R v GBQ

Case [2025] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBQ [2025] QCA 33

PARTIES:

R
v
GBQ
(appellant)

FILE NO/S:

CA No 91 of 2024
DC No 248 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 17 April 2024 (Prskalo KC DCJ)

DELIVERED ON:

21 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2025

JUDGES:

Boddice and Brown JJA and Gotterson AJA

ORDERS:

1.   The appeal be allowed.

2.   The conviction on count 2 be set aside.

3.   A verdict of acquittal be entered on that count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of indecent treatment of a child under 12 and acquitted of a second identical count – whether the verdict of guilty was inconsistent with the not guilty verdict – where the alleged offending occurred in the one event – whether the differing verdicts are irreconcilable

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v CX[2006] QCA 409, cited

COUNSEL:

M J Hynes for the appellant
D Kovac for the respondent

SOLICITORS:

Smith Cambridge Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BODDICE JA:  I agree with Brown JA.

  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. The appellant seeks to appeal against his conviction on the following grounds:

    (a)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;

    (b)the evidence of “discreditable conduct” of a sexual nature was inadmissible for the purpose it was used or, in the alternative;

    (c)the directions as to the use of the “discreditable conduct” as “narrative” or “background” were inadequate.

  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]

    [2]Consistent with the approach identified by Dalton JA in R v BEN [2024] QCA 179 at [6].

    The Evidence

  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. 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. According to…

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Details
AGLC
R v GBQ [2025] QCA 33
Case
[2025] QCA 33
Decision Date

CaseChat Overview and Summary

In the case of R v GBQ, the appellant was convicted of one count of indecent treatment of a child under 12 and acquitted of a second identical count. The complainant, who was 10 or 11 years old at the time of the alleged offending, testified that the appellant had rubbed his penis against her vagina while they were both clothed and that he had rubbed her back and bottom. The appellant moved to set aside the conviction on the basis that the verdict was unreasonable and irreconcilable with the acquittal on a second count involving similar conduct. The appellant argued that the jury could not have found him guilty of one act of indecent treatment and acquitted him of another when the alleged offending occurred in a single event.

The legal issue before the court was whether the differing verdicts were irreconcilable, such that the guilty verdict was unreasonable. The court considered the principles set out in R v CX, which outlined the circumstances in which verdicts might be considered inconsistent and the test for inconsistency. The court found that the verdicts were irreconcilable because the jury's acceptance of the evidence required by count 1 necessarily meant they could not have acquitted the appellant on count 2. The court held that the verdicts were an affront to logic and commonsense and that the guilty verdict was unreasonable.

Having found the verdict to be unreasonable, the court allowed the appeal, set aside the conviction on count 2, and entered a verdict of acquittal on that count. The court emphasised that appellate courts should be reluctant to accept submissions that verdicts are inconsistent and that 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. In this case, however, the court found that the verdicts were irreconcilable and that the guilty verdict was unreasonable, leading to the setting aside of the conviction on count 2.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction on count 2 be set aside.

3. A verdict of acquittal be entered on that count.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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][1]MFA v The Queen (2002) 213 CLR 606.[2]Consistent with the approach identified by Dalton JA in R v BEN [2024] QCA 179 at [6].The Evidence 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. 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. 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][3]AB Vol 2 204/50. 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”.[4]AB Vol 2 204/41-45. 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”.[5]AB Vol 2 216/35-38. The complainant later described that for part of the time, the appellant’s hand went under her shirt. 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. 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

A convenient summary of the relevant principles was set out by Jerrard JA in R v CX:[12]“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)[12][2006] QCA 409 at [33] cited with agreement in R v Fanning [2017] QCA 244 at [20]-[21] per Morrison JA, quoted in R v LBF [2024] QCA 129 at [41].Consideration 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.[13]MacKenzie at 368.