R v GBS[2025] QCA 125

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Burns J.
2. [2]
   BRADLEY JA:  I agree with the reasons of Burns J and the orders his Honour proposes.
3. [3]
   BURNS J:  The appellant’s trial in the District Court at Townsville on an indictment alleging four counts of rape and one count of sexual assault commenced on 5 November 2024. On 8 November 2024, the jury found him guilty of three counts of rape (counts 1, 2 and 3) but not guilty of the remaining count of rape (count 4) as well as the sexual assault count (count 5).
4. [4]
   The appellant appeals against his convictions on the following grounds:

Ground 1

That a miscarriage of justice was occasioned by:

1. the prosecutor’s failure to disclose a file note of a pre-trial conference with the complainant until after the commencement of defence counsel’s cross-examination of the complainant; and
2. the learned trial judge’s subsequent failure to discharge the jury at the request of defence counsel.

Ground 2

That a miscarriage of justice was occasioned because of the prosecutor’s irregular communication with the complainant whilst under cross-examination.

Ground 3

That the verdicts of guilty were unreasonable as they were:

1. inconsistent with the concurrent acquittals; and

2. cannot be supported having regard to the evidence as a whole.

The Trial

5. [5]
   Each of the alleged offences was said to have occurred during a single course of conduct at the appellant’s residence in Mount Isa during the early hours of 16 October 2021. The complainant, an adult woman, moved to Mount Isa in September 2021 and took up employment. She was residing with her aunt at the time of the alleged offences.
6. [6]
   The complainant first met the appellant at her aunt’s home on the previous evening (15 October 2021). The complainant, her aunt, her uncle and the appellant gathered there for drinks before leaving at around 11.30 pm to attend a club in town. After arriving at the club, the group decided on a different venue, a nearby hotel. While at the hotel, the appellant and the complainant got along well and were said to have been flirting with each other. At around 1.30 am, the group left the hotel but, although the complainant’s aunt and uncle returned home, the complainant agreed to go with the appellant to his house. The complainant anticipated she would probably engage in consensual sexual intercourse with him.
7. [7]
   It was uncontroversial that consensual acts of oral sex and vaginal intercourse subsequently took place. However, the indictment was founded on four acts of anal penetration and one act of ejaculation which the complainant said in evidence occurred without her consent. These acts were particularised by the Crown as follows:

“Count 1: Rape

The first time in the bedroom

The [appellant] inserted his penis into the complainant’s anus, without her consent.

Count 2: Rape

The time in the bedroom after the lubricant was applied

The [appellant] inserted his penis into the complainant’s anus, without her consent.

Count 3: Rape

The time he was switching between penetrating her vagina and anus in the bedroom

The [appellant] inserted his penis into the complainant’s anus, without her consent.

Count 4: Rape

The time he was switching between penetrating her vagina and anus in the living room

The [appellant] inserted his penis into the complainant’s anus, without her consent.

Count 5: Sexual assault

The [appellant] ejaculated on the complainant’s face, without her consent.”

8. [8]
   Six witnesses were called in the Crown case – the complainant, her aunt, her uncle, her mother, a medical practitioner, and the arresting officer. The appellant did not give or call any evidence.

Count 1

9. [9]
   The complainant said in evidence that, after arriving at the appellant’s house, he performed oral sex on her, after which they had consensual vaginal intercourse in the appellant’s study and, later, in his bedroom. The complainant said that after what she estimated to be between five and 10 minutes in the bedroom, the appellant removed his penis from her vagina and penetrated her anus “a little bit”. She believed this to be to a depth of one to two centimetres. She recalled in evidence this was “quite painful”, and that she pushed the appellant away as her body “locked up” and said, “no”. The complainant told him she did not like “anal” and did not “want to do it”. The appellant stopped. The Crown case which was evidently accepted by the jury beyond reasonable doubt was that there was neither prior agreement nor explicit consent for this act.

Count 2

10. [10]
    According to the complainant, the appellant then poured some lubricant over the area of her vagina. She recalled the appellant saying, “Just relax. It’s only going to hurt a little bit. You’ll feel good in one moment”. The complainant said “no”, but the appellant again penetrated her anus. This act was described by the complainant as “full penetration” and was estimated by her to last for about “five or 10 minutes”. She expressed pain and unsuccessfully attempted to move away. The complainant said in evidence she did not consent to this “second act of anal intercourse”. 

Count 3

11. [11]
    The complainant said that, after the appellant removed his penis from her anus, he “went to penetrate my vagina”. According to her:

“I did say ‘no’ to that one, as well, as he wasn’t wearing any protection, um, and I didn’t want to risk getting any infections or anything with that. Um, however, he still proceeded with penetrating my vagina.”

12. [12]
    The complainant said that, after the appellant penetrated her vagina on this occasion, he started to “swap” between her vagina and her anus. She did not consent to this. She said the penetration of her anus on this occasion was “very painful”, that her “body was slightly locking up” and that she was “very rigid and [her] muscles were very tense”. She estimated this occurred about 30 minutes after the appellant first penetrated her anus. At this point, the complainant altered her body language to feign enjoyment by trying to relax her body and verbally encouraging the appellant to “finish”. She gave this explanation for why she acted in this way:

“Um, well, at the time, my thought process was that I’d obviously said ‘no’, and that hadn’t worked. I had said ‘no’ multiple times and it wasn’t working, so I had tried to encourage him to finish quickly so that it would be over and done with a lot faster.

…

I wanted to get out of the situation as quick as possible, but I’m not a confrontational person and I didn’t want any conflict, so – and I’ve obviously said ‘no’, and the best way to get it finished was for him to finish.

…

I was, um, like, pretending to moan and say it felt good, or something to those lines, for him to hurry up and finish in those sorts of ways. Um, yeah.”

13. [13]
    However, as the complainant put it, “that didn’t work”, so she told the appellant she needed to go to the toilet. She got up, went to the bathroom and sat inside for about five minutes. On her return, she put her underpants back on, asked for a t-shirt to wear and told the appellant she needed to go to sleep as she had work that morning. The complainant walked from the bedroom to the living room where she lay down on a mattress and started to “doze off”.
14. [14]
    I interpolate that, when cross-examined about the acts said to constitute counts 1 to 3, the complainant accepted that the decision she made to pretend that she was “into it” in the ways described above (at [12]) was not only engaged in by her in relation to the act constituting count 3, it was also engaged in with respect to the act constituting count 2. Also, in the case of count 2, the complainant said the appellant withdrew of his own accord. She also confirmed that the penetration of her vagina immediately prior to the act relied on by the Crown to constitute count 3 took place without her consent.

Count 4

15. [15]
    As the complainant was falling asleep, the appellant entered the living room and took up a position beside her. According to the complainant, he put his penis “in [her] face” and, at the same time, put his hand in her hair to move her head towards him “to give him oral”. The complainant then performed fellatio. This act, she said, was consensual. After this occurred, the appellant “went on top of [the complainant] and took [her] underwear off again and started to penetrate [her] vaginally”.  She also gave her consent to this occurring. However, the appellant “then swapped back to [her] anus”. The complainant said in evidence that, while the vaginal sex was consensual, the anal sex was not. The complainant said she was tired and, this time, “wasn’t pretending to like it”. She was “rigid”. She did not say anything during this act of anal penetration because, she explained, she had “told him to stop before and it didn’t work”. She ended up falling asleep.

An uncharged act

16. [16]
    In circumstances about which Ground 1 is concerned, the complainant said in evidence that the next thing she recalled was that, having been asleep, she felt the appellant move “again towards [her] face with his penis”. The complainant said she was “extremely tired”, that she had been asleep and that she told the appellant “no, that [she] didn’t want to do it, and … had work in the morning”. She rolled over and drifted back to sleep but the appellant positioned himself on top of her, slid her underpants to one side and penetrated her vaginally again. This act, the complainant said, was not consensual.
17. [17]
    The complainant pretended she needed to go to the toilet again. She entered the bathroom and sat inside. Whilst there, she checked the time, it was at least 2.30 am or “getting closer to about 3 am”. After a while she returned to the living room, lay down and fell asleep. 

Count 5

18. [18]
    The complainant awoke to the sound of “moaning in the background”. The appellant was watching a pornographic movie. She “turned around so [she] wasn’t hearing it and … fell back asleep”. She described what happened next as follows:

“Um, I felt him move onto the bed, um, and I felt him come on my face. It went on my forehead and on my eyelid, and I remember wiping it off with the blanket, saying, ‘yuck’ and turning over and hiding my face.”

19. [19]
    Asked when she first became aware of this “happening”, the complainant said this was “when [she] felt him moving on the bed”. She said she had “woken up thinking that [the appellant] was going to do more sexual acts while [she] was asleep”.  She added that her eyes were not open but said she could “sense things”. She believed the appellant was kneeling over her at the time.

Subsequent events

20. [20]
    The complainant said she slept for a few hours before waking to her alarm at 8.30 am. Her aunt collected her from the appellant’s house about a half hour later. There was a conversation between the two in the car. The complainant made no mention of any non-consensual acts on the part of the appellant. The only thing she could recall saying was that the appellant “took forever to finish”. Asked why she did not tell her aunt about the “non-consensual acts”, the complainant said she did not want to be “brushed aside”, “judged or anything”. She said she was “still processing what was happening” and “felt really dirty and gross”. The complainant said in evidence that she also spoke to her mother by telephone later on the same day. Although she told her mother she had “stayed at a random guy’s house”, she said nothing more. To the point, she did not complain about any “non-consensual sexual encounter”. There was also an exchange of text messages between the complainant and her mother two days later but, again, the complainant did not mention any “non-consensual” activity. However, on 31 October 2021, the complainant did make a complaint. According to her mother, the complainant told her that she went to the appellant’s house and lay down on his bed because she felt unwell. He entered the room and lay down beside her. The complainant said that she consented to the first act of intercourse, but after that felt tired and wanted to go to sleep. The complainant told her mother that, throughout the night, she woke up to find the appellant “wanting to have sex” and “trying to convince her to have sex”. The complainant said that, even though she said “no” to having sex, the appellant continued to touch certain parts of her body and this made her feel uncomfortable. She also told her mother that the appellant “flipped her over onto her stomach and … forcefully put his penis in her anus”, after which she again said “no”, but he continued to “perform anal intercourse”.   

Other evidence

21. [21]
    The complainant’s aunt gave evidence about the conversation with her niece in the car after collecting her from the appellant’s house. According to her aunt, the complainant told her she engaged in sexual activity with the appellant and had not slept. She used slang words to indicate she had participated in both oral sex and anal sex. The complainant’s aunt said the complainant laughed about “getting some dick” and joked about the state of her hair, saying the appellant “just fucked me hair”. The complainant’s uncle also gave evidence to the effect that a few days after the complainant went home with the appellant he overheard the complainant saying she was unsure if she would return to the appellant’s house because “he took ages to get off and … tried everything to get him to orgasm”. When the complainant’s mother gave evidence, she confirmed that the complainant did not make any complaint about being raped until 31 October 2021.
22. [22]
    I record for completeness that nothing turns on what was brief evidence from the medical practitioner and the arresting officer at the trial, neither of whom was cross-examined.

Ground 1

23. [23]
    It will be seen from the foregoing summary of the evidence at trial that the complainant’s account included evidence of two uncharged acts. The first in time was said to have been an act of vaginal penetration which occurred in the appellant’s bedroom immediately before the act of anal penetration constituting count 3.^[1] The second was also alleged to have been an act of vaginal penetration but, on this occasion, it was said to have taken place in the living room after the complainant was awoken.^[2]
24. [24]
    Now, whatever may have been the position regarding the first of those uncharged acts, the evidence which the complainant gave regarding the second uncharged act took the defence by surprise. No such allegation appeared in any witness statement or other material disclosed by the Crown in advance of the trial and nor did the complainant give evidence to that effect at the committal hearing which was held on 30 January 2024. To the contrary, the whole focus of the Crown case until that point in time had been on what had been alleged to be non-consensual acts of anal (as distinct from vaginal) penetration and one act of sexual assault. Indeed, the case opened to the jury by the Crown was that the appellant and the complainant had “consensual penile-vaginal sex”.
25. [25]
    At the outset of the cross-examination of the complainant, it was put to her that she had never before said the appellant penetrated her vagina with his penis when in the living room without her consent. Following a brief adjournment to deal with an objection made by the Crown prosecutor, it was also put to the complainant that she had never conveyed any such allegation to the Crown prosecutor. After the appellant’s trial counsel established that the complainant attended a conference with the prosecutor on the day before the trial commenced, it was put to her that she “didn’t tell [the prosecutor] that you were asleep when [the appellant] vaginally penetrated you [when] in the [living] room”, to which the complainant responded that she was “pretty sure” that she had said that to the prosecutor. At that point, the appellant’s trial counsel called for a copy of the “conference note”.
26. [26]
    In the absence of the jury, the appellant’s trial counsel indicated she had previously requested that a copy of all conference notes be provided to her in advance of the trial,^[3] but had been advised by the Crown there was “nothing disclosable”. Then, over the luncheon adjournment, the appellant’s trial counsel was provided with a copy of a file note of the conference between the prosecutor and the complainant on the previous day. The file note recorded a version from the complainant in which she said that, after falling asleep in the living room, she awoke to the appellant “on top of” her. She said “he was penetrating [her] and [she] wasn’t enjoying it”, and added that he was penetrating her anus and vagina and she did not consent to these acts. This allegation aligned with the evidence which the complainant gave at the trial regarding the second uncharged act, although it will be noticed that her evidence in that regard was confined to an act of non-consensual vaginal penetration (as opposed to penetration of both her vagina and anus). There were, in addition, other inconsistencies between the allegations recorded in the file note and the complainant’s evidence-in-chief.
27. [27]
    The trial resumed in the absence of the jury. The prosecutor accepted he ought to have disclosed the file note and that he failed to do so. The appellant’s trial counsel then made application for the jury to be discharged. The learned trial judge was taken to the contents of the file note in detail. The revelation of the second uncharged act was emphasised, as were the inconsistencies to which I have just made reference. It was submitted that the failure to disclose the file note embarrassed the defence and prejudiced the appellant. In particular, the submission was made by the appellant’s trial counsel that she would have conducted her case differently had she known what she did once the file note was disclosed and, furthermore, that such prejudice could not be cured by directions. She explained that, had the file note been disclosed in advance of the trial, she would never have suggested to the complainant that she was “making it up or saying this for the first time today”.  The trial judge disagreed, finding that, in “balancing the fairness and the prejudice, it is not appropriate to discharge the jury, considering that the disclosure was only made less than 24 hours before she gave evidence”. In so ruling, the trial judge appears to have taken the view that the prejudice caused to the defence was only slight. Her Honour said:

“It’s easily remedied … All you have to do is get out of her that the conference took place yesterday and that was the first time she’d raised it, which is easy enough to do. And I can instruct the jury that it should have been disclosed.”

28. [28]
    The defence was given time to seek instructions about the differences in the two accounts before continuing the cross-examination of the complainant, and this resumed on the following morning. Immediately before it did, the trial judge told the jury that the defence did not have a copy of the notes of what the complainant told the prosecutor on the day before the trial commenced, and that they should have been disclosed. That meant that the defence required “time to consider the notes” and this, her Honour said, was the cause of the delay in the progress of the trial. The topic was not revisited in her Honour’s summing-up.
29. [29]
    By this ground of appeal, the appellant complains that a miscarriage of justice was occasioned by the prosecutor’s failure to disclose the file note until after the commencement of the cross-examination of the complainant and the trial judge’s subsequent failure to discharge the jury at the request of the defence.
30. [30]
    The application to discharge the jury was grounded in s 60(1) of the Jury Act 1995 (Qld). By that provision, a trial judge is clothed with a discretion to discharge a jury where “there are proper reasons” for doing so. As noted in R v Bosscher,^[4] the House v The King^[5] principles therefore apply to any complaint made about the exercise of that discretion on appeal.^[6] The relevant question is whether the trial judge’s discretion miscarried. Importantly, the appeal is not against the failure to discharge the jury, but against the conviction.^[7]
31. [31]
    Furthermore, as recently determined by the High Court in Brawn v The King,^[8] where it has been shown there was an error or irregularity in a criminal trial such as a breach of the prosecution’s duty of disclosure, then to establish a miscarriage of justice it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict.^[9] This is the “materiality threshold”^[10] which must be overcome before it can be said that an error or irregularity that has occurred in, or in relation to, a criminal trial amounts to a miscarriage of justice.^[11] Leaving to one side cases where such an irregularity was “fundamental” in the sense discussed in authorities such as Wilde v The Queen, for errors or irregularities to constitute a miscarriage of justice:^[12]

“[T]hey must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”^[13]

32. [32]
    It follows that the materiality threshold will be met where the error or irregularity was one that could have (as opposed to would have) realistically affected the jury’s reasoning to a verdict of guilty.^[14]
33. [33]
    Here, and regardless of the requests made by the defence for disclosure of all conference notes, it should have been obvious to the prosecutor that the file note would “tend to help the case for the accused person” within the meaning of s 590AB of the Criminal Code (Qld) and, for that reason, that it was caught by the ongoing obligation of the Crown which is imposed by that provision to “give … full and early disclosure” of it: s 590AB(2). As the same provision expressly acknowledges, that is a “fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth”: s 590AB(1). In the circumstances of this case where both consent and the reliability of the complainant’s account were central issues, the failure to disclose the file note seriously undermined the fairness of the trial. Indeed, what should have occurred immediately following the pre-trial conference with the prosecutor was the preparation of a supplementary witness statement from the complainant in which the account provided in that conference was recorded. That should then have been provided to the defence without delay and, certainly, before the trial commenced. This may in turn have prompted an application for a Basha^[15] hearing in the absence of the jury to cross-examine the complainant on her most recent version or even an application to delay the commencement of the trial itself but, irrespective of those possibilities, the provision of a supplementary witness statement would have given the defence time to consider whether to embark on the line of cross-examination which was taken at the trial prior to the disclosure of the file note. As the appellant’s trial counsel submitted, she would never have suggested to the complainant that she was “making [her evidence about the second uncharged act] up or saying this for the first time today” if the file note had been disclosed. It would also have afforded time to the defence to properly consider the differences between the accounts offered by the complainant.
34. [34]
    At a minimum, the irregularity constituted by this breach of the Crown’s disclosure obligation could have realistically affected the jury’s assessment of the complainant’s credit and, therefore, the jury’s reasoning to a verdict of guilty on counts 1, 2 and 3. It was not possible to cure the impact this breach could have had on the jury’s reasoning either by the time which was afforded to the defence to “take instructions” on the inconsistencies between the accounts or by the explanation given to the jury by the trial judge about the Crown’s failure to disclose the file note. In a real sense, the damage was done when the appellant’s trial counsel was misled by the Crown’s omission to commence her cross-examination of the complainant in the way in which she did, only to have the whole premise for that line of questioning undone by the subsequent disclosure of the file note. There was accordingly a miscarriage of justice.
35. [35]
    Once there has been “such a serious breach of the presuppositions of the trial”,^[16] there can be no room for the operation of the proviso, at least where the non-disclosure of material might have influenced the result of the trial.^[17] That was undoubtedly the case here. It follows that, unless ground 3 succeeds, there must be a retrial on counts 1, 2 and 3.

Ground 2

36. [36]
    During the subsequent cross-examination of the complainant about the inconsistencies between her evidence-in-chief and the account she provided to the prosecutor on the day before the trial, the prosecutor suggested to the trial judge that “the complainant might want a break”. After the complainant left the court room, the prosecutor told the trial judge that he had developed a “signal” which the complainant could give – she was to, and did, touch her shoulder – to indicate to him when she wanted a break from questioning. The appellant’s trial counsel complained, submitting that such a form of communication was irregular and had otherwise interrupted the flow of her cross-examination. The trial judge rejected these complaints.
37. [37]
    The same complaints are relied on to support this ground of appeal but, in my view, the trial judge was right to reject them. Like any witness, the complainant was free to ask for a break at any time. That she communicated her request in the extraordinary way agreed with the prosecutor does not alter the substance of what she did. However, it should not be thought this manner of communication was at all appropriate. To the contrary, a witness should never be encouraged to engage in other than open and transparent communications from the witness box. But, that said, this ground fails.

Ground 3

38. [38]
    By this ground, the appellant maintains that the verdicts of guilty on counts 1, 2 and 3 were unreasonable because they were: (1) inconsistent with the acquittals on counts 4 and 5; and (2) cannot be supported having regard to the evidence as a whole.
39. [39]
    As to (1), the legal principles which bear upon the proper evaluation of a ground of appeal where it is said the verdicts of the jury were inconsistent, one with the other, were summarised by Morrison JA (with whom Sofronoff P and McMurdo JA agreed) in R v Fanning:^[18]

“In MacKenzie v The Queen,^[19] Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of ‘logic and reasonableness’:

‘… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:

1. the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;

2. as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;

3. if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;

4. different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;

5. different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;

6. a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;

7. a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;

8. in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and

1. it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.” [citations omitted]

40. [40]
    It is therefore for the appellant in this case to establish that the verdicts of conviction on counts 1, 2 and  3 when taken with the verdicts of acquittal on counts 4 and 5 were an unacceptable affront to logic and common sense or suggest, relevantly, that the jury compromised their duty, or were confused or misunderstood their function.^[20] The question is whether a reasonable jury, having applied their minds to the facts of the case, could have been satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant’s evidence with respect to counts 1, 2 and 3, whilst not being so satisfied with her evidence in respect of counts 4 and 5.
41. [41]
    As to (2), a ground of appeal that a verdict was unreasonable or cannot be supported having regard to the evidence requires this Court to consider the whole of the evidence before the jury, and decide whether it was open to the jury as a question of fact to be satisfied beyond reasonable doubt about the guilt of the appellant on that count.^[21] In the context of this case, this means it is necessary to undertake a review of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt about the truthfulness and reliability of the account which the complainant gave regarding the essential features of the acts comprising counts 1, 2 and 3 and also, where applicable, to be satisfied to the same standard that the appellant was not acting under a mistake of fact within the meaning of s 24 of the Criminal Code (Qld) that is to say, an honest and reasonable belief that the complainant consented to those acts occurring. In answering these questions, the Court is obliged to pay full regard to the features that the jury is the body entrusted with the primary responsibility of determining guilt and has had the benefit of having seen and heard the witnesses.^[22] It should also be kept in mind that, while this Court is obliged to undertake its own assessment of the sufficiency and quality of the evidence at trial, it is for the parties to identify the evidence that the Court must review and assess and the features of that evidence which support their respective cases on appeal.^[23]
42. [42]
    Here, the case for the defence at trial was that the act constituting count 1 was consensual and that the acts constituting counts 2 and 3 were either consensual or the appellant held an honest and reasonable belief that the complainant was consenting to those acts. The defence case on counts 4 and 5 was that those acts never occurred, although the trial judge summed up on the basis that, if the jury accepted that count 4 occurred, they needed to go on to consider whether the appellant held an honest and reasonable belief that the complainant was consenting.
43. [43]
    When proper regard is had to the whole of the evidence comprising the Crown case it is to my mind unremarkable that the jury found the appellant guilty of counts 1, 2 and 3 but acquitted him of counts 4 and 5. As to this, there were at least four distinguishing features. First, the commission of counts 1, 2 and 3 in the bedroom was followed by a significant period of consensual sexual activity between the appellant and the complainant in the living room during which oral sex was performed and vaginal intercourse took place. Second, the acts constituting counts 2 and 3 were accompanied by the attempts made by complainant to feign enjoyment as a means, she said, of bringing the offending to a halt. Third, by the time the acts constituting counts 4 and 5 were alleged to have taken place, the complainant was fatigued – she was either falling asleep or had been asleep on a mattress on the living room – and, so, the jury may not have regarded her recollection of the events in the living room to be as reliable as those which occurred in the bedroom. Fourth, not only had the complainant been asleep immediately before the commission of the act alleged to constitute count 5, her eyes remained shut throughout and, as such, the allegation she advanced was based on what she inferred the appellant had done rather than what she actually saw.
44. [44]
    Otherwise, senior counsel for the appellant on the hearing of the appeal pointed to a range of inconsistencies in the complainant’s accounts as well as the evidence given by her aunt at trial which, it was submitted, was inconsistent with the complainant’s account of a “protracted episode of non-consensual sexual activity”. However, even if each of those criticisms is accepted, it was still open to the jury to be satisfied beyond reasonable doubt about the truthfulness and reliability of the evidence which the complainant gave regarding the essential features of the acts comprising count 1, 2 and 3 and also, in the case of counts 2 and 3, to be satisfied to the same standard that the appellant did not have an honest and reasonable belief that the complainant was consenting to those acts. In short, it was open to the jury on the evidence adduced at trial to be satisfied beyond reasonable doubt of the appellant’s guilt on counts 1, 2 and 3.
45. [45]
    This ground also fails.

Disposition

46. [46]
    For these reasons, it is my opinion that only ground 1 should be upheld. The appeal should accordingly be allowed, and a retrial ordered on counts 1, 2 and 3.