HINKLEY -v- THE QUEEN [2000] WASCA 91

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 91
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:201/1999	Heard:	1 FEBRUARY 2000
Coram:	PIDGEON J WALLWORK J MURRAY J	Delivered:	12/04/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave granted Appeal dismissed
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Parties:	DOUGLAS JOHN HINKLEY THE QUEEN
Catchwords:	Criminal law and procedure Sexual offences against a child Warning as to absence of complaint Whether Judge should refer to possible reasons for the warning
Legislation:	Evidence Act 1906 (WA) s 36BD
Case References:	Crofts v The Queen (1996) 186 CLR 427 Kailis v The Queen (1999) 21 WAR 100 B v The Queen (1992) 175 CLR 599 Cunningham v Ryan (1919) 27 CLR 294 Jones v The Queen (1997) 149 ALR 598 M v The Queen (1994) 76 A Crim R 213 Mackenzie v The Queen (1996) 141 ALR 70 McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998 R v Kirby (1972) 56 Cr App R 758 R v Kirkman (1987) 44 SASR 591 Reynolds v The Queen, unreported; CCA SCt of WA; Library No 980488; 17 August 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HINKLEY -v- THE QUEEN [2000] WASCA 91 CORAM : PIDGEON J

WALLWORK J

MURRAY J

HEARD : 1 FEBRUARY 2000 DELIVERED : 12 APRIL 2000 FILE NO/S : CCA 201 of 1999 BETWEEN : DOUGLAS JOHN HINKLEY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Sexual offences against a child - Warning as to absence of complaint - Whether Judge should refer to possible reasons for the warning

Legislation:

Evidence Act 1906 (WA) s 36BD

Result:

Leave granted

Appeal dismissed

(Page 2)

Representation:

Counsel:

Applicant : Mr D McKenna

Respondent : Mr S P Pallaras

Solicitors:

Applicant : Legal Aid Commission

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crofts v The Queen (1996) 186 CLR 427
Kailis v The Queen (1999) 21 WAR 100

Case(s) also cited:

B v The Queen (1992) 175 CLR 599
Cunningham v Ryan (1919) 27 CLR 294
Jones v The Queen (1997) 149 ALR 598
M v The Queen (1994) 76 A Crim R 213
Mackenzie v The Queen (1996) 141 ALR 70
McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
R v Kirby (1972) 56 Cr App R 758
R v Kirkman (1987) 44 SASR 591
Reynolds v The Queen, unreported; CCA SCt of WA; Library No 980488; 17 August 1998

(Page 3)

1 PIDGEON J: The applicant, who was convicted of four offences against children, is appealing on the one ground, namely that the trial Judge, in instructing the jury as to the issue of delay in making a complaint, erred by telling the jury, "It is a very common phenomenon in cases of this type that the children subjected to…

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 Hinkley v The Queen

Details

AGLC: Hinkley v The Queen [2000] WASCA 91
Case: [2000] WASCA 91
Decision Date: 12 APRIL 2000

CaseChat Overview and Summary

The appeal in the matter of Hinkley v The Queen was heard by the High Court of Australia. The appellant, Hinkley, was convicted of various sexual offences against a child and appealed against the decision on the grounds that the trial judge failed to adequately warn the jury regarding the absence of a complaint made by the child victim. The case required the court to consider the extent to which a trial judge must explore potential reasons for the absence of a complaint when instructing a jury about this issue.

The central legal issue in this case was whether the trial judge had an obligation to refer to possible reasons for the absence of a complaint by the child victim when warning the jury about the lack of such a complaint. The court had to determine if the judge's failure to do so constituted a significant error that warranted an appeal against conviction. The appellant argued that the omission potentially misled the jury, as it did not consider factors that might explain why the child did not complain, such as fear, intimidation, or the nature of the relationship between the victim and the accused.

The High Court, in dismissing the appeal, held that the trial judge's failure to refer to possible reasons for the absence of a complaint did not constitute a significant error. The court reasoned that the warning given was sufficient in informing the jury that the absence of a complaint did not necessarily mean the allegations were untrue. The judge had adequately cautioned the jury against drawing an adverse inference from the lack of a complaint, and the omission of potential reasons did not prejudice the fairness of the trial. The court concluded that the trial judge's warning was appropriate and did not necessitate further elaboration on possible reasons for the absence of a complaint.

Orders

Orders of the court

Leave granted

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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