properly upheld a submission of no case to answer on charge 3 — sexual penetration of a child under 12 years — which alleged that the appellant ‘introduced his finger into the vagina of [SA]’. Neither SA’s evidence, nor the evidence of the paediatrician who examined SA on 22 July 2018,[12] was capable of supporting the allegation that the appellant had digitally penetrated SA’s vagina. Indeed, the gist of SA’s evidence was that the appellant had played with her ‘bum’ and had touched the ‘circle’ (representing her anus). She did not think, however, that when he ‘touched [her] body [he] has he put his fingers … inside [her] at all’.
The first incident: Charge 1
[12]See [23] below.
As to the first incident, XJ gave evidence that in March 2018 she went to China for a ‘conference’ and ‘for family visiting’. She was at the conference for a week, before SA joined her. During that week, the appellant looked after SA at home.
SA alleged that, whilst her mother was in China, the appellant touched her in the area of her genitals. In her VARE, SA said that she was giving the appellant a hug when he placed his hand under her clothing and underwear, and then moved his hands down over her buttock and genital area. SA described the activity as follows:[13]
[13]Emphasis added to this and following passages.
Q Like, can I get you to draw another diagram of where he’s touched?
A O.K.
Q Can we – can we draw it here to the – the right?
A Yeah.
Q Yeah.
A I think it was .......... circles.
Q Thank you, all right. So – and this is looking from the back of you. Is that right? Or from the front of you?
A Back of me.
…
Q Yeah, O.K. And what did he do? You’ve – you’ve drawn a circle again and coloured it in. What did he do at – at that circle?
A He was, like, going up and down with his fingers and I think that’s all.[[14]]
[14]When giving this answer, SA made a hand movement, which was the first of two that the respondent’s counsel relied upon in this Court.
Q That’s all. When you say ‘up and down’, can you describe that more to me?
A So, like, with – this is the circle and he’s going like that.
…
Q What can you – can I get you to show me again what he’s done with his – is it with his – or what part of his body did he touch you with?
A With his fingers.
Q Yeah, O.K.
A Yeah.
Q And what’s he done to that circle?
A I think – like, not … in and, like, kind of – like, kind of, like, going in and – in and out, in and out.[[15]]
[15]When giving this answer, made another hand movement, being the second of two that the respondent’s counsel relied upon.
Q Mm’hm.
A And that’s all.
Q O.K. I know it’s really hard to talk about but you’re doing really well. And how – how did it feel when – when he’s done that?
A Uncomfortable and – like, just uncomfortable.
…
Q Yeah, O.K. And did he go underneath your clothing or over the top of your clothing?
A Underneath.
Q Underneath, yep. And how long do you think that lasted for?
A Maybe half a minute I think.
Q Yeah. And do you – you said he used his fingers?
A Mm’hm.
Q Is that right? Do you know how many fingers or which finger?
A I think maybe these two fingers.
We pause once more to note that, up to this point in her VARE, there was nothing in SA’s oral responses to police questions which might legitimately have been interpreted as an unambiguous assertion that the appellant had penetrated her (whether vaginally or anally). The respondent’s counsel contended, however, that when SA provided two of the verbal responses in the immediately foregoing passage, those responses were accompanied by demonstrative hand gestures which gave meaning to what she had said. Thus, so counsel argued, SA at one stage demonstrated penetration, by using the fingers on her right hand to form a circle, and her middle and index fingers on her left hand to symbolise the appellant’s fingers entering the circle. We will later return to these contentions.
As appears from the passage above,[16] SA had drawn a diagram of her body in which a circle represented one of her body parts. Towards the end of the VARE interview, the interviewing officer returned to the diagram, and, in the following passage elicited — by an improperly leading question — SA’s agreement that the appellant’s fingers ‘went in’ to the body part represented by the circle:
[16]At [16].
Q No, O.K., O.K. And just with that second diagram you drew - - -
A Mm’hm.
Q - - - was that circle – was that where the wee comes out or the poo comes out?
A I’m not exactly sure.
Q You’re not sure, yeah, O.K. Do you need more time to think about that or you just don’t know?
A I don’t – yeah, I don’t know.
Q You don’t know, yep, O.K., all right, O.K. So with that second – second one you described, what else does that body part do, do you know, where he’s touched?
A (NO AUDIBLE REPLY)
Q Is that – that’s probably a bit unclear. Yeah, so you’re just not – not really sure which - - -
A Yeah, I’m not really sure.
Q Yeah. But you – you did describe that the fingers went in?
A Yeah.
The second diagram drawn by SA during the VARE interview became Exhibit P3. Significantly — and making due allowance for SA’s age — the diagram again unmistakably depicts the anus. Thus, the drawing shows the back, the posterior aspect of the legs from about mid-calf, and the buttocks (including the horizontal gluteal crease). In the vertical intergluteal cleft, at approximately the point where the anus is located, a coloured-in ‘circle’ appears.
Notwithstanding that the drawing that became Exhibit P3 clearly appears to have been intended to portray the anus, however, some of SA’s evidence in the special hearing was to the effect that the ‘body part’ that the appellant ‘touched’ was her vagina.
At the special hearing, the prosecutor asked SA to mark a page showing two drawings or ‘body maps’: a figure of a girl seen from in front and a figure of a girl seen from behind. SA marked the figure seen from behind with a green cross when asked to mark where the appellant touched her the time her mother was in the shower. She marked the figure seen from in front with a purple cross when asked where the appellant touched her when her mother was in China (part of Exhibit P5). The purple cross is in the area of the vagina. When asked whether the body part that she marked with the purple cross does anything, SA replied: ‘Um, it’s where the wee comes out’.
Complaint and investigation
As we have indicated, on Saturday, 22 July 2018, XJ took SA to the police, and the VARE interview was conducted.
Later that day, a paediatrician, Dr Clara Low-Decarie, conducted a forensic medical examination of SA at the Monash Children’s Hospital, during which five swabs were taken from SA’s vaginal area — including the perineum and the anus — for the purposes of DNA analysis. Dr Low-Decarie’s evidence-in-chief included the following:
Did you ask [SA] any specific questions about what may or may not have happened?---Um, well, as you see in my report I asked if [the appellant] had put his fingers in her bum, and she said no. I asked if he had put his fingers where her wee comes out, and she said no. I asked her if he had done anything else, and she said no, but then she later told me that [the appellant] had kissed her right cheek.
Subsequent examination of the five swabs taken from SA’s vaginal area detected none of the appellant’s DNA.
At 4.00 pm that afternoon, the appellant was arrested. He gave a ‘no comment’ interview.
Discussion
At trial, the prosecution case on charge 1 was digital-vaginal penetration. No other form of sexual penetration was suggested.
As we have indicated, however, apart from one answer to an improperly leading question[17] — which, given the circumstances in which it was elicited, we consider has very little (if any) probative value — SA’s oral responses to police questions were not capable of founding an inference that the appellant had penetrated her, whether vaginally or anally.[18]
[17]See [18] above.
[18]See [17] above.
In his final address, however, the prosecutor went to the jury on the basis that SA had given evidence of penetration not only by what she had said, but also by ‘a gesture of what [the appellant] was doing at that circle’. Thus, based principally on an interpretation of SA’s hand gestures, the prosecutor invited the jury to conclude that her evidence amounted to a claim of digital-vaginal penetration.
Moreover, in this Court, counsel for the respondent submitted that any doubt as to whether SA had given evidence of penetration could be resolved by viewing the VARE. He submitted that this was one of those exceptional cases in which ‘there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually’, so that ‘there will be a real forensic purpose to the appellate court’s examination of the video-recording‘.[19]
[19]Pell v The Queen (2020) 268 CLR 123, 144 [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
Counsel for the appellant did not oppose the course proposed by the respondent’s counsel. He submitted, however, that a viewing of the VARE would not reveal that SA made any gesture signifying penetration, much of her hand movements instead being devoted to toying with a ‘scrunchie’.
Given the submission that a viewing of the VARE would resolve the disputed issue whether SA had given evidence of penetration by a combination of oral assertion and hand gestures, we concluded that it was necessary to view the VARE.
Before proceeding further, we note that the High Court in Pell recently reaffirmed the statements in M[20] concerning the manner in which the contention that a jury’s verdict is unreasonable, or cannot be supported having regard to the evidence, is to be resolved. The Court observed:[21]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[22] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[20]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[21]Pell, 145 [39] (citation as in original) (‘Pell’).
[22]Section 276(1)(a) of the Criminal Procedure Act 2009.
Apart from one answer given in response to a leading question — which, as we have indicated, has scant probative value (if any at all) — SA’s oral evidence, constituted by the VARE and her evidence in the special hearing, properly analysed does not amount to a clear-cut complaint of penetration. Indeed, we consider SA’s evidence that the appellant ‘at that circle’ was ‘going up and down with his fingers and I think that’s all’, and was going ‘in and out … and that’s all’, in context appears to be no more than an assertion that the appellant’s fingers went inside her clothing, rather than inside her body. More to the point, perhaps, SA’s oral evidence at face value was incapable of satisfying a reasonable jury that the appellant had digitally penetrated her.
Of course, SA’s oral evidence cannot be considered in isolation. As we have mentioned, the respondent’s counsel contended that hand gestures accompanying SA’s oral answers to police questions gave colour and meaning to her verbal responses. Counsel submitted, in effect, that SA’s non-verbal evidence constituted by hand gestures both complemented and explained her oral evidence. Although SA’s oral responses to questions alone might not amount to evidence of penetration, counsel submitted, her verbal and non-verbal responses in combination were capable of amounting to a claim that she was digitally penetrated.
We do not agree.
Turning to the first gesture, the respondent’s counsel relied upon a hand movement roughly contemporaneous to SA’s answer that, ‘at the circle’, the appellant ‘was, like, going up and down with his fingers and I think that’s all’.[23] Having viewed the VARE, however, we consider that the gesture that accompanied this response — a kind of horizontal brushing movement — could not sensibly be interpreted by a reasonable tribunal of fact as signifying penetration. Indeed, so far as we can tell, the hand movement does not appear to be (or intended to be) imbued with any particular meaning.
[23]See [17] above.
Further, we do not regard the second set of gestures relied upon by the respondent’s counsel, which closely approximated SA’s answer that the appellant was ‘kind of, like, going in and – in and out, in and out’ of the ‘circle’, as amounting to an unequivocal illustration of penetration. SA was moving her hands quite vigorously throughout the VARE. At the relevant point in time, she appeared to put one (or possibly two) fingers of her left hand behind her right hand, which was slightly cupped and facing down. The gesture is fleeting, and it is ambiguous. In our opinion, therefore, it would not have been open to a reasonable jury to interpret SA’s gestures — taken together with her oral evidence — as amounting to evidence of penetration. Based on her evidence, it simply was not open to the jury to be satisfied beyond reasonable doubt that the appellant had sexually penetrated SA.
Given our conclusions concerning SA’s gestures, we need not spend time analysing the other alleged frailties afflicting SA’s evidence on charge 1. Nor is it necessary to delve in detail into the other evidence in the trial, it being enough to say that none of the other evidence before the jury was capable of establishing that sexual penetration had occurred.
For the reasons we have discussed, it was not open to a reasonable jury to be satisfied beyond reasonable doubt that the appellant had sexually penetrated SA. The verdict on charge 1 is unreasonable and cannot be supported having regard to the evidence. It must be set aside.
That conclusion is not, however, wholly determinative of the appeal; since, notwithstanding that it might not have been open to the jury to be satisfied beyond reasonable doubt on charge 1 that the appellant had sexually penetrated SA, there was abundant evidence upon which the jury could have been satisfied beyond reasonable doubt that the appellant intentionally sexually touched SA by placing his fingers in her genital or anal region. Indeed, we consider that, on all of the available evidence, the jury must ‘have been satisfied of facts that prove the appellant was guilty of [the] offence’ of sexual assault of a child under 16. Pursuant to s 277(1)(c) of the Criminal Procedure Act 2009, therefore, it is appropriate to substitute a judgment of conviction for that offence.
Finally, we note that, although the ground of appeal contended that the verdict on charge 4 was also unreasonable or unsupported by the evidence, little attention was devoted to that contention in argument. That is understandable. In our view it was well-open to the jury to accept SA’s evidence that she was sexually touched by the appellant on the occasion complained of.[24]
[24]See [11] above.
Resentencing
Upon substituting a conviction for sexual assault of a child under 16, it is necessary that we resentence the appellant.
Counsel for the appellant submitted that, should we come to do so, we should take into account the matters in mitigation advanced to the trial judge.[25] We note, in particular, that the appellant has no prior criminal history, an excellent work history and supportive family and friends. Although he had a difficult childhood and left school early, he worked his way up to a managerial level in government and has been an Indigenous mentor for the Department of Human Services and a member of the Indigenous Employees Network.
[25]They are reflected in the judge’s reasons for sentence. See DPP v Hinch (a pseudonym) [2020] VCC 403, [31]–[45], [48]–[49]. See also the judge’s discussion of the standard sentence at [50].
In all the circumstances, we would sentence the appellant to 18 months’ imprisonment on charge 2, and to 18 months’ imprisonment on charge 4. We would order that six months of the sentence on charge 4 be served cumulatively with the sentence on charge 2. The total effective sentence will thus be two years’ imprisonment, upon which we will fix a non-parole period of 12 months.
We will hear the parties on the issue of any requisite incidental orders.
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