R v Hinchey

Case [2019] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hinchey [2019] QCA 3

PARTIES:

R
v
HINCHEY, Shannon John
(appellant)

FILE NO/S:

CA No 30 of 2017
DC No 184 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 14 December 2016 (Burnett DCJ)

DELIVERED ON:

1 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2018

JUDGES:

Gotterson and Philippides and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of four counts of rape – where the alleged offending occurred at the Capricornia Correctional Centre – where there was evidence in the complainant’s recorded police interview, which was played for the jury, about the appellant and the complainant standing watch while another inmate was sexually assaulted in a toilet – where the prosecution sought to exclude that part of the evidence – where defence counsel insisted that that part of the evidence be led – whether there was a miscarriage of justice occasioned by the admission of the impugned evidence

Craig v The Queen (2018) 92 ALJR 390; (2018) 353 ALR 177; [2018] HCA 13, followed
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, considered
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered

COUNSEL:

A Hoare, with N Boyd, for the appellant (pro bono)
M Whitbread for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  At the conclusion of a trial over five days in the District Court at Rockhampton, the appellant, Shannon John Hinchey, was found guilty on 14 December 2016 of four counts of rape.[1]  All counts alleged offending against the same complainant, a fellow prisoner.[2]  The counts alleged that the offending occurred at Etna Creek in Queensland on or about 17, 19, 22 and 23 February 2014, respectively.[3]

    [1]Criminal Code Act 1899 (Qld) sch 1 (“Criminal Code”) s 349.

    [2]Appeal Book (“AB”) 2.

    [3]Ibid.

  2. The offending occurred at the Capricornia Correctional Centre.  Both the appellant and the complainant were in custody at the facility at the time.

  3. The appellant was then serving a two year sentence which had been imposed on 29 February 2016 and a five month sentence which had been imposed on 7 November 2016.[4]  In relation to the former sentence, his parole release date had been fixed at 17 September 2016 allowing for some 43 days in pre-sentence custody declared as time served.  He was not released on that date, however, because he was at that time on remand for the rape charges that are the subject of this appeal.  His full-time release date was 17 January 2018.  In respect of the latter sentence, his parole release date had been fixed at 6 April 2017.[5]

    [4]AB216-217, 218-225: Exhibit 4.

    [5]Ibid.

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Details
AGLC
R v Hinchey [2019] QCA 3
Case
[2019] QCA 3
Decision Date

CaseChat Overview and Summary

The appellant, Hinchey, was convicted of four counts of rape, with the alleged offending occurring at the Capricornia Correctional Centre. The prosecution sought to exclude from evidence a portion of the complainant’s recorded police interview that mentioned Hinchey and the complainant standing watch while another inmate, Tim Burrows, was sexually assaulted in a toilet. Defence counsel insisted that this part of the evidence be included. The issue before the court was whether the admission of this evidence caused a miscarriage of justice.

The court considered the evidence in the context of the entire trial and the context in which it was presented. The court found that the evidence was relevant to the complainant's credibility and his decision to fabricate parts of his story due to fear of retribution. The court also noted that the defence had the opportunity to cross-examine the complainant about the inconsistencies in his statements and had done so. The court concluded that the evidence was properly admitted and did not result in a miscarriage of justice.

The court dismissed the appeal, affirming Hinchey's conviction on all counts. The court found that the trial judge had correctly exercised his discretion in admitting the evidence and that the evidence did not have a significant prejudicial effect on the jury.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial was adjourned, briefly, for counsel to discuss the matter.[47] When it resumed, the parties indicated that the matter had been resolved, with the Crown prosecutor agreeing to keep the evidence in.[48] The trial judge was not required to make a ruling on the issue.[47]AB31 l12.[48]AB31 ll15-26.The evidence at trial During cross-examination, the complainant was asked about his recorded police interview on 1 March 2014. He gave the following evidence about that interview and, in particular, his account of the incident involving Tim Burrows:[49][49]AB61 l20 – AB62 l18.“Do you agree it was the 1st of March 2014 when you spoke to two police officers, and they recorded the conversation?---Yeah.That sounds about right?---That sounds about right.You told us before that when you were speaking to the Corrective Service staff, the prison staff, you were making stuff up to sort of hide the truth; is that the case?---Well, that’s correct. Yes. I just wanted to get out of there, and I just wanted to be safe.You were worried about the outcome of telling them the truth?---That’s exactly right.Okay?---I was worried about being a target.Okay. But when you spoke to the police in March 2014, you had made the decision you’re not going back, and you were telling them the whole truth; is that the case?---No, I told them some of what had happened, that it was me that it occurred to, that I never mentioned anything about Ray until I was released from custody and felt safe.Sorry. You told them it was you that it’d happened to?---That the incident I was referring to that I’d reported to the psychs and I said was Tim that it was actually me. I gave them a rough idea of what had happened, and I never mentioned Ray Garland until the 15th of October 2014 when I was interviewed by CSIU[50] after I was released from custody.All right. Well, let’s get back to the Tim incident. You’ve told authorities that you witnessed Tim being raped by Ray Garland; is that what you’re referring to?---No, I never said I witnessed Tim at all.Well, that you stood cockatoo. You stood lookout whilst it occurred; is that correct?---Yes.Okay?--- [indistinct] while I was sitting with Hinchey while he was being raped.Now, are you telling us now – are you telling the court that, in fact, what you told the police March was that – you said to police, look, the story about Tim wasn’t true. That was me?---That’s right.And that you had told correctional facility staff prior to that this story about Tim being the subject of the rape?---That’s correct.That’s simply not the truth either, is it? You didn’t tell the police that. Do you agree or disagree?---I disagree.”[50]That is, the Corrective Services Investigation Unit: AB85 ll5-9. Upon conclusion of the cross-examination, after the jury had been excused, the Crown prosecutor informed the Court that the complainant’s assertion that it was he who had been sexually assaulted by Garland, not Tim Burrows, was contrary to what the complainant had said during a conference with the DPP’s office that morning. He noted that the complainant’s answer had given rise to a prior inconsistent statement.[51] Defence counsel sought leave to further cross-examine the complainant on that statement, which was not opposed and was granted.[52] The following evidence was elicited:[53][51]AB76 l21 – AB77 l5.[52]AB77 ll5-42.[53]AB81 l43 – AB83 l6.“Now, do you recall I asked you some questions previously about this video that you – sorry. “The video.” The tape-recorded interview, audio recorded interview with the police on the 1st of March 2014?---Yes.Is it the case that you had a conference with the Director’s Office this morning, a video-link conference with the prosecutor? Do you recall that?---Yes.And you were asked specifically about that video. I’m going to call it the Tim Burrows interview if you – you’ll know what I’m talking about?---That’s correct.You were asked specifically about this video and what you told the police about Tim Burrows. Do you recall that?---Yes.And I – when I’m asking you these questions now I’m talking about the conference this morning with the DPP?---Yep.You told Mr Phillips from the DPP this morning that what you told the police was truthful about Tim Burrows, didn’t you?---Yes, it was.Because you told the police the truth, didn’t you?---Well, about Tim I did, yeah. I told two psychs, an intel officer and another person about Tim, because I – I wanted Ray to get done [indistinct] as well.Okay. Tim was never actually raped, though, on this occasion that you’ve described, was he?---Well, yeah. To my knowledge he was.Haven’t you just told us in court earlier this morning and this afternoon that you’ve later gone back and told correctional staff that – “No. No. That didn’t happen to Tim. That happened to me on my first day in the unit.”?---No. No. No. I said it had also happened. I was referring to me, but I used Tim’s name because I was still in jail and I was too scared to say it was me.A few more questions. On your first day in S2, Tim Burrows wasn’t raped, was he?---On my first day in S2 - - -Yes?--- - - - I was raped.Tim Burrows wasn’t, was he?---No.You’ve told the police that he was on your first day in S2 - - -?---I - - -- - - during the audio recorded interview?---Yes. Yes.Okay. And you told the Director’s Office this morning that when you were talking about that point you were telling the truth, didn’t you?---Yeah.Thank you, your Honour.WITNESS: But it wasn’t – the only difference was it wasn’t that day.MR POLLEY: Thank you, your Honour.HIS HONOUR: Yes. Thank you.MR POLLEY: Well – sorry.You didn’t go on to tell the Director’s Office this morning that it wasn’t that day, did you?---He didn’t ask. He just asked if it was true Tim was raped as well.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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