R v RBL[2024] QCA 82

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Boddice JA and the order his Honour proposes.
2. [2]
   BODDICE JA:  On 16 July 2021, a jury found the appellant guilty of one count of torture, three counts of common assault, and three counts of choking in a domestic setting.  All were domestic violence offences.  The jury found the appellant not guilty of two counts of common assault, one count of suffocation in a domestic setting and one count of sexual assault.
3. [3]
   On 23 July 2021, the appellant was sentenced to 6 years’ imprisonment on the torture count and lesser concurrent periods of imprisonment for the other counts.  The conviction on the torture count was declared a conviction of a serious violent offence.
4. [4]
   The appellant appeals his convictions on two grounds.  First, a miscarriage of justice was caused by a record not being admitted into evidence, demonstrating that on 2 November 2019, the complainant had told a nurse that she had self-harmed her left wrist prior to the consultation and had got a tattoo over the scars.  Second, the trial judge erred by failing to adequately direct the jury as to the use that could be made of evidence concerning the appellant’s parole status.
5. [5]
   An application for leave to appeal the sentence was abandoned at the hearing.

Indictment

6. [6]
   The Crown presented a 14 count indictment against the appellant, containing one count of torture (count 1), six counts of common assault (counts 2, 4, 5, 7, 9 and 11), five counts of choking in a domestic setting (counts 3, 6, 8, 12 and 13), one count of suffocation in a domestic setting (count 10) and one count of sexual assault (count 14).  All were domestic violence offences.
7. [7]
   The indictment alleged that these offences were all committed on or about 15 January 2020, against the same female complainant, whilst in a domestic relationship.
8. [8]
   In the course of the trial, the Crown entered a nolle prosequi in respect of one count of common assault (count 7) and two counts of choking in a domestic setting (counts 8 and 13).

Particulars

9. [9]
   The Crown particularised count 1 as being a culmination of each of the specific counts on the indictment, or any combination of them found proven, including threats to kill and/or maim and/or disfigure and other verbal abuse.
10. [10]
    The Crown particularised count 2 as occurring when the appellant struck the complainant on her ear; count 3 as the appellant squeezing the complainant’s neck and restricting her breathing; count 4 as striking the complainant’s ears; count 5 as pulling the complainant’s hair; count 6 as squeezing the complainant’s throat and restricting her breathing; count 9 as pulling the complainant’s hair; count 10 as putting a pillow over the complainant’s face and restricting her breathing; count 11 as striking the complainant’s ears; count 12 as squeezing the complainant’s neck and restricting her breathing; and count 14 as putting the complainant’s hand on his penis, without her consent.

Evidence

Relationship

11. [11]
    The complainant gave evidence that she first met the appellant whilst an inpatient at a rehabilitation unit.  She entered the rehabilitation program in circumstances where she had recently lost her job, was drinking far too much alcohol and taking medication because of severe anxiety and depression.  There were about 12 people housed in that unit.  The appellant arrived after she had commenced the program.
12. [12]
    The complainant said the appellant discharged himself after she had completed the program.  She was concerned about him.  The appellant came to stay with her.  He had nowhere else to live.  He would spend every day at her home.  The appellant did not assist much around the house.  He spent his days watching television or swimming.  On occasions, they would go out together.  He did not pay any rent.  They commenced an intimate relationship almost immediately.
13. [13]
    The complainant described the appellant as extremely charming; funny; very kind-hearted.  However, his behaviour towards her changed a few weeks after she told him that she needed a break.  The appellant was quite needy emotionally and as he was not able to drive, he was unable to go anywhere or do anything without her assistance.
14. [14]
    The appellant started to become very paranoid.  The complainant described the appellant’s paranoid behaviours as obsessing about her phone and questioning her about telephone calls.  He would go through her text messages and emails.  He also checked the apps on her phone, including a particular app about medical appointments.  On one occasion, the complainant found that her phone was missing its SIM card.  A short while after asking him about it, the SIM card was found to be back in her phone.  The appellant said he had a camera fitted in the back garden and had bugged her phone so that he could access her texts and emails.  When the complainant looked for the cameras, she could find nothing.
15. [15]
    The complainant said that after the appellant had resumed living with her, she did not leave the house very often.  At the time she had three dogs.  The dogs stopped living at the house after the appellant laid four scalpels out on the table and said one was for each of her dogs and one was for the complainant.  He said he would bleed the dogs out.  This occurred about four weeks before the end of 2019.
16. [16]
    The complainant said they were in the backyard, on the patio.  The appellant was angry.  The complainant was extremely upset and frightened for her dogs’ lives.  She begged him not to hurt the dogs.  The appellant gave her the option of the dogs or her arm.  She gave him her arm and he cut her left wrist with a scalpel.  It was about a two and a half inch cut, not very deep.  She treated the injury at home with a first aid kit.  At a later point she had it tattooed over.  She did not want the constant reminder of it, having to look at it.^[1]  The complainant identified a photograph of the tattoo.^[2]  The tattoo depicted “Faith, hope and love”.
17. [17]
    The complainant said after that event, her relationship with the appellant was on and off.  He would come around full of remorse and in tears and say he was going to commit suicide.  That would cause her a lot of distress.  She could remember at least two occasions on which this had occurred after he had threatened the dogs.

Incident

18. [18]
    The complainant said on 14 January 2020, she invited the appellant’s mother to stay the night.  She arrived at 8.30 pm.  The appellant was outside drinking.  After his mother went to bed, the complainant watched Netflix on her phone.  The appellant remained outside.  Later, the complainant heard the appellant having an argument with the neighbour.  He became very abusive towards the neighbour, after being asked to turn down the music.
19. [19]
    The complainant said the appellant came inside the house raging.  He was very intoxicated at this stage.  She gave him his medication and told him to go to sleep.  He went into the bedroom.  At around 10.30 pm, the complainant checked on the appellant’s mother.  She did not enter her room.  She then travelled to the bedroom she was sharing with the appellant.  It was about 10.30 pm or 10.45 pm.
20. [20]
    The complainant said the appellant was lying on the bed, on his back, snoring really loudly.  She tried to move him over.  All of a sudden he sat up and started verbally abusing and shouting at the complainant.  He thought she had someone over to stay on New Year’s Eve.  He got more and more verbally aggressive.  He told her “No one fucking lies to me”.  He said he would smash in her face.  The appellant then said he was going to teach her a lesson.  He used the flat of his hand to hit the complainant as hard as he could on one ear (count 2).  He told her that was how “they perforate somebody’s eardrums in prison”.^[3]  The complainant said she had ringing in her ear and saw stars.
21. [21]
    The complainant said the appellant then put his arm around her neck so that her neck was in the crook of his elbow.  She could not breathe (count 3).  The complainant started to panic and tried to remove his arm.  She ended up scratching her face.  She then passed out.  When she came to, the appellant hit her again, in both ears (count 4).  Two pillows were placed on her face and the full weight of the appellant was put on those pillows.
22. [22]
    The appellant then pulled her back up by the hair (count 5) and again, applied pressure to her neck.  Her eyes were starting to hurt.  She passed out (count 6).  The complainant came to, lying on her back with the appellant resuscitating her, giving her mouth-to-mouth.  The complainant had wet herself.  She asked for a drink of water.  The appellant dragged her into the kitchen area.  He told her that her teeth would be taken out, with pliers; she would be tied into her car with the engine on and a hose run through the window; she would be forced into the swimming pool and held under water; and he would find her children and make sure they were eating out of tubes for the rest of their lives.  He said she would be “knocked off”.^[4]  He said her face would be hit so badly it would be unrecognisable.  She understood “knocked off” to mean he would kill her.
23. [23]
    The complainant said after she was dragged back into the bedroom and thrown onto the bed, the appellant said if she asked for another drink of water, he would put her head down the toilet and hold it down there.  He asked who had been at her property.  She told him nobody.  He straddled her and hit her again, on both ears, with both palms.  It caused ringing in her ears.  He pulled her back up by her hair into a seated position (count 9) and manoeuvred his arm around her neck and started to apply pressure again.  She could not breathe and passed out.  He continued verbally abusing, asking the same questions.  He said that time was running out for her to tell the truth.  He said there was a listening device under the bed.  She begged him not to kill her.  Again, he hit her on both ears (count 11), pulled her upright again and he put her in a chokehold until she passed out (count 12).
24. [24]
    The complainant said when she came to, she was lying on the bed.  The appellant hopped off, staggered backwards and knocked over the television.  He told her he needed to go to sleep and the only way he could sleep was if she had sex with him.  She said she could not.  He asked her to masturbate him until he went to sleep.  The appellant took her arm, put her hand around his erect penis and used his hand over her hand to masturbate himself (count 14).  The appellant then went to sleep.
25. [25]
    The complainant said that during this incident she considered ways to leave the house.  The appellant was in too much close proximity.  It did not cross her mind to wake up his mother; she had completely forgotten she was there.  The complainant said she was terrified and could not move; she just lay there.  She did not consent to any of these physical contacts.
26. [26]
    When it was starting to get light, the complainant went to the appellant’s mother’s room.  She told her what happened and the mother got out of bed and told the appellant to get up.  When the appellant came out of the bedroom, the complainant told him to get out of her house.  The appellant replied, “You’ve been telling tales, have you?  I’ll see you on the other side”.^[5]  The complainant understood his comment to mean he was going to come back and kill her.
27. [27]
    The complainant said the appellant’s mother went out to the car before the appellant left the house.  After the appellant left the house, she found her phone on the kitchen bench.  She had not tried to find it during the night as she was unsure where it was and could not get through that distance of the house.  It took her a couple of minutes to find the phone on the kitchen bench.  At that point, the appellant returned and banged on the door.  He went to her handbag to get some money, told her to find his sunglasses, which she did and then left the house again.  She does not know how much money he took from her purse.
28. [28]
    The complainant used her phone to call an ambulance.  She was physically sick.  She had a headache, her throat was sore, her chest, hand and eyes were hurting, as was her head where her hair had been pulled by the appellant.  When the ambulance arrived and she told them what happened, they telephoned the police.  When asked by the police who had done these things to her, she did not tell them it was the appellant.  She was frightened he would come back and kill her.  Later, as part of the investigation, she told police it was the appellant.  Photographs taken by police when they attended, following the incident, depicted redness to the ears and cheeks, black and swollen eyes, a scratch to her chin and redness to the jawbone.
29. [29]
    The complainant said the ambulance took her to hospital.  Later, on 4 February 2020, she attended her general practitioner.  She told him she was experiencing pain after the incident involving the appellant.  An ultrasound was conducted of her wrist.  A blood clot was identified and medication was prescribed to alleviate that condition.
30. [30]
    In cross-examination, the complainant denied that the appellant never physically assaulted her that evening.  She accepted that in none of her statements to police did she mention that she was forced to masturbate the appellant.  The complainant accepted in the initial stage of their relationship, there had been no violence.  There had, however, been intimidating and controlling behaviour.  The complainant denied that the “Faith, hope and love” tattoo on her left wrist was present when she first met the appellant.^[6]  She had the tattoo applied early in 2020.
31. [31]
    The complainant accepted that when she met the appellant, he told her he had a drug and alcohol problem.  She denied he had told her that he had spent most of his life in prison.  She agreed they would pass their days at her home lazing by the pool.  They were taking medication.  They would also drink at least a couple of bottles of wine over the course of a day and the evening.  She denied she knew that the appellant had been diagnosed with post-traumatic stress disorder.
32. [32]
    The complainant described the blows inflicted by the appellant to her ears, as extremely hard blows.  All blows were to both ears, except for the first time.  When he placed his arm around her throat, he put her neck in the crook of his elbow and used the other hand to pull across in order to constrict her neck.  He did that at least four times.  She lost consciousness on each occasion.  On one occasion, she lost bladder control.  On one occasion, the appellant put two pillows over her head.  Her face was directly underneath the pillows.  It limited her breathing.
33. [33]
    The complainant accepted that prior to meeting the appellant, she had self-harmed in the form of a cut to her wrist.  The complainant said it was a superficial scratch on one wrist,^[7] just above her wrist, on the upper inner arm, towards the elbow. The complainant said she obtained a tattoo on her left wrist, early in 2020, before the events on the night of 14 January 2020.
34. [34]
    The complainant agreed that when police arrived on 15 January 2020, she did not want to make a complaint.  She was frightened to tell police it was the appellant.  She denied she made a complaint after finding out that if she did, the appellant would be returned to prison because he was on parole.
35. [35]
    The complainant accepted that her QAS electronic ambulance report form dated 22 September 2019 recorded that she was a 50-year-old female cutting wrists and suicidal.  The complainant said there was no cutting of wrists.  The complainant accepted she had been admitted to hospital in December 2019, following a suicide attempt.  The complainant said there was a time when the complainant and the appellant were not in contact with each other.  It was only a couple of days.  The appellant came to see her whilst she was in hospital.  The appellant knew the reason she was in hospital.
36. [36]
    In re-examination, the complainant said she was diagnosed with post-traumatic stress disorder as a consequence of the events on that night.  She suffered vivid nightmares and felt terrified every day.  She found out pretty early in her relationship that the appellant was on parole.  She had to take him to his parole visits.  The attempted suicide, at the end of 2019, did not involve any injury to her wrists.
37. [37]
    The appellant’s mother gave evidence that she was at the complainant’s residence on the night of 14 January 2020.  By that stage, she had known the complainant for about nine weeks.  When she saw them that evening, she did not believe the appellant was intoxicated, but the complainant was very intoxicated.  The complainant continued to drink that evening and was getting drunker.  When they were sitting around the pool,  the complainant got very, very annoyed.  She swore a lot.  The complainant did not let up.  They all then went to bed.
38. [38]
    The appellant’s mother said she did not hear any noise, other than music, in the house that night.  She did not hear any arguments or anything being broken or pushed around.  When she awoke the next morning, the complainant looked hung over.  She did not see any marks or bruising on her face or chin.  The complainant was swearing at the appellant.  The appellant’s mother told the appellant they should go.  The appellant left whilst the complainant took the appellant’s mother into her bedroom to show her a handbag.  The appellant was waiting for her in the car.
39. [39]
    A neighbour of the complainant gave evidence that on the night of 14 January 2020, the complainant introduced her to the appellant when she went to the back fence to ask them to turn down loud music.  The appellant was very impatient and complained about something else.  He was very rude.  He swore a lot.  The neighbour told him to stop or she would call the police.  The music was then turned down.  On the following afternoon, the neighbour attended the complainant’s house.  The complainant appeared to have been crying.  She also had at least one black eye.

Aftermath

40. [40]
    Two police officers attended the complainant’s residence on the morning of 15 January 2020.  There was an ambulance already at the location.  Police had been called by the ambulance officers.  The complainant was quite upset.  She was cowering as she sat.  She had been crying.  Her eyes were red.  There was redness to the neck area, just below her jaw line, and a small laceration on her chin.  The complainant declined to identify who had done a number of things to her.  The police officer understood that a television had been damaged in the master bedroom when a person fell into the television.  He did not conduct any investigations.  He did not notice any other damage on his walk through the house.
41. [41]
    Another police officer attended the hospital at about midday on 15 January 2020.  The complainant was in the Emergency Department.  Her eyes were red.  She also had some red marks close to the jaw line.  Her ears were red and swollen, as was her right eye.  There was a scratch on her chin.  No formal complaint was made by the complainant at that time.
42. [42]
    On 16 January 2020, that police officer attended at the complainant’s address.  She assisted in the transportation of the appellant’s property to the appellant’s mother’s address.  Later that day, she became aware that a complaint was to be made by the complainant.  A statement was taken by another officer.  A second statement was taken on 23 February 2020.  Photographs were also taken of the complainant on 16 January 2020.

Medical

43. [43]
    The complainant was assessed at hospital at 1.11 pm on 15 January 2020.  The clinical notes recorded redness to both ears, a right-sided two centimetre abrasion adjacent to the eye socket, a three centimetre lineal abrasion to the jawbone, haemorrhaging to the eyes, and laryngeal tenderness on palpation and movement.  A CT scan, ordered because of concern about the tenderness in the neck and the areas of swelling around the face and ears, was normal.
44. [44]
    In the opinion of a senior staff specialist, the laryngeal tenderness on palpation and movement would be consistent with the report of strangulation in a domestic setting, secondary to choking.  The other injuries would also be consistent with reported strikes with a hand to the head.  They would have caused moderate pain and discomfort at the time.
45. [45]
    In cross-examination, the staff specialist said that whilst being struck forcefully on the ears could perforate the eardrum, it does require a very hard hit.  To describe the complainant’s injuries as consistent with the application of extreme force, would overstate the force used.^[8]  He agreed that the CT head scan revealed no internal haemorrhage or injury to the structures inside the voice box and no abnormal injury to the major neck or intracranial vessels.  Whilst you would expect something like that in a significant case of strangulation, you can have significant force around the neck without seeing a lot of sign of injury.  The neck area requires a fair amount of force to adduce obvious bruising, swelling and other injury.  A lack of air flow and oxygen can be produced without seeing a lot of external trauma.
46. [46]
    The complainant attended on her general practitioner on 4 February 2020, complaining of pain with her left thumb.  She gave a history of injuring it when she was trying to resist a person strangling her.  There was no history of any previous injury.  An ultrasound of the left wrist revealed a very small blood clot in one of the arteries in the left hand.  The general practitioner opined that the most likely cause of the clot was trauma, during the incident she described to him.
47. [47]
    In cross-examination, the general practitioner said that whilst there were other possible causes for the blood clot, he ruled them out as a blood test revealed nothing was wrong with the blood.  He first saw the complainant as a patient on 24 January 2020.  She attended asking for Diazepam.  He prescribed it based on documents he had seen from the hospital, and it was on the medication list from her previous general practitioner.

Other

48. [48]
    A forensic examination of material received from the complainant, which included clinical records as well as the complainant’s statements, was undertaken by a medical specialist.  In his opinion, whilst bruises and abrasions are caused by blunt force trauma, force can be applied to a person’s neck for a number of seconds without there being a visible injury.  That force could cause the person to lose consciousness.  A described symptom of a loss of consciousness is a loss of bladder control.  Studies have also revealed that a person may have a cause of death due to strangulation or choking, without there being any external injuries to suggest strangulation.
49. [49]
    Further, the small abrasion to the complainant’s neck could be explained by blunt force applied to the neck.  The presence of an abrasion is a finding seen in strangulation cases.  Redness, which was clinically noted to the ears, would relate to blunt force being applied to the ears.  There was also a single abrasion noted in the jaw line consistent with blunt force being applied to that area.  Swelling around the eyes can have numerous causes.  It is very non-specific.
50. [50]
    In cross-examination, the medical specialist said that whilst the complainant’s description of the strangulation described an application of blunt force to the neck, he would not necessarily anticipate visible injury in that kind of instance.  It would also be unlikely for there to be some observable injury on a CT scan.  A CT scan is not good for looking at soft tissue injuries.  Further, a blow can occur to the ear without occlusion of the ear canal.  An open handed slap does not necessarily contain focus force, sufficient to expect rupture of blood vessels, but it is possible.
51. [51]
    At the conclusion of the Crown case, a number of formal admissions were made pursuant to s 644 of the Criminal Code.  They included the dispatch of an ambulance to the complainant’s residence at 9.08 am on 15 January 2020; that the complainant attended a rehabilitation program between 8 November 2019 and 13 November 2019; that police attended the complainant’s residence at 9.40 am on 15 January 2020; that the attending police noticed that the complainant’s eyes were red and bloodshot, but that there were no visible marks to her neck.

Consideration

Ground 1

52. [52]
    Whether a miscarriage of justice has occurred, by reason of the conduct of the defence at trial, requires a consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial and whether there was a significant possibility that it affected the outcome of the trial.^[9]
53. [53]
    In Craig v The Queen, the High Court observed:

“… TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit.  The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice.  A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices.  It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.”^[10]

54. [54]
    The rationale underlying that test, is that the task of defending an accused invariably requires the making of tactical choices, calculated at obtaining forensic advantage or avoiding forensic disadvantage.^[11]
55. [55]
    As Gaudron J observed in TKWJ:^[12]

“Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision.  This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.”

56. [56]
    A rational decision by counsel, which can be seen to have been a legitimate forensic choice that competent counsel could fairly make, will not give rise to a miscarriage of justice.^[13]
57. [57]
    The medical records available at trial included a record for the complainant’s admission to hospital on 2 November 2019, in which a nurse had recorded under “Presenting problems”, “2 weeks ago self harmed on left wrist (superficial lacerations) shows author, has gotton [sic] a tattoo over the scars.”  The appellant submits that whilst it was put to the complainant in cross-examination, that the tattoo on her left wrist existed before she met the appellant, this medical record was not tendered and it was not put to the complainant that she had given such an account to a nurse on 2 November 2019.  The appellant submits that these records gave a credible account, inconsistent with the complainant’s evidence; that there could be no forensic advantage in not making use of the record; and that the failure to have the record admitted into evidence gave rise to a miscarriage of justice, as it left the jury without an apparently credible account in relation to a highly prejudicial incident, which would have cast significant doubt on the complainant’s evidence, thereby undermining her general reliability and credibility.
58. [58]
    A consideration of the transcript reveals that there was a deliberate choice by defence counsel not to cross-examine the complainant in respect of the medical records for her presentation on 2 November 2019.^[14]  Further, a consideration of that record supports a conclusion that there was a sound forensic basis for counsel to decline to cross-examine in respect of that entry.  Its contents contained other matters which may be said to have been supportive of the complainant’s overall credibility, in the context of significant underlying vulnerabilities.
59. [59]
    In any event, it cannot be said that there is a significant possibility that the failure to tender the record or, to put to the complainant the content of the nurse’s entry under “Presenting problems”, was a material irregularity inconsistent with a fair trial of the appellant or must have been “prejudicial in the sense that there was a ‘real chance’ that ‘it affected the jury’s verdict…’ or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.”^[15]
60. [60]
    Nothing in the material suggests that the complainant had only one tattoo on her left wrist.  The photograph of her left wrist reveals not only the tattoo containing “Faith hope and love”, but also a tattoo of a large dragonfly.  The complainant was not cross-examined as to whether they were the one tattoo, or tattoos placed at different times.  There was good reason not to pursue this issue.  An answer that they had been placed on her arm at different times, would have significantly undermined the thrust of the cross-examination that a tattoo already existed over a cut, at the time of the complainant’s introduction to the appellant.
61. [61]
    Further, the significance of that stated attack on the complainant’s credibility, must be viewed in the context of the other evidence, including substantial evidence of the existence of injuries consistent with the complainant’s account.  Those injuries were the subject of evidence from police as to what they observed on attendance the following day, as were photographic records and medical evidence as to their significance in the context of the complainant’s account.
62. [62]
    The appellant has not established that the failure to tender the relevant medical record or cross-examine in relation to its contents occasioned a miscarriage of justice.

Ground 2

63. [63]
    During summing up, the trial judge gave the following direction to the jury:

“Additionally, members of the jury, you will recall you heard evidence that the defendant was on parole and there was other evidence he had been imprisoned in the past.  That evidence is only relevant as part of the background evidence in this case.  It is otherwise irrelevant.  It would be unfair to speculate about it and you must not use it in any other way against the defendant.  You might also recall in this case, members – and the reason for that, of course, is we’re concerned with the charged acts.  Whatever else he has done is not relevant.  We’re looking at whether he’s committed these acts charged.  All right.”

64. [64]
    Later, the trial judge gave the following direction in relation to motive to lie:

“You might also recall in this case there were suggestions there was a motive for false complaint.  One was to get a diagnosis of PTSD to get the DSP or something like that, I think.  Another one was the defendant was on parole and she could get him locked up by making a false complaint.  Bear in mind, any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist.  If such a motive existed, the defendant may not know of it.  Sometimes, a wrong account is given for reasons we can never discover.  There may be many reasons why a person may make a false complaint.  If you are not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean the complainant is truthful.  It remains necessary for you to satisfy yourselves that she is truthful.”^[16]

65. [65]
    The appellant submits that it was incumbent upon the trial judge to further direct the jury as to the operation of particular provisions of the Corrective Services Act 2006, in respect of alleged offending by parolees; and the failure to do so deprived the appellant of a fair chance of acquittal, such that there was a miscarriage of justice.
66. [66]
    However, a consideration of the issues, at trial, supports a conclusion that the directions given by the trial judge properly apprised the jury of the limited relevance of the evidence as to the appellant’s prior imprisonment and parole status; and properly warned the jury about its impermissible use of that evidence in any reasoning process.
67. [67]
    This is particularly so when regard is had to the purpose for which this evidence was adduced by defence counsel.  It was put to the complainant that she had made a false complaint because she was aware that the consequence would be that the appellant, as a parolee, would be returned to custody.  The trial judge, in his directions about motive to lie, correctly summarised the appellant’s case in that regard.  That summary explained the effect of the provisions in the Corrective Services Act 2006, namely, that such a complaint could result in the appellant’s return to custody.
68. [68]
    The trial judge was not required to give any other direction.  Further, if the trial judge was to specifically direct the jury as to the effect of the provisions of the Corrective Services Act 2006, the trial judge would have had to direct the jury that it did not automatically follow that the making of a complaint would result in the appellant’s return to custody.  Such a direction would not have been in the defendant’s interest.  It would be contrary to the trial judge’s obligation not to “deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty”.^[17]
69. [69]
    The appellant has not established that the failure of the trial judge to explain the provisions of the Corrective Services Act 2006 deprived him of a chance of acquittal, fairly open.  There was no miscarriage of justice.

Order

70. [70]
    I would order:

1. The appeal be dismissed.

71. [71]
    COOPER J:  I agree with Boddice JA.