Hinch (a pseudonym) v The Queen - [2021] VSCA 214

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hinch (a pseudonym) v The Queen

Details

AGLC: Hinch (a pseudonym) v The Queen [2021] VSCA 214
Case: [2021] VSCA 214
Decision Date: 5 August 2021

CaseChat Overview and Summary

In the High Court of Australia, the case of Hinch involved an appeal by the defendant against his conviction for sexual penetration of a child under 12 years old. The defendant was convicted based on evidence that included the complainant's hand gestures during a video-assisted recollection exercise (VARE). The central legal issue was whether the conviction was unreasonable or could not be supported by the evidence, particularly whether the complainant’s hand gestures could be considered as evidence of sexual penetration. The court was required to assess whether the jury could have been satisfied beyond reasonable doubt that the complainant was penetrated.

The court held that the finding of sexual penetration was not open based on the evidence presented, as it was not possible to be satisfied beyond reasonable doubt that the defendant had committed the offence of sexual penetration of a child under 12. The hand gestures during the VARE, while relevant, did not provide sufficient evidence to support a conviction for that specific offence. Consequently, the appeal was allowed, and the conviction for sexual penetration was substituted with a conviction for sexual assault of a child under 16. The defendant was resentenced to two years’ imprisonment, with a non-parole period of 12 months. This decision highlights the importance of the standard of proof in criminal cases and the need for clear and convincing evidence to support a conviction.

Orders