R v SDT[2022] QCA 159

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons and orders proposed by McMurdo JA.
2. [2]
   McMURDO JA:  After a six day trial by a jury in the District Court, the appellant was convicted of seven offences committed against his daughter when she was six or seven years of age.  There were two offences of common assault, two of assault occasioning bodily harm and one of grievous bodily harm, one of failing to provide the child with adequate care and most seriously, an offence of torture.
3. [3]
   He appeals against his convictions upon four grounds, three of which complain of inadequate directions by the trial judge and the other of a failure of his legal representatives to lead evidence of the medical treatment of the child which he procured during the relevant period.  The original grounds of appeal, which included a contention that “the jury’s verdict was against the weight of the evidence”, are abandoned.

The evidence at the trial

4. [4]
   The appellant had a long term partner, whom I will call S, and they had two children whom I will call A and B.  There was a period in which the couple separated, and the appellant formed a relationship with another woman.  The complainant, whom I will call C, is the child of that relationship which ended when C was about two years old, and the appellant then resumed his relationship with S.  Subsequently, C came under the care of the Department of Children Services for a period before the appellant was given custody of her and she moved to the household of the appellant, S and their two children in late 2017.  C was then six years old.  The offences were said to have been committed at various times between the end of May 2018 and early January 2019.
5. [5]
   The complainant gave evidence in the form of three recordings of her statements to police, the first of which was made at her school in October 2018 and the others at a hospital on 3 and 11 January 2019.  There was also pre-recorded evidence from her, in which she was cross-examined, which was given in October 2020.
6. [6]
   The first of those police interviews was the result of the child being at school with a black eye.  She told police that the injury was self-inflicted but said also that her half-sister, A, who was two or three years older, would scratch C’s face.  On the second and third occasions on which she spoke to police, she made the complaints which became the subject of nine charges on the indictment.
7. [7]
   Count 1 was the charge of torture, to which I will return.
8. [8]
   Count 2 charged the appellant with failing to provide adequate care to C, by failing to provide her with adequate food and accommodation, including bedding and toilet/showering facilities, and a failure to obtain medical assistance.  C told police that the appellant would discipline her by “timeout” periods, in which she was not allowed to use the toilet and had to wear nappies.  She said that she was fed only tuna and salad, and not the meals provided to A and B, and that she was required to sleep on a mattress suitable for a baby, on the floor in the hallway of the house and without a pillow or any bedding.  In her pre-recorded evidence, she said that she was not permitted to sit at the table to eat dinner with the others in the house.  She spoke of an occasion in which the appellant found her out of bed and with a piece of bread, which she was required to put back before she was sent to the bathroom, where she remained because the appellant tied the door with a rope.  Later that night, she urinated on the floor (the lavatory being in another room).  She also gave evidence of contracting headlice from using hats at her school which were kept in lost property.
9. [9]
   There were several alleged assaults, described in C’s evidence as well as by other witnesses in some cases.  There was an occasion in about June or July of 2018, when the appellant became angry with the way in which C, who was then only six, was mowing the lawn.  He was said to have dragged her away from the mower and smashed her head on the door of a garden shed.  That was count 3.
10. [10]
    The alleged assaults charged by counts 4 and 5 should be mentioned, although the appellant was acquitted on those counts.  Count 4 was an allegation that the appellant threw a tin of tuna at C, which struck her head and left a bruise.  Count 5 was alleged to have occurred in October 2018, when the appellant was said to have thrown a bundle of leaflets at C, striking her in the face and causing an injury about her eye.  That was one of several counts which alleged offences committed in the course of the family distributing leaflets in the neighbourhood, which was the source of their income.  Another was count 6, in which the appellant stopped the car in which the family was travelling, and turned around to punch C in the mouth with a closed fist causing an injury to her lip.
11. [11]
    Count 7 was a charge of doing grievous bodily harm.  It was another offence which was said to have been committed whilst the family were delivering leaflets.  It was alleged that the appellant pulled and twisted C’s arm, causing fractures of the radius and ulna.  I will return to the evidence in support of that ground when discussing the first ground of appeal.
12. [12]
    Count 8 was based upon the complainant’s evidence that, a few days before Christmas 2018, the appellant became angry as he was instructing C on how to clean the garage, when he picked her up and headbutted her.
13. [13]
    The final count, count 9, involved an incident when C said the appellant slapped her face.  On that occasion, a friend of the family who was at the house saw C’s condition, police were contacted by S, and C was taken to a hospital.  On examination, C had numerous different abrasions and bruises on her body, primarily around her face, head and arms and multiple bruises on her buttock cheeks.  Her fractured arm was then in a cast, but the area of the skin under the cast was ulcerated, indicating neglect.
14. [14]
    The appellant’s other daughter, A, was interviewed by police on 5 January 2019 and told them of some of the appellant’s conduct, consistently with C’s evidence.  She gave pre-recorded evidence which further supported the prosecution case, including evidence that the appellant would encourage her to hit C, before her mother would tell her to stop.
15. [15]
    S gave pre-recorded evidence which supported C’s evidence concerning much of the conduct which was alleged, save in respect of the two counts on which the jury acquitted the appellant.
16. [16]
    There was evidence from S’s parents, who said that C was frequently “in timeout” when they visited for as long as a couple of hours.
17. [17]
    Two of C’s teachers gave evidence of the food which C brought to school.  One of them said that she would provide C with breakfast in the morning and other food during the day.  They described C attending the school unwashed, untidy, bruised and without a jumper which they had to provide to her.
18. [18]
    The appellant gave evidence and called his sister to give evidence.  He denied each of the allegations.  As to count 7, he denied grabbing C’s arm, and suggested that C had broken her arm by falling out of bed.  His sister gave evidence that she went to the house as often as twice a week and supported the appellant’s evidence as to the food that C ate.  She did observe some injuries to C which she described as sores on her face and wrist.

The first ground of appeal

19. [19]
    By this ground, it is contended that the judge should have directed the jury as to the possible application of s 23(1)(b) of the Criminal Code, when considering count 7.  It is said that on one version of C’s evidence, there was a possibility that her arm was fractured by accident, in that the appellant did not intend or foresee that event as a possible consequence of his action and an ordinary person would not reasonably foresee it.
20. [20]
    Count 7 was particularised as follows:

“On or about 22 November 2018, the defendant twisted and/or pulled the complainant’s arm which caused a fracture. The injury amounted to grievous bodily harm.”

21. [21]
    When police spoke to C on 3 January 2019, she described an incident in which her arm was hurt, when she was in a car with the appellant, S, A and B.  She said that she had a towel in her hand and “[the appellant] goes to grab it and then he grabs my arm and then cracks it, so then it’s got pain in it and then the bone break”.^[1]  She said that B had spilt a drink in the car so that the floor behind the front seats was wet and stained.  She said that the appellant “cleaned it up and then he snatched the towel out of my hand and then got my arm and cracked it.”^[2]  She described the pain felt in her arm and being taken to have an x-ray on the following morning.^[3]  She said that it was S who took her for the x-ray and not the appellant “cause he hates waiting in doctors.”^[4]
22. [22]
    On the next occasion on which C was interviewed, which was on 11 January 2019, she described the condition of her skin which was underneath the plaster cast on her arm.  She was then asked how the arm became sore in the first place and she said:

“[M]y father cracked my arm … Ah he’s, he’s snatched, so I had the towel in my hand and then he grabbed, he got his hand and cracked it. Like and the towel as well. … I got the towel and then … he got my arm and then while he was getting the towel he cracked it.”^[5]

23. [23]
    In her pre-recorded evidence, she described being in the car with the family when B spilt some of his drink on the car floor, and the appellant and S had to stop to clean up the floor with a towel.  In response to a suggestion that the appellant “never physically touched you at all during that trip”, she answered “[n]ot physically”.^[6]  However, a little further on in the cross-examination, it was suggested to her that “[i]n the car that night [the appellant] never grabbed you at all” and specifically “[o]n the arm”, to which she answered “[h]e did”.^[7]  There then followed some evidence in which she told the cross-examiner about her x-ray and the arm being placed in a plaster cast, and there was then this evidence:

“MR FENTON:  Yes. Now, did you subsequently hurt your arm again? That arm.

HER HONOUR:  Did you get another injury to your arm at some other time?---The night when we were doing our papers, and we were about to go home. He yanked my arm because he was taking a towel out of my hands. And yes, the next morning.

And this was a different time to when you got the cast off?---It was – yes. The night when we were doing the papers.

Yes. Papers. Yes?---That was – yes. He yanked the towel out of my hand.”^[8]

24. [24]
    It is that last passage of evidence which suggested basis for the argument that the question of accident arose and required a direction to the jury.  No such direction was sought.
25. [25]
    It is submitted that the evidence in that passage indicates that he was doing no more than “yanking the towel out”, in the sense of pulling the towel out of her hand rather than applying any force to her arm.  Although there was other evidence from C that he grabbed her arm, it is submitted that it was a matter for the jury as to which version of the incident was to be accepted, and the jury might have accepted this version in which case an issue of accident arose.
26. [26]
    That argument cannot be accepted.  The passage which is relied upon is not significantly different from the other accounts given by C.  She had previously described the appellant pulling and twisting her arm which was consistent with her saying in this passage that “he yanked my arm”.  This passage was not to be considered by the jury in isolation, but instead in the context of other evidence which was markedly at odds with it.  There was no real prospect that the jury could have accepted her evidence without finding that her arm was broken when he grabbed and twisted it.  An issue of accident did not arise.

The second ground of appeal

27. [27]
    By this ground, it is contended that there was a miscarriage of justice from the fact that evidence of medical practitioners consulted by the appellant about C, and in particular, evidence of the mental health problems from which she suffered, was not led at the trial despite the request of the appellant that this occur.  In order to consider this ground, this Court received that medical evidence, as well as affidavit and oral evidence from the appellant’s trial counsel and solicitor.
28. [28]
    The medical evidence is said to have been important for two reasons.  One was to show that C had mental health difficulties causing her to have behavioural problems.  The second was to show that the appellant was frequently taking C to doctors, contrary to the prosecution case that he was a cruel or neglectful parent, with a particular importance for the charge of torture.
29. [29]
    There is an affidavit from a general practitioner, Dr Masjakin who attended to C on several occasions in a period from 6 November 2017 to 23 November 2018.  Her affidavit exhibits reports which were provided to her by two paediatricians.  The affidavit also exhibits an extensive summary of the attendances upon her.  There is also an affidavit from one of the paediatricians, Dr Davoren.  That summary, and the reports of the paediatricians, need not be discussed in detail.  They record an unhappy history of C’s behavioural problems, ADHD, reactive attachment disorder and autism spectrum disorder, as well as her anaemia and the fracture of her arm.  They also record statements by the appellant that he was concerned about her behaviour and of his difficulties in having her take the medication which was prescribed for her.  A report by Dr Davoren records his seeing C in the company of the appellant and S, and noting that C had a habit of telling lies and fabricating stories (which is something likely to have been related to him by the appellant).  In another report, he describes C as being very violent, aggressive and destructive.
30. [30]
    The patient health summary and the reports of the paediatricians were in fact provided to the District Court in 2020, in response to a subpoena served upon the general practitioner by either the Queensland Police Service or the Director of Public Prosecutions, and in turn, they were discovered amongst the material which the appellant’s present solicitor obtained from the solicitors who were retained by the appellant for his trial.  The documents bear the stamp of the Brisbane District Court Registry which, as the appellant’s present solicitor says, strongly suggests that they were provided by the Director of Public Prosecutions to the former solicitors.
31. [31]
    However according to the evidence of the appellant’s trial counsel, they were not provided to him.  In his affidavit, counsel says that if he had been briefed with these documents at the trial, he would have cross-examined “on aspects of the trips to the doctors” and that leading evidence from the general practitioner “would have been useful to show that [the appellant] was taking the child to the doctor to treat her injuries and otherwise give her medical care … [being] relevant and useful in that it showed he was acting as a loving father.”  On the other hand, said the trial counsel, the diagnosis of autism spectrum disorder “would have highlighted that the complainant was particularly vulnerable and might have induced special sympathy from the jury.”  In his oral evidence in this Court, he again said that he would have made use of the material had he seen these documents.^[9]
32. [32]
    When cross-examined, counsel identified an email from his instructing solicitor sent at 9.29 am on the second day of the trial, which was copied to another lawyer from the solicitor’s firm.  The email was as follows:

“Hey guys,

If you can handle this guy whilst I’m away I would greatly appreciate it.  Can someone tell him on I’m on leave.”

That email forwarded an email from the appellant to the solicitor at 7.16 pm on the previous evening.  The appellant’s email was as follows:

“Good afternoon Evan,

After today’s events in court, I’m asking you [to] subpoena Dr [Masjakin] … , Dr [Davoren] … and Vicky.

I understand Vicky is now residing in another city in Queensland however I am sure there’s possibility of a phone conference.

Also can you please advise whether Debbie will be giving evidence …?”

“Vicky” was an officer of the Department of Children Services and “Debbie” is the appellant’s sister who, as I have mentioned, was called in the defence case at the trial.

33. [33]
    On the third day of the trial, the appellant handed to his counsel a letter which was intended to withdraw his instructions to his counsel and solicitor.  The letter complained that his instructions “for documentation and people to be subpoenaed” had not been followed.  He complained that his solicitor was absent from the trial and that in his place was someone from the firm who was “hopeless”.  He wrote:

“You’re allowing DDP and their witnesses to make out I’m some monster, the jury is [being] told I’m this violent person who shouldn’t be near women and/or children and you’re not allowing me the opportunity to defend that, by bringing in the people I’ve instructed you to subpoena.  Yes they might not be able to bring in anything new, but they would be able to paint a different picture of me to the jury.

On the grounds that I feel that you’re not listening to my instructions which leads me to feel I’m not getting a fair trial, and the communication has been lacking. … I don’t think its appropriate to be sending in a “fill in” or a paralegal to do my lawyer’s job especially at trial when I have questions or [am] needing something explained and there’s no one there adequate to ask or to help me.”

34. [34]
    The appellant’s counsel said that he then understood the reference to the subpoena to be a subpoena for the file of the Department of Child Safety.  He said that he understood the reference to “not listening to his instructions” to be his discussions with the appellant about certain other witnesses.
35. [35]
    Counsel then told the trial judge that his instructions had been withdrawn.  However after being questioned by the trial judge, the appellant changed his mind and he then sent an email to his solicitors asking that counsel, and the paralegal who was instructing counsel, continue to represent him.  Counsel’s evidence is that he has no memory of the appellant instructing him to call Dr Masjakin or Dr Davoren at any time.
36. [36]
    The appellant’s complaint is that his lawyers for the trial disregarded his instructions to call evidence from the two doctors in circumstances where that evidence had been disclosed by the DPP to the solicitor, the relevant documents from the doctors were on the solicitor’s file but not briefed to counsel or made known to him or the appellant, and the evidence contained within them would have been used at the trial had counsel known of the documents.  The question is whether those circumstances, each of which is established, considered with the evidence which was given at the trial, resulted in a miscarriage of justice in the terms of s 668E(1) of the Criminal Code.
37. [37]
    Where an appellant seeks to present evidence which was not tendered at the trial, there is an important distinction between fresh evidence and new evidence.  Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.  New evidence is further evidence which is not fresh evidence.  Clearly, this is not fresh evidence.
38. [38]
    Where the further evidence, be it fresh or new evidence, would have had the effect of demonstrating the accused’s innocence or at least precluding a finding of guilt, then there will be a demonstrated miscarriage of justice which requires the conviction to be set aside and an acquittal to be substituted for it.
39. [39]
    It is where the further evidence would not have had that effect that the distinction between fresh and new evidence might become relevant.  If it is fresh evidence, and the appellate court considers that there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial, a miscarriage of justice will be demonstrated, requiring the conviction to be set aside and a re-trial to be ordered.
40. [40]
    The question of law which is raised in this case is whether the absence at the trial of evidence which is not fresh evidence can ever occasion a miscarriage of justice which, whilst not requiring an acquittal, may require a re-trial.
41. [41]
    The reasons for the distinction between fresh and new evidence were explained by Barwick CJ in Ratten v The Queen^[10] as follows:

“There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial.

It will be observed that I have limited the last of these instances of miscarriage to the case of the production of evidence not available to the appellant at his trial. The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence.

… [I]f the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. … [H]e must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted.”

(Emphasis added.)

42. [42]
    Similarly, in Lawless v The Queen,^[11] Mason J said:

“However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.  After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial.”

(Emphasis added.)

43. [43]
    The submissions for the appellant rely upon this Court’s judgment in R v Spina,^[12] as authority for the proposition that the Court may act upon further evidence which is not fresh evidence to order a new trial where there has been a miscarriage of justice.  McMurdo P (with whom the other judges agreed) there said:^[13]

“[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence.

[33] In determining whether to allow an appeal against conviction based on fresh evidence, the test is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted. See Gallagher v The Queen and Mickelberg v The Queen.

[34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.”

(Footnotes omitted.)

44. [44]
    As the submissions for the appellant point out, a more restricted view was expressed in R v Hodges,^[14] where Philippides JA (with whom the other judges agreed) said:

“[21] In Ratten v The Queen and Lawless v The Queen, the High Court authoritatively stated the principles to be applied in dealing with an appeal against conviction on the ground that a miscarriage of justice occurred based on further evidence not given at trial. They are:

1. Firstly, when the evidence not called at trial (whether or not it be fresh evidence in the strict sense of that expression), taken in conjunction with other evidence tendered at trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright.
2. Secondly, in the case of fresh evidence only (being evidence of which the accused was unaware at the time of trial and which could not have been discovered with reasonable diligence), although innocence or reasonable doubt of guilt is not demonstrated, if it “shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial”.
3. In both types of cases, the appropriate approach is to consider the proposed evidence in conjunction with the evidence tendered at the trial and whether it reveals a miscarriage of justice because it would be unsound or unsatisfactory to allow the conviction to stand. The miscarriage of justice arises in the first type of case because the appellant should be acquitted. In the second type of case (which can only arise where the evidence sought to be adduced is fresh evidence) because “there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence”.
4. Accordingly, in the case of proposed evidence that is new evidence (being such as was available or could with reasonable diligence have become available) which “reveals no more than a likelihood that the jury would have returned a verdict of not guilty” and thus “falls short of establishing that the accused should not have been convicted”, it is not permissible for an appellate court to set aside a conviction. There is no miscarriage of justice in an unimpeachable verdict of guilty being allowed to stand where the new evidence “leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so”, the failure to adduce that evidence lying with the accused.”

(Footnotes omitted, emphasis added.)

45. [45]
    Yet in Hodges, the judgment in Spina was said to accord with the principles relevantly stated in Hodges.  In that fourth paragraph, Philippides JA considered that the President’s reference in Spina “to the residual discretion ought to be understood as a reference to the category of case where the proposed evidence is such as to show there has been a miscarriage of justice because the accused should be acquitted as the jury’s verdict is not reasonably open.”^[15]  That cannot be accepted.  The residual discretion describes a power to set aside a conviction and order a re-trial where the evidence is not fresh evidence, if to refuse to do so would result in a miscarriage of justice.
46. [46]
    To the same effect, in 2013, when giving the principal judgment in R v VI,^[16] McMurdo P (with whom the other judges agreed) said:

“[66] If the evidence is fresh, in determining whether to allow the appeal the Court must ask whether the appellant has established that there is a significant possibility that, in the light of all the admissible evidence at trial together with the fresh evidence, a jury acting reasonably would have acquitted the appellant. If the evidence is merely new or further evidence, the application to adduce it may be refused. This is for two reasons. The first is to prevent a defendant from deliberately withholding evidence at trial so that, if convicted, it can be used in a re-trial conducted on a different basis. The second is that the community interest in the finality of litigation requires that there must be powerful reasons for disturbing a conviction obtained after a regularly conducted trial beyond a defendant choosing not to call particular evidence at trial. That said, there remains a residual discretion in exceptional cases to receive new or further evidence if to refuse to do so would lead to a miscarriage of justice. The principles governing the reception of new and fresh evidence are not to be treated as inflexible rules strictly binding appellate courts, particularly in criminal cases.”

(Footnotes omitted, emphasis added.)

47. [47]
    The President there cited R v Condren; Ex parte Attorney-General (Qld),^[17] R v Young (No 2),^[18] R v Main; Ex parte Attorney-General (Qld)^[19] and R v Katsidis; Ex parte Attorney-General (Qld).^[20]  Those cases were references to the Court under s 672A of the Criminal Code, by which they were to be “heard and determined by this Court as in the case of an appeal by a person convicted”. 
48. [48]
    In Young, the Court of Criminal Appeal (Douglas, WB Campbell and Matthews JJ) held that the principles governing the admissibility of further evidence: ^[21]

“…although applicable to both civil and criminal trials, are, as said by Latham CJ (in Green v The King (1939) 61 CLR 167 at p 175) ‘related to the subject of miscarriage of justice’ and ‘should not, particularly in the Court of Criminal Appeal, be regarded as absolute or hard and fast rules’.”

The Court quoted from the “tentatively expressed” view of Gibbs J, sitting in the Court of Criminal Appeal in R v Plomp,^[22] as follows:

“In the view that I take of the case, it is not necessary to decide whether we should apply the ordinary principle and refuse a new trial unless it is shown that the fresh evidence could not by reasonable diligence have been produced at the trial, although if it mattered I should incline to the opinion that, in spite of what was said in Aylett v R [1956] Tas SR 74, we should follow R v McGrath [1949] 2 All ER 495, R v Collins (1950) 34 Cr App R 146 and R v Sparkes (1956) 40 Cr App R 83 and hold that the court on a reference such as this has a discretion to depart from the ordinary rule if there is reason to think that to be bound by it might lead to injustice or the appearance of injustice.”

49. [49]
    The judgment in Young, given in 1969, predated the High Court’s judgments in Ratten and Lawless.  However that remained the view of the Court of Criminal Appeal in Condren, which was decided in 1990.  The principal judgment was given by Thomas J who referred to the High Court’s judgment in the previous year in Mickelberg v The Queen,^[23] as demonstrating “a somewhat stricter approach” to the admission of further evidence than was apparent from Young.  Nevertheless Thomas J said:^[24]

“It may be noted that the existence of a “latitude” is conceded, and the decisions of Mickelberg and Young may be reconciled on the footing that prima facie the usual rules governing the reception of fresh evidence should be followed, but there is a residual discretion in the Court to receive such evidence (even if it fails to satisfy the usual tests) where to refuse to do so would lead to a miscarriage of justice. Such cases would be exceptional, although R v Young (No 2) affords an illustration of a case where the Court was in some doubt whether the usual rules could be satisfied, but was in no doubt that the additional evidence made it necessary that the conviction be quashed.”

50. [50]
    In Main, McMurdo P (with whom Pincus JA agreed) citing Condren, held that although the usual rules governing the reception of further evidence should be followed, there was a residual discretion in the Court to receive such evidence.^[25]
51. [51]
    In Katsidis, the application was dismissed by unanimous decision of a Court comprising McMurdo P, Jerrard JA and White J.  In her judgment, McMurdo P adhered to her view that there was a residual discretion in exceptional cases to receive on appeal new or further evidence which is not fresh evidence if to refuse to do so would lead to a miscarriage of justice.^[26]  However Jerrard JA (with whom White J agreed) expressed a different view.  His Honour discussed the judgments in Ratten and Lawless to which I have referred, and the judgment of Toohey and Gaudron JJ in Mickelberg v The Queen,^[27] together with the Queensland judgments in Young (No 2), Condren and Main.  Without saying that the Queensland judgments were irreconcilable with those in the High Court, Jerrard JA said:

“[19] It is clear from the reasoning in the authoritative judgments cited that it is considered or assumed harder to satisfy an appeal court hearing new evidence of innocence, or cause it to have such a doubt that a verdict of guilty cannot stand, than it is to show that there is a significant possibility that a jury hearing that new evidence would have reached a different verdict. It is also clear that a Court of Appeal considering the effect of new evidence, which is not fresh, must consider the trial, not as a contest between adversaries, but (in a criminal proceeding) as the only accepted method of proving actual guilt beyond reasonable doubt, namely, by a properly conducted trial hearing admissible evidence. If a conclusion of guilt is still reasonably open, even accepting non-fresh evidence as true, a miscarriage of justice has not been shown. On the other hand, a Court of Appeal considering the potential effect of fresh evidence on a jury verdict must consider the trial as a contest between adversaries of whom one has had to compete with a weapon hidden from her or his view and grasp when there is a significant possibility that, had it been available, using it would be likely to have changed the result. It is no answer to say, where there is credible fresh evidence, that it would still have been reasonably open to the jury to convict; the contest has not been fair.”

52. [52]
    That passage from Katsidis was cited by Fraser JA (with whom the other members of the Court agreed) in R v Davidson.^[28]  However, importantly, Fraser JA there said that it was “in the particular circumstances of this case” that it was not sufficient for the appellant to establish only a significant possibility that if the new evidence had been adduced at the trial the jury would have reached a different verdict.
53. [53]
    In 2017 in R v HBR,^[29] this Court (Gotterson and Morrison JJA and Mullins J) said that in an exceptional case the Court has a discretion to receive new or further evidence, where to refuse to do so would result in a miscarriage of justice, in the sense that it can be shown that there was a significant possibility that a jury hearing the new evidence would have reached a different view.^[30]  That statement was held to be erroneous by Philippides JA (with the agreement of the other judges) in Hodges.^[31]
54. [54]
    However, most recently, in R v Stephens,^[32] Fraser JA (with whom Brown J and I agreed) said:^[33]

“An application to adduce further evidence on appeal may be refused if the evidence did exist at the time of the trial, or it could with reasonable diligence have been discovered then by the party seeking to adduce it, but the Court retains a residual discretion to receive further evidence if that is necessary to avoid a miscarriage of justice.”^[34]

55. [55]
    I have not discussed every case in which this Court has cited Spina and Hodges.  However it may fairly be said that the predominant view of this Court and before it, the Queensland Court of Criminal Appeal, has been that there is a “residual discretion”, an expression which can be traced at least to the judgment of Gibbs J in Plomp.  In Hodges, there was a misunderstanding of what constituted the residual discretion which was referred to in Spina and this may have contributed to the restricted view which was there expressed.
56. [56]
    It is true, as was said in Hodges, that the majority opinion in Katsidis was inconsistent with such a residual discretion.  In my respectful opinion, that view resulted from an interpretation of the statements in Ratten and Lawless which was not entirely correct, as I will explain.
57. [57]
    The statutory ground of appeal here is that there was a miscarriage of justice, and it is that ground which defines the issue to be decided.  In Nudd v The Queen,^[35] Gleeson CJ said that “[t]he concept of miscarriage of justice is as wide as the potential for error” and that “[i]ndeed, it is wider; for not all miscarriages involve error.”
58. [58]
    Miscarriage of justice is not a defined term in the common statutory provision governing criminal appeals, such as s 668E; its meaning has been developed by decided cases.  In cases such as the present, it refers to an unfairness in the trial, and its existence must be assessed by reference to the nature of a criminal trial of which in Nudd, Gleeson CJ said:^[36]

“A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.”

Similarly, in his judgment in TKWJ v The Queen,^[37] Gleeson CJ said:

“Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind.”

59. [59]
    Those principles, of course, have no particular relevance to a miscarriage of justice resulting from the jury not having heard evidence which is fresh evidence.  Their relevance is to evidence which was available at the trial.  In general, the adversarial nature of criminal litigation and the role of defence counsel will have the consequence that a failure to call evidence, which might have resulted in an acquittal, will not make the trial unfair and result in a miscarriage of justice.
60. [60]
    In Ratten, Barwick CJ explained why there will be no unfair trial where the accused “of his own volition” has not called evidence which was available to him, and to the same effect, Mason J in Lawless referred to the “deliberate choice” of the accused not to call the evidence in question.  The principle expressed in those statements extends to the deliberate choices of trial counsel.
61. [61]
    Nevertheless there will be cases where a failure to call evidence which was available to the accused will result in a miscarriage of justice, and that is a frequent complaint by appellants of a miscarriage of justice upon what is frequently, although inaccurately, described as a ground of the incompetence of counsel.  Such a complaint was made by the appellant in TKWJ, whose appeal failed not because the evidence in question was available to him,^[38] but because the failure to call the evidence was the result of a decision by his counsel that, viewed objectively, was a rational one.^[39]
62. [62]
    In Ratten, Barwick CJ was careful to say that there will be no miscarriage simply because available evidence was not called which might have made a difference.  TKWJ may have been an example of such a case.  The Chief Justice did not say that it was never permissible for a court to set aside a conviction where there were other circumstances.
63. [63]
    In the present case, the appellant gave express instructions for evidence to be given by Dr Masjakin and Dr Davoren.  They were not acted upon.  The solicitor left counsel to respond to those instructions.  Counsel did not respond to them and it is to be inferred that he decided that the better course was not to call that evidence.  That was not a decision made with the benefit of the documents which the solicitor held.  With the benefit of those documents, counsel now says that he would have used the evidence which they contained.  He does not seek to explain his failure to do so other than by his being unaware of its existence.
64. [64]
    It is then necessary to consider what could have been the benefit of adducing this evidence, and what, if anything, on an objective view could have been a rational explanation for not doing so.
65. [65]
    Counsel says that he was concerned about the prospect of the jury hearing of the child’s various disorders, because of the potential for the jury already to be sympathetic towards her.  It may be said that this was a relevant consideration.  However the jury already had evidence of the child’s unhappy life before coming to this household, and of her evident difficulties in living with her new family, which would have engendered a considerable degree of sympathy from the jury, to which the medical evidence of her specific disorders may not have added much.
66. [66]
    The potential benefit for the appellant from this medical evidence being put before the jury was in showing that the appellant was frequently taking C for medical attention and engaging with the doctors as a responsible parent would do.  The evidence could well have substantially detracted from a view of the appellant as a cruel parent who would intentionally inflict severe pain and suffering upon his daughter.
67. [67]
    The evidence was not of such value that it would have compelled verdicts of acquittal.  But it was sufficiently beneficial to provide sound reasons for it to be tendered, and there was no real disadvantage in doing so.  The evidence as represented by these documents was such that there could have been no rational explanation for not tendering it.
68. [68]
    The question is then whether there was a sufficient prospect that the outcome would have been different had it been tendered for its absence to have resulted in a miscarriage of justice.
69. [69]
    In Gallagher v The Queen,^[40] Mason and Deane JJ said that an appellate court will conclude that the unavailability of new evidence at the time of the trial involved a miscarriage of justice if, and only if, it considers that there is “a significant possibility” that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.  Their Honours added that that question could only be answered in the context of by reference to the probative force and the nature of the evidence already adduced at the trial.^[41]
70. [70]
    In the same case, Gibbs CJ said:^[42]

“It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ. who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.”

71. [71]
    To a similar effect, in Nudd,^[43] Gleeson CJ quoted from the judgment of O'Connor J in Strickland v Washington:^[44]

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

72. [72]
    This ground of appeal challenges only the conviction on the charge of torture.^[45]  The jury would have seen less relevance in this evidence to the other charges.  The prosecution case was a strong one, the evidence of C being supported, for the most part, by other evidence.  Yet as the appellant’s argument emphasises, this further evidence could well have been critical to the outcome on the charge of torture, because of its impact upon whether the jury could be satisfied of the element of intent for that charge.  The jury could well have been left in doubt that the appellant intended to inflict severe pain or suffering upon C.
73. [73]
    In my conclusion, the jury might reasonably have reached a different verdict on the charge of torture if this evidence had been given at the trial.  Put another way, there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it.  The appellant was not in any way responsible for the evidence not being tendered and, on an objective view, there was no rational explanation for not doing so.  A miscarriage of justice resulted.

The third and fourth grounds of appeal

74. [74]
    The remaining grounds may be dealt with briefly.  They involve complaints that the trial judge failed to give necessary directions to the jury, and neither ground should be accepted. 
75. [75]
    Ground 3 complains that the judge failed to direct the jury in accordance with this Court’s judgment in R v Ping.^[46]  That was a case involving a series of assaults, by the skipper of a prawn trawler on an inexperienced deckhand in circumstances where the assailant was dissatisfied with the deckhand’s performance of his duties.  The Court concluded that the jury had not been sufficiently directed as to the elements of the offence of torture because the jury had not been directed that they had to be satisfied, beyond reasonable doubt, that the assaults were not the result of episodic anger but were part of a pattern or design, the purpose of which was to inflict severe mental suffering.^[47]  In that case, all that the trial judge had said was that:

“The prosecution must also prove that the accused man intentionally inflicted the severe psychological, mental or emotional pain and suffering on him. Those are essential elements of the offence of torture which must be proved if a person is to be found guilty of that offence.”

In the Court’s view that did not sufficiently inform the jury of the necessity to find that the assaults were committed with the purpose of inflicting severe mental suffering, as the prosecution had alleged in that case.

76. [76]
    Factually, the present case is different, and further, the jury were given proper and complete instructions as to the element of intent for this charge.  The judge here said:

“So that the defendant intends his acts to inflict severe pain or suffering upon the complainant means that it is not enough that such suffering is the consequence of his acts and that the acts were deliberate. The prosecution must prove an actual subjective intention on his part to cause severe pain or suffering by his conduct. The acts in question must have that pain and suffering as their design or object. It must be the intended consequence of the action.

The prosecution must prove that the defendant consciously decided that the complainant should suffer severe pain or suffering – by his actions.”

77. [77]
    The fourth ground of appeal is that the jury should have been warned by the judge against placing too much weight on the photographic evidence of C’s injuries, in circumstances where there was evidence that C had self-harmed and had also been harmed by her sister.
78. [78]
    There was evidence of C’s self-harm and that her sister had assaulted her.  In my opinion, the jury did not need to be warned as this ground suggests.  Defence counsel addressed the jury on the evidence of assaults by the sister from which it could be seen that some of the injuries shown in the photographs, he argued, had been so caused.  He also reminded the jury of the evidence from the sister that C was self-harming.  It was unnecessary to repeat those references in the course of the summing up.  Understandably no such warning was sought by the appellant’s counsel.  Ground 4 could not be accepted.

Conclusion and order

79. [79]
    A miscarriage of justice affecting the conviction on count 1, the offence of torture, is established.  That conviction should be set aside and a re-trial ordered.  The appeal should otherwise be dismissed.

80. [80]
    BODDICE J:  I have had the considerable advantage of reading the draft reasons for judgment of McMurdo JA.
81. [81]
    McMurdo JA’s comprehensive analysis of the evidence and relevant legal principles, which I gratefully adopt, allows me to briefly state my reasons for allowing the appeal, setting aside each of the convictions on counts 1, 2, 3, 6, 7, 8 and 9 and ordering a retrial in respect of each count.
82. [82]
    I agree, for the reasons given by McMurdo JA, that the medical evidence which the appellant’s legal representatives failed to lead was of such significance that there is a reasonable probability that, had it been led, the result of the proceeding on count 1 would have been different.  That probability was sufficient to undermine confidence in the outcome.
83. [83]
    In my view, that evidence also undermined confidence in the outcomes on counts 2, 3, 6, 7, 8 and 9.
84. [84]
    Whilst I agree the prosecution case in respect of those counts was strong, with the child’s evidence, in large measure being supported by other evidence, the prosecution case was premised on these offences having been committed by a cruel parent who intentionally inflicted severe pain and suffering upon the child.
85. [85]
    In circumstances where the jury acquitted on two counts and there was a basis for the jury to pay careful attention to the child’s evidence in respect of the remaining counts, there is a reasonable probability that had the relevant medical evidence been led before the jury, the result of the proceeding in respect of the remaining counts would have been different.  That probability is sufficient to undermine confidence in the outcome in respect of each count.
86. [86]
    The concession by the appellant’s counsel, as to the medical evidence being relevant to intention in count 1 and not the cruelty in count 2, was made in the context of the prosecution not ultimately having led any evidence of a failure to get medical care in respect of the particularised acts in count 2.^[48]
87. [87]
    Notwithstanding that concession, the medical evidence that was not led was relevant to the overall case advanced by the prosecution in respect of the remaining counts.
88. [88]
    In respect of the other grounds of appeal, I agree, for the reasons given by McMurdo JA, that none of those grounds are made out.
89. [89]
    I would order:

1. The appeal be allowed.
2. Each of the convictions on counts 1, 2, 3, 6, 7, 8 and 9 be set aside.
3. There be a retrial ordered on each count.