R v GBN

[2024] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBN [2024] QCA 112

PARTIES:

R

v GBN

(appellant)

FILENO/S:

CA No 161 of 2023

DC No 1848 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 September 2023 (Holliday KC DCJ)

DELIVEREDON:

14 June 2024

DELIVEREDAT:

Brisbane

HEARINGDATE:

9 May 2024

JUDGES:

Mullins P and Crow and Crowley JJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT  UNREASONABLE  OR  INSUPPORTABLE

HAVING REGARD TO EVIDENCE – where the appellant was convicted of a single count of rape – where it was not disputed by the appellant that he digitally penetrated the complainant – where there was a dispute as to whether the complainant consented to the act – where there was a dispute as to whether the appellant had an honest and reasonable but mistaken belief that the complainant consented under s 24 of the Criminal Code (Qld) – where the defendant did not give or call evidence at trial – where the Crown’s case ultimately depended on the jury accepting the evidence of the complainant beyond reasonable doubt – where the complainant gave evidence that she voiced protest and that the appellant “shushed” her – where there was preliminary complainant and distressed condition evidence – where the trial judge gave a Robinson direction – where the appellant argued that having regard to the inconsistencies in the complainant’s evidence the jury could not have rationally accepted her evidence – where the appellant argued that the complainant’s behaviour prior to the alleged offending was inconsistent with an absence of consent – whether it was open

for the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt

Criminal Code (Qld), s 24

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30,

cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
Robinson v The Queen (1997) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

S J Hamlyn-Harris for the appellant C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P: I agree with Crowley J.

2. CROW J: I agree with Crowley J.

3. CROWLEY J: The appellant was tried by jury in the District Court on a single count of rape. The jury found the appellant guilty.

4. The appellant appeals against his conviction. His sole ground of appeal is that the conviction is unreasonable or cannot be supported having regard to the evidence.

The issues in dispute at trial

1. The Crown alleged that in the early hours of the morning on 29 September 2019, the appellant raped the complainant by digitally penetrating her, without her consent, whilst they…