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[2025] QCA 125
appellant. Appeal allowed. Convictions on counts 1, 2 and 3 set aside. A new trial ordered on counts 1, 2 and 3.
The appeal succeeded because the prosecution gave the defence an important file note only after questioning of the complainant had started. The note contained an account and inconsistencies that mattered to assessing her evidence. The Court considered that the late disclosure could realistically have affected the jury’s reasoning and that the harm could not be undone by extra time or an explanation. The Court did not accept the other grounds, including the challenges based on the different verdicts and the overall evidence. It set aside the three convictions and ordered a new trial on those counts.
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2,401 words · generated 07/10/2026
In R v GBS [2025] QCA 125, the Queensland Court of Appeal considered an appeal against three rape convictions. Burns J delivered the substantive reasons. Flanagan JA and Bradley JA agreed with those reasons: [1]–[2].
No linked legislation citations have been extracted yet.
The indictment alleged four counts of rape and one count of sexual assault, arising from events at the appellant’s residence in Mount Isa during the early hours of 16 October 2021: [3], [5], [7]. The jury convicted the appellant on counts 1, 2 and 3, which concerned alleged anal penetration in the bedroom. It acquitted him on count 4, another alleged act of anal penetration in the living room, and count 5, an alleged sexual assault involving ejaculation on the complainant’s face: [3], [7]–[19].
A central issue on appeal concerned a prosecutor’s file note of a pre-trial conference with the complainant. Before trial, the defence had requested conference notes and had been told there was nothing disclosable. During cross-examination, a new allegation emerged concerning vaginal penetration in the living room after the complainant said she had been asleep. Defence counsel asked for the conference note. It was produced over the luncheon adjournment and recorded an account that the complainant had awoken with the appellant on top of her, penetrating her, and that she did not consent. The note also differed in other respects from her evidence-in-chief: [23]–[27].
The trial judge refused the defence application to discharge the jury. Her Honour considered the prejudice remediable by further questioning and an instruction that the note should have been disclosed: [27]–[28]. On appeal, the Court held that the failure to disclose could realistically have affected the jury’s assessment of the complainant’s credit and could not be cured by those measures: [33]–[35].
Two further grounds did not succeed. The first concerned an agreed shoulder-touch signal by which the complainant could tell the prosecutor she wanted a break while being cross-examined. The Court disapproved of that communication method but found that the complainant was entitled to request a break and that the substance of the request was unchanged: [36]–[37]. The second ground challenged the convictions as inconsistent with the acquittals and unsupported by the evidence as a whole. The Court rejected both aspects: [38]–[45].
The appeal was allowed, the convictions on counts 1, 2 and 3 were set aside, and a new trial was ordered on those counts: [46] and orders.
The decisive question was not whether the late disclosure would necessarily have changed the verdicts. The court applied the materiality threshold stated by the High Court in Brawn v The King: an error or irregularity is material if it could realistically have affected the jury’s reasoning to a guilty verdict. “Could” means having the capacity to do so, and “realistically” excludes a merely fanciful or improbable possibility. The appellant bears the burden, but it is not onerous: [31]–[32].
The statutory disclosure obligation was relevant. Section 590AB of the Criminal Code (Qld), as described by Burns J, requires the prosecution to give full and early disclosure of material that tends to help the accused. It identifies fairness and the search for truth as fundamental to the prosecution’s obligation: [33]. The court held that the file note should have been disclosed. It considered that the note could assist the defence because it recorded an allegation not previously disclosed in the materials and contained differences from the complainant’s trial evidence: [26], [33].
The timing mattered to the court’s assessment of materiality. Defence counsel had begun questioning on the basis that the complainant had not previously made the living-room allegation. After disclosure, the premise of that questioning was undermined. Burns J accepted the submission that, had counsel known of the file note, counsel would not have suggested that the complainant was making the allegation up or raising it for the first time at trial: [27], [33]–[34].
That consequence connected the non-disclosure to the jury’s task. Consent and the reliability of the complainant’s account were central issues. The court concluded that the irregularity could realistically have affected the jury’s assessment of her credit, and thereby its reasoning on counts 1, 2 and 3: [33]–[34]. It was not enough that the defence received time to consider the differences or that the trial judge told the jury that disclosure should have occurred. In the court’s view, the effect had already arisen when cross-examination proceeded on an inaccurate premise: [34].
The judge also addressed the refusal to discharge the jury. The application arose under s 60(1) of the Jury Act 1995 (Qld), which gives the trial judge a discretion to discharge a jury where there are proper reasons. The appeal remained an appeal against conviction, and the appellate question was whether the discretion miscarried, applying House v The King: [30]. The outcome rested on the materiality of the disclosure breach and the resulting miscarriage, rather than a separate general rule that a jury must be discharged whenever disclosure is late.
The court held there was no room for the proviso in the circumstances. It referred to Weiss v The Queen and R v HAU in explaining that a serious breach of the presuppositions of a trial cannot be treated as harmless where non-disclosure of material might have influenced the result: [35].
The judgment describes the relevant principles as established by earlier authorities, rather than creating a new general test. Before this decision, the High Court’s decision in Brawn v The King had stated the materiality threshold for errors and irregularities in criminal trials. The Court of Appeal treated that threshold as controlling: the error must have the capacity realistically to affect the jury’s reasoning, but the appellant need not prove that a different verdict would have followed: [31]–[32].
The judgment also drew on existing statutory and appellate principles. The prosecution’s disclosure duty came from s 590AB of the Criminal Code (Qld), described as requiring full and early disclosure of material tending to help the accused: [33]. The approach to the jury-discharge discretion came from s 60(1) of the Jury Act 1995 (Qld) and House v The King: [30]. The court referred to Wilde v The Queen in noting the possibility of a fundamental irregularity, and to Weiss and R v HAU in its discussion of the proviso: [31], [35].
For inconsistent verdicts, the reasons relied on the test of logic and reasonableness attributed to MacKenzie v The Queen and summarised in R v Fanning: [39]. The court applied that established approach by asking whether a reasonable jury could distinguish the evidence supporting the bedroom counts from the evidence concerning the living-room counts: [40], [43].
The practical contribution of GBS is its application of those principles to late disclosure of a prosecutor’s conference note during cross-examination. The court held that the particular breach was material because the defence had already begun a line of questioning that the undisclosed note affected. It emphasised that later procedural steps did not cure the potential impact on the jury’s assessment of credit: [33]–[35]. The judgment does not state that every late disclosure requires discharge of the jury or a new trial. Its reasoning turns on the contents of this note, the point at which it was disclosed, and the way that timing affected the defence’s cross-examination.
The decision also provides a clear distinction between disapproving of a courtroom practice and finding that it caused a miscarriage. The court said a witness should not be encouraged to use a private signal to communicate with the prosecutor from the witness box, but dismissed the appeal ground concerning the signal: [37]. That observation did not alter the result because the court found the material disclosure breach sufficient to allow the appeal.
At [31], the court set out the Brawn test: an error must be material because it “could realistically have affected the reasoning of the jury” to a guilty verdict. In plain English, the question is whether the error had a real capacity to matter to the jury’s reasoning, not whether the appellate court can prove it changed the outcome.
At [32], Burns J emphasised that “could” does not mean “would”. The test therefore does not require the appellant to establish that the jury would probably have acquitted if disclosure had occurred earlier. The issue is the realistic possibility of an effect, assessed against the trial that actually took place.
At [33], the court said it should have been obvious that the file note tended to help the accused and fell within the prosecution’s disclosure obligation. The court also explained why earlier disclosure mattered: a supplementary statement could have recorded the complainant’s account and allowed the defence to consider how to approach cross-examination before trial.
At [34], the court identified the practical prejudice. Counsel had begun questioning on the footing that the allegation had not previously been made, only to learn that a prosecutor’s note recorded a prior account. The court considered that this could affect the jury’s assessment of the complainant’s credit and could not be repaired by additional time or a brief explanation.
At [37], the court stated that a witness “should never be encouraged to engage in other than open and transparent communications from the witness box.” The plain-English point is that requests and communications during testimony should not be handled through a private signal arranged with the prosecutor. The court nevertheless held that the conduct did not establish the appeal ground because the complainant was entitled to request a break and the signal conveyed that request.
At [43], the court explained why the verdicts could be reconciled. The bedroom allegations and living-room allegations were not identical in evidentiary context. There was intervening consensual activity, the complainant’s account of counts 2 and 3 included feigned enjoyment, she was tired or asleep during later events, and the count 5 allegation depended on an inference while her eyes were closed. These distinctions allowed the jury to assess the counts differently.
The decision is most directly relevant where a prosecution fails to disclose material that could assist the defence, and the material is disclosed only after a significant part of the trial process has begun. In GBS, the note was disclosed after cross-examination of the complainant had started, and it related to a newly raised allegation and differences between accounts: [25]–[27].
The materiality analysis in the case is especially pertinent where the undisclosed material bears on a central witness’s credibility, reliability, or the defence’s ability to test the evidence. The court expressly linked the file note to the jury’s assessment of the complainant’s credit and to its reasoning on the counts of conviction: [33]–[34].
The case also highlights the importance of considering the effect of disclosure timing, not simply whether material was eventually provided. Here, the defence had already put questions that became difficult to maintain once the note emerged. The court regarded that sequence as significant to whether the disclosure failure could realistically have affected the jury: [34].
The judgment does not set out a checklist that decides every disclosure appeal. Nor does it hold that any inconsistency in a witness’s accounts necessarily makes non-disclosure material. The court’s conclusion depended on the contents of this file note, its potential usefulness to the defence, the centrality of the complainant’s evidence, and the effect on the cross-examination already underway: [33]–[35].
The discussion of inconsistent verdicts may be relevant where an appellant argues that convictions on some counts cannot coexist with acquittals on others. GBS indicates that count-by-count distinctions may allow different verdicts, including differences in location, surrounding conduct, the witness’s fatigue, and whether an allegation was observed or inferred: [39]–[43]. The court still required a whole-of-evidence assessment for the separate unreasonable-verdict argument: [41]–[44].
The supplied judgment contains no decisions after R v GBS and therefore does not establish how later courts have treated it. Any account of subsequent treatment would require later legal sources, which are not included here.
Within GBS, Burns J applied Brawn v The King to the non-disclosure issue: [31]–[34]. The reasons followed the summary in R v Fanning of the principles governing inconsistent verdicts: [39]–[40]. They also applied Weiss v The Queen in discussing the proviso: [35]. Other authorities, including House v The King, MacKenzie v The Queen, M v The Queen and R v ZT, were cited in relation to the relevant appellate principles: [30], [39], [41].
These relationships show how the Court of Appeal grounded its analysis in existing High Court and Queensland Court of Appeal authority. They do not establish that later courts have adopted or extended GBS.
The supplied reasons resolve the appeal on the facts before the Court but do not determine the outcome of the ordered retrial. The judgment sets aside the convictions on counts 1, 2 and 3 and orders a new trial on those counts: [46]. It does not make a final finding about the appellant’s guilt or the ultimate reliability of the evidence.
The judgment does not specify a general threshold for when late disclosure will require a jury to be discharged rather than dealt with by other means. It applies the materiality test to the appeal against conviction and concludes that the particular prejudice could not be cured in this trial: [30]–[35]. How different forms of late disclosure, different trial stages, or different remedial steps might affect the analysis remains dependent on the facts of a later case.
The court’s suggestion that a supplementary witness statement should have been prepared and disclosed is tied to the circumstances described in [33]. The reasons do not define a comprehensive procedure for recording all pre-trial conferences with witnesses. They do, however, make clear that the prosecution’s disclosure obligation was ongoing and that the information in this note should have been disclosed before trial.
The court’s treatment of the break-request signal also leaves the consequences of similar conduct to be assessed in context. It regarded the method as inappropriate but found no miscarriage on this ground: [37]. The judgment does not decide what result would follow if a private communication conveyed more than a request for a break, influenced testimony, or affected the fairness of cross-examination.
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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 GBS [2025] QCA 125
PARTIES: R / v / GBS / (appellant)
FILE NO/S: CA No 259 of 2024 / DC No 329 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Townsville – Date of Conviction: 6 November 2024 (Richards DCJ)
DELIVERED ON: 8 July 2025
DELIVERED AT: Brisbane
HEARING DATE: 9 April 2025
JUDGES: Flanagan and Bradley JJA and Burns J
ORDERS: 1.Appeal against conviction is allowed.2.Convictions on counts 1, 2 and 3 are set aside.3.A new trial ordered on counts 1, 2 and 3.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant faced an indictment charging five counts – where the appellant was found guilty by the jury of three counts of rape – where the appellant was found not guilty by the jury of one count of rape and one count of sexual assault – where the prosecutor failed to disclose a file note of a pre-trial conference with the complainant until after the commencement of her cross-examination – where the file note revealed, for the first time, evidence of an alleged uncharged act as well as several inconsistencies with the complainant’s evidence-in-chief – where the appellant applied for the discharge of the jury on the basis that she had embarked upon her cross-examination of the complainant unaware of the contents of the file note and the defence had thereby been irremediably prejudiced – where the trial judge refused to discharge the jury – whether a miscarriage of justice was occasioned by the late disclosure of the file note and/or the trial judge’s refusal to discharge the jury – whether the verdicts of conviction were otherwise unreasonable because they were inconsistent with the concurrent verdicts of acquittal and/or could not be supported having regard to the evidence as a whole – whether a new trial should be ordered / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, applied / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / R v Basha (1989) 39 A Crim R 337, cited / R v Bosscher [2024] QCA 253, cited / R v CX [2006] QCA 409, cited / R v CCX [2022] QCA 260, cited / R v Fanning [2017] QCA 244, followed / R v Fennell [2017] QCA 154, cited / R v HAU [2009] QCA 165, cited / R v ZT (2025) 99 ALJR 676; [2025] HCA 9, cited / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied / Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, cited
COUNSEL: J R Hunter KC, with D J Boddice, for the appellant / D Kovac for the respondent
SOLICITORS: Anderson Telford Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
FLANAGAN JA: I agree with Burns J.
BRADLEY JA: I agree with the reasons of Burns J and the orders his Honour proposes.
BURNS J: The appellant’s trial in the District Court at Townsville on an indictment alleging four counts of rape and one count of sexual assault commenced on 5 November 2024. On 8 November 2024, the jury found him guilty of three counts of rape (counts 1, 2 and 3) but not guilty of the remaining count of rape (count 4) as well as the sexual assault count (count 5).
The appellant appeals against his convictions on the following grounds:
Ground 1
That a miscarriage of justice was occasioned by:
the prosecutor’s failure to disclose a file note of a pre-trial conference with the complainant until after the commencement of defence counsel’s cross-examination of the complainant; and
the learned trial judge’s subsequent failure to discharge the jury at the request of defence counsel.
Ground 2
That a miscarriage of justice was occasioned because of the prosecutor’s irregular communication with the complainant whilst under cross-examination.
Ground 3
That the verdicts of guilty were unreasonable as they were:
inconsistent with the concurrent acquittals; and
cannot be supported having regard to the evidence as a whole.
The Trial
Each of the alleged offences was said to have occurred during a single course of conduct at the appellant’s residence in Mount Isa during the early hours of 16 October 2021. The complainant, an adult woman, moved to Mount Isa in September 2021 and took up employment. She was residing with her aunt at the time of the alleged offences.
The complainant first met the appellant at her aunt’s home on the previous evening (15 October 2021). The complainant, her aunt, her uncle and the appellant gathered there for drinks before leaving at around 11.30 pm to attend a club in town. After arriving at the club, the group decided on a different venue, a nearby hotel. While at the hotel, the appellant and the complainant got along well and were said to have been flirting with each other. At around 1.30 am, the group left the hotel but, although the complainant’s aunt and uncle returned home, the complainant agreed to go with the appellant to his house. The complainant anticipated she would probably engage in consensual sexual intercourse with him.
It was uncontroversial that consensual acts of oral sex and vaginal intercourse subsequently took place. However, the indictment was founded on four acts of anal penetration and one act of ejaculation which the complainant said in evidence occurred without her consent. These acts were particularised by the Crown as follows:
“Count 1: Rape
The first time in the bedroom
The [appellant] inserted his penis into the complainant’s anus, without her consent.
Count 2: Rape
The time in the bedroom after the lubricant was applied
The [appellant] inserted his penis into the complainant’s anus, without her consent.
Count 3: Rape
The time he was switching between penetrating her vagina and anus in the bedroom
The [appellant] inserted his penis into the complainant’s anus, without her consent.
Count 4: Rape
The time he was switching between penetrating her vagina and anus in the living room
The [appellant] inserted his penis into the complainant’s anus, without her consent.
Count 5: Sexual assault
The [appellant] ejaculated on the complainant’s face, without her consent.”
Count 1
Count 2
Count 3
“I did say ‘no’ to that one, as well, as he wasn’t wearing any protection, um, and I didn’t want to risk getting any infections or anything with that. Um, however, he still proceeded with penetrating my vagina.”
“Um, well, at the time, my thought process was that I’d obviously said ‘no’, and that hadn’t worked. I had said ‘no’ multiple times and it wasn’t working, so I had tried to encourage him to finish quickly so that it would be over and done with a lot faster.
…
I wanted to get out of the situation as quick as possible, but I’m not a confrontational person and I didn’t want any conflict, so – and I’ve obviously said ‘no’, and the best way to get it finished was for him to finish.
…
I was, um, like, pretending to moan and say it felt good, or something to those lines, for him to hurry up and finish in those sorts of ways. Um, yeah.”
However, as the complainant put it, “that didn’t work”, so she told the appellant she needed to go to the toilet. She got up, went to the bathroom and sat inside for about five minutes. On her return, she put her underpants back on, asked for a t-shirt to wear and told the appellant she needed to go to sleep as she had work that morning. The complainant walked from the bedroom to the living room where she lay down on a mattress and started to “doze off”.
I interpolate that, when cross-examined about the acts said to constitute counts 1 to 3, the complainant accepted that the decision she made to pretend that she was “into it” in the ways described above (at [12]) was not only engaged in by her in relation to the act constituting count 3, it was also engaged in with respect to the act constituting count 2. Also, in the case of count 2, the complainant said the appellant withdrew of his own accord. She also confirmed that the penetration of her vagina immediately prior to the act relied on by the Crown to constitute count 3 took place without her consent.
Count 4
An uncharged act
In circumstances about which Ground 1 is concerned, the complainant said in evidence that the next thing she recalled was that, having been asleep, she felt the appellant move “again towards [her] face with his penis”. The complainant said she was “extremely tired”, that she had been asleep and that she told the appellant “no, that [she] didn’t want to do it, and … had work in the morning”. She rolled over and drifted back to sleep but the appellant positioned himself on top of her, slid her underpants to one side and penetrated her vaginally again. This act, the complainant said, was not consensual.
The complainant pretended she needed to go to the toilet again. She entered the bathroom and sat inside. Whilst there, she checked the time, it was at least 2.30 am or “getting closer to about 3 am”. After a while she returned to the living room, lay down and fell asleep.
Count 5
“Um, I felt him move onto the bed, um, and I felt him come on my face. It went on my forehead and on my eyelid, and I remember wiping it off with the blanket, saying, ‘yuck’ and turning over and hiding my face.”
Subsequent events
Other evidence
The complainant’s aunt gave evidence about the conversation with her niece in the car after collecting her from the appellant’s house. According to her aunt, the complainant told her she engaged in sexual activity with the appellant and had not slept. She used slang words to indicate she had participated in both oral sex and anal sex. The complainant’s aunt said the complainant laughed about “getting some dick” and joked about the state of her hair, saying the appellant “just fucked me hair”. The complainant’s uncle also gave evidence to the effect that a few days after the complainant went home with the appellant he overheard the complainant saying she was unsure if she would return to the appellant’s house because “he took ages to get off and … tried everything to get him to orgasm”. When the complainant’s mother gave evidence, she confirmed that the complainant did not make any complaint about being raped until 31 October 2021.
I record for completeness that nothing turns on what was brief evidence from the medical practitioner and the arresting officer at the trial, neither of whom was cross-examined.
Ground 1
It will be seen from the foregoing summary of the evidence at trial that the complainant’s account included evidence of two uncharged acts. The first in time was said to have been an act of vaginal penetration which occurred in the appellant’s bedroom immediately before the act of anal penetration constituting count 3.1 The second was also alleged to have been an act of vaginal penetration but, on this occasion, it was said to have taken place in the living room after the complainant was awoken.2
Now, whatever may have been the position regarding the first of those uncharged acts, the evidence which the complainant gave regarding the second uncharged act took the defence by surprise. No such allegation appeared in any witness statement or other material disclosed by the Crown in advance of the trial and nor did the complainant give evidence to that effect at the committal hearing which was held on 30 January 2024. To the contrary, the whole focus of the Crown case until that point in time had been on what had been alleged to be non-consensual acts of anal (as distinct from vaginal) penetration and one act of sexual assault. Indeed, the case opened to the jury by the Crown was that the appellant and the complainant had “consensual penile-vaginal sex”.
At the outset of the cross-examination of the complainant, it was put to her that she had never before said the appellant penetrated her vagina with his penis when in the living room without her consent. Following a brief adjournment to deal with an objection made by the Crown prosecutor, it was also put to the complainant that she had never conveyed any such allegation to the Crown prosecutor. After the appellant’s trial counsel established that the complainant attended a conference with the prosecutor on the day before the trial commenced, it was put to her that she “didn’t tell [the prosecutor] that you were asleep when [the appellant] vaginally penetrated you [when] in the [living] room”, to which the complainant responded that she was “pretty sure” that she had said that to the prosecutor. At that point, the appellant’s trial counsel called for a copy of the “conference note”.
In the absence of the jury, the appellant’s trial counsel indicated she had previously requested that a copy of all conference notes be provided to her in advance of the trial,3 but had been advised by the Crown there was “nothing disclosable”. Then, over the luncheon adjournment, the appellant’s trial counsel was provided with a copy of a file note of the conference between the prosecutor and the complainant on the previous day. The file note recorded a version from the complainant in which she said that, after falling asleep in the living room, she awoke to the appellant “on top of” her. She said “he was penetrating [her] and [she] wasn’t enjoying it”, and added that he was penetrating her anus and vagina and she did not consent to these acts. This allegation aligned with the evidence which the complainant gave at the trial regarding the second uncharged act, although it will be noticed that her evidence in that regard was confined to an act of non-consensual vaginal penetration (as opposed to penetration of both her vagina and anus). There were, in addition, other inconsistencies between the allegations recorded in the file note and the complainant’s evidence-in-chief.
“It’s easily remedied … All you have to do is get out of her that the conference took place yesterday and that was the first time she’d raised it, which is easy enough to do. And I can instruct the jury that it should have been disclosed.”
The defence was given time to seek instructions about the differences in the two accounts before continuing the cross-examination of the complainant, and this resumed on the following morning. Immediately before it did, the trial judge told the jury that the defence did not have a copy of the notes of what the complainant told the prosecutor on the day before the trial commenced, and that they should have been disclosed. That meant that the defence required “time to consider the notes” and this, her Honour said, was the cause of the delay in the progress of the trial. The topic was not revisited in her Honour’s summing-up.
By this ground of appeal, the appellant complains that a miscarriage of justice was occasioned by the prosecutor’s failure to disclose the file note until after the commencement of the cross-examination of the complainant and the trial judge’s subsequent failure to discharge the jury at the request of the defence.
The application to discharge the jury was grounded in s 60(1) of the Jury Act 1995 (Qld). By that provision, a trial judge is clothed with a discretion to discharge a jury where “there are proper reasons” for doing so. As noted in R v Bosscher,4 the House v The King5 principles therefore apply to any complaint made about the exercise of that discretion on appeal.6 The relevant question is whether the trial judge’s discretion miscarried. Importantly, the appeal is not against the failure to discharge the jury, but against the conviction.7
Furthermore, as recently determined by the High Court in Brawn v The King,8 where it has been shown there was an error or irregularity in a criminal trial such as a breach of the prosecution’s duty of disclosure, then to establish a miscarriage of justice it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict.9 This is the “materiality threshold”10 which must be overcome before it can be said that an error or irregularity that has occurred in, or in relation to, a criminal trial amounts to a miscarriage of justice. Leaving to one side cases where such an irregularity was “fundamental” in the sense discussed in authorities such as , for errors or irregularities to constitute a miscarriage of justice:
“[T]hey must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, ‘could’ is to be understood as meaning ‘having the capacity to’, and ‘realistically’ distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.”13
It follows that the materiality threshold will be met where the error or irregularity was one that could have (as opposed to would have) realistically affected the jury’s reasoning to a verdict of guilty.14
Here, and regardless of the requests made by the defence for disclosure of all conference notes, it should have been obvious to the prosecutor that the file note would “tend to help the case for the accused person” within the meaning of s 590AB of the Criminal Code (Qld) and, for that reason, that it was caught by the ongoing obligation of the Crown which is imposed by that provision to “give … full and early disclosure” of it: s 590AB(2). As the same provision expressly acknowledges, that is a “fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth”: s 590AB(1). In the circumstances of this case where both consent and the reliability of the complainant’s account were central issues, the failure to disclose the file note seriously undermined the fairness of the trial. Indeed, what should have occurred immediately following the pre-trial conference with the prosecutor was the preparation of a supplementary witness statement from the complainant in which the account provided in that conference was recorded. That should then have been provided to the defence without delay and, certainly, before the trial commenced. This may in turn have prompted an application for a Basha15 hearing in the absence of the jury to cross-examine the complainant on her most recent version or even an application to delay the commencement of the trial itself but, irrespective of those possibilities, the provision of a supplementary witness statement would have given the defence time to consider whether to embark on the line of cross-examination which was taken at the trial prior to the disclosure of the file note. As the appellant’s trial counsel submitted, she would never have suggested to the complainant that she was “making [her evidence about the second uncharged act] up or saying this for the first time today” if the file note had been disclosed. It would also have afforded time to the defence to properly consider the differences between the accounts offered by the complainant.
At a minimum, the irregularity constituted by this breach of the Crown’s disclosure obligation could have realistically affected the jury’s assessment of the complainant’s credit and, therefore, the jury’s reasoning to a verdict of guilty on counts 1, 2 and 3. It was not possible to cure the impact this breach could have had on the jury’s reasoning either by the time which was afforded to the defence to “take instructions” on the inconsistencies between the accounts or by the explanation given to the jury by the trial judge about the Crown’s failure to disclose the file note. In a real sense, the damage was done when the appellant’s trial counsel was misled by the Crown’s omission to commence her cross-examination of the complainant in the way in which she did, only to have the whole premise for that line of questioning undone by the subsequent disclosure of the file note. There was accordingly a miscarriage of justice.
Ground 2
During the subsequent cross-examination of the complainant about the inconsistencies between her evidence-in-chief and the account she provided to the prosecutor on the day before the trial, the prosecutor suggested to the trial judge that “the complainant might want a break”. After the complainant left the court room, the prosecutor told the trial judge that he had developed a “signal” which the complainant could give – she was to, and did, touch her shoulder – to indicate to him when she wanted a break from questioning. The appellant’s trial counsel complained, submitting that such a form of communication was irregular and had otherwise interrupted the flow of her cross-examination. The trial judge rejected these complaints.
The same complaints are relied on to support this ground of appeal but, in my view, the trial judge was right to reject them. Like any witness, the complainant was free to ask for a break at any time. That she communicated her request in the extraordinary way agreed with the prosecutor does not alter the substance of what she did. However, it should not be thought this manner of communication was at all appropriate. To the contrary, a witness should never be encouraged to engage in other than open and transparent communications from the witness box. But, that said, this ground fails.
Ground 3
By this ground, the appellant maintains that the verdicts of guilty on counts 1, 2 and 3 were unreasonable because they were: (1) inconsistent with the acquittals on counts 4 and 5; and (2) cannot be supported having regard to the evidence as a whole.
As to (1), the legal principles which bear upon the proper evaluation of a ground of appeal where it is said the verdicts of the jury were inconsistent, one with the other, were summarised by Morrison JA (with whom Sofronoff P and McMurdo JA agreed) in R v Fanning:18
“In MacKenzie v The Queen,19 Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of ‘logic and reasonableness’:
‘… if 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. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’
Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:
the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;
as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;
if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;
different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;
different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;
a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;
a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;
in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and
it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.” [citations omitted]
It is therefore for the appellant in this case to establish that the verdicts of conviction on counts 1, 2 and 3 when taken with the verdicts of acquittal on counts 4 and 5 were an unacceptable affront to logic and common sense or suggest, relevantly, that the jury compromised their duty, or were confused or misunderstood their function.20 The question is whether a reasonable jury, having applied their minds to the facts of the case, could have been satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant’s evidence with respect to counts 1, 2 and 3, whilst not being so satisfied with her evidence in respect of counts 4 and 5.
As to (2), a ground of appeal that a verdict was unreasonable or cannot be supported having regard to the evidence requires this Court to consider the whole of the evidence before the jury, and decide whether it was open to the jury as a question of fact to be satisfied beyond reasonable doubt about the guilt of the appellant on that count.21 In the context of this case, this means it is necessary to undertake a review of the whole of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt about the truthfulness and reliability of the account which the complainant gave regarding the essential features of the acts comprising counts 1, 2 and 3 and also, where applicable, to be satisfied to the same standard that the appellant was not acting under a mistake of fact within the meaning of s 24 of the Criminal Code (Qld) that is to say, an honest and reasonable belief that the complainant consented to those acts occurring. In answering these questions, the Court is obliged to pay full regard to the features that the jury is the body entrusted with the primary responsibility of determining guilt and has had the benefit of having seen and heard the witnesses.22 It should also be kept in mind that, while this Court is obliged to undertake its own assessment of the sufficiency and quality of the evidence at trial, it is for the parties to identify the evidence that the Court must review and assess and the features of that evidence which support their respective cases on appeal.23
Here, the case for the defence at trial was that the act constituting count 1 was consensual and that the acts constituting counts 2 and 3 were either consensual or the appellant held an honest and reasonable belief that the complainant was consenting to those acts. The defence case on counts 4 and 5 was that those acts never occurred, although the trial judge summed up on the basis that, if the jury accepted that count 4 occurred, they needed to go on to consider whether the appellant held an honest and reasonable belief that the complainant was consenting.
Disposition
See paragraphs [9] and [10] above. ↩
See paragraph [16] above. ↩
A request was made by email on 14 August 2024 and another on the morning of the day preceding the trial (4 November 2024). A verbal request was also made of the prosecutor prior to the jury being empanelled. Nothing was disclosed. ↩
[2024] QCA 253. ↩
(1936) 55 CLR 499. ↩
See R v Fennell [2017] QCA 154, [140]. ↩
R v Bosscher [2024] QCA 253, [110], citing Carson v R [2019] VSCA 317. ↩
[2025] HCA 20. ↩
Ibid, [3]. ↩
Ibid, [8]. ↩
Ibid, [8]. ↩
(1988) 164 CLR 365, 373. ↩
Brawn v The King [2025] HCA 20, [10]. ↩
R
GBS [2025] QCA 125
(2025) 99 ALJR 872
(1936) 55 CLR 499
(1996) 190 CLR 348
(1994) 181 CLR 487
(2025) 99 ALJR 676
(2005) 224 CLR 300
(1988) 164 CLR 365
Appeal allowed. Convictions on counts 1, 2 and 3 set aside. A new trial ordered on counts 1, 2 and 3.
The trial resumed in the absence of the jury. The prosecutor accepted he ought to have disclosed the file note and that he failed to do so. The appellant’s trial counsel then made application for the jury to be discharged. The learned trial judge was taken to the contents of the file note in detail. The revelation of the second uncharged act was emphasised, as were the inconsistencies to which I have just made reference. It was submitted that the failure to disclose the file note embarrassed the defence and prejudiced the appellant. In particular, the submission was made by the appellant’s trial counsel that she would have conducted her case differently had she known what she did once the file note was disclosed and, furthermore, that such prejudice could not be cured by directions. She explained that, had the file note been disclosed in advance of the trial, she would never have suggested to the complainant that she was “making it up or saying this for the first time today”. The trial judge disagreed, finding that, in “balancing the fairness and the prejudice, it is not appropriate to discharge the jury, considering that the disclosure was only made less than 24 hours before she gave evidence”. In so ruling, the trial judge appears to have taken the view that the prejudice caused to the defence was only slight. Her Honour said:
Once there has been “such a serious breach of the presuppositions of the trial”,16 there can be no room for the operation of the proviso, at least where the non-disclosure of material might have influenced the result of the trial.17 That was undoubtedly the case here. It follows that, unless ground 3 succeeds, there must be a retrial on counts 1, 2 and 3.
When proper regard is had to the whole of the evidence comprising the Crown case it is to my mind unremarkable that the jury found the appellant guilty of counts 1, 2 and 3 but acquitted him of counts 4 and 5. As to this, there were at least four distinguishing features. First, the commission of counts 1, 2 and 3 in the bedroom was followed by a significant period of consensual sexual activity between the appellant and the complainant in the living room during which oral sex was performed and vaginal intercourse took place. Second, the acts constituting counts 2 and 3 were accompanied by the attempts made by complainant to feign enjoyment as a means, she said, of bringing the offending to a halt. Third, by the time the acts constituting counts 4 and 5 were alleged to have taken place, the complainant was fatigued – she was either falling asleep or had been asleep on a mattress on the living room – and, so, the jury may not have regarded her recollection of the events in the living room to be as reliable as those which occurred in the bedroom. Fourth, not only had the complainant been asleep immediately before the commission of the act alleged to constitute count 5, her eyes remained shut throughout and, as such, the allegation she advanced was based on what she inferred the appellant had done rather than what she actually saw.
Otherwise, senior counsel for the appellant on the hearing of the appeal pointed to a range of inconsistencies in the complainant’s accounts as well as the evidence given by her aunt at trial which, it was submitted, was inconsistent with the complainant’s account of a “protracted episode of non-consensual sexual activity”. However, even if each of those criticisms is accepted, it was still open to the jury to be satisfied beyond reasonable doubt about the truthfulness and reliability of the evidence which the complainant gave regarding the essential features of the acts comprising count 1, 2 and 3 and also, in the case of counts 2 and 3, to be satisfied to the same standard that the appellant did not have an honest and reasonable belief that the complainant was consenting to those acts. In short, it was open to the jury on the evidence adduced at trial to be satisfied beyond reasonable doubt of the appellant’s guilt on counts 1, 2 and 3.
This ground also fails.
Brawn v The King [2025] HCA 20, [11]. ↩
R v Basha (1989) 39 A Crim R 337. ↩
Weiss v R (2005) 224 CLR 300, 318. ↩
R v HAU [2009] QCA 165, [37]. ↩
[2017] QCA 244, [20]-[21]. And see R v LBF [2024] QCA 129, [41]. ↩
(1996) 190 CLR 348, 367. ↩
R v CX [2006] QCA 409, [33]; R v CCX [2022] QCA 260, [56]. ↩
M v The Queen (1994) 181 CLR 487, 493, 494-495. ↩
Ibid, 493. And see R v ZT (2025) 99 ALJR 676, [8]-[9]. ↩
R v ZT (2025) 99 ALJR 676, [11]. ↩