Hutchins v The King - [2025] SASCA 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HUTCHINS v THE KING
[2025] SASCA 111
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Hughes)
2 October 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
This is an appeal against conviction.

The appellant was charged with one count of indecent assault, contrary to s 56 of the Criminal LawConsolidation Act 1935 (SA) (‘the CLCA’) and three counts of unlawful sexual intercourse with a person under 12 years old, contrary to s 49(1) of the CLCA. He is the older cousin of the complainant and was aged between 20 to 25 years at the time of the alleged offending.
The appellant is alleged to have sexually abused the complainant on three separate occasions. The first occasion occurred between 11 October 1992 and 18 December 1993, at Renmark, when the complainant was around seven years old. The appellant allegedly caused the complainant to touch his penis (Count 1). The second occasion occurred between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly caused her to perform fellatio upon him (Count 2). The third occasion occurred again between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly performed an act of cunnilingus upon her (Count 3) and digitally penetrated her (Count 4).
Following a trial by jury, the appellant was acquitted of the first count and found guilty on the remaining counts. The central issue at trial was whether the prosecution had proved, beyond reasonable doubt, that the appellant committed the relevant sexual act.
The trial took place in August 2024, about 31 years after the alleged sexual incident the subject of the first count.
The appellant appeals his convictions on the sole ground that the verdicts of guilty are unreasonable or cannot be supported by the evidence. There are two limbs to this appeal ground. First, the appellant contends that the acquittal on the first count is explicable only on the basis that the jury found the complainant had no credibility as to that incident of sexual touching, and given the remaining counts relied on an acceptance of the complainant’s credibility, the guilty verdicts on the remaining counts are factually inconsistent and incapable of rational explanation on the evidence.
Secondly, and independently of the alleged factual inconsistency between the verdicts, the appellant contends the guilty verdicts on Counts 2, 3 and 4 are unreasonable and cannot be supported by the evidence.
Held per…

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 Hutchins v The King

Details

AGLC: Hutchins v The King [2025] SASCA 111
Case: [2025] SASCA 111
Decision Date: 2 October 2025

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, Hutchins, was found guilty of certain sexual offences. The dispute arose from the appellant's contention that the jury's verdicts were inconsistent and unreasonable, specifically arguing that an acquittal on one count undermined the validity of convictions on other counts. The matter was heard on appeal by Bleby, David and Hughes JJ.

The legal issues before the court were whether the verdicts on the latter counts were factually inconsistent with the acquittal on the first count, and whether, having regard to the entirety of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the counts for which he was convicted. The appellant argued that the acquittal on the first count indicated the jury found the complainant lacked credibility regarding that specific allegation, which in turn rendered her evidence unreliable for the other counts.

The court acknowledged material inconsistencies between the complainant's evidence and that of her mother, as well as some inconsistencies with her initial complaint. However, the court held that an acquittal on one count did not necessarily mean the jury found the complainant to be untruthful or wholly rejected her evidence. The judges reasoned that there were rational explanations for the jury differentiating between the verdicts, which were consistent with the jury finding the complainant to be a generally credible witness across all counts. The court concluded that, considering the whole of the evidence, it was open to the jury to be satisfied of the appellant's guilt on the convicted counts.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, we grant permission to appeal but dismiss the appeal.The evidence at trial In order to explain the basis upon which the appellant contends that the verdicts on the latter counts were inconsistent with the acquittal on the first count, and are unreasonable, it is necessary to refer in more detail to the evidence adduced during the course of the trial. In relation to the first count, the complainant gave evidence that the first occasion of sexual touching occurred at a sleepover at her aunt’s house in Renmark when she was about seven years old. The complainant said that this was not the first time she had stayed overnight at her aunt’s house. She could not remember why she and her family were there that night, but thought it was for a ‘normal get‑together’. The complainant said that she and her cousins were sleeping on the floor in the lounge room in sleeping bags, and there were about eight or 10 children in the lounge room. She believed the appellant slept in his own bedroom that night and the adults were in the shed, which was a four to five minutes’ walk away from the lounge area. The complainant gave evidence that she was sleeping between her older sister and the internal doorway that led to the rest of the house. She said that her youngest sister had not been born at the time. The complainant said all the children in the lounge room were asleep by around 9:00pm that night. She woke up during the night because she heard footsteps coming down the hallway. When asked whether anyone else in the lounge room had woken up, the complainant said she looked around and everyone was still asleep. She said that it was dark in the lounge room with some light coming in through the windows. From her position on the floor in the sleeping bag, the complainant recalled looking towards the hallway and seeing a shadow coming towards her. She said that she knew it was the appellant because she saw his clear‑framed glasses on his nose. The complainant gave evidence that after the appellant approached the complainant’s sleeping bag, he placed one hand over her mouth and used his other hand to pull her out of her sleeping bag, pull his pants down and place her hand on his penis. She said that she did not make a noise and was ‘still half asleep’. She said she was forced to stroke the appellant’s penis with her hand for about five minutes. The complainant said that she did not disclose the offending to anyone at the time as she felt confused. There was evidence that the other children and adults at the property were contacted by police but only the complainant’s mother and sister provided a statement or gave evidence at the trial. The complainant’s mother gave evidence that they had only slept over at the Renmark property once, being New Years Eve 1992, and when the complainant’s younger sister was a baby. Her evidence tended to undermine the complainant as to the date and timing of the sleepover, location of adults, and the presence of a baby in the house.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The dispositive question that remains is whether having regard to the whole of the evidence and record (including the fact that the jury acquitted the appellant on one or other counts on the Information), it was open to the jury to be satisfied that the appellant was guilty of the offences. Consideration In the present case, the appellant submits that the acquittal on the first count is only explicable on the basis that the jury found the complainant had no credibility in relation to the sexual touching the subject of that count. That being so, the appellant argues that her credibility was undermined to such an extent that the convictions on the other counts are factually inconsistent and cannot be sustained. In support of this contention the appellant emphasises the inconsistencies between the complainant’s evidence and the evidence of her mother. They are as follows. First, the complainant gave evidence that her family visited her aunt’s property at Renmark and stayed overnight on numerous occasions. She gave evidence that the sexual touching the subject of the first count occurred on a ‘normal’ weekend and specifically, that it was not Christmas or New Year’s Eve or a birthday. By contrast, the complainant’s mother gave evidence that they visited and stayed over at the home of the complainant’s aunt in Renmark on only one occasion, being New Year’s Eve 1992. Secondly, the complainant gave evidence that her youngest sister had not been born at the time of the alleged incident. However, her mother gave evidence that on the one occasion that they slept over on New Year’s Eve 1992, the complainant’s youngest sister was six to eight weeks old having been born in November 1992. Thirdly, the complainant gave evidence that the alleged offence at the Renmark property occurred in the lounge room where she was sleeping with approximately eight to 10 of her cousins and that all the children were in bed and asleep by 9:00pm. Her mother gave evidence that the children did not go to sleep until 1:00am. Fourthly, the complainant gave evidence that the adults were in the shed, a four to five minutes’ walk away from the lounge area. However, her mother said that she had never been in the shed and that a New Year’s Eve function was held in the lounge room (that being the room where the complainant claimed that the offending had occurred.) The appellant also relies on the fact there was no independent support for the complainant’s evidence as well as the purported inconsistency between her evidence and the terms of her initial complaint as set out in the text message. In addition, the appellant emphasises the purported implausibility of her account which he submits further undermines her credibility on the first count. It is to be accepted that there were material inconsistencies between the complainant’s evidence and that of her mother in relation to the first count. They were the subject of counsels’ submissions at the trial, and directions by the trial Judge. It is also true that the initial complaint was to some extent inconsistent with her evidence. However, we do not consider that the verdict of not guilty on the first count necessarily means the jury found that she was an untruthful witness or wholly rejected her evidence as not credible. There are a number of rational explanations for the differentiation in the verdicts which are consistent with the jury having found the complainant to be a generally credible witness on all counts.