R v MDY

[2024] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDY [2024] QCA 119

PARTIES:

R
v
MDY
(appellant)

FILE NO/S:

CA No 152 of 2023
DC No 13 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone – Date of Conviction: 25 August 2023 (Gardiner DCJ)

DELIVERED ON:

Date of Orders: 14 June 2024
Date of Publication of Reasons: 21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2024

JUDGES:

Bond JA and Crow and Callaghan JJ

ORDERS:

Date of Orders: 14 June 2024

1.   Appeal allowed.

2.   Conviction set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of rape – where the defence of accident was raised on the evidence – whether the defence of accident applied to the offence of rape – where the trial judge did not direct the jury on the defence of accident – whether this amounted to a miscarriage of justice – where the defence of mistake was raised on the evidence – where the trial judge did not direct the jury on the defence of mistake of fact – whether this amounted to a miscarriage of justice – where evidence of discreditable conduct was admitted – where there was no direction given to the jury to not engage in propensity reasoning – whether this amounted to a miscarriage of justice – whether the nature of the miscarriages of justice precluded the operation of the proviso

Criminal Code (Qld), s 23, s 24, s 36, s 668E(1A)

Collins v The King (2018) 265 CLR 178; [2018] HCA 18, cited
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited

COUNSEL:

J T Dudley for the appellant
M A Green for the respondent

SOLICITORS:

Alexander Rashidi Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA:  I have had the advantage of reading in draft the reasons for judgment of Callaghan J, with whose reasons I agree.  I wish to add some further remarks.

2. The appellant was convicted after a jury trial on an indictment containing the single count “that on or about the 23rd day of December 2021 … MDY raped [the complainant] and the defence is a domestic violence offence”.

3. The particulars which were provided were:

   “MDY penetrated [the complainant’s] anus with his penis without the consent of [the complainant].”

4. The particulars contained a footnote reference to paragraphs 32 to 37 of the complainant’s police statement.  However, the police statement was not before the jury.  Nor was it before this Court as part of the appeal record.  Nevertheless, it was not contended on appeal that reference to the statement would have confined the particulars in any way which was material.

5. On the evidence adduced at the trial summarised relevantly for this purpose in the judgment of Callaghan J, there was more than one path to conviction of the offence as particularised.

6. First if the evidence of the complainant was accepted, the appellant had been told well in advance of the sexual interaction which occurred between he and the complainant on the date of the offence that the complainant did not consent to the act particularised.  Further, on her evidence, before any anal penetration took place she reiterated that she did not consent to penetration in that way.  Nevertheless, anal penetration occurred.  On that evidence, if accepted, the appellant could be convicted of the offence the subject of the indictment as particularised.  The appellant’s statement to police however gave rise to an arguable excuse for the initial penetration.  Taken at its highest, as it must be, that evidence gave rise to an arguable case that the initial penetration of the complainant’s anus may have occurred by accident.  In those circumstances the trial judge should have given a proper direction as to the excuse of accident and that the Crown had to negative that excuse beyond reasonable doubt.  That did not occur.

7. The only answer to that problem which was advanced by the respondent to this Court was that a consideration of the way in which the case was advanced and left to the jury should lead to the conclusion that the first path to conviction was not left to the jury.  In other words, the respondent seeks to have this Court treat the case as if the only case of rape left to the jury was that the appellant continued to penetrate the complaint’s anus after consent was specifically withdrawn by the complainant.  With the greatest respect to counsel advancing that argument, the case was not particularised in that way.  There is simply no construction of the way in which the case was opened, argued by the Crown, or left to the jury by the trial judge which gives rise to the conclusion that the case left to the jury was constrained in that way.

8. There was a second path by which the jury could have convicted the appellant on the evidence adduced before it.  Even if the jury was not persuaded that accident had been negatived beyond reasonable doubt in relation to the initial anal penetration, the evidence of the complainant, if accepted, made it perfectly clear that she had conveyed to the appellant her lack of consent to continued penetration.  Accident would not be available as an excuse in relation to that path to conviction nor would mistake of fact as to consent.  However, again taking the evidence of the appellant at its highest, mistake of fact as to the nature of the penetration was in issue.  The trial judge should have given a proper direction that the Crown was required to negative beyond reasonable doubt the possibility that continued penetration occurred in circumstances where for the short period of time in which the penetration had continued the appellant was mistaken as to the nature of the penetration.

9. On any view the directions were inadequate.  The appeal must be allowed, the conviction must be set aside and a retrial ordered.

10. CROW J:  I agree with the reasons of Bond JA and Callaghan J and the orders that their Honours propose.

11. CALLAGHAN J:  The appellant[1] was convicted on one count of rape.  The particulars of the offence were that he had penetrated the complainant’s anus with his penis, and without her consent.[2] He was sentenced to imprisonment for 4.5 years,[3] and now appeals against his conviction.

    [1]Aged 51 at the time of the trial in August 2023: Appeal Record Book, 378, line 25.

    [2]Appeal Record Book, 362.

    [3]Parole eligibility in March 2025.

    Background

12. The appellant met the complainant[4] in mid-2020, and by December of that year they considered themselves to be in a relationship.[5]  He was a “fly in fly out” worker, but when not at work resided with the complainant in his house.[6]

    [4]Aged 53 at time of trial.  Appeal Record Book, 116, line 18.

    [5]Appeal Record Book, 117, line 14.

    [6]Appeal Record Book, 117, lines 3-7.

13. The relationship deteriorated.  The complainant was permitted to give evidence that “about six or seven weeks in” the appellant “got very volatile … very drunk and he yelled at [her] for seven hours.  He wouldn’t let [her] leave the house.”[7]

    [7]Appeal Record Book, 117, line 33.

14. She went on to testify that the appellant would “fly off” and “snap”.  At this she would cry, but that would make him angrier.  She said that she would “say anything” to calm him down and make him happy.[8]

    [8]Appeal Record Book, 127, lines 22-29.

15. The complainant also gave evidence to the effect that it had been made clear, at an early stage in the relationship, that anal intercourse was not an activity in which they would participate and not one to which she would give her consent.[9]

    [9]Appeal Record Book, 128, line 40.

    The complainant’s evidence

16. The couple disagreed about plans in the lead up to Christmas Day 2021. After an argument on 23 December, the appellant asked the complainant to leave the house, and said he would call the police if she did not. She did leave, but returned and eventually the couple went to bed together. Sexual activity began. The appellant performed oral sex upon the complainant,[10] and then suggested that they “have sex”. The complainant agreed and asked if they could “do it doggy style”.[11]  They prepared for vaginal sex in a manner that saw the complainant’s chest and face on the mattress and pillow.  The appellant was behind her, on his knees, and intercourse began, in that position, by way of his penis entering her vagina.[12]

    [10]Appeal Record Book, 130.

    [11]Appeal Record Book, 131, lines 16-17.

    [12]Appeal Record Book, 131, lines 22-29.

17. The complainant said that it did not take long before the appellant’s penis fell out, at which point he started to “push it” towards her anus.  She “went to” ask him if he was trying to put it in there but did not get to the end of the question – the appellant “quite forcefully” thrust it in.[13]

    [13]Appeal Record Book, 131, lines 31-37.

18. This hurt, and she let him know that by saying “no” at least twice.  The appellant told her to “calm down” and kept thrusting.  The complainant said that she kept crying – she knew that this would get him angry but “he wasn’t stopping”.  The appellant “finished fairly quickly” and said “that’s so good” or words to that effect.

19. Evidence was given about that which occurred directly after the event, the physical effect of the act upon the complainant, subsequent communications between her and the appellant and other conversations which were characterised properly as preliminary complaint.

20. It is not, for current purposes, necessary to canvass any of that evidence.

    The appellant’s account

21. The appellant was interviewed by police and provided an account of events which, up until the point of anal penetration, corresponded closely enough with the version given by the complainant.  He agreed that intercourse began in the manner described and that his penis left the complainant’s vagina.  He also agreed that his penis was placed into the complainant’s anus.  She then said words to the effect of “do you know where you are?” and he “pulled out”.[14]  As he pulled out, he climaxed.[15]

    [14]Appeal Record Book, 405, line 42.

    [15]Appeal Record Book, 406, line 30.

22. There was some inconsistency in his estimate as to the duration of penetration, but on any fair reading of the interview[16] the appellant maintained that the insertion of his penis into the complainant’s anus was accidental, brief, and that he was “probably there for three strokes”.[17]

    [16]On numerous occasions the appellant described the extent of penetration in terms such as “three strokes” or “too quick”.  He insisted that he had “slipped out”, he went “straight in” (Appeal Record Book, 403, line 15), that it all occurred “in one motion” (Appeal Record Book, 404, line 50), that it was all “super super quick” (Appeal Record Book, 409, line 33), that he had come out and “literally just gone straight in” (Appeal Record Book, 412, line 55), that it was three thrusts in and out and that he had then climaxed “literally straight away” (Appeal Record Book, 413, line 30), that was “like three strokes” (Appeal Record Book, 416, line 54).

    [17]Appeal Record Book, 395, line 31.

23. He did not admit the possibility of events occurring as described by the complainant.  When her version was put to him, he rejected it, on the basis that “it happened too quick.”[18]

    [18]Appeal Record Book, 445 line 19.

24. In sum, the appellant insisted that anal penetration had occurred “in the heat of passion and… didn’t seem too awkward and … was accidental”[19] and that there was “no way” he had “lined her up or wanted to stick it into her bum”.[20]

    [19]Appeal Record Book, 461, line 38.

    [20]Appeal Record Book, 461, line 38.

    Submissions and directions

25. The learned trial judge raised for discussion the topic of directions that he should give the jury.  The following exchange occurred:

    “Defence Counsel: The only one I have left, your Honour, is accident. Your Honour mentioned mistake of fact already.

    His Honour: I thought about accident, and, you know, what if the jury ask – or of a mind to ask, “What if we find penetration was by accident? Does it matter if the penetration is unintended?” My initial thoughts about that were it doesn’t matter whether it’s unintended. Once penetration occurs, whether it be unintended or not, it has occurred as a fact, and if the penis remains in the anus to any extent, it's a question of whether it’s there by consent – whether she’s given consent for it.

    Defence Counsel: Yes. My submission is accident still applies in this regard if – and, to use –

    His Honour: It’s not a defence to the charge, which – and ordinarily, it would be if was – something happened by accident.

    Defence Counsel: Yeah, but the accident in this case, in my submission is falling out – and as my client describes it in his record of interview, falling out on the back thrust and penetrating on the forward thrust without intention to do so, and that’s the accident, in my submission.

    His Honour: Yes. Well, what’s the consequence of that?

    Defence Counsel: That he finds himself inside the complainant by accident.

    His Honour: Yes.

    Defence Counsel: If she were to say “no, no, no” or anything like that or, “That hurts; get it out”, if he stayed in any longer than that, well, that constitutes rape because that defence doesn’t apply beyond that period of time if he were to keep going.

    His Honour: Yes. I think that’s right, and there’s evidence to suggest it wasn’t by accident on her case.

    Defence Counsel: Well, her case is that it wasn’t in by accident, and if it was by accident, it was not by consent beyond that accident.

    His Honour: Yes. I mean, her case that she even raised, “Are you trying to put that into my bottom”, or something.

    Defence Counsel: Yes. If I can follow that up, though, because you – you’ve got the accident. Initial penetration, in my submission, can be by accident if consent – or if it’s – if consent isn’t given at that stage or implied consent, and it’s not withdrawn, well, that constitutes rape. That’s where the mistake of fact comes in as well.

    His Honour: Yes. I mean, I think I’ve got to deal with accident because he mentions it quite a few times in his interview as well.”[21]

    [21]Appeal Record Book, 272, line 15 – 273 line 29.

26. However, after a further exchange with the Crown prosecutor, his Honour said:

    “His Honour: So I’m not going to address section 23. It’s really a special direction to deal with these facts because he says accident in his record of interview. I mean, if I go into the legal definition of accident of foreseeability and intention, I think it’s just more common sense to say, if penetration was unintended and it occurred by accident, it doesn’t relieve him of criminal responsibility if it remained there without consent.”[22]

    [22]Appeal Record Book, 275, lines 15-18.

27. Notwithstanding this exchange defence counsel maintained, in his closing address, that the event was an accident and that the jury should acquit on this basis.  He appeared to anticipate that the trial judge would in fact be directing the jury in these terms, telling the jury that “His Honour will talk to you about accident and mistake of fact.”[23]

    [23]Appeal Record Book, 45, line 10.

28. However, as foreshadowed, his Honour did not direct the jury about the application of s 23 of the Criminal Code (Qld).

29. They were, however, directed in uncontroversial terms as to the elements of the offence:

    “His Honour: [The prosecution] have to prove the elements of the offence beyond reasonable doubt and it is for you to decide whether you are satisfied beyond reasonable doubt that the Prosecution has proved the elements of the offence in order to find the defendant guilty.

    …

    Relevantly here, a person who rapes another person if the person engages in penile intercourse with the other person without the person’s consent. There are therefore two elements or ingredients which the Prosecution must prove beyond reasonable doubt to prove the offence of rape: that there was an act of physical penetration and the act of penetration occurred without the complainant’s consent.

    First, as to element 1, the act of penetration, the Prosecution must prove the defendant engaged in penile intercourse with the complainant. Penile intercourse includes penetration to any extent of the anus of a person by the penis of another person. A person engages in penile intercourse with another person if the person penetrates to any extent the anus of another person with the person’s penis.

    Here the Crown allege that the parties were engaging in consensual vaginal intercourse when the defendant penetrated the complainant’s anus with his penis. The defendant does not dispute penetration occurred but says it was accidental and that he thought the complainant in the time before he ejaculated and withdrew was consenting. Here the defendant says the penetration occurred by accident. If penetration was unintended and occurred by accident, it does not relieve him of criminal responsibility if his penis continued to remain there without [the complainant’s] consent.”[24]

    [24]Appeal Record Book, 66, lines 3-8, and page 68, lines 42 - page 69 line 12.  Underlining added.

30. These directions were followed by an explanation of “consent” and included reference to the possibility that the appellant honestly and reasonably believed that there was consent.[25]

    [25]They did not address the concept of “implied consent” that had been identified by the appellant’s trial counsel.

    The appellant’s arguments

31. For the appellant Mr Dudley (who did not appear in the trial) was granted leave to file an amended notice of appeal that raised three grounds for consideration.  Each makes out a basis on which the appeal should be allowed.

    Ground One: That a miscarriage of justice occurred due to the learned trial judge’s failure to direct the jury as to the excuse of accident under s 23(1)(b) of the Criminal Code 1899 (Qld).

32. Under this heading, Mr Dudley submitted that:[26]

    [26]Footnotes omitted.

    “19.Section 23(1)(b) of the Criminal Code, pertaining to accident, relevantly provides:

    (1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for –

    (a)      …

    (b)     an event that –

    (i)the person does not intend or foresee as a possible consequence.

    20.The “act” is the appellant’s physical thrusting of his penis or hips. The “event” is the consequential penetration of the complainant’s anus. It is submitted that, although the thrusting was intentional, if the event of anal penetration was neither intended nor foreseen as a possible consequence, s 23(1)(b) will apply.

    …

    23.Contrary to the trial judge’s finding, accident is an excuse to an offence of rape. Subject to exceptions which do not apply here, s 23 expressly applies to any criminal offence against the statute law of Queensland: s 36.”

33. This submission must be accepted. The “excuse” described in s 23 is available to an offender charged with an offence against s 349 of the same Code. There is no basis upon which to contend for the contrary and Mr Green, who appeared for the respondent, did not suggest that there was.

34. There was no real scope for s 23 to operate on the complainant’s version of events, and this was made clear by his Honour in the last sentence of the excerpt quoted in [26] above. That sentence was an accurate characterisation of the situation if the complainant’s evidence was accepted. It remained, however, for the jury to decide whether it was in fact accepted. It was also for the jury to determine the relevance of any averred inconsistencies in the appellant’s account. Alternative versions of the facts were open, and given the terms used and descriptions given by the appellant in his interview, the excuse of accident was fairly raised. If there was a reasonable possibility that penetration had occurred in the manner described by the appellant then there was a question for the jury to consider as to whether the “event” of anal penetration was foreseen, or reasonably foreseeable as a possible consequence of his acts.

1. As noted above, the jury were instructed that the offence in effect consisted of two elements, one of which was anal penetration.  The appellant’s account included admissions that this did occur.  It follows that in the absence of any direction about accident then the jury, might on the strength of the directions given, have found against the appellant on this issue even whilst accepting the most favourable construction of his account.

2. The respondent submits, in effect, that this could not have occurred because the import of the entire summing up was to present the case as a choice between being satisfied beyond reasonable doubt about the version of events given by the complainant or entertaining the appellant’s account as a reasonable possibility.

3. It is said therefore to have been unnecessary to deal with s 23, since if the complainant’s version was not accepted, then an acquittal would have followed.

4. The possibility that the jury might approach the matter differently was not, however, foreclosed by any words used in the summing up.  They were told, in conventional terms, that they “could accept the whole of what a witness says or only part of it or none of it.”[27] And if they rejected the complainant’s account, then in the absence of a direction on s 23 the appellant might still have been convicted by his own words, even though they included an excuse.

   [27]Appeal Record Book, page 66, lines 43-45.

5. A measure of the respondent’s argument is that we were asked to “leave aside” some of the words that were actually used in the summing up – the focus of which was on the issue of consent – when considering its overall effect.[28]  It must be assumed, however, that the jury acted in accordance with the directions that were in fact given.[29]  By its terms the summing up allowed for the significance of the appellant’s account to be bypassed on a path to conviction.  This was an error of law.

   Ground Two: that a miscarriage of justice occurred due to the learned trial judge’s failure to direct the jury as to the excuse of mistake of fact under s 24 of the Criminal Code 1899 (Qld) (as it related to the defendant’s mistaken belief that he was penetrating the complainant’s vagina rather than her anus).

   [28]Transcript of Hearing, page 35, line 18.

   [29]Gilbert v The Queen (2000) 201 CLR 414, per Gleeson CJ and Gummow J at [13], per McHugh J at [31].

6. As conceded by Mr Dudley, the appellant’s version was “in parts ambiguous and contradictory on the question of whether he realised during the anal penetration that he was penetrating the complainant’s anus rather than her vagina, or whether he instead only made this realisation after (or at the time of) withdrawing”.[30]  The evidence did, however, contain these exchanges which occurred towards the conclusion of the interview:

   [30]Submissions of the appellant, [11].

   “Police Officer: Talking about, you said that you um had you know where you were, you would have pulled out. Ah how did you not know where you were?

   Appellant: I woulda pulled out.

   Police Officer: Yeah, yeah, so you said that if you knew-

   Appellant: If I kept –

   Police Officer: That your penis –

   Appellant: Going –

   Police Officer: Was in her bum, ah if you’d known that it was there, you would’ve pulled out.

   Appellant: Yeah, it’s just not right.[31]

   …

   Appellant: Oh well no dummy, like yeah, obviously yeah.

   Police Officer: Mm.

   Appellant: [indistinct] in the heat of passion and [indistinct] didn’t seem too awkward and like I dunno, I blew and I’m out.”[32]

   [31]Appeal Record Book, 459, lines 5 to 25.

   [32]Appeal Record Book, 460, lines 31 to 38.

7. On any version the evidence involved description of events that played out on a continuum.  The liability of the appellant might have depended upon not only the possibility that initial penetration was accidental, but also the jury’s assessment as to his state of mind at different points along that continuum.  Again, on the complainant’s version there was no scope for the concept of operative mistake to be of assistance to the appellant.  But the fairness of the trial depended upon the jury having available to them all that was necessary in order to assess criminality by reference to the facts as they found them.

8. Although not raised by trial counsel - and seemingly not considered at all – the appellant’s account did leave open the potential application of s 24, which provides:

   Section 24: Mistake of fact

   “(1)A person who does or omits to an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist…”

9. There need only be some evidence of a mistaken belief for the section to apply.  The appellant said enough to require the case to be considered on the basis that something which might have begun as an accident continued under a mistaken belief.  The directions given did not provide for consideration as to the legal relevance of that mistake.  The failure to provide directions on mistake of fact as to the nature of the anal penetration was, in the circumstances, another error of law.

   Ground Three: That a miscarriage of justice occurred due to the learned trial judge’s failure to direct the jury as to the use of discreditable relationship evidence and the need to avoid propensity reasoning.

10. It is true that the concept of a “relationship” between parties might facilitate admission of evidence which would not otherwise be received.  This may include evidence of “discreditable conduct”.  That does not mean that evidence as to every aspect of a relationship between a complainant and a defendant is admissible.

11. Evidence of the kind described above[33] was not, in the first instance, relevant to establish anything that occurred on the bed at the time of the alleged offence.  It was, however - as defence counsel complained - evidence about “a form of domestic violence.”[34]  As such, it carried with it the potential to discredit the appellant and create an extraneous prejudice that compromised the fairness of his trial.

    [33]See [13] – [14].

    [34]Appeal Record Book, 123, line 40.

12. This evidence was allowed by the appellant to be “admissible to give context”, but I would observe that merely to label evidence as “context” is, without more, not a basis for admissibility.  Relevance is.  And there was, potentially, a basis on which this evidence was relevant.  In particular, it may have contextualised communication between the parties after the event and explained any delay imputed to the making of a complaint.  Such evidence might not be relevant (and therefore admissible) until cross examination makes it so, but it may in many cases be preferable to both sides for the testimony to be adduced during evidence in chief.

13. Irrespective of the point at which it is introduced, if evidence of discreditable conduct is admitted there is a necessity, particularly in sexual offence cases, for directions to be given as to the precise way in which it can and cannot be used.

14. Without such a direction, the prospect of evidence as to the appellant’s disposition being used impermissibly was not theoretical.  It was even echoed when the complainant was describing the offence itself:

    “He kept having sex with me. I kept crying. I knew my crying would get him angry.”[35]

    [35]Appeal Record Book, 132, line 20.

15. Unless prevented from doing so, there is every prospect that the jury may have considered, on the basis of the complainant’s assertions, that the appellant was a domineering individual, very much the type of person who would have persisted in sexual activity over the protests of his partner.  That would have been a textbook example of impermissible propensity reasoning.  The mischief was compounded during the submissions by the Crown prosecutor, who urged upon the jury the proposition that the appellant knew of the complainant’s vulnerability.[36]

    [36]Appeal Record Book, 32-37.

16. No directions were given as to the way in which the evidence could or could not be used.  The jury should have been told that its relevance was confined (as explained at [46], above) and that they must not reason towards guilt on the basis of any propensity they thought it established.  A miscarriage of justice is established under the heading of this ground.

    Inapplicability of proviso and disposition

17. It is submitted by the respondent that “the issues were so clear such that any further directions could not have substantively assisted the jury, nor could it be accepted the appellant had been deprived of the possibility of acquittal given the matters the jury must have decided beyond reasonable doubt.”[37]  It follows, so it is said, that the Court should, even in the face of findings that there were two errors of a law and an omitted direction that caused a miscarriage of justice, dismiss the appeal pursuant to the proviso.[38]

    [37]Respondent’s Outline of Submissions, [23].

    [38]Criminal Code (Qld), s 668E(1A).

18. The nature of the error established under the headings of Grounds One and Two are, however, of such a nature as to preclude the operation of the proviso.  The case was one which both turned on issues of contested credibility and in which there was an omission to give directions that directly went to the issue of criminal liability.  In these circumstances an appellate court cannot be satisfied that guilt has been proved.[39]

    [39]Orreal v The Queen (2021) 274 CLR 630 [20]; Kalbasi v Western Australia (2018) 264 CLR 62 [15].

19. Further, in respect of Ground Three, it should be noted that this is a case where proof of guilt was wholly dependent upon the acceptance of the complainant.  The absence of a direction about the evidence of discreditable conduct may have affected that acceptance, which means that this court cannot accord the weight to the verdict of guilty which, in considering the application of the proviso it otherwise might.[40]

    [40]Collins v The Queen (2018) 265 CLR 178, 192 [36].

20. This was, and remains a case which is peculiarly suited to resolution by a jury properly instructed as to the law which might have excused the appellant’s actions and as to the way in which the evidence against him might be used.  It is not appropriate for this Court to perform that function.  The proviso cannot be applied in these circumstances.

21. The appeal should be allowed, the conviction must be set aside, and a retrial ordered.