R v Blacket: a jury’s question about unanimity did not justify a majority verdict direction

In a Queensland criminal trial on indictment to which s 59A applies, a jury can return a majority verdict, but only once two statutory conditions are met. Section 59A(2) of the Jury Act 1995 (Qld) requires that the prescribed period has passed and that the judge “is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation”. A jury that has been out for some time may send a note asking what happens if they cannot all agree. The question is whether a note of that kind is enough.

R v Blacket [2026] QCA 223 holds that, in the circumstances of that trial, it was not. The Court of Appeal allowed an appeal against a majority verdict of guilty of rape, set the conviction aside and ordered a new trial. The trial judge had given the Black direction, urging the jury to keep working towards unanimity, and the majority verdict direction at the same time. The Court treated that combination as showing that the second condition in s 59A(2) had not been met.

What the Court decided

The appellant was convicted by a majority verdict of one count of rape, at [4]. Penetration was not in dispute. The issues were consent and, if consent was absent, whether the prosecution had negatived an honest but mistaken belief that the complainant consented, at [10]. The appellant neither gave nor called evidence, at [9].

The principal reasons are those of Boddice JA. Mullins P agreed with Boddice JA, at [1]. Crowley J conducted his own assessment of the evidence and agreed the verdict was not unreasonable, at [95], and agreed with Boddice JA, for the reasons his Honour stated, that ground 2 was made out, at [96]. There was no dissent on any ground. All four grounds were the appellant’s own.

The jury note and the combined direction

After deliberating for nine hours and 27 minutes, the jury sent a note: “If a unanimous decision can’t be made, what does that mean for us?”, at [71]. The trial judge recorded that the prescribed period had passed and, before hearing from counsel, proposed to give both the Black direction and the majority verdict direction together, at [72].

Both counsel initially submitted that only the Black direction should be given. The prosecutor observed that giving both at the same time “is a bit of a mixed message”, at [73]. The trial judge, regarding the question as pointed towards unanimity and noting how long the jury had been out, remained “intent on giving both directions”, and both counsel then indicated no objection, at [74].

The direction as given, set out at [77], told the jury that the judge had inferred they had not been able to reach a unanimous verdict so far, asked them to make a further attempt at unanimity, and then told them that the circumstances in which a majority verdict is permitted “have now arisen”.

The two preconditions in section 59A(2)

Section 59A(2) provides that if, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict. Section 59A(6) defines the prescribed period as at least 8 hours after the jury retires, not counting meal breaks, separations and overnight accommodation, or a further period the judge considers reasonable given the complexity of the trial. For a jury of 12, a majority verdict is one on which at least 11 agree.

Boddice JA identified “two preconditions that must be satisfied before a jury may be asked to reach a majority verdict”, at [79]: the prescribed period, and the judge’s satisfaction about the unlikelihood of unanimity. Only the second was in issue, at [80]. The only material on which the judge could have been satisfied was the note and the circumstances in which it was sent, after earlier notes and a long deliberation, at [81].

Why the note was not enough

His Honour described the trial judge’s reasons as “very limited”, and observed that they placed great weight on the jury’s perceived focus on unanimity, at [82]. But “nothing in the note suggested the jury had reached a point where they were unable to reach a unanimous verdict”. It was a simple question about what would follow if they could not, at [82].

The conclusion is expressed with care: “A note in those terms is insufficient in the circumstances of the trial to provide satisfaction to a judge, that the jury is unlikely to reach a unanimous verdict, after further deliberation, as required by s 59A(2) of the Act”, at [83].

The decision to give the Black direction pointed the same way. That a unanimous verdict remained a possibility was consistent with giving it, and “There was no point in a Black direction if the trial judge was satisfied that the jury were unlikely to reach a unanimous verdict after further deliberation”, at [84]. The two directions rest on inconsistent premises. Boddice JA had earlier described the prosecutor as “astutely observing” at trial that giving both at once was a mixed message, at [73].

Error of law and a new trial

Because there was no proper basis for the judge to be satisfied of a necessary precondition, there was an error of law, and “Such an error was of real significance in the present case”, at [85]. Consent, and the negativing of an honest but mistaken belief, were finely balanced on the evidence, and the appellant “was entitled to have that determined by twelve jurors until the preconditions for majority verdict were satisfied in accordance with s 59A(2) of the Act”, at [85].

Boddice JA then stated what a trial according to law required: “Such a trial required that the jury be first directed to properly exhaust all avenues for a unanimous verdict, before being directed as to the availability of a majority verdict. The failure to do so was fundamental”, at [86]. The verdict was set aside and a new trial ordered.

The other grounds

The unreasonable verdict ground failed. Boddice JA found significant inconsistencies and discrepancies in the complainant’s account of events before the alleged offence, at [65], but held that, given the jury’s advantage of seeing and hearing the complainant, they were not such that the jury ought to have had a reasonable doubt, at [69] and [70]. Crowley J agreed on his own assessment, at [95].

The Court said it was “unnecessary to determine these grounds”, meaning grounds 3 and 4, at [87]. Boddice JA nonetheless gave brief reasons why he would have allowed the appeal on ground 4, and Crowley J agreed, at [96]. That reasoning is considered obiter. The appellant’s text asking the complainant to delete their messages followed an exchange the jury had been specifically directed about as implied admissions, and defence counsel had disavowed any direction about the deletion request, at [89] and [90]. His Honour saw a real risk the jury used it as post-offence conduct showing consciousness of guilt, at [92] and [94]. Ground 3 was not addressed.

What it means for trial practice

For trial judges and counsel, the passing of the prescribed period opens the gate to a majority verdict but does not walk the jury through it. The second precondition needs a proper basis for the judge’s satisfaction that unanimity is unlikely. A question about the consequences of disagreement was not, in this trial, a statement of disagreement.

The decision also explains why combining the two directions is risky. A judge who still thinks it worth urging the jury towards unanimity is, on the Court’s reasoning at [84], in a poor position to say that unanimity is unlikely. The sequence the Court described at [86] is unanimity first, with the majority direction to follow only once the s 59A(2) satisfaction is properly reached.

For defence counsel, the record of this trial is instructive. Both counsel first opposed the combined direction and then did not object to it, at [73] and [74], and the appeal still succeeded. The Court’s reasons on ground 2 do not discuss that sequence. Raising the s 59A(2) point when the judge proposes the course remains the better practice.

What remains open

The Court’s conclusion at [83] is confined to a note “in those terms” and “in the circumstances of the trial”. It does not state a general test of what material will support the s 59A(2) satisfaction, and it does not say how a note reporting an actual division, or continued disagreement after a Black direction has been given, would be assessed.

Ground 3 was not decided. The reasons do not mention the proviso, the Court having characterised the error as of real significance and fundamental, at [85] and [86]. Nor do the reasons on ground 2 address the effect of counsel’s ultimate non-objection. No earlier authority is cited in the reasons on ground 2, so the decision reads as a direct application of the statutory text to the situation before the Court.

Published 4 November 2026.

Closing observations

R v Blacket gives the second precondition in s 59A(2) real content. Reaching the prescribed period is not the same as reaching a deadlock, and a judge who asks the jury to keep trying for unanimity cannot at the same moment be satisfied that unanimity is unlikely. On a finely balanced case, the Court described the failure to direct the jury first to exhaust all avenues for unanimity as fundamental.

Related reading

• R v HDE: the differences direction is not confined to the account of the offence
• R v Welton: a Crown address can require a direction both counsel said was unnecessary
• Criminal law at Fraser Lawyers
• Contact Fraser Lawyers

Source: R v Blacket [2026] QCA 223, Supreme Court of Queensland, Court of Appeal, Mullins P, Boddice JA and Crowley J, heard 23 September 2026, orders made 30 October 2026 and reasons published 3 November 2026, on an appeal against conviction from the District Court at Beenleigh (McCarthy KC DCJ). The principal reasons are those of Boddice JA, with whom Mullins P agreed; Crowley J gave short concurring reasons. Section 59A of the Jury Act 1995 (Qld) was checked against the current compilation.

This article is general information only and is not legal advice. The law referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.

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