SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  After a trial in the District Court, the appellant was convicted of:  torturing the complainant, S, between 11 May and 18 October 2007 (count 1); unlawfully assaulting S on or about 17 September 2007 and doing her bodily harm (count 4); dangerously operating a vehicle on or about 18 September 2007 (count 5); unlawfully depriving S of her personal liberty between 13 October and 16 October 2007 (count 6); unlawfully assaulting S and doing her bodily harm on or about 14 October 2007 (count 7); unlawfully assaulting S and doing her bodily harm on or about 16 October 2007 (count 8); and unlawfully doing grievous bodily harm to S on or about 17 October 2007 (count 9). 

[2] The appellant was acquitted of count 2, unlawfully assaulting S on or about 12 May 2007 and doing her bodily harm, and count 3, raping S on or about 13 September 2007.  He was sentenced to a term of imprisonment of six years for count 1; two years imprisonment for each of counts 4, 6, 7 and 8; 12 months imprisonment for count 5; and four years imprisonment for count 9.  On count 5, he was disqualified from holding or obtaining a driver’s licence for a period of two years.  All terms were ordered to be served concurrently and the appellant was declared to be convicted of a serious violent offence in respect of counts 1 and 9.

The evidence in the Crown case

[3] S gave evidence at the trial.  She was 29 years of age; she had long-standing problems with alcohol use and was diagnosed, on her account, as manic depressive.  In May 2007, after separating from her husband, she went to a rehabilitation centre on the Gold Coast for treatment.  She left after 48 hours with a male whom she met there; subsequently, he and another man raped her in her motel room.  S attempted to commit suicide and was admitted to hospital for treatment.  On her discharge, she stayed overnight at the Nerang Caravan Park where she met the appellant, who was living with his father in a caravan there.  The next day, S went to her mother’s home in Melbourne, but the appellant made telephone contact with her and invited her to stay with him on the Gold Coast.  She accepted the invitation, and they stayed with the appellant’s father in his caravan for about three weeks.  After that, the appellant and S rented a house in Nerang.

[4] Friction entered the relationship early.  S and the appellant often visited Brett McKechnie, an acquaintance of the appellant.  (He later entered a de facto relationship with S.)  S said that in May 2007, while they were still living with the appellant’s father, she and the appellant went to Mr McKechnie’s house (so that, she volunteered, the appellant could smoke marijuana with him).  When they arrived, the appellant lunged at her as she got out of the car and pushed her, causing her to fall on concrete at the front of the house.  She landed on her right arm, breaking her right wrist. 

[5] Mr McKechnie gave evidence; he recalled an occasion when the two visited him, when he heard the noise of a car door slamming and S calling out in pain.  She was holding her arm and told him that she had fallen over drunk; she appeared to have been drinking, although she did not seem drunk.  The appellant, after some delay, took S to the Southport hospital.  S said he made her promise that she would say the injury was accidental.  The hospital notes record that S attended there on 12 May, and was found to have fractures of her little finger, her index finger and a metacarpal.  She said that the injury was the result of a box of bricks falling on her hand.  It does not seem that she made any complaint of assault in relation to the incident until 18 October 2007.  The allegation that the appellant had broken S’s wrist was the subject of count 2, assault occasioning bodily harm; he was acquitted of the charge.

[6] After moving out of the appellant’s father’s caravan, S and the appellant shared a house with another couple in Molendinar for about a month.  After that, they rented a house in Nerang.  The relationship continued to deteriorate.  According to S, there were continual arguments, during which the appellant verbally abused her, locked her out of the house and tore up her photographs and personal documents.  Once when she and the appellant were going to visit Mr McKechnie, the appellant called out to some nearby workmen, offering $10 to anyone who would take “this fat bitch, this useless [moll]”.  Mr McKechnie said he noticed, from his observation of the two over the course of time, that the appellant constantly derided S, telling her she was worthless.  On one occasion, he saw the appellant punch S in the face, and he saw S a number of times with bruising to her face and arms.  On two other occasions, he saw the appellant urinate into S’s beer bottle, and into the plastic bottle where she kept her wine. 

[7] After about two months at Nerang, the appellant and S were evicted from their rented premises.  The appellant’s father lent them a caravan, with a four wheel drive vehicle to tow it.  They became more or less itinerant, parking the caravan wherever they could find a spot.  S said that the appellant threatened to kill her and members of her family if she ever left him.  He punched her, grabbed her arms, and pulled her hair.  She was “always covered in bruises [and had] black eyes”.  S added (not in response to any question) that the appellant made her accompany him to shopping centres to steal things.

[8] In early August 2007, S, who had walked off alone after an altercation with the appellant, was knocked down and raped by a stranger.  She told the appellant of the attack; later, she said, he used the topic to goad her in arguments, telling her that she was not raped and that she had enjoyed what had happened.  After another argument in September 2007, S left the caravan and walked to the beach.  The appellant, she alleged, followed her, tackled her to the ground, and, holding her by the neck with one hand, put the fingers of his other hand in her vagina.  He then pulled her back to the caravan by the hair.  The police arrived, presumably having been called by a member of the public.  S and the appellant had both been drinking.  They were taken to the Southport watch-house and held over some hours before leaving together to walk back to the caravan.  S did not make any complaint in respect of the incident until 17 October 2007, when she spoke of it to hospital staff.  The alleged rape was the subject of count 3, of which the appellant was acquitted. 

[9] After another fight some days later, S again retreated to the beach and was again followed and tackled by the appellant.  He grabbed her bag off her shoulder and threw it in the ocean.  Then he turned her over onto her back and shoved sand into her mouth as he pinned her to the ground by sitting on her stomach.  He threatened to kill her and punched her hard on her left side, under her breast (count 4: assault occasioning bodily harm).  They went back to the caravan.  S had difficulty in breathing and was in too much pain to lie down.  The appellant refused to take her to the hospital until the next day.  In accordance with his instructions, S told the hospital staff she had fallen onto a log. 

[10]  Dr Swain, a general practitioner who held the position of clinical forensic medical officer, gave evidence for the Crown.  She was asked to review and comment on the hospital notes for S’s attendances at the Southport and Robina hospitals.  They included a note of S’s presentation to the emergency department at Southport on 18 September 2007 with an account of having had a fall.  She was diagnosed as having a rib fracture, although it did not appear on X-ray.  Dr Swain said that that injury could have been caused by being punched in the ribs, or, alternatively, it could have been caused by a fall.

[11]  An odd feature of the case was that Dr Swain was asked to read out, not only the history given on S’s many presentations to the hospitals, but also the account S gave of each of the incidents the subject of the charges to a police officer on 18 October 2007.  That was hearsay at the third remove, but no objection was taken to it.  One assumes that the appellant’s counsel thought it advantageous to have S’s differing accounts of how she came by the injuries put together to the jury in the evidence of a single witness.

[12]  On the day following her visit to the Southport hospital, S and the appellant drove, towing the caravan, to visit the appellant’s father at the Nerang Caravan Park.  While the appellant was with his father, S packed some things into a suitcase and started to walk away from the caravan park.  The appellant came after her.  He drove his car towards her, up onto the footpath, and “clipped” her right foot (count 5: dangerous operation of a vehicle).  He said he had not really meant to do it, and drove her to the Southport hospital.  The notes for 19 September 2007 indicate that she presented to the emergency department with a fracture of the second metatarsal. 

[13]  One morning, at a time which the prosecutor in his questioning identified, wrongly it seems, as around 13 or 14 October, the appellant and S were in the caravan, parked beside a road at Advancetown.  (Other evidence suggests that the ensuing events, which gave rise to counts 6 and 7, occurred on Saturday 6 and Sunday 7 October.)  The appellant accused S of ruining his life and owing him thousands of dollars, and threatened to make her work as a prostitute to pay it off.  The rest of that day and the following day he kept her confined to the caravan (count 6: deprivation of liberty).  He would not let her eat and she had to use a camping toilet in the caravan in front of him. 

[14]  While the appellant held S in the caravan, he telephoned a number of people, including her mother, asking for their support in court if S left him.  When S remonstrated with him, he punched her on the face, chest and stomach (count 7: assault constituting bodily harm).  Her nose bled, her lip was split and her eyes blackened, and she had “massive bruises everywhere”, particularly around the area of her breasts. 

[15]  On the following day, Monday, the appellant took S to visit friends of his at Molendinar.  When they arrived at the friends’ house, S ran next door and asked for help.  The neighbour, Mrs Bassett, gave evidence that S had knocked at her door asking her to ring the police because her boyfriend (the appellant) had kept her locked up in a caravan all day on Saturday and Sunday and had bashed her.  Mrs Bassett said that S had bruises to her body.  The appellant also came to Mrs Bassett’s door, saying that he had rung the police himself, because of S’s violence to him.  Another neighbour, Mrs Chaffey, came to the house at Mrs Bassett’s request.  S told her she had been beaten by the appellant and showed her a severely bruised right breast.  Other bruising was evident on the right side of her face and on her arm.  The police arrived.  (Records confirmed their attendance at the address on 8 October 2007.)  At their request, Mrs Bassett took S to the police station and from there to a Salvation Army Hostel. 

[16]  As it turned out, S did not stay at the hostel because she was not permitted to have her dog there and she was concerned that the appellant might harm it.  She said that she slept that night in the street, but under cross-examination, she agreed that she had been arrested by the police and taken to the watch-house.  She was, she said, too intoxicated to recall the detail.  She thought it was the next day that she went to the Southport Hospital, where, she said, a plaster cast was put on her foot, which had not healed, and some more of her ribs were found to be fractured.  The hospital’s emergency department notes record an attendance there a day later, on Wednesday 10 October 2007.  S complained of right-sided chest pain which she had had for three days.  She had bruises on her left jaw, her right shoulder, her right breast, the left side of her back, her left thigh, and her knees, all of which were more than 18 hours old.  She was also complaining of some tenderness in her right foot.  There was no note of rib fractures, and a chest X-ray showed nothing abnormal.

[17]  S left the hospital with the appellant to return to the caravan.  On her account, as soon as they left the hospital, the appellant started to accuse her of having been with someone else during her absence.  When they got back to the caravan, he was in a rage.  He punched her in the face, making her nose and right ear bleed (count 8: assault occasioning bodily harm).  The prosecutor suggested, and S accepted, that she left the hospital on 16 October 2007, but this seems to have mistimed events by a week.  Mrs Bassett and Mrs Chaffey said that the caravan remained parked in the street at Molendinar for the remainder of the week.  Mrs Chaffey said that on the following Thursday she heard S screaming at the appellant to stop hitting her.  Amongst the material the appellant sought to lead here is a police record of an attendance on 11 October 2007 at Mrs Chaffey’s request; by the time they arrived, S, the appellant and the caravan were gone.

[18]  The following morning, S said, the appellant was angry again.  He took hold of her hand, forcing it into a position which broke her wrist and caused her excruciating pain (count 9: grievous bodily harm).  At first he ignored her requests to be taken to hospital.  Later that day, however, the appellant had to take his father to an appointment with his general practitioner, Dr Haran, and he took S with him to see the doctor as well.  From there he took her to the Robina hospital, where she said, on instruction from the appellant, that she had fallen off a step in the caravan.  The hospital’s records show an emergency department attendance there on 17 October 2007.  An X-ray showed a fracture of both bones of the left lower arm near the wrist; one bone was fractured in multiple places.  The fracture was manipulated and the arm plastered.  Without treatment the fractures would have healed with permanent deformity of the arm.  Dr Swain, having examined the notes, said that the injury was consistent with a twisting and bending of the arm, but also with a fall onto an outstretched hand.

[19]  The attempt to backdate events from the hospital attendance on 17 October, on the mistaken premise that it followed immediately after the events which were the subject of counts 6 and 7, is probably the source of the confusion about the correct dates for those counts.  The error as to date does not seem to have been of any practical consequence for the trial, although it meant that a week of S’s time was unaccounted for.

[20]  While S was at the Robina hospital, police were called and spoke to her.  The following day, her injuries were photographed and she gave a statement as to the events which formed the basis of the charges against the appellant.

The evidence in the defence case

[21]  During cross-examination of S, the appellant’s counsel played a video tape recording in which S said that the person who had injured her was Mr McKechnie, not the appellant.  The recording, it emerged, had been made at the house of friends of the appellant, Cliff Walker and Michelle Bold.  Asked in re-examination about it, S said that she thought the recording had been made in January 2008, before the committal proceedings; although she qualified her answer: “I was really that drunk, I don’t remember”.  She had had an argument with Mr McKechnie and had gone with the appellant to the house of Ms Bold and Mr Walker.  The next morning, she said, she and Mr Walker and the appellant were “taking pills and other stuff”.  She was under the influence of ecstasy, alcohol and marijuana; while she was in that state, the appellant persuaded her to make the tape and told her what to say.

[22]  The appellant did not give evidence, but he called Ms Bold and Mr Walker in his defence.  Ms Bold explained in evidence-in-chief that she had known the appellant for a couple of years and had observed his relationship with S.  S was often drunk and she had seen her assault the appellant.  On one occasion, the appellant had shown her a gash on his arm that he had claimed S had inflicted with a bread knife.  After the relationship finished and the appellant had been charged, S often came to Mr Walker’s house asserting that the appellant was innocent and had not assaulted her; Ms Bold decided to record her making statements to that effect.  She abandoned her first attempt because S was so clearly under the influence of alcohol and pills, but she resumed the recording a couple of days later when S was sober. 

[23]  Mr Walker also gave evidence.  He said that he was not involved in the video recording.  He had seen S hitting the appellant, including on one occasion with a didgeridoo.  He saw him a couple of days after that event; he did not have a broken arm.  Two or three weeks later, he saw the appellant in a plaster cast; he said that he had hit a fridge.

[24]  The third witness for the appellant was his father, Mr Phillip Ottley.  The effect of his evidence was that S was often intoxicated and fell over a great deal, bruising herself.  He once saw her hitting his son with half a pool cue while the latter was trying to drive.  On the occasion in October on which S’s hand was injured, she told him that she had fallen out of the caravan.  She made no complaint of pain.  The appellant had put an icepack on her wrist and had taken her to the doctor.  After the appellant’s arrest, S had told him that his son had done nothing wrong.

The appeal against conviction

[25]  In his notice of appeal, the appellant set out the following by way of grounds of appeal:

“Because we have video evidence from my acuser [sic] that states I was set up and the police have said that she is known to make false accusations to police about things that have happened and all the evidence that we have was never brought up in my case.  I also still had relations with my accuser when taken out of custardy [sic].”

[26]  Here, the appellant made a number of more specific complaints: the learned trial judge had failed to direct the jury in relation to self-defence and provocation; evidence which was prejudicial to him was wrongly admitted, and the trial judge had failed to discharge the jury when prejudicial matters had inadvertently been disclosed in the Crown case; and the convictions were unsafe because S’s evidence was unreliable by reason of her alcoholism, mental illness and untruthfulness.  Through evidence given at trial, or through new evidence, it could be shown that her testimony in a number of respects was untrue and that the injuries forming the bases of some of the counts were not sustained as she claimed.

The absence of a direction on self-defence and provocation

The argument that the trial judge should have directed on self-defence and provocation is shortly dealt with.  The appellant did not give evidence, and there was no evidence in relation to any of the charged acts which raised either as an excuse. 

Prejudicial evidence

[27]  The appellant complained that evidence that S had been raped by others was prejudicial to him because it had the effect of gaining the jury’s sympathy for her.  The jury might have blamed him for the instance in which she was raped while walking alone after an argument with him.  I do not think there is any risk that the jury would have held the appellant responsible for the rapes; and indeed his counsel relied on that evidence as going some way to explain S’s instability.

[28]  More significant is the appellant’s complaint of a number of pieces of prejudicial evidence which should, he said, have led to the jury’s discharge.  They were: Mr McKechnie’s evidence that he had seen the appellant urinating into S’s drinks; S’s evidence that the appellant had asked if anyone wanted to buy her for $10; S’s evidence that the appellant had made her go to shopping centres to steal things; and S’s evidence that the appellant liked to go to Mr McKechnie’s house to smoke marijuana.  To those might be added, although the appellant did not specifically do so, S’s evidence that before the video tape was recorded, she, the appellant and Mr Walker were taking pills and S’s having mentioned in the course of her evidence that the appellant had after his arrest contacted her, in breach of his bail conditions.

[29]  The Crown relied, without any objection being taken, on Mr McKechnie’s evidence and S’s account of the appellant’s offering her for sale as contextual evidence in relation to the torture charge, revealing the appellant’s attitude to S.  There is nothing untoward in defence counsel’s forensic decision not to argue the point, and there is no occasion to revisit it now.  The remaining allegations – shop stealing, pill and marijuana use and breach of bail – seem to have been the product of S’s volubility, and they were the subject of applications for the jury to be discharged.  The learned judge exercised his discretion against discharging the jury.  I do not think any prejudice arising from those matters was of such proportions that his failure to discharge the jury can be regarded as resulting in a miscarriage of justice.

S’s reliability

[30]  The arguments the appellant made about the unreliability of S’s evidence can be divided into two categories: those which concerned her credit generally, about her accuracy as to matters of detail and timing and what were said to be her dishonest denials of bad conduct on her part; and those which went to the truthfulness of her version of the events which were the subject of particular counts.  Taking all of the arguments together, his thesis was that S’s evidence was so unreliable that no properly instructed jury acting reasonably could have convicted on it.

S’s inconsistency as to detail

[31]  The appellant sought to demonstrate inconsistencies in S’s evidence as to her previous relationships and where she had resided at particular times.  He first pointed to three statements she had made in her evidence: that she had lived in Townsville between about March 2005 and about March 2006; that she had said she moved back to Melbourne from Townsville after the break up of her marriage, but had also said that she had lived with a boyfriend in Townsville; and that she had said her experience with the boyfriend was “not pleasant”, but not violent. 

[32]  The appellant produced here a traffic record said to be S’s, showing that she was convicted of drink driving in Townsville in July 2006, and a police domestic violence occurrence sheet containing allegations by S that her boyfriend in Townsville had hit her in February 2007.  Those documents, combined with S’s own evidence, showed, he said, that she was untruthful about when she had moved back to Melbourne; about its being immediately after the break up of her marriage; and about the violence of her boyfriend in Townsville.  The appellant also asserted that S was untruthful when she said that the video tape was done in his presence; he sought to tender a document showing that he was in prison from 23 October 2007 to 28 February 2008. 

[33]  Quite apart from the fact that none of the documents constituted fresh evidence or was admissible at trial (since they concerned only collateral matters as to credit), none of the points the appellant seeks to make through their production is of real consequence or adds to what was already evident about S at trial.  Nothing turned on her relationships and residence in Townsville, and she had said herself that she had difficulty remembering when the video tape was made, because she was drunk.  It was the defence case at trial that S was an unreliable witness because of her alcoholism and impaired memory.  She was cross-examined to that effect at length; the jury was addressed extensively about it; and the learned judge reminded the jury of the submissions made about her unreliability on the summing-up. 

S’s denials of violent conduct

[34]  The appellant also sought to tender a number of documents to show that, despite her denials under cross-examination, S had behaved aggressively when she was drunk and in particular had been violent to him.  Those documents included domestic violence occurrence sheets, the contents of which, inadmissible as they were, were brought out at trial (without objection from the Crown prosecutor) through cross-examination of a police officer, who was not the author of either document.  They contained allegations that S had kicked a security screen door in and that she had advanced towards the appellant holding a knife on an occasion on 1 July 2007 when the police were called.  S had denied both allegations under cross-examination.

[35]  The appellant produced other documents in this vein.  The first was a letter from the Queensland Police Service of April 2009, indicating that his complaint had received attention and that a person had been charged “with a domestic violence related offence”; this, he said, showed that S had indeed tried to stab him.  The second was a statement from one David Marshall who said that he had seen S try to stab the appellant with a knife in August 2007, in what seems to have been a separate incident.  The third was a letter from managers at the Nerang Caravan Park about S’s bad behaviour when intoxicated; the appellant said it contradicted her denial in cross-examination of having caused problems there. 

[36]  The appellant’s attempts to tender the documents to challenge S’s denials should be rejected.  The domestic violence occurrence sheets were not probative.  They simply contained hearsay allegations, which presumably emanated from the appellant himself.  The appellant’s counsel was permitted to cross-examine a police officer at trial on them as if they were in some way authoritative, but they were not admissible then and they are not admissible now.  None of the documents the appellant now seeks to tender constitutes fresh evidence; all contain information which at best is collateral evidence as to credit, which could not have been of use at the trial, and should not be accepted here. 

S’s rib injury (count 4)

[37]  The appellant argued that the jury should not have accepted S’s evidence as to how she sustained the rib injury which was the subject of count 4.  He could not have assaulted S in the way she contended, because his right hand was in plaster from the time they left Nerang in July 2007 until his arrest in October 2007, making it impossible for him to punch her.  He asserted in his written submissions that his hand was fractured when S hit him with the didgeridoo, as Mr Walker described.  But Mr Walker did not understand the didgeridoo strike to have caused any fracture.  S denied hitting the appellant with a didgeridoo, but said that he had an injured hand in a plaster cast while they lived at Nerang.  It was not suggested to her, however, in the course of a detailed cross-examination about the events giving rise to count 4, that the appellant’s hand was still in plaster in September 2007 when those events occurred.  The only evidence about how the appellant’s hand came to be in plaster when he was arrested in October 2007, was that he told a police officer that a few days previously he had hit a tree and fractured his arm.  His point about his incapacity to punch, therefore, finds no basis in the evidence at trial.

[38]  The appellant also argued that the medical evidence was inconclusive as to the cause of the rib injury:  Dr Swain said that it could have been caused by being punched in the ribs, or by a fall.  The appellant contended that a finding beyond reasonable doubt that he was responsible for the injury was not open on that evidence.  But, of course, the jury was entitled to accept S’s own evidence, supported by the medical evidence which at least went as far as saying that her condition was consistent with being punched.  The fact that it was not unequivocal as to the cause of injury does not mean that the conviction on this count was unsafe.

S’s foot injury (count 5)

[39]  The appellant contended that he could not have run over S’s foot as she claimed (count 5), because the four wheel drive vehicle he was driving was attached to a caravan; he would have had to run it up onto an embankment, turning the vehicle at a 90 degree angle; and he had limited use of his right hand for steering because it was in plaster.  (Neither the first proposition, that the caravan was still attached to the vehicle, nor the third, that the appellant’s hand was in plaster, was established by any evidence given at the trial.)  He also sought to tender a statement from one Rochelle Buchanan who said that she had seen S with a cast on her foot, at a time when she was still living with the appellant, and S had told her that an ex-boyfriend had run over it.  There is no reason why any of that evidence, either in the form of the assertions of the appellant now makes, or Ms Buchanan’s statement, could not have been called at trial.  It should not now be received.

The deprivation of liberty and assault (counts 6 and 7)

[40]  The appellant argued that S’s evidence of the deprivation of liberty and assault which constituted counts 6 and 7 should not have been accepted, because the police officers who saw her on 8 October 2007 made no mention of her injuries, and she did not tell them she had been confined in the caravan.  He relied on another domestic violence occurrence sheet, which attributed to S a statement that the appellant had hit her with an open hand across the face.  In that report, the police officer expressed a view about S’s bruises being consistent with the appellant’s claim that they were caused when S was riding in the caravan while intoxicated.  Remarkably, the appellant’s counsel at trial was permitted to adduce evidence of that opinion through the already-mentioned cross-examination of another police officer, despite its inadmissibility on multiple bases.

[41]  It was put to S in cross-examination that she had not told the police the details of what the appellant had done.  She agreed that she had told them only “some of it”.  On the other hand, of course, Mrs Chaffey and Mrs Bassett described extensive bruising on S.  (Mrs Bassett had also said that S had complained to her of being confined to the caravan for the two preceding days; which, in the absence of any accusation of recent invention, seems to have been no more admissible than the domestic violence occurrence sheets, but at least was first-, rather than third-hand hearsay.)  The jury was entitled to act on S’s evidence, supported by the two women’s description of what they had seen of her condition, the hospital notes of 10 October describing her bruising and the photographs taken a week later.

The hand injury (count 9)

[42]  The appellant sought to tender two letters from his father’s general practitioner, Dr Haron, who examined S on 17 October 2007.  In one letter, Dr Haron expressed the view that, although he had not seen any X-ray report on S’s arm, the description given him sounded like a fracture from a fall.  He expanded: the type of fracture S had actually suffered could not be sustained in a fight; and, he added, it would be impossible for anyone with their arm in plaster to cause that kind of injury.  In a second letter, Dr Haron said that he did not believe the appellant should have been convicted on S’s “uncoroborated [sic] evidence” because of her “severe Mental Disease”.  He asserted that S’s “inability to tell the truth [was] part of her medical condition” and advised that he had given a statement to the appellant’s solicitor about the unreliability of her evidence. 

[43]  The opinions of Dr Haron are plainly not fresh evidence.  The appellant says that he wanted Dr Haron called at the trial, but his counsel refused to do so.  There seems every reason to think the refusal a legitimate forensic decision.  Dr Haron’s comment as to S’s ability to be truthful was almost certainly inadmissible, as outside his expertise; the weight of his view of the likely cause of the wrist injury was questionable, given his concession as to the limited basis of his information; and the somewhat partisan tone of his correspondence might have made counsel wonder whether he would impress as a witness.  There is no reason to go behind the decision not to call him or to admit the evidence now.

Whether the verdict is unsafe

[44]  It is worth mentioning, although it was not the subject of submissions by the appellant, the jury’s acquittal of the appellant on two counts.  Those acquittals are explicable.  In the case of the wrist injury on 12 May (count 2), S had been drinking; she did not identify the appellant as the cause of her injury either to Mr McKechnie or to hospital staff; and she did not complain of his involvement in it until October 2007.  The jury might well have given the appellant the benefit of the doubt about the quality of her recall in those circumstances, without necessarily rejecting her as a witness of credit.  Again, S did not complain of the digital rape (count 3) until a month after it allegedly occurred, and there was no physical evidence to support her complaint.  The jury once again might reasonably have given the appellant the benefit of that doubt, without regarding S as untruthful. 

[45]  The jury was given a Markuleski[1] direction by the learned judge: he instructed them that a failure to accept S’s evidence in relation to any uncharged act of violence, or a reasonable doubt as to any of the counts in the indictment, could be taken into account in considering her general truthfulness and reliability.  But it does not seem, from their remaining verdicts, that their decision to acquit on counts 2 and 3 had any implications for their preparedness generally to accept S as a witness of truth.

[46]  There was clearly cause for concern about the accuracy of S’s recollection of the detail of events, and it was obvious that she was alcoholic and frequently intoxicated over the course of them.  That was made clear to the jury; it was the subject of a good deal of cross-examination and defence counsel’s submissions; and the learned trial judge reminded the jury of those submissions during his summing-up.  He might have gone further and given a warning of the type in Bromley v The Queen,[2] but none was asked for, and the reasons for concern about S’s reliability were evident to the jury. 

[47]  The jury was instructed in these terms:

“The credibility of [S] is of crucial importance in this case.  If you cannot accept the complainant as both truthful and reliable you must acquit.  You could convict in this case only if you accept that she has given truthful and reliable evidence.”

In light of that clear direction, there is no reason to suppose that the jury members were under any misapprehension about their task.  They were entitled to accept S as a witness of truth despite inconsistencies as to detail.  Given what had emerged about the nature of her relationship with the appellant, they were entitled to set little store by her exoneration of him in the video tape.  S’s evidence as to the assaults on her was supported to some extent by Mr McKechnie’s evidence, by the medical observations of her injuries, and by the photographs of her bruises taken in October 2007.  The verdicts were open to the jury on the evidence; they were not unreasonable.

The application for leave to appeal against sentence

[48]  The applicant applied for leave to appeal against sentence, but, being preoccupied with the conviction appeal, did not assist with submissions.

[49]  During the trial, the Crown did not particularise the acts which it said comprised the torture, but the learned judge left the acts constituting each of the counts on the indictment, with two exceptions, to the jury as constituting the relevant acts.  The first exception was the assault in count 2 (on which the appellant was, in any case, acquitted) and, the second, perhaps generously, the dangerous operation of a motor vehicle, count 5 (on the basis that the resulting injury was not intentionally inflicted).  Taking, then, the counts on which the appellant was convicted, the torture consisted, over a period between 17 September 2007 and 17 October 2007, of the incident in which the appellant tackled S, pushed sand into her mouth, and punched her in the ribs; his having kept her confined to their caravan over two days; his having punched her on her face, chest and stomach, making her nose bleed, splitting her lip, blackening her eyes and causing bruising to her body; his having punched her in the face, making her nose and right ear bleed; and his having broken her wrist.

[50]  The appellant was 39 years old at the time he was sentenced.  He had some criminal history, but the only entry of real significance was a conviction for rape in 1994 for which he was sentenced to 18 months imprisonment suspended after two months.  He had taken advantage of an intoxicated 16 year old girl, while she was partially undressed having used the toilet.  He had touched her vaginal area and digitally penetrated her vagina.  She did not remember the event, and he was convicted of rape on his own confession.  He had also a traffic history in Queensland and New South Wales. 

[51]  The learned judge in sentencing the appellant on these counts accepted that the offences were committed over a limited period, of approximately one month, and that the relationship with S was a difficult one because she was an alcoholic, had significant mental health issues, abused alcohol and prescription drugs, and took illicit drugs.  At times she was irrational and antagonistic.  On the other hand, she was vulnerable and the appellant’s behaviour in belittling her was despicable.  His delay in taking her to hospital when she was in real pain was reprehensible, and his conduct in relation to count 9, the charge of grievous bodily harm, showed a particular streak of cruelty. 

[52]  The learned judge referred to R v HAC,[3] which, he said, showed that a range of eight to nine years imprisonment with a serious violent offence declaration would be appropriate.  However, he reduced the sentence to six years with the declaration, in recognition apparently of the shorter time period over which the offences constituting the torture were committed, the problems caused by S’s alcoholism and mental health issues, and the mitigating factors, including the appellant’s good employment history and his role in caring for his father.

[53] HAC was also relied on by the Crown on this application, to support the sentence imposed below.  In HAC, this Court found it necessary to reconsider a sentence imposed for torture.  The acts of torture which were committed by the appellant there, over a six month period, were set out in the judgment of Jerrard JA (with whom Williams JA and I agreed) as follows:

“• insisting that his wife eat chillies and chilli powder when Mr HAC considered she was telling lies (by denying she had an affair which he believed she had had, when separated earlier in their marriage);

• on one occasion, after she had vomited when forced to each chillies, making her eat the vomit;

• forcing her to eat chillies or powder from a glass jar, which broke, resulting in her cutting her tongue;

• insisting that she sleep outside the house, and without access to amenities such as a toilet;

• hitting and kicking her, including hitting her with a wooden slat;

• spitting on her, including in the face;

• hosing her;

•twisting her arm when it was in a plaster cast after being broken, and pouring beer into the cast;

• insisting that the children refer to her by demeaning names such as “slut”, “whore”, “moll”, and not “mother”, or “mum”, and insisting the children not show affection for her;

• pointing an unloaded rifle at her on one occasion;

• repeatedly making her search in hot weather for a hose nozzle in a paddock when wearing Wellingtons and a jumper;

• frightening her by riding a motorcycle at her, threatening to kill her; and

•generally treating her in a humiliating and abusive manner, including attempting to persuade her to engage in a sexual act with a dog.”

The appellant’s counsel had submitted that the appropriate sentencing range was six to eight years; Jerrard JA did not comment on that proposition.  The appellant was re-sentenced to imprisonment for seven and a half years with a declaration that he had been convicted of a serious violent offence.

[54]  In HAC, Jerrard JA referred to another torture case, R v B; ex parte A-G.[4]  In that case, the offender had pleaded guilty to torture of his daughter constituted by a number of offences committed against her over a period of six weeks.  They included a variety of acts of violence: punches to the face and stomach, striking her with a shovel handle, choking her, dragging her by her hair, jumping on her back and stomach, and threatening her with an axe.  The worst episode occurred when, having already been charged with some of the offences and on bail, he abducted her at knifepoint to make her withdraw her complaint.  Over the course of some hours he held a butcher’s knife to her throat, cutting her chin, stabbed her twice in the chest, kicked her in the head and upper body and jumped on her with both feet, and cut her hair and her scalp with a pocket knife.  The Attorney-General’s appeal against a sentence of seven years imprisonment with a serious violent offence declaration was dismissed.  The Court observed that a sentence towards the lower end of the applicable range was properly imposed where a serious violent offence declaration was made, and in that event the head sentence was also properly reduced to reflect the plea of guilty.

[55]  In HAC, Jerrard JA also referred to a third case involving torture.  It was R v Rankmore; ex parte A-G (Qld).[5]  It does not require discussion here.  It involved a series of events of a far worse order than those involved in HAC, R v B or here: the violence in that case included abduction, burning with an iron, threatening with a knife and rapes. 

[56]  Confining, then, the discussion to HAC and R v B, it seems to me that the factual circumstances of those cases were significantly worse than what was involved here.  There was no use in this case of weapons like the shovel handle and butcher’s knife in R v B.  Nor was there the degree of calculated sadism and perversion involved in HAC.  The appellant’s conduct here seems, as the learned sentencing judge accepted, to have been more a series of angry responses in a relationship involving some very considerable pressures, than the “debasing conduct”[6] of HAC, who, over a much longer period, seems to have revelled in the exercise of control over his unfortunate wife.  And, with respect, nothing said in HAC seems to support a view that the range in that case was eight to nine years imprisonment with a serious violent offence declaration; let alone that it provided the proper range here, where the offending acts were of a lesser order than HAC’s relentless abuse of his wife over six months. 

[57]  In my view, a proper starting point for acts of the type involved here, committed over a relatively limited period of time, might have been between five and seven years, if a serious violent offence declaration were to be imposed.  Recognising the features of this case that his Honour pointed to – the mitigating factors, such as they were, and, more particularly, the pressures he identified in the volatile relationship – a sentence at the lower end of that range should be imposed.  Separate sentences should not, in my view, have been imposed on the remaining counts (with the exception of count 5), because they collectively constituted the torture.[7]

Orders

[58]  I would dismiss the appeal against conviction.  I would allow the application for leave to appeal against sentence, and substitute for the sentence imposed on count 1 a sentence of five years imprisonment with a declaration that the appellant is convicted of a serious violent offence.  I would not interfere with the sentence of twelve months imprisonment and the disqualification from holding or obtaining a driver’s licence imposed in respect of count 5.  While maintaining the convictions on the remaining counts, I would set aside the sentences on those counts, imposing no further penalty in respect of them.  To avoid any doubt, I would declare that the appellant has already served 350 days of the sentences on counts 1 and 5, from 9 August 2008 to 24 July 2009.

[59]  MUIR JA:  I agree with the reasons of Holmes JA and with the orders she proposes.

[60]  DUTNEY J:  I agree with the reasons of Holmes JA and with the orders she proposes.