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  • Unreported Judgment

R v Tink

 

[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] QCA 282, cited
R v Williams [2001] 1 Qd R 212; [1999] QCA 324, cited

COUNSEL:

The appellant appeared on his own behalf
E L Kelso for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of and the orders proposed by Philippides JA and I also agree with the reasons of Davis J.
  2. [2]
    PHILIPPIDES JA:  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 and under 12 and under care (counts 3 to 7).  A nolle prosequi was entered in respect of count 7.  The appellant was convicted by a jury of the remaining counts and appeals against those convictions.
  3. [3]
    The counts alleged sexual offending committed against a nine and a half year old complainant, whose parents were friends with the appellant.  The appellant had two children of his own and the two families interacted with the appellant regularly.
  4. [4]
    The counts of which the appellant was convicted comprised:
  • two counts of exposing the complainant to an indecent film on 7 September 2018 by showing the complainant pornographic films on his mobile telephone when the appellant was at the complainant’s house (counts 1 and 2);
  • four counts of exposing the complainant to an indecent act on 8 September 2018, while the appellant had the care of the complainant at his home, by exposing his genitals to the complainant (counts 3 to 6); and
  • one count of indecent dealing on 19 September 2018 when the appellant was in bed with the complainant at her house and rubbed his erect penis against her bottom when they were both clothed (count 8).
  1. [5]
    The appellant, who appeared for himself, specified the following grounds of appeal in his Notice of Appeal:
  • evidence of “coaching” of the complainant by her grandmother;
  • evidence not considered/given to jury; and
  • inadequacy of legal representation.
  1. [6]
    In his second outline, the appellant stated the grounds of appeal as follows:
    1. (a)
      The verdicts of the jury were unreasonable and cannot be supported by having regard to the whole of the evidence.
    2. (b)
      The jury did not attain the high proof of standard needed to come up with their decision.
    3. (c)
      It was clear the jury rejected the appellant’s evidence to suggest he did not commit charges 1 to 2 and 3 to 6.
    4. (d)
      The closing address of the Crown prosecutor was speculative.
    5. (e)
      Evidence of “coaching” the complainant.
    6. (f)
      The appellant did not receive a fair trial because the trial judge failed to adequately sum up the defence case.
    7. (g)
      Evidence from the complainant’s stepfather lacked credibility.
    8. (h)
      Incompetence of legal representation.
  2. [7]
    The matters referred to in paras (a), (b), (c), (e) and (g) may be dealt with as all falling within an unreasonable verdict complaint, with the other complaints raised being as to the fairness of the prosecutor’s address and the summing up and the competence of counsel.

Evidence at trial

  1. [8]
    The prosecution evidence comprised the complainant’s evidence, being a statement made on 27 September 2018 under s 93A of the Evidence Act 1977 (Qld) and prerecorded evidence during which she was cross examined on 14 October 2019, the evidence of the complainant’s mother, stepfather and grandmother.  Evidence was also given by the investigating officer.
  2. [9]
    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 evidence

Counts 1 and 2

  1. [10]
    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]
  2. [11]
    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 reexamination, the complainant clarified that the appellant showed her videos on his phone after she played a video to him on her iPad.[11]

Discreditable conduct

  1. [12]
    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]

Counts 3 to 6

  1. [13]
    The complainant referred to when she was at the appellant’s house before Redfest and said “[e]verytime that he would talk to me he had his penis out of his pants”.[16]  She said that she was in the bathroom getting her hair ready and he would come to talk to her and his penis “would always be out”.[17]  She explained what she meant by that by saying:[18]

“Well the first time, um his um the straight bit of it was out, and then the second time, um one of balls was out, and the third time, one of, the other one of the balls were out, and the last time he talked to me, his whole penis was out. Like it was just sitting on his pants. And then as soon as he left when he was done talking to me he would go oh and he would, he would, like he would either go, oh f word or he would go, oh shut (sic), he would actually said the word.”

  1. [14]
    She said the appellant was wearing shorts, like board shorts, and, although unclear as to the precise colour, she described a lightning bolt pattern.  She was too scared to tell him to stop.[19]

Count 8

  1. [15]
    The complainant mentioned another occasion that occurred after the appellant was having pizza with the complainant’s family.  After eating pizza the complainant went to bed and the appellant “came in [her] bed, and gave [her] some cuddles”.[20]  The reason why the appellant came into her room was because she had asked him to come and say goodnight.  The appellant then asked for a cuddle and the complainant said no and then the appellant got into the bed and proceeded to cuddle her.[21]  She said that the appellant lay behind her and that when he was cuddling her “he kept on moving his penis … up and down” against her bottom.[22]  She said that his “body wasn’t moving” and that “one of his body parts … his penis was like going up and then down, and then up and then down”.[23]  His penis was in his pants, but she could feel it was hard.[24]  She tried to move forward but he would move with her.[25]  She did not recall the appellant saying anything. Her mum and stepfather were having a shower at the time.[26]  She recalled her mum came into the room at one stage.
  2. [16]
    In cross examination, it was put to her that what had happened was that the appellant came into the room and just gave her a cuddle and tucked her in.  The complainant responded, “[t]hat’s not what I told the police” and maintained that the appellant “gave me a cuddle and then he did something that I didn’t feel comfortable with”.[27]  The complainant agreed that she asked the appellant to watch something on her iPad and that he lay down on the covers of her bed.[28]  She reiterated that her mother looked into the bedroom at one stage. She asked her if she was okay and recalled that she might have nodded in response. She did not remember anyone else coming in before the appellant left.[29]

Preliminary complaint

  1. [17]
    The complainant said she had been “wacked, acting weird for the last two weeks, cause its all stuck in my head”[30] and that she told her grandmother what had happened.  Her grandmother called her mother over and so she also told her mother.  She also told her mother’s friend, A.[31]

The complainant’s mother, CW

  1. [18]
    CW gave evidence of her friendship with the appellant.  In relation to counts 1 and 2, she confirmed that on 7 September 2018, the appellant and his two children came over to stay the night.  It was the weekend of the Redfest.  She said that the appellant and his children shared a spare bedroom.  She said that the next morning the appellant sent her a message with a photo of the three children on one of the mattresses in that room.[32]
  2. [19]
    She also gave evidence concerning the following day relevantly to counts 3 to 6.  She said that she and her partner were not feeling well and that the appellant offered to take the complainant with him to his parents’ house and that they planned to meet at the Redfest.
  3. [20]
    In relation to count 8, she said that on Wednesday (19 September 2018) they all had pizza for dinner and the appellant stayed over.  The complainant went to bed straight after eating.  She said she popped in to see the complainant and looked through the louvres of her bedroom.  She saw the appellant in bed with the complainant and that he had his arm over her.  She did not think anything of it at the time, as they “were like uncle and niece”.[33]  She asked if the complainant was all right but did not get a response.  CW also gave evidence of preliminary complaint.  She said that on the Friday of the same week, she went to her parents’ place to pick up the complainant.  The complainant became upset and was crying.  When she calmed down, she went into her grandmother’s room and spoke with her grandmother.  CW went in a bit later and the complainant explained that the appellant had showed her videos “of people doing it” and that he “showed her his thing” and asked her to “touch it … [and] put her mouth on it.”  She said she had “pinky promised” not to tell.[34]  At one stage, the complainant used the TV remote to demonstrate how the appellant had exposed himself.[35]
  4. [21]
    On the following Tuesday (25 September 2018) she called the police and on the Thursday the complainant was taken to see the police.

The complainant’s stepfather, JD

  1. [22]
    JD gave evidence relevant to counts 1 and 2.  He referred to a Friday night, 7 September 2018, when the Redfest was on and the appellant and his two children stayed over.  The appellant slept upstairs and all the children slept downstairs.  JD and the complainant’s mother were not feeling well.
  2. [23]
    JD said that the next day (when counts 3 to 6 were alleged to have been committed), the appellant suggested that to give them a rest he would take the complainant with his children to his or his mother’s place and it was intended they also go the Redfest.
  3. [24]
    In relation to count 8, JD gave evidence that on the evening of 19 September 2018, the appellant was staying over and they ordered pizza.  The complainant got ready for bed.  JD went into the complainant’s room to say goodnight and saw the appellant lying in bed with her.  He was positioned behind her “in a spooning-type manner”.  JD told the appellant that CW had made coffee and to join them.  The appellant asked JD if he remembered the “Black Benny” and the complainant asked what that was.  The appellant said it was her father’s “big, black dildo”, “[a] big penis”.[36]  JD told the appellant that that was “not right” and the appellant apologised.  JD told him to come upstairs for coffee and the appellant said he would be up in a minute.[37]  In cross examination, he said that the complainant was drowsy and “going to sleep” at the time of the conversation.  He maintained that the conversation had occurred.[38]

Evidence of the complainant’s grandmother, DW

  1. [25]
    DW gave evidence of the complainant making a preliminary complaint.  She said that on Friday afternoons after school, the complainant would visit her and that on one particular Friday (21 September 2018), after her mother arrived to collect her, the complainant had a bit of a “meltdown” and started rocking back and forward like she was having a breakdown.  At first, the complainant would not say what was wrong and said she had made a “pinky promise”.  The complainant finally told DW that the appellant had shown her people “doing it” on YouTube.  She also said that a couple of weeks earlier, on a Friday night, the appellant had dropped his pants a few times and that he asked her to put her mouth on his thing.[39]  When the complainant’s mother come into the room, DW told the complainant she needed to tell her mother.  DW said that the appellant had done the wrong thing and needed help.  Using the remote DW gave her, the complainant demonstrated the extent to which the appellant’s penis was exposed.[40]  In cross examination, DW agreed that when the complainant became upset, she had been the one to ask if it was the appellant who had touched her.[41]

Investigating police officer’s evidence

  1. [26]
    The investigating police officer gave evidence that, in the course of a search of his home, the appellant’s phone was seized and a Cellebrite analysis was done with a date range around 7 September 2018.[42]  A photograph was located of the appellant’s children with the complainant sleeping on the mattress.[43]  She believed the phone seized was a Samsung.[44]  No relevant videos were found on the phone.  No deeper forensic analysis or further enquiries regarding the appellant’s internet usage were made.[45]  Shorts that matched the complainant’s description were not found.[46]

Further evidence

  1. [27]
    To the extent that the appellant relied in his outline on further evidence, no basis for the reception of further evidence was put forward and it is not appropriate for that material to be considered in this appeal.  The photograph attached to the outline was entirely irrelevant.

Grounds of appeal

Unreasonable verdict

  1. [28]
    The relevant principles in an appeal such as this, where the conviction is sought to be set aside as unreasonable and unsupportable having regard to the evidence, were recently set out in R v HCB[47] as follows:
  1. The question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty: M v The Queen[48] and MFA v The Queen.[49]
  2. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  The boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way: R v Baden-Clay.[50]
  3. In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred: MFA v The Queen.[51]
  4. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence: M v The Queen[52] and MFA v The Queen.[53]
  5. The ultimate question for the appellate court must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: R v BadenClay.[54]  In determining that question, this Court must undertake its own independent assessment of the evidence, both as to its sufficiency and quality: Morris v The Queen[55] and SKA v The Queen.[56]  In doing so, the Court must disclose the manner of that assessment: GAX v The Queen.[57]
  6. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box: Pell v The Queen.[58]
  1. [29]
    In contending that the verdicts were unreasonable, the appellant submitted that in relation to counts 1 and 2, there was an inconsistency in the complainant’s evidence as to the chronology of when the viewing of the pornography took place.[59]  The complainant’s account of sleeping on the floor[60] because the other child had “hogged the bed” was said to be inconsistent with the photo that the appellant sent the complainant’s mother showing the complainant and the other children on the mattress.  There was an inconsistency concerning the complainant’s police interview and the evidence of her mother and grandmother as to the making of a “pinky promise” by her not to tell anyone.  The complainant only mentioned that matter after being asked about it by the police officer.  There was a lack of corroboration of the complainant’s evidence in relation to counts 1 and 2 in that the police did not find videos on the appellant’s phone that was seized by them to suggest he was looking at pornography or any other form of indecent film.
  2. [30]
    In relation to counts 3 to 6, the appellant submitted that the complainant’s evidence as to how the appellant’s penis was alleged to be outside of his pants when he was talking with the complainant was internally inconsistent and inconsistent with aspects of the evidence of her grandmother.  Further, the board shorts that the complainant described the appellant to be wearing were not found by the police when they searched his house.
  3. [31]
    In relation to count 8, the appellant referred to the response given by the complainant when it was put to her that the appellant’s conduct simply consisted of giving her a cuddle and tucking her in, which was “that’s not what I told police”.  It was submitted the response suggested the complainant was not recalling what happened and that if she was doing so, it was more likely that she would have said, “that’s not what happened”.  The appellant submitted the complainant’s evidence as to count 8 was internally inconsistent in that she said his body was not moving but also said that his penis was moving up and down.  The appellant referred to an inconsistency between the evidence of the complainant that, when asked by her mother if she was ok, she responded by nodding and the evidence of her mother that she did not respond.[61]
  4. [32]
    The appellant also referred to the inconsistency between the evidence of the complainant (that her mother came into the room and that she did not remember anyone else coming into the room before the appellant left) and the evidence of the stepfather (of coming into the room) which was said to discredit the latter’s account of the events of the evening and render his evidence uncreditable.  It was submitted that the evidence of the stepfather concerning the conversation about the dildo was not supported by the complainant’s evidence and ought additionally to have led the jury to reject him as a credible witness.
  5. [33]
    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

  1. [34]
    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.
  2. [35]
    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.
  3. [36]
    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.
  4. [37]
    On my own independent review of the all of the whole of the evidence, I consider that it was open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt of the offences.

Inadequate summing up of defence case

  1. [38]
    The appellant complained that the trial judge spent more time summing up the prosecution evidence than the defence evidence and “skimmed through” the defence evidence in contending that the summing up of the prosecution and defence cases by the trial judge was not balanced.  An analysis of the transcript does not bear out that complaint.  The trial was a short one and in relation to the defence case there was no evidence given which was required to be summarised.  As already mentioned, in the course of his summing up, the trial judge properly instructed the jury that the offending turned on the complainant’s evidence and they were to scrutinise the complainant’s evidence carefully.  His Honour summarised the inconsistencies in the evidence of witnesses internally and with each other that defence counsel had highlighted.  The summing up provided an adequate and fair summary of the respective cases.  This complaint fails.

Prosecutor’s closing address

  1. [39]
    The complaint that the closing address of the prosecutor was speculative appears to be a reference to the point made by defence counsel in his address to the jury that the prosecutor’s submission that the appellant had shown the complainant pornography on a phone not later located was “sheer speculation”.[66]  What the prosecutor submitted to the jury was that the extent of defence counsel’s cross examination of the complainant was to the effect that the appellant did not show her such videos.  He did not put to the complainant that there were no pornographic videos on his phone.[67]  Defence counsel emphasised in his address that the jury would instead find that the evidence suggested police had seized the relevant phone which did not contain any pornographic videos, so there was no corroboration of the complainant’s account.  While the phone located did not contain pornographic material, there was nothing inappropriate in the prosecutor referring to evidence of the complainant that the appellant had multiple phones and that only one phone was located by the police.  In any event, the jury were directed by his Honour that they must decide the case on the evidence, and only on the evidence and gave proper directions as to the drawing of inferences.  The contention that a miscarriage of justice was occasioned by the prosecutor’s address must fail.

Incompetence of counsel

  1. [40]
    In relation to the allegations of incompetence of trial counsel on an appeal against conviction, the critical question is whether the impugned conduct resulted in a miscarriage of justice.[68]
  2. [41]
    In alleging incompetence of counsel, the appellant contended that counsel advised him not to give evidence or cross examine witnesses.  As the respondent submitted, it is not apparent what witnesses or evidence the appellant would have adduced had he done so at trial.  In the absence of that evidence it is impossible to conclude that the election to neither give nor call evidence, and therefore preserve the right of last address to the jury, was not a sound tactical decision.
  3. [42]
    The appellant raised in his outline that he sought further analysis of the mobile phone but his counsel advised against it.  As the respondent pointed out, he did not seek to place any affidavit material in support of that contention before the Court.  The respondent submitted that, at its highest, the lack of further analysis of the phone did not demonstrate a miscarriage of justice.  There was no evidence before the jury that the phone examined by police was the phone the appellant used in relation to counts 1 and 2.  There was evidence from the complainant that the appellant had two other phones (although she thought one or both were broken).  In circumstances where the complainant’s evidence did not identify that the device seized was in fact the device used by the appellant to commit the offences, nor what electronic application was used to access the videos, no miscarriage of justice resulted from a failure to further analyse the phone seized by the police.  The appellant also raised in his outline that counsel refused to obtain records from Snapchat that would assist his defence.  The appellant does not articulate how those records may have advanced the defence case such that the chance of an acquittal would have been fairly open.  The respondent submitted that further analysis would not have meaningfully advanced the appellant’s case, even if no web browser activity had been located.  The complainant’s evidence on this point would have remained uncorroborated either way.  I accept the force of that submission.
  4. [43]
    The appellant complained that he wanted counsel to use part of the complainant’s evidence to suggest that she was jealous of the appellant having a girlfriend but counsel advised against it to his detriment as it deprived him of putting before the jury a motivation for the complainant’s allegations.  The complaint concerns the redaction of the following from the complainant’s police interview:

“AW And, then he has this girlfriend, like, it her names H, and she calls him all the time and she’s a teenager, and I find her really, really ..?

KR Okay. So if it happened four times, I want you to think about the very

AW And also I don’t know H, she is she lives a long, way away.

KR Oh righto.

AW So”

  1. [44]
    The respondent submitted that on a full reading of the complainant’s interview, there was no unfairness in the editing that occurred with the defence counsel’s agreement.[69]  I accept that submission.  Moreover, the stance taken by counsel can be well understood forensically.  The redaction may be seen as in the appellant’s interest given that it provided only very marginal assistance on a motive but also contained content prejudicial to the appellant that may have been seen as suggesting a relationship of some nature with a teenager.
  2. [45]
    I agree with the respondent’s contention that none of the matters raised about defence counsel’s conduct, either separately or in combination, demonstrate there has been a substantial miscarriage of justice.

Order

  1. [46]
    I would dismiss the appeal against conviction.
  1. [47]
    DAVIS J:  I agree with the order proposed by Philippides JA and the reasons given by her Honour but wish to add some comments of my own.
  1. [48]
    The appellant argued that the summing-up was not balanced.
  2. [49]
    Often complaints that a summing-up is unbalanced arise when the trial judge has commented on the evidence.  Any judicial comment on the evidence must be measured so that the judge does not “overawe the jury with the judge’s view of the facts”.[70]  The complaint here though is that the trial judge did not adequately explain the defence case.
  3. [50]
    The duty of a trial judge in summing up the case to the jury[71] is to “identify the issues in the case and relate the law to those issues”[72] being one element of the overriding duty to ensure a fair trial.[73]  Part of the fulfilment of that obligation is to put to the jury the respective arguments of the Crown and the accused.  The level of detail to which a judge, in any given case, must descend in explaining the defence submissions will depend upon the circumstances of the case being tried.  Every summing-up must be tailored to the particular case.[74]
  4. [51]
    R v Williams[75] was a case where it was alleged that the defence arguments had been inadequately summarised in the summing-up.  This court observed:

[16] Having read this particular summing-up we do not consider that it could fairly be described as unbalanced or that it was unfairly adverse to the defence. It is true that the summary of the Crown’s submissions occupies 10 pages while the summary of the defence submissions occupies five. That is hardly surprising when the Crown needs to establish considerably more than the defence and when, as here, the Crown had a relatively strong case. There is no duty on a trial judge to make a weak defence any stronger than it really is, or to structure a summing-up so as to ensure that the accused person has a 50/50 chance of acquittal. There is nothing inappropriate in a summing-up which fairly reflects the relative strengths or weaknesses of the respective cases. Whilst some criticism may be made of some parts of the summing-up we do not consider that there is any merit in this particular submission.”[76]

  1. [52]
    Here, the Crown could not succeed unless the jury was satisfied beyond reasonable doubt of the truthfulness of the complainant’s evidence about the appellant’s conduct.  There was no other direct evidence of the commission of the offences, but there was evidence which, depending upon the jury’s assessment of it, may inferentially support the complainant’s evidence.
  2. [53]
    The appellant neither gave evidence nor called witnesses to contradict the Crown case.  His defence was that:
  1. the complainant’s evidence was unlikely to be true;
  2. there were inconsistencies between various versions given by the complainant; and
  3. her evidence was inconsistent in some respects with the evidence of other witnesses.
  1. [54]
    Therefore, the appellant submitted to the jury through his counsel, they should have a reasonable doubt as to his guilt.
  2. [55]
    In the summing-up, the learned trial judge:
  1. directed the jury on the burden and standard of proof;[77]
  2. directed the jury that the Crown could not succeed on any count unless they were satisfied beyond reasonable doubt that the complainant’s evidence was truthful;[78]
  3. told the jury that, when assessing the complainant’s evidence, regard should be had to the inherent likelihood (or otherwise) of it being true;[79]
  4. directed the jury to apparent inconsistencies in the complainant’s evidence;[80]
  5. told the jury that the appellant’s case was that the evidence of the complainant should not be accepted;[81]
  6. directed the jury to the various inconsistencies of the evidence upon which the appellant relied;[82]
  7. directed the jury to those parts of the evidence which the appellant said was implausible;[83] and
  8. directed the jury to the evidence of witnesses which the defence submitted was inconsistent with the complainant’s evidence.[84]
  1. [56]
    By so doing, the learned trial judge fairly left the case to the jury in a balanced way.  No unfairness has been demonstrated.

Footnotes

[1] AB at 160.85.

[2] AB at 41.25-26; 170.479.

[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.

[12] AB at 165.289.

[13] AB at 166.306-308.

[14] AB at 166.306-316.

[15] AB at 88.

[16] AB at 177.731-732.

[17] AB at 177.744.

[18] AB at 177.747-753.

[19] AB at 180.854.

[20] AB at 173.584.

[21] AB at 175-176.

[22] AB at 173.587-589.

[23] AB at 173.606-607.

[24] AB at 176.712.

[25] AB at 173.609-174.611.

[26] AB at 174.

[27] AB at 84.25; 84.27-28.

[28] AB at 84.

[29] AB at 85.

[30] AB at 183.963-964.

[31] AB at 184-185.

[32] AB at 112.

[33] AB at 118.4.

[34] AB at 119.36-120.2.

[35] AB at 120.

[36] AB at 131.34-39.

[37] AB at 131.39-43.

[38] AB at 134.36-42.

[39] AB at 139.

[40] AB at 140.

[41] AB at 142.

[42] AB at 104.

[43] AB at 105.

[44] AB at 107.

[45] AB at 107.

[46] AB at 106.

[47] [2020] QCA 164 at [40].

[48] (1994) 181 CLR 487 at 494-495.

[49] (2002) 213 CLR 606 at 623.

[50] (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[51] (2002) 213 CLR 606 at 623.

[52] (1994) 181 CLR 487 at 494-495.

[53] (2002) 213 CLR 606 at 623.

[54] (2016) 258 CLR 308 at [65]-[66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.  See also M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606.

[55] (1987) 163 CLR 454 at 473.

[56] (2011) 243 CLR 400 at 406.

[57] (2017) 344 ALR 489 at [25].

[58] (2020) 94 ALJR 394 at [37].

[59] Appellant’s further outline at 2.

[60] AB at 41.25-26; 170.479.

[61] AB at 85.10.

[62] AB at 34.

[63] AB at 39.

[64] AB at 36.

[65] AB at 43.

[66] AB at 36.

[67] AB at 23.23.

[68]Nudd v The Queen (2006) 80 ALJR 614 at 623 [25].

[69]TKWJ v The Queen (2002) 212 CLR 124.

[70]R v Knight [2010] QCA 372 at [267] and the cases referred to there.

[71]Criminal Code, s 620.

[72]RPS v The Queen (2000) 199 CLR 620 and R v Mogg (2000) 112 A Crim R 417 at 427, [54].

[73]RPS v The Queen (2000) 199 CLR 620 at 430, [73] and Fingleton v The Queen (2005) 227 CLR 166 at 196-198, [77]-[80].

[74]R v Spencer [1987] AC 128 at 135.

[75] [2001] 1 Qd R 212.

[76] At 218, [16].

[77] Appeal Record Book (ARB) page 46.

[78] ARB page 53.

[79] ARB pages 55, 57 and 58.

[80] ARB page 58.

[81] ARB page 60.

[82] ARB pages 60-61.

[83] ARB page 61.

[84] ARB page 61.

Close

Editorial Notes

  • Published Case Name:

    R v Tink

  • Shortened Case Name:

    R v Tink

  • MNC:

    [2020] QCA 193

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Davis J

  • Date:

    08 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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