R v GBQ[2025] QCA 33

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with Brown JA.
2. [2]
   BROWN JA:  On 17 April 2024 the appellant was convicted of one count of indecent treatment of a child under 12 and acquitted of a second identical count.  The verdict followed a three day trial.  The appellant was sentenced to imprisonment for a period of four months wholly suspended for a period of 12 months.
3. [3]
   The appellant seeks to appeal against his conviction on the following grounds:

   1. the guilty verdict on count 2 is irreconcilable with the acquittal on count 1, such that the conviction is an affront to logic and commonsense;
   2. the evidence of “discreditable conduct” of a sexual nature was inadmissible for the purpose it was used or, in the alternative;
   3. the directions as to the use of the “discreditable conduct” as “narrative” or “background” were inadequate.
4. [4]
   As the ground that the guilty verdict was irreconcilable with the acquittal raises a ground that the verdict is unreasonable^[1], I will address that ground first.^[2]

The Evidence

5. [5]
   In 2021, the appellant was in a relationship with the complainant’s mother.  He moved in with the mother of the complainant and they lived at the same address with the complainant and her younger brother.
6. [6]
   The said offending took place in the bedroom of the appellant and the complainant’s mother.  According to the complainant’s evidence it occurred when the complainant’s mother was in the bathroom showering.  The complainant was then 10 or 11 years old.
7. [7]
   According to the complainant, she had been playing a video game in her mother’s room after her younger brother had gone to bed.  When her mother had gone to the bathroom, the complainant said that the appellant got up to check on her mother.  He then grabbed the complainant, pulled her back on the bed and laid back so that her hands were under his back.  Count 1 alleged that, while the complainant was on top of the appellant, he rubbed his penis against her vagina while they were both clothed.  As to count 2 that involved the appellant rubbing the complainant’s back and bottom while she was in the same position as count 1.  When her mother flushed the toilet he sat up quickly and pushed her off and said “[O]kay well, that’s done”.^[3]
8. [8]
   As to count 1, the complainant in her s 93A interview told police that:^[4]

“He is, his um, penis started getting hard and started raising so I moved half my body off, but then he put it back on , he, he wouldn't let go of me. I said ah, okay, okay can I go now. He said no, just give me a second. And then he started like, moving his hips around. So he started moving me around and I got really uncomfortable”.

9. [9]
   As to count 2, she provided the following description in her s 93A later in the interview:^[5]

“But when, when I was laying on him, he was rubbing his hand on my back really awkwardly. My shirt was lifting up and then he would, touch my butt”.

10. [10]
    The complainant later described that for part of the time, the appellant’s hand went under her shirt.
11. [11]
    The complainant also gave evidence as to other occasions on which the appellant would ‘poke’, ‘tap’ and ‘rub’ her bottom, which was not the subject of a charged act but which she had disclosed to her mother who then told the appellant to stop that behaviour.  That evidence is the subject of the second and third ground of appeal.  That evidence was however used in the cross-examination of the complainant to suggest that while she had told her mother of that conduct, she had not told her of the conduct which was the subject of the charges.  The complainant’s mother gave evidence consistent with the complainant’s evidence.
12. [12]
    The complainant gave evidence she did not like the appellant, resulting in a direction to the jury by the trial judge that she had motive to lie.
13. [13]
    Both the complainant’s friend and the complainant’s father gave evidence as to preliminary complaint.
14. [14]
    The complainant confided in a friend.  According to the friend the complainant told her that the appellant hugged her before pulling her onto the bed.  She thought the complainant may have told her that the appellant touched her bottom but rejected the suggestion that the complainant told her that the appellant rubbed his penis against the complainant’s vagina.  The complainant however stated in cross-examination that she would have told her friend that the appellant had rubbed his penis against her vagina.
15. [15]
    The complainant also disclosed to her father what had occurred.  According to her father, the complainant said that the complainant had been made to lie on top of the appellant and that the appellant had an erection, but before she said anything more her father then backed off from the discussion so that he could contact her mother.
16. [16]
    The appellant gave evidence and denied that the event ever occurred.  His evidence was that he believed the complainant was talking about an incident where he asked her for a goodnight hug and she leant over to him and put her arms around him and dropped her body weight which could have resulted in her body accidentally coming into contact with his groin.  He said that he had on occasion tapped the complainant’s bottom in the context of play.  He said the only time he would have touched her bottom was in the context of playtime, other than when he tapped her on the bottom when she refused to stop double bouncing on a trampoline and he tapped her on the bottom and she asked him to stop and he said he wouldn’t, although he did not repeat it.

Directions

17. [17]
    During the summing up by the learned trial judge, a direction was given to the jury in terms of considering the charges separately in the following terms:^[6]

“But particularly in this case, if you have a reasonable doubt concerning the truthfulness or reliability of [the complainant’s] evidence in relation to one or more of the counts – whether by reference to her demeanour – or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally. And in respect of the other count. In this case, the two counts are really part of one course of conduct. And while of course it is up to you how you determine – or deliberate upon the evidence, if you reject [the complainant’s] account of the events as she described – or if you are uncertain whether to accept her account or not, you should acquit of both counts.” (emphasis added)

18. [18]
    The jury raised a question during its deliberations, asked a question:^[7]

“Can we clarify.  If we find guilty or not guilty on count 2, must we find the same verdict for count 1?”

19. [19]
    After discussing the question with counsel her Honour responded as follows:^[8]

“In answer to that, the simple answer is you can find separate verdicts. Separate charges are preferred. You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved its essential elements, and you will return separate verdicts for separate charges. The direction I gave you before, which I will repeat: if you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.

But, as I’ve directed you, on either count, you are entitled to deliver whatever verdict you find based upon all of the evidence and bearing in mind the standard of proof of beyond reasonable doubt ….”

Inconsistent Verdicts

20. [20]
    In considering whether or not a verdict of guilty was unreasonable due to inconsistency in the verdicts delivered by the jury, the Court must determine whether or not the verdicts can be reconciled and logically stand together.  The principles to be applied in determining whether the verdicts are in fact irreconcilable when the court takes into account the function of the jury and directions given to them, were discussed by the majority of the High Court in MacKenzie v The Queen.^[9]  The majority of the High Court in MFA v The Queen^[10] approved the principles outlined by the majority in Mackenzie v The Queen in determining whether there is an inconsistent verdict.  As was stated by the majority in MFA the verdicts delivered must not only be considered in light of the facts and circumstances of a particular case, but considered in the context of the system within which juries function and their role in that system.^[11]
21. [21]
    A convenient summary of the relevant principles was set out by Jerrard JA in R v CX:^[12]

1. “1.
   Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.

2. Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?

3. Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.

4. The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

5. Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.” (footnotes omitted)

Consideration

22. [22]
    In the present case, the verdicts of guilty on count 2 and not guilty on count 1 are irreconcilable such that they are “an affront to logic and commonsense”^[13] for the following reasons.
23. [23]
    First, the differing verdicts cannot be explained by the differing nature of the offences given they were the same offence and the alleged indecency arose at the same time.  More significantly, the conduct which was the subject of counts 1 and 2 occurred in the one event and on one view of the complainant’s evidence simultaneously.  The evidence of the complainant was that the appellant rubbed her back and forth on his penis and then at the same time or shortly before or after began touching her bottom, while still rubbing her on his penis.  A jury could not reject her evidence that the appellant was rubbing her up and down on his penis but accept her evidence that he was touching her bottom, given that they were part of the same event and she was in the same physical position on top of the appellant in relation to both offences.  In this context, while the jury were directed to consider each charge separately, that provides no logical explanation for the differing verdict.  As her Honour directed the jury the two charges were part of the one course of conduct.  While separate acts were involved the two acts were interconnected.  The verdict of not guilty on count 1 indicates that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty on count 2.
24. [24]
    Secondly, the verdicts cannot be reconciled on the basis of the differing quality or nature of evidence given with respect to each count.  The evidence of preliminary complaint of the friend was consistent with count 2 insofar as a jury could fairly accept that notwithstanding her reference to “think” she was in fact told by the complainant about the touching of her bottom.  While the evidence of the preliminary complaint made by the complainant to her friend could be accepted as being consistent with count 2, that was not the case in relation to count 1, which the friend firmly rejected she was told the details of by the complainant save to the extent that the complainant disclosed being hugged and pulled onto a bed by the appellant which was consistent with both counts 1 and 2.  In contrast the evidence of the complainant’s father was more consistent with the complainant’s version of count 1 insofar as she had told him about being on top of the appellant and him having an erect penis after he made her lay on top of him and put his arms around her albeit that the complainant’s father interrupted their discussion and had “backed off” from the conversation to go and tell her mother.  The preliminary complaint evidence in terms of the complainant’s version of events was at least as favourable to the complainant’s credit on her version of count 1 as it was to count 2.  In some respects it was arguably stronger in relation to count 1 given the vagueness of the friend’s account as to what she was told.  Thus the difference in the evidence as to preliminary complaint does not explain the differing verdicts.
25. [25]
    Thirdly, her Honour directed the jury that “the real issue in this case is whether” the jury were “satisfied beyond reasonable doubt that the acts as described by the complainant… actually occurred in the way that she described”.^[14]  The defence was that the acts did not occur or if it did occur, it was in circumstances where the touching was not indecent and was accidental.  While there were some internal inconsistencies in the complainant’s version of events, the quality of the complainant’s evidence in respect of each count was not significantly different.  Indeed, the complainant did mention the conduct the subject of count 1 first in the s 93A interview and went into greater detail as to what occurred including the appellant’s physical response in respect of count 1 than she did for count 2.  She did however subsequently refer to the touching of her bottom in the s 93A interview without prompting.  There were some inconsistencies in count 2 insofar as the timing of when that occurred, whether it was before or after the rubbing on his penis.  She did on one version speak of being caught in a bear hug while in another version he kept a hand free which he used to touch her bottom.  To the extent there were inconsistencies in the complainant’s account either in the telling of what had occurred to the police or in cross-examination, they do not explain the differing verdict.  The inconsistencies of the complainant’s evidence in relation to count 1 as to whether she was pulled onto the bed, was hugging the appellant or tripped over the edge of the bed and the appellant grabbed her are not matters of significance which would reasonably cause a jury to doubt the complainant’s evidence on count 1 but not count 2.  Of greater significance is that, for both offences, she was on top of the appellant and being rubbed back and forwards when he also used one hand to touch her bottom.  If they did not accept the complainant’s evidence that she was being rubbed back and forth on his penis while he was using his other hand to move over her back and bottom the jury must have rejected evidence as to how she came to be on the appellant which was necessary to find count 2 occurred.  These features bring into question how logically the jury could have formed the view that there was reasonable doubt in respect of count 1 not in respect of count 2.
26. [26]
    Fourthly, the difference in the verdicts cannot be explained on the basis of the appellant’s evidence she had accidentally come into contact with his penis when she let her bodyweight drop on him, given that he rejected in his evidence that any rubbing or moving back and forward on him had subsequently occurred at all.  It also brings into question how the jury could then have been satisfied that any act involving the touching of the complainant’s bottom was indecent.
27. [27]
    Fifthly, the complainant had complained to her mother as to the appellant touching her bottom but not in relation to the conduct the subject of either counts.  That was unchallenged.  The complainant’s failure to tell her mother about the offending conduct on the basis that her mother would not listen was inconsistent with the fact that she told her mother of the bottom touching incidents and her mother had taken immediate action to tell the appellant to desist from touching her bottom.  That was of some significance given that the complainant did not like the appellant in terms of possible support for the motive to lie.
28. [28]
    Finally, there was some indication of the jury’s confusion in relation to the complainant’s evidence and whether counts 1 and 2 were part of the same event as indicated by their question:^[15]

“Clarification on both counts if the second one happened during the first.”

29. [29]
    In responding to the question, the trial judge confirmed that “the answer to that is yes, and there’s different bits of evidence that go towards that, and we have isolated the evidence in that respect, and I propose to read it back to you” and proceeded to read the relevant evidence that had been agreed with counsel in that regard.^[16]  That evidence supported the fact that the conduct the subject of count 2 occurred simultaneously with or immediately before or after count 1.  The trial judge after reciting the evidence stated as follows:^[17]

“So in that, it appears that it was something that occurred immediately before the – count 1.  But, nevertheless, as you’ve heard me say in my summing up to you, both counts 1 and 2 occurred on the same occasion, and count 2 does not refer to any other conduct on any other occasion where it’s said that [the appellant] touched the complainant on the bottom ….”

30. [30]
    Rather than the close temporal connection providing an explanation for the differing verdicts, it further demonstrates that the differing verdicts are not logical and reasonable.  Nor can the differing verdicts be explained on the basis of the jury acting mercifully towards the appellant given that it was one course of conduct and only resulted in two charges.^[18]
31. [31]
    The differing verdicts cannot logically stand together and were not open to the jury acting reasonably.  The verdicts suggest that the jury in reaching the differing verdicts became confused or compromised their function by potentially using the evidence of other incidents of the appellant touching the complainant’s bottom to impermissibly reason that he was more likely to have committed the offence involving touching her bottom notwithstanding the direction of the trial judge not to reason in such a manner.
32. [32]
    The appeal therefore should be allowed.  It is unnecessary to consider the other grounds.
33. [33]
    In the present case the only evidence of the conduct itself that was given was that of the complainant.  The verdict of acquittal on count 1 will remain notwithstanding the appeal is allowed.  In circumstances where the court cannot disturb the acquittal^[19] and where both counts arise out of one course of conduct, an acquittal should be entered on count 2 consistent with the logic of the acquittal on count 1.^[20]

Orders

34. [34]
    I would order:

1. The appeal be allowed.
2. The conviction on count 2 be set aside.
3. A verdict of acquittal be entered on that count.

35. [35]
    GOTTERSON AJA:  I agree with the orders proposed by Brown JA and with her Honour’s reasons for them.