Gahani v The Queen

The appeal concerned the conviction of the appellant for rape. The complainant, LG, gave evidence that the appellant had raped her on the stairs of the Convention Centre. She also gave evidence of a conversation with the appellant afterwards, during which he admitted to penetrating her. The appellant gave evidence denying the rape, and describing a sequence of events involving drinking, eviction from a casino, and a visit to the Convention Centre stairs, during which he claimed LG was in control of their movements and initiated their return to the casino. The appeal was heard by Southwood, Kelly and Barr JJ.

The central legal issue before the Court of Appeal was whether the trial judge had erred in failing to direct the jury on the issue of consent in circumstances where the complainant was intoxicated and the appellant’s evidence suggested she was the architect of their movements and interactions. Specifically, the court had to consider whether the appellant’s evidence raised a defence of honest and reasonable belief in consent, or whether the evidence of intoxication, coupled with the appellant’s account, necessitated a specific direction on consent.

The Court of Appeal held that the trial judge had erred by not directing the jury on the issue of consent. The court reasoned that the appellant’s evidence, which described LG as being in control of their movements and initiating their return to the casino, was capable of raising a question as to whether the appellant held an honest and reasonable belief that LG consented to the sexual intercourse. The judges noted that while LG’s intoxication was a factor, the appellant’s own account of events, including LG’s actions and statements, could have led a jury to conclude that the appellant genuinely believed she consented, even if that belief was not reasonable. The court applied the principles established in cases concerning the defence of honest and reasonable belief in consent, particularly in the context of intoxication.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial.