R v Hinch - [1993] QCA 402

IN THE COURT OF APPEAL [1993] QCA 402

Q	UEENSLAND

C.A. No. 233 of 1993

B	risbane
[	R. v. Hinch]

T H E Q U E E N

v.
CHRISTIAN DANIEL HINCH

(Appellant)

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The Chief Justice
The President
Mr Justice Cullinane

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Judgment delivered 18/10/93
JOINT REASONS OF THE PRESIDENT AND CULLINANE J. SEPARATE REASONS OF THE CHIEF JUSTICE. THE CHIEF JUSTICE DISSENTING AS TO PART OF THE ORDER.

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APPEAL AND NEW TRIAL. MISDIRECTION AND NON-DIRECTION.

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CATCHWORDS: EVIDENCE - IDENTIFICATION - appellant convicted of assault occasioning bodily harm armed and in company - wh evidence sufficient to sustain conviction given inconsistencies in identification evidence - wh trial judge adequately directed jury re difficulties in Crown evidence

Domican v. The Queen (1992) 173 C.L.R. 555

Counsel:	Mr S.E. Herbert Q.C. with him Mr A. Rafter for the appellant Mr D. Bullock for the respondent
Solicitors:	Richardson McGhie for the appellant Director of Prosecutions for the respondent
Hearing date:	17 September, 1993

IN THE COURT OF APPEAL

QUEENSLAND

Brisbane

Before	The Chief Justice The President Mr Justice Cullinane
[	R. v. Hinch]

C.A. No. 233 of 1993

T H E Q U E E N

v.
CHRISTIAN DANIEL HINCH

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

J	udgment delivered 18/10/93

This appeal is brought essentially on the basis that the evidence presented at the trial was insufficient to sustain a conviction and because of alleged deficiencies in the summing-up. The issues raised related to the evidence of identification of the appellant as the offender involved in the offence which was charged.

The charge against the appellant was that on 21 June, 1992 he unlawfully assaulted Robert John Griffiths and thereby did him bodily harm. Circumstances of aggravation were alleged namely that he was in company with others and armed with an offensive weapon.

The Crown allegation was that in the course of a fight involving a number of persons the appellant struck the complainant with a motor vehicle steering lock and fractured his jaw. A Crown witness, Conway, was in the company of the complainant when he was struck and the Crown case depended on Conway's claimed identification of the appellant as the attacker. Without Conway's evidence it was accepted that the Crown would have had no case against the appellant and the trial was conducted on the basis that the reliability of his claimed identification was the crucial issue.

Two fights had taken place between two groups of young men on the night in question. The complainant received his injury during the second fight. Conway and the complainant had been with one of these groups and the appellant was in the other. After the first fight had concluded the group of which the appellant was a member went looking for their adversaries, and having located them, recommenced the fighting. A number of persons on each side were engaged in one way or another. The appellant who admitted taking part gave evidence that his…

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 R v Hinch

Details

AGLC: R v Hinch [1993] QCA 402
Case: [1993] QCA 402
Decision Date: 18/10/1993

CaseChat Overview and Summary

The appeal in R v Hinch was brought to the Court of Appeal, primarily on the basis that the evidence presented at the trial was insufficient to sustain a conviction and due to alleged deficiencies in the summing-up. The primary issue was whether the identification evidence was sufficient to convict the appellant of the offence of assault occasioning bodily harm armed and in company. The appellant, Christian Daniel Hinch, was charged with assaulting Robert John Griffiths with a motor vehicle steering lock, fracturing his jaw, while in the company of others and armed with an offensive weapon.

The Crown's case depended heavily on the identification evidence of Conway, who claimed to have seen the appellant strike the complainant with the steering lock. Conway's identification was crucial, as without it, the Crown would have had no case against the appellant. However, there were inconsistencies in Conway's evidence, particularly regarding the appellant's facial hair and clothing. The complainant could not remember much of the events of the night, and Conway's identification was based on a fleeting glimpse of the assailant under poor lighting conditions. Several defence witnesses testified that the appellant did not have and had never had a goatee beard, which was a central aspect of Conway's identification.

The Court considered whether the Crown's evidence was sufficient to sustain a conviction. The identification evidence was fraught with difficulties, particularly the discrepancy regarding the appellant's goatee beard. The Court found that the trial judge did not adequately highlight these difficulties in the summing-up, as required by the High Court's decision in Domican v. The Queen. The trial judge's summing-up did not sufficiently direct the jury to consider the weaknesses in the identification evidence and failed to isolate and identify the significant matters that undermined the reliability of Conway's identification.

The Court concluded that the trial judge's summing-up did not comply with the High Court's directive, particularly regarding the importance of the goatee beard discrepancy. The judge's direction did not properly guide the jury on how to approach the resolution of the identification issues, leaving them to do the best they could with the evidence rather than firmly instructing them to refrain from convicting unless the problems in Conway's identification could be eliminated beyond reasonable doubt. The Court found that the difficulties in Conway's purported identification could not be eliminated and that the Crown's failure to address the inconsistencies constituted a fundamental weakness in its case.

Given the absence of any safe basis in the evidence to sustain a conviction, the Court set aside the conviction and ordered a verdict of acquittal to be entered. The Court did not order a new trial, as there was no safe basis in the evidence to sustain a conviction.

Orders