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[2025] QCA 256
respondent. Appeal dismissed. The Court held that the guilty verdict on count 1 was open on the evidence and was not shown to be unreasonable or inconsistent with the acquittals on counts 3 and 4 ([25], [38]).
The jury could be sure that some of the repeated conduct alleged in count 1 occurred while still having a reasonable doubt about a separate incident charged in counts 3 and 4. The acquittals did not automatically mean that the jury disbelieved the complainant altogether. The Court of Appeal found rational reasons for the different verdicts, concluded that the conviction on count 1 was open on the evidence, and dismissed the appeal.
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2,403 words · generated 07/10/2026
The Queensland Court of Appeal dismissed BEZ’s appeal against conviction. The appeal concerned whether the jury’s different verdicts on three sexual-offence counts were inconsistent in a way that made the guilty verdict unsafe. The court’s decision was delivered on 16 December 2025 by Brown JA, Crow J and Hindman J. Brown JA gave additional remarks, Crow J agreed with Hindman J, and Hindman J gave the principal reasons.
1 cited instrument linked from this judgment.
Count 1 alleged repeated sexual conduct with the complainant, who was aged between six and nine during the relevant period, 21 August 1978 to 5 May 1981. The complainant described three kinds of conduct: sexual touching during physical punishment; touching while she was asleep in her bedroom; and touching while the appellant drove her to local shops. Hindman J characterised this evidence as identifying “three specific types of offending”, including the circumstances and regularity of each ([27]–[30], [35]).
Counts 3 and 4 concerned a different incident, alleged to have occurred between 23 and 27 January 1982, when the complainant was ten. The complainant recalled that her mother was away at hospital for the birth of a child and described the appellant touching and then penetrating her vagina with his penis. The jury acquitted the appellant on those counts but convicted him on count 1 ([23], [31]).
The appellant’s argument was that the jury’s acquittals on the more specifically dated incident showed it could not rationally have accepted the complainant’s evidence beyond reasonable doubt on the more generalised count 1. He also suggested the mixed verdicts reflected compromise or a failure by the jury to apply the criminal standard to each count ([24]). The court rejected that argument. It held there was a rational way to understand the verdicts, and that the conviction on count 1 was open on the evidence ([25], [37]–[38]).
The court applied the established approach to inconsistent verdicts: logic and reasonableness, together with respect for the jury’s role. As Hindman J summarised the principles from R v CCX, an appellate court should not substitute its view of the facts for a view that was open to the jury. If there is a proper way to reconcile the verdicts while concluding the jury performed its task, that conclusion will generally be accepted ([33]). The appellant had to show that the verdicts were an unacceptable affront to logic and common sense, strongly suggesting compromise, confusion or misunderstanding of the jury’s function ([33]).
The key answer was that a jury can assess different allegations separately. An acquittal means that the jury was not satisfied beyond reasonable doubt that the events charged in that count occurred. It does not necessarily mean the jury found the complainant untruthful. Hindman J adopted the formulation that a jury may accept evidence about one alleged act while retaining a reasonable doubt about other acts, even where the complainant is the only witness ([34]). Brown JA similarly observed that a reasonable doubt about some alleged offending does not necessarily prevent a jury from accepting evidence of other offending beyond reasonable doubt ([5]).
The counts differed in both their legal character and their evidence. Count 1 charged an unlawful sexual relationship over a period, while counts 3 and 4 alleged specific acts at a specific time, forming part of one incident. The jury had been instructed to consider each count separately, could accept all or part of a witness’s evidence, and could return different verdicts ([32]). The court therefore treated the evidence as distinct bodies of evidence, rather than assuming that the jury had to make one global credibility decision about the complainant ([20]).
The court also identified possible reasons why the jury could have had a doubt about counts 3 and 4 without rejecting the evidence on count 1. The complainant said she screamed in pain while her older brother was apparently at home, but the brother did not give evidence. The prosecution had opened count 2, concerning another act within the incident, but the complainant gave no evidence supporting that count, and a directed acquittal followed. The court also noted that the conduct alleged in the incident was more physically invasive ([36], [19]). These matters were examples of possible rational distinctions, not findings that the jury necessarily relied on any particular one.
The appellant also challenged aspects of the count 1 evidence. Brown JA addressed the evidence about local shops, the complainant’s account of telling her mother, the friend’s evidence, and evidence concerning an alleged assault in a cousin’s kitchen ([9]–[13]). The court considered that those matters did not eliminate reasonable explanations. For example, evidence that a structure was absent at a particular address in 1978 and present in December 1981 did not establish that no shops existed during the entire alleged period. The jury could have considered that the complainant was confused about the date or location, having regard to her age at the time and the passage of time ([9]). The court also considered the mother’s evidence and the other supporting circumstances, without treating any single item as necessary to prove the offence ([10]–[13]).
Finally, the court rejected the suggestion that the count 1 verdict necessarily represented compromise or conviction on suspicion. Hindman J found no proper basis to conclude that the jury had failed to consider how its doubts about counts 3 and 4 affected its assessment of count 1 ([37]). The conviction was therefore open and not shown to be unreasonable ([38]).
The judgment presents the relevant legal framework as established, rather than announcing a new general test. It states that challenges based on inconsistent verdicts are assessed by logic and reasonableness, with due regard to the jury’s primary responsibility and its opportunity to see and hear witnesses ([33]). The court drew on MacKenzie v The Queen for the proposition that a proper reconciliation of verdicts will generally be accepted, and on M v The Queen for the need to give full regard to the jury’s fact-finding role ([33]).
The judgment also explains how to understand acquittals on some counts where the same complainant gives evidence about multiple alleged offences. A not-guilty verdict does not necessarily amount to a general rejection of the complainant’s credibility. It may reflect a cautious approach to the criminal burden of proof or uncertainty about a particular allegation. Brown JA quoted the passage from MFA v The Queen addressing those possibilities, including the possibility that jurors may regard a complainant as probably truthful but still require further support before being satisfied beyond reasonable doubt ([7]). That quotation is the High Court passage as reproduced in this judgment; it is not a new finding about what this jury actually thought.
The judgment cautions against reading Jones v The Queen as creating a rule that acquittal on some counts necessarily damages the complainant’s credibility on others. Brown JA referred to the High Court’s explanation in MFA that Jones did not establish separate legal propositions displacing the approach in MacKenzie ([14]–[15]). The practical approach applied in this appeal was to examine the particular evidence and ask whether there was a rational explanation for the verdicts.
The judgment also identifies a question it did not decide. The jury did not receive a Markuleski direction, which, as the judgment describes it, would ask jurors to consider whether a reasonable doubt about part of a complainant’s evidence affected their assessment of the rest. Section 132B(1) of the Evidence Act 1977 (Qld) was the stated reason the direction was not given ([32] and note 16). The Crown submitted that the appellant’s argument effectively sought to raise reasoning associated with that direction. Brown JA said that this raised a significant matter for future consideration, but it was unnecessary to decide it in this appeal ([21]). The judgment therefore does not determine the scope or consequences of s 132B(1) for that argument.
No later state of the law can be established from the judgment text provided. The decision supplies no subsequent authorities or legislative developments. It is safest to describe it as applying the established inconsistency framework to the evidence in this case, while leaving the s 132B(1) question open.
At [33], Hindman J summarised the appellate approach: “Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness.” In plain English, the appeal court does not ask whether it would itself have reached the same verdicts. It asks whether the jury’s combination of verdicts can rationally stand, bearing in mind the jury’s role.
At [34], the judgment states: “A jury may appropriately accept a complainant’s evidence in one respect whilst retaining a reasonable doubt about the commission of other acts.” This means a jury is not required to accept or reject a complainant’s evidence as a single whole. It can be satisfied about one allegation and uncertain about another.
At [35], Hindman J explains that the count 1 evidence “identified three specific types of offending, the circumstances in which each type of offending occurred and the regularity of the offending.” This responds directly to the appellant’s characterisation of that evidence as generalised. The court considered that the allegations on count 1 had enough particularity for the jury to assess them separately.
At [36], the court gives examples of evidentiary differences that could rationally matter to the incident charged in counts 3 and 4. The complainant described screaming in pain, but her brother, said to be home, did not give evidence. The complainant also gave no evidence supporting count 2, which had been opened as part of the same incident. These are examples the court considered capable of explaining doubt about the incident; the judgment does not say they were necessarily the jury’s reasons.
At [38], Hindman J concludes: “The verdicts were not inconsistent and the guilty verdict on count 1 was open on the evidence and is not shown to be unreasonable.” In plain English, the appeal failed because the court could see a rational route to the jury’s different decisions and considered the conviction supportable on the evidence.
The decision is relevant to appeals arguing that a conviction on one count cannot be reconciled with acquittals on other counts involving the same complainant. Its particular setting is a trial involving multiple alleged sexual offences, where proof depended critically on the complainant’s evidence and the jury returned both guilty and not-guilty verdicts ([23]–[24]).
The reasoning is especially pertinent where the counts concern different incidents, periods, conduct, or evidentiary circumstances. Here, count 1 concerned repeated conduct over several years, while counts 3 and 4 concerned one later incident ([23], [27]–[31]). The decision supports analysing those differences rather than assuming the verdicts must rise or fall together.
It also speaks to cases where the appellant argues that acquittals show the jury rejected the complainant’s credibility generally. The judgment says that this inference does not follow automatically. A jury may accept some parts of the evidence and have reasonable doubts about others ([34]–[35]). The decision does not mean that mixed verdicts are immune from review. It confirms that the appellant may still seek to show that no rational explanation exists, or that the conviction was not open on the evidence. The appeal here failed because the court found a rational explanation and did not consider the evidence criticisms sufficient to undermine the count 1 verdict ([17]–[20], [37]–[38]).
The reasoning should be read in light of the actual instructions and record described in the judgment. The jury was directed to consider each count separately and was told it could accept all or part of a witness’s evidence ([32]). The judgment does not decide how the same reasoning would apply where materially different directions, evidence, or count structures were present.
The judgment cites and applies earlier authorities, including MacKenzie, MFA and CCX. It does not describe any subsequent judicial treatment of R v BEZ itself, and the material supplied contains no later decisions. Accordingly, this analysis cannot establish whether later courts have followed, distinguished or otherwise treated this judgment.
The relationships that can be identified from the judgment are its use of CCX to summarise the governing principles ([33]–[34]), its reliance on MacKenzie for reconciling verdicts where a proper explanation exists ([33]), and its discussion of MFA and Jones concerning the significance of acquittals and complainant credibility ([7], [14]–[15]). The judgment also cites R v KET, Markuleski, Smillie, Taylor and BEN in explaining the issues and authorities relevant to the appeal ([2], [14], [33], [36]).
The court’s own contribution in BEZ is its application of those principles to this particular distinction between repeated earlier conduct and a separate later incident. It found the bodies of evidence sufficiently distinct to permit a rational jury to accept one and doubt the other ([19]–[20]). Whether subsequent courts adopt that application in other factual settings cannot be determined from this judgment alone.
The clearest expressly reserved issue is the possible relationship between s 132B(1) of the Evidence Act 1977 (Qld) and an argument said to be based on reasoning associated with a Markuleski direction. Brown JA described the issue as significant for future consideration but said it was unnecessary to decide it because it would not alter the result in this appeal ([21]). The judgment therefore leaves that question unresolved.
The reasons also do not identify precisely which considerations caused this jury to acquit on counts 3 and 4. The court gave possible explanations, including the absence of the brother’s evidence, the unsupported count 2 allegation, and the difference in the alleged conduct ([36], [19]). Those explanations show why the verdicts could be reconciled; they are not findings about the jury’s actual deliberations.
Nor does the judgment lay down a rule that differences in timing, detail or supporting evidence will always justify mixed verdicts. Its conclusion depends on its assessment of this record, including the separate periods and conduct, the jury directions, and the particular challenges to the count 1 evidence ([32], [35]–[38]). The question in another case would remain whether the verdicts can be reconciled rationally on that case’s evidence and directions.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v BEZ [2025] QCA 256
PARTIES: R / v / BEZ / (appellant)
FILE NO/S: CA No 32 of 2025 / DC No 419 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 13 February 2025 (Devereaux SC CJDC)
DELIVERED ON: 16 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 15 October 2025
JUDGES: Brown JA and Crow and Hindman JJ
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with repeated sexual conduct with a child (count 1), indecent treatment of a child under 16 (count 3), and rape (count 4) – where the jury returned a guilty verdict on count 1 and not guilty verdicts on counts 3 and 4 – where the evidence given at trial in respect of the incident comprising counts 3 and 4 was more specific and detailed – where the evidence given at trial in respect of count 1 was more generalised – where the appellant submits that, in circumstances where the jury was not satisfied beyond reasonable doubt that the conduct comprising counts 3 and 4 occurred, it is inconsistent for the jury to have been satisfied beyond reasonable doubt that the conduct comprising count 1 occurred – whether the different verdicts returned by the jury indicate that the verdict on count 1 is unreasonable and not supported by the evidence / Evidence Act 1977 (Qld), s 132B(1) / Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, considered / 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 BEN [2024] QCA 179, cited / R v CCX [2022] QCA 260, applied / R v KET [1998] VSCA 73, cited / R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited / R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited / R v Taylor [2012] QCA 32, cited
COUNSEL: L D Reece for the appellant / C M Cook for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
BROWN JA: I agree with the reasons and order proposed by Hindman J. I wish to add some short remarks of my own.
Counsel for the appellant clarified that the appellant’s contention was that the inconsistent verdicts demonstrates the unreasonableness of the verdict and there was only one ground of appeal in this regard.1
The verdict on count 1 was not inconsistent with and can be reconciled with the other verdicts of not guilty brought in by the jury for counts 3 and 4 in the sense spoken of in MacKenzie v The Queen.2 As Hindman J has stated the offending alleged in relation to count 1 occurred on different dates in a different period and was different offending.
While all the offending the subject of counts 1, 3 and 4 depended on the complainant’s evidence, there were points of distinction which explain the differences in verdicts, other than that the jury did not carry out each their function as required in determining the verdict for count 1. The applicant has particularly relied on the quality of evidence with respect to count 1 being no better than that which was given with respect to counts 3 and 4, particularly given the complainant gave more details in relation to the latter counts.
Having a reasonable doubt about some aspect of the offending charged at counts 3 and 4 does not necessarily mean that the jury could not have been satisfied with the complainant’s evidence beyond reasonable doubt in relation to count 1. Similarly the mere fact that different verdicts are delivered where a defendant is charged with multiple counts does not mean that they are inconsistent in the relevant legal sense.
The Court must in considering whether the verdict is unreasonable due to inconsistent verdicts be conscious of the context of the system in which the jury functions and the directions given.3 The test to determine whether the verdicts are inconsistent is generally one of logic and reasonableness.4
The majority in MFA v The Queen5 in affirming that the approach established by the majority in MacKenzie v The Queen was the correct approach also observed relevant to the present case that:6
“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”
The quality of evidence is recognised as a relevant factor which may explain the difference in verdicts.7 However, in the present case the appellant relies on the lack of a distinction between the quality of evidence in respect of count 1 and counts 3 and 4 as demonstrating why there is no rational explanation for the different verdicts.
The appellant relies on a number of inconsistencies in the complainant’s evidence in respect of count 1 in support of his argument. First, he refers to the absence of local shops at the site where the complainant said they were located and went to every Sunday during the offending period in at least until 1979. There was an admission that a structure did exist in the location described by the appellant in December 1981. The offending period continued until May 1981. While the complainant’s evidence suggested that the conduct had commenced in 1976, the admission that no structure existed at the relevant address in 1978 but that there was a structure there in December 1981 did not establish that there were no shops at all during the offending period. Although the complainant had indicated the offending could have commenced in 1976, the jury could have accepted that the complainant was confused as to the period of offending or that she was confused as to the location of the shops being the same throughout the offending period, given her age and the lapse in time.
Further, in relation to count 1, while the appellant contends the evidence of the complainant’s mother was not consistent with the complainant’s description of the complaint, the mother’s evidence that the complainant told her that the appellant had “hurt her” is a very general expression and open to the interpretation that the appellant had touched and hurt the complainant, not simply hurt her, although the mother did confirm that the complainant had not given any further detail. It is not inconsistent with the complainant’s complaint.
The mother’s evidence was quite vague but other aspects of her evidence gave some support to the complainant’s evidence. The mother gave evidence consistent with the complainant’s and explained why she may never have seen any bruising which the complainant said occurred after she was hit by the appellant when he sexually assaulted her. The mother gave evidence she didn’t bathe the complainant when she was 5-10 or 11 because she taught her how to do that. Similarly she taught her how to dress herself. The mother’s evidence that the complainant had lied about the mother hurting her was qualified in cross-examination, “it must only have been because I belted her with the wooden spoon.”8 The jury could have accepted the complainant’s evidence rather than the mother’s evidence that she did tell her mother about the appellant inserting his fingers.
“…it would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.”
“It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.” (citations omitted)
The difference in verdicts can be accounted for in a logical and reasonable way.
None of the matters raised by the appellant could be regarded as so weakening the complainant’s credibility that a jury acting reasonably could not have been satisfied of the appellant’s guilt in respect of count 1 beyond a reasonable doubt.
The complainant’s evidence was sufficient in its detail to establish that the offending occurred. It did not however have to be accepted in its entirety for the offence in count 1 to be proven beyond reasonable doubt. As discussed by Hindman J there were three types of conduct constituting count 1 and the jury did not have to accept that all of the conduct occurred for the offence to be established. The matters raised by the appellant did not undermine the complainant’s credibility such that there is no rational explanation for the difference in the verdicts.
Notwithstanding the complainant’s describing what occurred with respect to counts 3 and 4 in some greater detail than count 1, albeit that there were some inconsistencies in the complainant’s evidence with respect to those counts as well, the lack of satisfaction with the evidence by the jury in respect of those counts does not suggest an inconsistency in the MacKenzie sense in reaching a different verdict with respect to count 1. Justice Hindman has identified a number of points of distinction demonstrating why there is a rational explanation for the different verdicts in relation to counts 3 and 4 which do not involve a rejection of the complainant’s credibility. Aside from being different offences committed at different points in time, there was no corroborating evidence of counts 3 and 4, and as referred to by Hindman J, no evidence was given to support count 2, which was said to have occurred just prior to counts 3 and 4, but as part of the one incident. Similarly there was absence of the brother giving evidence in circumstances where the complainant said she had loudly screamed at the time of the offence when he was in the house and the fact that the conduct was more physically invasive.
For the reasons outlined above, this case, like MFA involves two distinct bodies of evidence supporting count 1 on the one hand and counts 3 and 4 on the other hand. A jury acting properly and rationally was entitled to accept one body of evidence beyond reasonable doubt, but not the other. The verdict of guilty does not suggest that the jury compromised or did not carry out their function convicting on the basis of suspicion. The appellant has not established that the verdict was unreasonable.
The Crown in their submissions contended that the appellant in effect were impermissibly seeking to raise an argument which was based on the reasoning that was the subject of the Markuleski direction which can no longer be given following s 132B(1) of the Evidence Act 1977 (Qld). That raises a significant matter for future consideration by this Court, but it is unnecessary to determine that question in order to decide this appeal. Applying that reasoning would not have led to a different outcome in the present case.
Introduction
HINDMAN J: In relation to charges where acceptance of the complainant’s evidence was critical to any finding of guilt, the jury returned:(count 1) a guilty verdict on a charge of repeated sexual conduct with a child (at the time aged between 6 and 9 years) between 21 August 1978 and 5 May 1981 (involving touching and penetrating of the child’s vagina by the appellant with his fingers); (counts 3 and 4) not guilty verdicts on charges related to one incident involving indecent treatment and rape of the child (at the time aged 10 years) between 23 January 1982 and 27 January 1982 (involving touching and penetration of the child’s vagina by the appellant with his fingers and penis).
The appellant appeals on the basis that, having regard to the not guilty verdicts on counts 3 and 4, the guilty verdict on count 1 is inconsistent, and therefore is unreasonable and not supported by the evidence. The argument is put by the appellant that:in acquitting on counts 3 and 4, in respect of which the complainant had given a detailed account and in respect of a date range able to be specifically identified by when the complainant’s mother had been absent from the home with the hospital birth of a child, the jury must have reached the view that they could not be satisfied beyond reasonable doubt that the incident as described by the complainant occurred;it is inconsistent for the jury to have been satisfied beyond reasonable doubt about alleged generalised conduct occurring as described by the complainant in respect of count 1;this Court should conclude that the verdicts represent a compromise struck between those with different views on the jury or that the jury was concerned something had happened but could not be persuaded beyond reasonable doubt on the individual counts – in either case the guilty verdict cannot be sustained.
The appellant’s argument must be rejected. A mixed verdict is not necessarily a matter for intervention by this Court. In this case, it was open to the jury to return the verdicts in the way they did. There is no proper basis for this court to intervene. I would dismiss the appeal.
The complainant’s evidence
At the time of giving evidence, the complainant was 53 years old. The alleged offending occurred between 1978 and 1982 when the complainant was aged between 6 and 10 years.
Relevant to count 1 the complainant gave evidence that there were three types of relevant conduct engaged in by the appellant.
First, she gave evidence that at times the appellant (her step-father), whilst disciplining her, would take her into his room, require her to pull down her underwear and whilst she was lying across his knees to be smacked, he would touch and penetrate her vagina with his fingers between smacking. The smacking (with belt or hand) would usually last about four to five minutes and would leave her with bruises and hand marks on her bottom and legs. This would occur once or twice a week, with others in the house at the time.
Second, she gave evidence that whilst she was in her own bed in her own bedroom asleep at night, she would be awoken to the appellant in her bedroom with his hands under the sheets, in her pyjamas and underwear, touching and penetrating her vagina with his fingers. That occurred on more than one occasion, the first occasion when she was about 6 years old and continuing until a move back to Brisbane when she was about 8½ years old.
Third, she gave evidence that at least every Sunday the appellant would drive her to the local shops in his car. On the way home (but stopping about a street before home) the appellant would place the complainant on his lap facing away from home, hook her feet under his legs, and have her steer the vehicle whilst he put his hands in her underwear and touched and penetrated her vagina with his fingers for four to five minutes.
Relevant to counts 3 and 4, the complainant gave evidence of one incident that she was able to identify in time by reference to a date range during which her mother was absent from the family home having a baby at hospital (the complainant’s younger sister). She recalled her older brother being home at the time. The appellant got the complainant out of her bedroom and told her to come sleep in the big bed with him. He told her to remove her underwear – he said they did not wear underwear in the big bed. He touched her vagina with his fingers. He then rolled her on top of him and rocked her up and down his body. She could feel his penis touching her vagina. That continued until he penetrated her vagina with the head of his penis. She immediately felt pain, screamed and ran crying to the bathroom where she saw she was bleeding from the vagina. She went to bed about five to ten minutes later and cried herself to sleep.
The differences
The principles concerning challenges to verdicts on the grounds of inconsistency
“[53] Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness, which respects the function of the jury. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury.
[54] In MacKenzie v The Queen, the joint judgment said:
‘…[I]f 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.’
[55] The respect which an appellate court must afford the function of the jury is emphasised in the following passage in M v The Queen:
‘…the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’
[56] The appellant bore the onus of establishing that the verdicts of acquittal and conviction were an unacceptable affront to logic and common sense and strongly suggestive of, relevantly, the jury having compromised its duty, having been confused or misunderstanding its function.”
“The starting point is that a jury may appropriately accept a complainant’s evidence in one respect whilst retaining a reasonable doubt about the commission of other acts about which the complainant was the only witness. By acquitting on one count, a jury is not taken as having found that the event alleged and recounted by the complainant in respect of that count did not occur. The acquittal simply means that the jury was not satisfied to the requisite standard that the events occurred.”
This case
In finding guilt in relation to count 1, this Court proceeds on the assumption that the jury assessed the complainant’s evidence as credible and reliable in relation to facts relevant to count 1. Whilst the appellant describes it as general evidence, it in fact identified three specific types of offending, the circumstances in which each type of offending occurred and the regularity of the offending. The jury found the elements of count 1 proved beyond reasonable doubt and in so doing:must have accepted that at least some of the sexual acts the complainant described in relation to count 1 occurred;must have rejected the wholesale criticism of the complainant’s evidence that the defendant’s counsel sought to advance;21must have rejected the appellant’s position that he did not maintain a sexual relationship with the complainant.
The jury had reasonable doubts about counts 3 and 4, involving one incident. That could be explicable in any number of ways. For example, the complainant gave evidence of screaming in pain but no evidence was adduced from her older brother who was apparently home at the time.22 By way of further example, the prosecutor opened count 2 (the appellant licking the complainant’s vagina as part of the incident involving counts 3 and 4), but the complainant gave no evidence supporting that count.23 Holmes JA (as her Honour then was)24 in R v Smillie (2002) 134 A Crim R 100 at [28] gave other examples of why verdicts on different counts might rationally differ, some of which may also apply here.
There is no proper basis to conclude (as submitted for the appellant) that the verdicts represent a compromise struck between those with different views on the jury or that the jury was concerned something had happened but could not be persuaded beyond reasonable doubt on the individual counts. Nor is there a proper basis to conclude that having found a reasonable doubt in relation to counts 3 and 4 that the jury did not properly consider how that affected their assessment for the purposes of count 1.25
The verdicts were not inconsistent and the guilty verdict on count 1 was open on the evidence and is not shown to be unreasonable. I would dismiss the appeal.
Consistent with Dalton JA’s commentary in R v BEN [2024] QCA 179. ↩
(1996) 190 CLR 348. ↩
MFA v The Queen (2002) 213 CLR 606 at [34]. ↩
MacKenzie v The Queen (1996) 190 CLR 348 at 366. ↩
MFA at [34]. ↩
MFA at [34]; See also R v CCX [2022] QCA 260 at [61]. ↩
CCX at [65]. ↩
AB Vol 2 160/38-39. ↩
AB Vol 2 201/26-27. ↩
CCX at [69]. ↩
(1997) 191 CLR 439 referred to at [13] of the outline of submissions. ↩
[1998] VSCA 73 at [29]. ↩
At [35]; See also Dalton JA in R v BEN [2024] QCA 179 at [61]. ↩
R
BEZ [2025] QCA 256
(1997) 191 CLR 439
(1996) 190 CLR 348
(2002) 213 CLR 606
(2001) 52 NSWLR 82
Appeal dismissed. The Court held that the guilty verdict on count 1 was open on the evidence and was not shown to be unreasonable or inconsistent with the acquittals on counts 3 and 4 ([25], [38]).
Similarly the friend’s evidence that the complainant had said “something that happened between her and [the appellant]”9 while given its generality would not have bolstered the complainant’s credit given the absence of detail, it was not inconsistent with the complainant’s evidence.
The complainant had given evidence of the appellant having hit her very hard in the kitchen of her cousin’s house such that she fell backwards off the chair and her cousin’s husband, who gave evidence at trial, was not present. While her cousin’s husband gave evidence that he was not in the kitchen but his wife was, he did give evidence that he had witnessed the appellant’s anger and the appellant had hit her in front of him when outside. The jury may have accepted the complainant’s evidence was exaggerated or again confused as to the detail but the cousin’s evidence gave support to the appellant’s violence towards the complainant. As was said in CCX corroborative evidence need not prove the offence or even specific elements.10
While the appellant makes reference to Jones v The Queen11 some caution must be exercised in the passage referred to by the appellant, although the quality of the evidence is a matter which may be examined in looking at inconsistency of verdicts. In CCX, Kelly J referred to the observations of Winneke P in R v KET12 at [59]:
CROW J: I agree with the reasons of Hindman J.
As amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld). ↩
Count 1 is a charge that occurs over a period of time and has the essential element of an unlawful sexual relationship; counts 3 and 4 allege specific acts at specific times (here part of the one incident). ↩
A Markuleski direction would have been to the effect that if the jury had reasonable doubt about part of the complainant’s evidence the jury should consider whether that affected their assessment of the rest of her evidence. The direction derives from the case of R v Markuleski (2001) 52 NSWLR 82. ↩
AB 34 Vol 1 47 to AB 35 Vol 1 1. ↩
R v Taylor [2012] QCA 32. ↩
The relevant High Court authority cited is MacKenzie v The Queen (1996) 190 CLR 348. See particularly at 367-368 per Gaudron, Gummow and Kirby JJ. ↩
As his Honour then was. ↩
It was advanced, inter alia, that the complainant was not a credible and reliable witness (AB Vol 1 27/15-19), that part of her evidence was “absolute nonsense” and certain things “didn’t happen” (AB Vol 1 28/5-9), that there was “extraordinary difference” in particular parts of her evidence from other witnesses (AB Vol 1 28/34-42), that she had a “tendency to exaggerate things quite dramatically” (AB Vol 1 34/26-31), see also at AB Vol 1 38/10-23. ↩
The defendant’s trial counsel made closing submissions regarding same at AB 33 Vol 1 1-6. ↩
Resulting in a directed not guilty verdict on that count. The defendant’s trial counsel made closing submissions regarding same at AB Vol 1 32/42-48 and AB Vol 1 38/25-27. ↩
With whom Williams JA and Mackenzie J agreed at [1] and [2]. ↩
Jones v The Queen (1997) 191 CLR 439; R v Markuleski (2001) 52 NSWLR 82; R v Taylor [2012] QCA 32. ↩