R v Tink

Case [2020] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tink [2020] QCA 193

PARTIES:

R
v
TINK, Timothy Lee
(appellant)

FILE NO/S:

CA No 332 of 2019
DC No 1552 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 13 November 2019 (McGill SC DCJ)

DELIVERED ON:

8 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2020

JUDGES:

Sofronoff P and Philippides JA and Davis J

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with three counts of indecent treatment of a child under 16 and under 12 (counts 1, 2 and 8) and five counts of indecent treatment of a child under 16, under 12 and under care (counts 3 to 7) – where a nolle prosequi was entered on count 7 and the appellant was convicted by a jury of the remaining counts – where counts 1 and 2 concerned the appellant exposing the complainant to pornographic films on his mobile telephone while the appellant was at the complainant’s house – where counts 3 to 6 concerned the appellant exposing his genitals to the complainant while she was under his care – where count 8 concerned the appellant rubbing his erect penis against the complainant’s bottom when they were both clothed – where the complainant made a preliminary complaint to her grandmother and gave a s 93A statement, as well as pre-recorded evidence during which she was cross-examined – where the complainant’s mother, stepfather, grandmother, and the investigating police officer gave evidence for the prosecution and the appellant did not give nor call evidence – where the appellant raises various inconsistencies in the complainant’s evidence, together with matters of lack of corroboration and credibility of certain witnesses – whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the charged offences

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTION, TRIAL JUDGE AND DEFENCE COUNSEL – where the appellant submits that the trial judge inadequately summed up the defence case by spending more time summing up the prosecution evidence than the defence evidence and “skimmed through” the defence evidence – where the appellant submits that the prosecutor’s closing address was speculative – where the appellant submits that defence counsel’s advice to not give evidence or cross-examine witness resulted in a miscarriage of justice – whether the conduct of either the trial judge, the prosecution or defence counsel resulted in a substantial miscarriage of justice

Evidence Act 1977 (Qld), s 93A

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v HCB[2020] QCA 164, cited
R v TAI[2018]…

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AGLC
R v Tink [2020] QCA 193
Case
[2020] QCA 193
Decision Date

CaseChat Overview and Summary

In the matter of R v Tink, the appellant was convicted by a jury of multiple counts of indecent treatment of a child under 16, under 12, and under care. The appellant was charged with three counts of indecent treatment of a child under 16 and under 12, and five counts of indecent treatment of a child under 16, under 12, and under care. A nolle prosequi was entered on count 7, and the appellant was convicted of the remaining counts. The complainant made a preliminary complaint to her grandmother and provided a s 93A statement, as well as pre-recorded evidence during which she was cross-examined. The complainant's mother, stepfather, grandmother, and the investigating police officer gave evidence for the prosecution. The appellant did not give nor call evidence. The appellant raises various inconsistencies in the complainant's evidence, together with matters of lack of corroboration and credibility of certain witnesses.

The legal issues the court was required to decide included whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of the charged offences. The court also needed to consider whether the conduct of either the trial judge, the prosecution, or defence counsel resulted in a substantial miscarriage of justice. The court had to weigh the evidence presented by the complainant, the credibility of her testimony, and the inconsistencies raised by the appellant. The court's task was to determine if the jury's verdict was supported by the evidence and whether any procedural errors had a significant impact on the outcome of the trial.

The court concluded that the jury's verdict was reasonable and supported by the evidence. The complainant's evidence, despite some inconsistencies, was found to be credible and reliable. The court found that the inconsistencies raised by the appellant were peripheral and did not undermine the overall reliability of the complainant's testimony. The court also found that the trial judge's summing up, the prosecutor's closing address, and defence counsel's advice did not result in a substantial miscarriage of justice. The court determined that the jury was entitled to find the complainant's account of the offending consistent, credible, and reliable. The detailed content of her evidence and the lack of challenge to her account, supported by the evidence of the complainant's mother and stepfather, presented a compelling case against the appellant.

The appeal against conviction is dismissed.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant did not call or give evidence. The defence case at trial was that the alleged offences did not occur and that, on the state of the evidence before the jury, they could not be satisfied beyond reasonable doubt that the appellant was guilty of the offences. The complainant’s evidenceCounts 1 and 2 In her s 93A statement, the complainant spoke about the “first thing [that] happened to me”.[1] She referred to an occasion when the appellant and his two children were staying over at her family’s house. She was sharing a spare bedroom with his children and into which she had moved her mattress. The mattress was on the floor and she shared it with the appellant’s daughter L who ended up “hogging” the mattress so she was pushed up in the corner.[2][1]AB at 160.85.[2]AB at 41.25-26; 170.479. She said that at about “twelve o’clock at night after the Redfest” the appellant came into the bedroom to check on them.[3] The appellant showed her a video on an app on his phone which was a Samsung.[4] She could not recall what the app was called and said it could have been YouTube.[5] She said the video she was shown was of a girl “licking … the boys private part and sucking” and “snot came out of her … nose”.[6] This made the appellant laugh. She also described that the girl put her fingers up and down around the “boys private part”.[7] He showed her a second video that “was how people have babies” which showed a girl with no pants on and a boy who “put something on his private part and then he put it in the girl’s bottom.[8] He was “vibrating” and the girl was making a “weird noise”, like she was in pain.[9] She said that when he first showed her the video, he asked her to promise not to tell anyone. He repeated that and had a “serious face, and serious eye contact” and she froze and so did he and she replied yes.[10] In re‑examination, the complainant clarified that the appellant showed her videos on his phone after she played a video to him on her iPad.[11][3]AB at 160.87.[4]AB at 165.274-275.[5]AB at 162.157.[6]AB at 161.125-126; 161.133-134.[7]AB at 161.130-131.[8]AB at 161.119; 163.188-189.[9]AB at 163.194-195.[10]AB at 183.[11]AB at 89.Discreditable conduct The complainant then referred to “the second thing”.[12] It was an occasion when she was home from school because she was unwell and she was left with the appellant to look after her. During the course of the day, the appellant referred to the first video he had shown her and then referred to the way she massaged her parents’ feet and asked if she could “do that to … [his] dick”.[13] The complainant replied no and the appellant said, “you don’t need to use your mouth” and then laughed and told her it was “a joke test thing”.[14] It was suggested to her in cross examination that the appellant never asked her whether she would “do that to [his] dick”. The complainant disagreed with that proposition.[15][12]AB at 165.289.[13]AB at 166.306-308.[14]AB at 166.306-316.[15]AB at 88.Counts 3 to 6

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant submitted that there is evidence of coaching the complainant by her grandmother, and in that regard attached the grandmother’s police statement to his outline to emphasise passages to demonstrate that it was the grandmother who proffered the name of the appellant when asking about the offending. This was also said to be different from her evidence in chief and also to cast doubt on the reliability of the complainant’s evidence.Consideration The matters relied upon by the appellant in contending that the verdicts were unreasonable were, as the respondent submitted, issues which were largely raised by defence counsel in cross examination and in his address to the jury, including reinforcing that the police investigation did not locate the appellant’s shorts or pornographic videos so that those aspects of the complainant’s evidence were not corroborated,[62] that the evidence of the complainant’s stepfather was inconsistent with the complainant’s account as to him being present on the evening on which count 8 was alleged to have occurred and not credible[63], that the complainant’s description of the offending was illogical and implausible[64] and that she had to be reminded of some of it.[65] Defence counsel also urged on the jury that the state of the evidence, coupled with the inconsistencies, would leave them in a state of reasonable doubt as to the appellant’s guilt. The matters now raised were thus matters that were left with the jury for consideration and were within the jury’s province to determine.[62]AB at 34.[63]AB at 39.[64]AB at 36.[65]AB at 43. The respondent’s submission that the inconsistencies in the complainant’s evidence relied on by the appellant concerning counts 1 and 2 related to minor and peripheral matters (such as whether she showed him her iPad on one or both of the occasions they were together) should be accepted. The jury were entitled to consider that the complainant gave detailed evidence for a child of her age as to the pornographic videos shown to her, which she maintained in cross examination. The jury were thus entitled to consider her evidence to be credible, notwithstanding that the absence of the video material on the appellant’s phone when seized by police. Likewise, the jury were entitled to find the complainant’s evidence as to counts 3 and 4 credible and reliable, notwithstanding the failure to locate the shorts described by her. As to count 8, the inconsistencies between the complainant and her stepfather concerning the mention of the dildo was a matter for the jury to take into account but did not require them to reject the complainant’s evidence. The trial judge gave standard directions as to the onus of proof, the elements of the offences and the need to scrutinise the complainant’s evidence and the use of discreditable conduct. The complainant’s evidence, which was central to the prosecution case, presented a compelling case against the appellant in the detailed content of her evidence and the lack of challenge to her account of the setting of each offence and the opportunity for offending that was supported by the evidence of the complainant’s mother and stepfather. As submitted by the respondent, cross examination did not diminish her reliability but rather confirmed that the appellant had the opportunity to commit each of the offences. The jury were entitled to find that the complainant’s account of the offending was consistent, credible and reliable.