R v Mentink

Case [2018] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mentink [2018] QCA 180

PARTIES:

R
v
MENTINK, Wilfred Jan Reinier
(appellant)

FILE NO/S:

CA No 282 of 2017
DC No 2003 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 13 November 2017 (Farr SC DCJ)

DELIVERED ON:

3 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2018

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

1.   Refuse the application for leave to adduce further evidence.

2.   Dismiss the appeal against conviction.

3.   Refuse the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of indecent treatment of a child under the age of 16 years – where each count was committed against a different complainant – where the offences were committed in the course of a weekend camping trip in 1976, attended by a group of male high school students, to a campsite near Mount Barney – where the appellant was a teacher at the high school and the only adult who accompanied the group – where the complainants, J and A, were both students who attended the camping trip – where more than 40 years had passed between the time of the commission of the offences and the time of the trial – where the jury convicted the appellant on both counts – where counsel cross-examining the complainant J succeeded in obtaining evidence which provided arguments for why the jury should be left in doubt about J’s complaint – where the complainant A admitted to having poor memory but was adamant that he did recall the acts which constituted the offence against him – whether it was open to the jury to be satisfied of the appellant’s guilt of the two counts beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where each of the complainants in this case was a “protected witness” under Part 2 of Division 6 of the Evidence Act 1977 (Qld) – where s 21O of the Evidence Act 1977 (Qld) requires the Court to order a person charged be given legal assistance for the purpose of conducting cross-examination of protected witnesses, unless the person charged arranges for legal representation or does not want the protected witness to be cross-examined – whether prohibiting the appellant from cross-examining the two complainants caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant contended that the prosecution ought to have called several persons as witnesses and ought to have tendered a map of Mount Barney National Park, yearbooks for the school and photographs of the campsite – where the persons included former students…

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AGLC
R v Mentink [2018] QCA 180
Case
[2018] QCA 180
Decision Date

CaseChat Overview and Summary

In the matter of R v Mentink, the appellant challenged his conviction on numerous grounds, asserting that the verdicts were unreasonable and that several aspects of the trial process resulted in a miscarriage of justice. The appellant, who was a teacher at the time, was convicted of two counts of indecent treatment of a child under the age of 16 years. The complainants, both students, alleged that the offences occurred during a camping trip in 1976. The trial judge had directed the jury on various matters, including the similarities between the two charges, and the appellant argued that this amounted to a misdirection. Additionally, the appellant contended that the trial was unfair due to the conduct of the prosecution, the absence of certain witnesses and documents, and issues related to the jury's deliberations.

The court was required to determine whether there were errors in the trial process that amounted to a miscarriage of justice, and if the verdicts were unreasonable or insupportable in light of the evidence. The court considered the appellant's arguments regarding the directions given to the jury, the conduct of the prosecution, and the admissibility of further evidence. The court also evaluated whether the absence of certain witnesses and documents, as well as the appellant's inability to cross-examine the complainants, led to a miscarriage of justice.

The court found that there was no error in the judge's directions to the jury, and that there was no basis for believing that any juror was improperly pressured by the directions. The court also found that the absence of certain witnesses and documents did not result in a miscarriage of justice, as the appellant had the opportunity to tender these items himself. Furthermore, the court held that the appellant's inability to cross-examine the complainants did not cause a miscarriage of justice, as legal counsel was appointed to cross-examine them on his behalf. The court concluded that none of the grounds of appeal could be accepted.

In light of the above, the court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The court also refused the application for leave to adduce further evidence. The appellant's challenge to his sentence was abandoned at the hearing in this Court. The orders of the court were to refuse the application for leave to adduce further evidence, dismiss the appeal against conviction, and refuse the application for leave to appeal against sentence.

Orders

Orders of the court

1. Refuse the application for leave to adduce further evidence.

2. Dismiss the appeal against conviction.

3. Refuse the application for leave to appeal against sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant is without legal representation, as he was at the trial. He challenges his convictions on many grounds. He says that the verdicts were unreasonable and that in several ways, the trial was conducted by the judge, by the prosecutor and by counsel engaged to cross-examine the complainants as protected witnesses,[1] which resulted in a miscarriage of justice. At the hearing in this Court, he abandoned his challenge to his sentence.[1]Under Part 2 Division 6 of the Evidence Act 1977 (Qld).The evidence at the trial The complainant on one of the counts was a 14 year old boy, whom I will call J, who then attended a State high school in Brisbane where the appellant was a teacher. The other complainant, whom I will call A, was another boy of the same age who also attended the school. J’s evidence was that he and five other students (including A) went on a camping trip at a place called Yellow Pinch, near Mount Barney, over a weekend in the second half of 1976. The appellant was the only adult who accompanied the boys and, J said, the group travelled there in the appellant’s Kombi van. The group arrived late on the Friday, setting up camp next to a river with three tents arranged around the fire. The site was not a designated camping ground, and there were no other campers there. On the Saturday, the boys and the appellant were swimming. J recalled that the appellant was walking around the site, for much of the morning, naked. He recalled that some of the students were wrestling each other and that one student was also wrestling with the appellant. J described the offence against him as occurring on the Saturday afternoon when he was outside but near to his tent. He was by himself and he had no recollection of seeing any other boys in the area at the time. He was wearing clothes, he thinks possibly shorts and a t-shirt. He described the appellant, who was naked, approaching him and then moving one of his hands over the complainant’s pelvic area and the other “behind the top of [his] posterior”. The appellant then clasped his hands on the other side of the complainant, so that the appellant’s erect penis made contact with the boy’s hip, outside of his clothing. J said that this continued for about 20 to 30 seconds until J pushed the appellant away. The appellant left without saying anything. J then went into his tent. J recalled seeing the appellant naked on the Saturday afternoon after this incident, as well as at times on the Sunday. He recalled the appellant being naked in a tyre tube on the river and having to be assisted out of the water by some of the boys when the tyre became stuck. J recalled the trip home in the appellant’s van, when some of the boys in the back of the vehicle were exposing their bare backsides out of the windows. J said that he recalled that the appellant was looking in the rear vision mirror as this occurred and that his inattention to driving nearly caused the vehicle to run off the road. Counsel who was appointed to cross-examine the complainants obtained several answers from J which provided the basis for valid arguments to the jury. J had made a number of written statements about these events, the first of which was made to police in January 2014. In his evidence in chief, he had been able to name the five other boys who were in the group; in his original statement, he named only three boys, two of whom were not amongst the five who were named in his evidence as going on the camp. In his previous statements, he had made no mention of a hike which the group undertook on the Sunday morning, according to his evidence. In his statements, he had said that the pressure of the appellant’s penis against him was “momentary”, rather than lasting for as long as 30 seconds. Until his evidence, he had made no reference to one of the appellant’s hands moving over his pelvic area. His original statement had made no reference to the appellant, whilst naked, wrestling one of the boys. And there were some differences in the detail of the incident in which the appellant had had to be assisted out of the river.

Decision

Reasons for decision

The appellant’s argument has no substance. There was no error by the judge in the directions which were given, and in particular in the Black direction. There is no basis for thinking that any juror was improperly pressured by the directions or for that any other reason, that led to a miscarriage of justice.Conclusion and orders None of the grounds of appeal can be accepted. I would order as follows:1.Refuse the application for leave to adduce further evidence.2.Dismiss the appeal against conviction.3.Refuse the application for leave to appeal against sentence. BODDICE J: I agree with McMurdo JA.

Ratio Decidendi

Legal Principle Established

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