Background
GBX was tried in the District Court at Beenleigh on four sexual-offence counts arising from one evening at the complainant’s home. The jury acquitted him of indecent assault and two rape counts, but convicted him of rape on count 4, involving penile penetration of the complainant’s anus. Each count was charged as a domestic violence offence.
The complainant described three escalating non-consensual anal penetrations. GBX denied digital penetration, but accepted that anal intercourse occurred. His case on count 4 was that the complainant had consented, or that he honestly and reasonably believed she consented. The evidence included the daughters’ accounts of hearing the complainant say words including “stop” and “that hurts,” and a later text from GBX acknowledging that she had said “stop” while asserting that her body language indicated otherwise.
The Court’s Holding
The Court of Appeal dismissed the appeal. It rejected the argument that a jury note, sent after the guilty verdict on count 4 while the jury was still considering count 2, showed a real possibility that the jury had misunderstood its task concerning consent and honest and reasonable mistake of fact.
The note sought clarification about the appellant’s belief as to consent for the remaining count. The Court held that it did not objectively suggest confusion about count 4 or a failure to apply the trial judge’s directions separately to each count. The later redirection appropriately focused the jury on the distinct alleged initial penetration in count 2.
The differing verdicts were logically explicable. The jury could have had a reasonable doubt about GBX’s belief in consent for the initial penetration alleged in count 2, while finding beyond reasonable doubt that, during the later and more extended penetration in count 4, the complainant did not consent and GBX had no honest and reasonable mistaken belief in consent. Her evidence that she said “Stop,” supported by the daughters’ evidence and the text message, particularly distinguished count 4.
Key Takeaways
- A jury note warrants intervention only where objective facts support a reasonable apprehension that the jury did not perform its legal function.
- Different verdicts on related sexual-offence counts are not necessarily inconsistent; the evidence and issues on each count must be assessed separately.
- Evidence of express resistance and a defendant’s acknowledgement that the complainant said “stop” supported the conviction on the later penetration count.
Why It Matters
The decision illustrates the high threshold for overturning a conviction based on an alleged jury irregularity. Courts will not infer confusion from a jury question alone, particularly where the question is directed to an unresolved count and the trial judge gives an appropriate further direction.
It also confirms that consent and honest-and-reasonable-mistake issues may produce different outcomes within a sequence of alleged sexual acts where the evidence materially changes from one act to the next.