MZ v The Queen

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Burns and Loukas-Karlsson JJ, considered an appeal by MZ against his conviction for sexual intercourse without consent, where he was reckless as to whether the complainant consented. The prosecution's case was that the appellant had engaged in sexual intercourse with his estranged wife in her bedroom in the early hours of 17 August 2018, despite her clear indications that she did not consent. The defence at trial suggested that the complainant had initiated the sexual contact and had appeared to enjoy it until she indicated she wanted it to stop, at which point the appellant desisted.

The appeal raised two grounds: first, whether the trial judge erred in the directions given to the jury regarding a mistaken belief as to consent, contrary to section 80D of the *Evidence (Miscellaneous Provisions) Act 1991* (ACT); and second, whether inadequate directions were provided concerning the appellant's failure to give evidence at trial. A significant procedural hurdle was Rule 5531 of the *Court Procedures Rules 2006* (ACT), which generally requires objections to be taken at trial to allow grounds of appeal relating to directions or the admission/rejection of evidence. The appellant's counsel had not objected to the directions at trial, stating he had overlooked the issues.

The Court acknowledged the strict approach taken to Rule 5531, designed to prevent "armchair appeals" where errors are identified only after reviewing the trial transcript. However, despite the failure to object at trial, the Court granted leave to appeal on both grounds. This decision was based on the assessment that an error in either direction could have potentially led to a miscarriage of justice, thereby supporting the conviction. The Court found that while counsel's reasons for not seeking redirection were not conclusive, the potential impact of the alleged misdirections on the jury's verdict warranted further consideration.

Leave to appeal was granted, the appeal was allowed, and a retrial was ordered.