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Court of Criminal Appeal 27 October 1999

REGINA v HINGST

[1999] NSWCCA 335

Sexual offences
CRIMINAL LAW

Citation: Regina v Hingst [1999] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 27 October 1999
Judges: Spigelman CJ, Dunford J, Adams J (reasons delivered by Adams J)

Background

The appellant was convicted in the District Court by a jury on five counts of sexual offences against his step-daughter, alleged to have occurred between 1976 and 1980. The complainant was between seven and ten years old at the time of the alleged offences. All of the offences were said to have taken place in the bedroom she shared with her younger sister at the family home.

The complainant gave evidence as an adult, shortly before her thirtieth birthday, describing the alleged assaults in detailed narrative form spanning more than two decades after the events. The appellant denied the offences. The prosecution case rested entirely on the complainant's testimony.

The appellant appealed to the Court of Criminal Appeal on several grounds, with the central contention being that the jury's verdict was unreasonable or could not be supported by the evidence.

  • Whether the jury's verdicts were unreasonable or unsupportable on the evidence under s 6(1) of the Criminal Appeal Act 1912
  • Whether, having found a miscarriage of justice, the Court should order acquittal or instead exercise its discretion to order a new trial under s 8(1) of the same Act

Decision

Adams J (with Spigelman CJ and Dunford J agreeing) accepted that the complainant's account was delivered in an apparently compelling and ordered manner, demonstrating no obvious uncertainties of recollection. However, the court identified a number of significant difficulties with the evidence that, cumulatively, undermined confidence in the convictions.

A key factual dispute arose over which bed in the shared bedroom was closest to the door, a detail central to the complainant's account of how the offences occurred. The complainant's younger sister gave evidence contradicting the complainant on this point, and the court regarded the sister's account as persuasive. The court also noted the significant improbability that repeated sexual assaults over approximately ten years could have occurred in a shared bedroom without the younger sister becoming aware of them to any degree.

The court further observed that correspondence written by the complainant to the appellant and his wife expressed apparent genuine affection, which was more readily explicable as authentic than as deliberately faked. Taken together, these matters created a significant possibility that an innocent person had been convicted, and the court concluded the verdicts were both unreasonable and unsupported by the evidence. The court's analysis did not involve a finding that the complainant's account was proved to be untrue, but rather that the standard of proof beyond reasonable doubt had not been satisfied.

On the question of remedy, the court held that the evidence was not sufficiently cogent to justify a conviction, drawing on principles from DPP (Nauru) v Fowler (1984) 154 CLR 627. The court declined to order a new trial and instead entered verdicts of acquittal.

Orders Made

  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • Under s 6(1) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may set aside a jury's verdict as unreasonable even where the complainant's testimony appears internally coherent and compelling in its delivery.
  • A conviction resting solely on complainant testimony can be found unreasonable where other evidence, including contradiction by a sibling witness and documentary material inconsistent with the alleged relationship, raises a significant possibility of wrongful conviction.
  • Where the Court of Criminal Appeal finds a miscarriage of justice under s 6(1) and also determines that the evidence is insufficiently cogent to justify conviction, the discretion to order a new trial under s 8(1) of the Criminal Appeal Act 1912 will not be exercised.
  • The significant passage of time between alleged offences and proceedings, here more than two decades, featured in the court's analysis of the overall reliability and cogency of the evidence.
  • Cumulatively assessed evidentiary weaknesses, rather than any single decisive flaw, formed the basis for the court's conclusion that the verdicts could not be sustained.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 8(1)

Cases
- Jones v Dunkel (1959) 101 CLR 298
- R v Buckland [1977] 2 NSWLR 452
- (Director of Public Prosecutions) Nauru v Fowler (1984) 154 CLR 627
- R v Murray (1987) 11 NSWLR 12
- Longman v The Queen (1989) 168 CLR 79
- M v The Queen (1994) 184 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Newland (1997) 98 ACrimR 455
- Fleming v The Queen (1998) 73 ALJR 1
- R v Johnston (1998) 45 NSWLR 362
- R v Giam [1999] NSWCCA 53