Hinch (a pseudonym) v The Queen

[2021] VSCA 214

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Unreasonable verdict
5. › Whether verdict unreasonable or cannot be supported having regard to the evidence
6. › Assessment of complainant's evidence in VARE recording
7. › Whether hand gestures in VARE amounted to evidence of sexual penetration
8. › Criminal Procedure Act 2009 (Vic), s 276(1)(a)
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Substitution of alternative verdict
5. › Whether evidence sufficient to support alternative offence
6. › Sexual assault of child under 16 substituted for sexual penetration of child under 12
7. › Criminal Procedure Act 2009 (Vic), s 277(1)(c)
1. Criminal Law
2. › Sexual offences
3. › Sexual penetration of child under 12
4. › Sufficiency of evidence
5. › Whether complainant's oral and non-verbal evidence capable of establishing penetration
6. › Crimes Act 1958 (Vic), s 49A(1)
1. Criminal Law
2. › Evidence
3. › Video and audio recorded evidence (VARE)
4. › Appellate review of VARE recording
5. › Circumstances in which appellate court should view VARE
6. › Whether visual content of VARE apt to affect assessment of evidence

Quick Take

Ambiguous and fleeting hand gestures by a child complainant in a VARE interview, taken together with oral evidence that does not clearly assert penetration, are insufficient to support a conviction for sexual penetration beyond reasonable doubt. Where the evidence does not support the primary charge but amply supports an alternative offence, the Court of Appeal may substitute a conviction for the alternative offence under s 277(1)(c) of the Criminal Procedure Act 2009 (Vic).