R v RBL - [2024] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBL [2024] QCA 82

PARTIES:

R
v
RBL
(appellant)

FILE NO/S:

CA No 186 of 2021
DC No 1163 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 July 2021 (Smith DCJA)

DELIVERED ON:

14 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2024

JUDGES:

Morrison and Boddice JJA and Cooper J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of one count of torture, three counts of common assault, and three counts of choking in a domestic setting – where the complainant claimed on one occasion the appellant cut her left wrist and the complainant had gotten a tattoo over the scar – where the complainant’s medical records demonstrate that, prior to meeting the appellant, the complainant had told a nurse that she had self-harmed her left wrist and had gotten a tattoo over the scar – where the appellant submits a miscarriage of justice was caused by the medical record not being admitted into evidence – whether there was a legitimate forensic choice by trial counsel not to make use of the record – whether failure to have the record admitted into evidence occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant submits the trial judge failed to adequately direct the jury as to the use that could be made of evidence concerning the appellant’s parole status – whether a miscarriage of justice arose from the trial judge’s explanation of the provisions of the Corrective Services Act2006

Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13, cited
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied
Zhou v The Queen [2021] NSWCCA 278, applied

COUNSEL:

D Caruana and C De Marco for the appellant (pro bono)
S L Dennis for the respondent

SOLICITORS:

Gilshenan & Luton Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons of Boddice JA and the order his Honour proposes.
BODDICE JA: On 16 July 2021, a jury found the appellant guilty of one count of torture, three counts of common assault, and three counts of choking in a domestic setting. All were domestic violence offences. The jury found the appellant not guilty of two counts of common assault, one count of suffocation in a domestic setting and one count of sexual assault.
On 23 July 2021, the appellant was sentenced to 6 years’ imprisonment on the torture count and lesser concurrent periods of imprisonment for the other counts. The conviction on the torture count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v RBL

Details

AGLC: R v RBL [2024] QCA 82
Case: [2024] QCA 82
Decision Date: 14 May 2024

CaseChat Overview and Summary

In the matter of R v RBL, the appellant appealed against his conviction for various offences committed in a domestic setting. The respondent argued that the trial was conducted without any irregularity, and the jury was appropriately directed. The appellant contended that the trial was marred by a miscarriage of justice due to the trial counsel's decision not to present certain medical records, which showed that the complainant had self-harmed her wrist before meeting the appellant. Additionally, the appellant argued that the trial judge failed to adequately direct the jury on the relevance of evidence concerning the appellant's parole status.

The court examined whether the failure to present the medical records amounted to a miscarriage of justice and whether the trial judge's direction to the jury on the parole evidence was sufficient. In determining whether a miscarriage of justice occurred due to the trial counsel's decision, the court applied the principles from TKWJ and Craig v The Queen. The court held that if the course taken at the trial was explicable on the basis that it could have resulted in a forensic advantage, it would not amount to a miscarriage of justice. The court found that the decision not to present the medical records could have been a legitimate forensic choice that competent counsel could have made, considering the potential disadvantage of highlighting the complainant's self-harm history. Therefore, the court concluded that no miscarriage of justice occurred due to the trial counsel's decision.

Regarding the trial judge's direction to the jury on the parole evidence, the court assessed whether the trial judge adequately directed the jury on the relevance of the evidence. The court found that the trial judge provided a sufficient direction to the jury on the parole evidence, and no miscarriage of justice arose from the trial judge's explanation of the provisions of the Corrective Services Act 2006.

The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Crown particularised count 2 as occurring when the appellant struck the complainant on her ear; count 3 as the appellant squeezing the complainant’s neck and restricting her breathing; count 4 as striking the complainant’s ears; count 5 as pulling the complainant’s hair; count 6 as squeezing the complainant’s throat and restricting her breathing; count 9 as pulling the complainant’s hair; count 10 as putting a pillow over the complainant’s face and restricting her breathing; count 11 as striking the complainant’s ears; count 12 as squeezing the complainant’s neck and restricting her breathing; and count 14 as putting the complainant’s hand on his penis, without her consent.EvidenceRelationship The complainant gave evidence that she first met the appellant whilst an inpatient at a rehabilitation unit. She entered the rehabilitation program in circumstances where she had recently lost her job, was drinking far too much alcohol and taking medication because of severe anxiety and depression. There were about 12 people housed in that unit. The appellant arrived after she had commenced the program. The complainant said the appellant discharged himself after she had completed the program. She was concerned about him. The appellant came to stay with her. He had nowhere else to live. He would spend every day at her home. The appellant did not assist much around the house. He spent his days watching television or swimming. On occasions, they would go out together. He did not pay any rent. They commenced an intimate relationship almost immediately. The complainant described the appellant as extremely charming; funny; very kind-hearted. However, his behaviour towards her changed a few weeks after she told him that she needed a break. The appellant was quite needy emotionally and as he was not able to drive, he was unable to go anywhere or do anything without her assistance. The appellant started to become very paranoid. The complainant described the appellant’s paranoid behaviours as obsessing about her phone and questioning her about telephone calls. He would go through her text messages and emails. He also checked the apps on her phone, including a particular app about medical appointments. On one occasion, the complainant found that her phone was missing its SIM card. A short while after asking him about it, the SIM card was found to be back in her phone. The appellant said he had a camera fitted in the back garden and had bugged her phone so that he could access her texts and emails. When the complainant looked for the cameras, she could find nothing. The complainant said that after the appellant had resumed living with her, she did not leave the house very often. At the time she had three dogs. The dogs stopped living at the house after the appellant laid four scalpels out on the table and said one was for each of her dogs and one was for the complainant. He said he would bleed the dogs out. This occurred about four weeks before the end of 2019.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the conclusion of the Crown case, a number of formal admissions were made pursuant to s 644 of the Criminal Code. They included the dispatch of an ambulance to the complainant’s residence at 9.08 am on 15 January 2020; that the complainant attended a rehabilitation program between 8 November 2019 and 13 November 2019; that police attended the complainant’s residence at 9.40 am on 15 January 2020; that the attending police noticed that the complainant’s eyes were red and bloodshot, but that there were no visible marks to her neck.ConsiderationGround 1 Whether a miscarriage of justice has occurred, by reason of the conduct of the defence at trial, requires a consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial and whether there was a significant possibility that it affected the outcome of the trial.[9][9]TKWJ v The Queen (2002) 212 CLR 124 at [31]; [75]; [79]; [101]; [103] (TKWJ); Nudd v The Queen (2006) 80 ALJR 614 at [24]. In Craig v The Queen, the High Court observed:“… TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.”[10][10](2018) 264 CLR 202); [2018] HCA 13 at [23]. The rationale underlying that test, is that the task of defending an accused invariably requires the making of tactical choices, calculated at obtaining forensic advantage or avoiding forensic disadvantage.[11][11]R v Soong [2021] QCA 53 at [24]. As Gaudron J observed in TKWJ:[12]“Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.”[12]TKWJ at 135 [32]–[33]. A rational decision by counsel, which can be seen to have been a legitimate forensic choice that competent counsel could fairly make, will not give rise to a miscarriage of justice.[13][13]Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531 per Kiefel CJ, Keane and Steward JJ at [49]. The medical records available at trial included a record for the complainant’s admission to hospital on 2 November 2019, in which a nurse had recorded under “Presenting problems”, “2 weeks ago self harmed on left wrist (superficial lacerations) shows author, has gotton [sic] a tattoo over the scars.” The appellant submits that whilst it was put to the complainant in cross-examination, that the tattoo on her left wrist existed before she met the appellant, this medical record was not tendered and it was not put to the complainant that she had given such an account to a nurse on 2 November 2019. The appellant submits that these records gave a credible account, inconsistent with the complainant’s evidence; that there could be no forensic advantage in not making use of the record; and that the failure to have the record admitted into evidence gave rise to a miscarriage of justice, as it left the jury without an apparently credible account in relation to a highly prejudicial incident, which would have cast significant doubt on the complainant’s evidence, thereby undermining her general reliability and credibility.

CITATION:	R v RBL [2024] QCA 82
PARTIES:	R v RBL (appellant)
FILE NO/S:	CA No 186 of 2021 DC No 1163 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 16 July 2021 (Smith DCJA)
DELIVERED ON:	14 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2024
JUDGES:	Morrison and Boddice JJA and Cooper J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of one count of torture, three counts of common assault, and three counts of choking in a domestic setting – where the complainant claimed on one occasion the appellant cut her left wrist and the complainant had gotten a tattoo over the scar – where the complainant’s medical records demonstrate that, prior to meeting the appellant, the complainant had told a nurse that she had self-harmed her left wrist and had gotten a tattoo over the scar – where the appellant submits a miscarriage of justice was caused by the medical record not being admitted into evidence – whether there was a legitimate forensic choice by trial counsel not to make use of the record – whether failure to have the record admitted into evidence occasioned a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant submits the trial judge failed to adequately direct the jury as to the use that could be made of evidence concerning the appellant’s parole status – whether a miscarriage of justice arose from the trial judge’s explanation of the provisions of the Corrective Services Act2006 Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13, cited HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied Zhou v The Queen [2021] NSWCCA 278, applied
COUNSEL:	D Caruana and C De Marco for the appellant (pro bono) S L Dennis for the respondent
SOLICITORS:	Gilshenan & Luton Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent