R v Saraghi-Smith
[2024] QCA 180
•9 August 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v Saraghi-Smith [2024] QCA 180
PARTIES:
R
v
SARAGHI-SMITH, Aladin Sebastian James
(appellant)FILE NO/S:
CA No 169 of 2023
DC No 239 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Southport – Date of Conviction: 31 August 2023 (Richards DCJ)
DELIVERED ON:
Date of Orders: 9 August 2024
Date of Publication of Reasons: 1 October 2024DELIVERED AT:
Brisbane
HEARING DATE:
9 August 2024
JUDGES:
Bond and Flanagan and Boddice JJA
ORDERS:
Date of Orders: 9 August 2024
1. The appeal is allowed.
2. Convictions set aside.
3. A new trial is ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by a jury of two counts of rape and one count of disabling to commit an indictable offence – where, during cross-examination of the appellant, the prosecutor asked the appellant about aspects of his evidence which had not been the subject of cross-examination of the complainant – where such cross-examination was directed to impugning the appellant’s credit – whether a miscarriage of justice was occasioned by the failure of the trial judge to address the prejudicial aspects of that cross-examination, in summing up to the jury
HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, applied
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, considered
Zhou v The Queen [2021] NSWCCA 278, citedCOUNSEL:
J J Underwood for the appellant
S L Dennis for the respondentSOLICITORS:
Dib & Associates Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
BOND JA: For the reasons given by Boddice JA, I joined in the making of the Court’s orders on 9 August 2024.
FLANAGAN JA: For the reasons given by Boddice JA, I joined in the making of the Court’s orders on 9 August 2024.
BODDICE JA: On 31 August 2023, a jury found the appellant guilty, by majority verdict, of two counts of rape (counts 3 and 4) and one count of disabling to commit an indictable offence (count 5). The jury found the appellant not guilty, by a majority, of one count of rape (count 1) and unanimously, of one count of disabling to commit an indictable offence (count 2).
The appellant appealed his convictions, on three grounds. First, a miscarriage of justice was occasioned by the failure of the learned trial judge to direct the jury as to the use they could make of the fact that certain matters were not put to the complainant (ground 1). Second, the learned trial judge made a wrong decision on a question of law, namely, that the evidence of the male at the fast food outlet was inadmissible (ground 2). Third, a miscarriage of justice was occasioned by reason of the prosecution’s failure to provide the contact details of three material witnesses to the accused, so that he could speak to them outside of court or call them in his own case (ground 3).[1]
[1]Two other bases relevant to those three witnesses were not pressed at the hearing of the appeal.
At the hearing of the appeal, on 9 August 2024, the Court ordered:
(1) Appeal allowed.
(2) Convictions set aside.
(3) New trial is ordered.
(4) Court will publish its reasons at a later date.
These are my reasons for joining in those orders.
Evidence
Complainant
The complainant gave evidence that she met the appellant as a work colleague, in 2014. They had a casual relationship that involved intercourse, maybe four times over the course of a year. It was usual penile-vaginal intercourse. There was nothing aggressive or forceful. On no occasion did the appellant put his hand around her neck.
After the relationship “fizzled out” in 2015, the complainant did not see the appellant until August 2020, when they met by chance at a fast food outlet. The next day they began talking to each other over Facebook, after the appellant sent a friend request. The messages were about catching up.
On 22 August 2020, the appellant invited the complainant to meet him at an apartment block. As they travelled by lift to the apartment, they kissed each other. When they arrived at the apartment, four of the appellant’s friends were present. They had some drinks together. Later, they went to the bathroom where they kissed some more. They then went into the bedroom. The complainant said this activity was “all consensual”.
The complainant said that when she asked the appellant to wear a condom, he said no. When she said “We have to use one” the appellant did not say anything. He climbed on top of her and penetrated her vagina with his penis (count 1). As he did so, he squeezed her throat with his hand and she struggled to breathe (count 2). She tried to remove his hand from her throat. At one point, he told her “Just shut the fuck up and do what you’re told.”
The complainant said when she managed to remove his hand from her throat, she rolled over to get away, causing his penis to withdraw from her vagina. Despite her tears, the appellant again penetrated her vagina with his penis (count 3), whilst behind her. On this occasion he put a hand on the back of her neck. When the complainant again told him no, he repeated “Just shut the fuck up and do what you are told.”
The complainant said at some point, she ended up on her back. The appellant, who was kneeling in front of her, forced his penis inside her vagina once more (count 4). At the same time, he grabbed her by the throat and she struggled to breathe (count 5). The complainant was telling him no and tried to push him off. The appellant did not stop. The complainant then yelled “no” as loud as she could. At that point, the appellant stopped and she put on her underwear and left the room.
After leaving the apartment, the complainant spoke to her brother by telephone. She also ordered an Uber. When she arrived home, her brother came over with a friend, C. The complainant told them what had happened in the apartment. The next day the complainant texted details to two friends, B and J, in a Facebook group chat. Later that day, she spoke to them in person. The complainant also told an aunt what had happened to her in the apartment.
The complainant said on the morning of 23 August 2020, after showering, she noticed bruising on her neck. Photographs were taken that day. Later, the complainant took a video of her neck. Each were shown to the jury.
The complainant said on 24 August 2020, she told her mother what had happened to her. Together, they went to see a doctor.
On 25 August 2020, the complainant went to the local police station with B and J. It was closed. The complainant returned home and made a report online. Police spoke to the complainant before taking her to a hospital for a forensic examination.
The complainant said on 28 August 2020, at the request of police, she telephoned the appellant. In that call, which was recorded and played to the jury,[2] the appellant was recorded as telling the complainant that he had heard her say no that night. He thought it was a game. He mentioned to the complainant “safe words”.
[2]Exhibit #6.
In cross-examination, the complainant; denied ever telling the appellant that she liked to have rough sex; did not think she had ever asked him to put his hands around her neck, or that she would like to put her hands around his neck; said they never discussed any safe words or choking in their previous interactions; could not remember whether the appellant wore a condom during the interactions in 2014 and 2015, but there may have one time; and said they had never had that type of sexual contact, or forced intercourse.
The complainant accepted that when she saw the appellant at the fast food outlet, he was with a male friend. She did not recall saying to the appellant, on that occasion, “When are you going to come to my place and fuck me?”[3] She did not recall there being any discussions about having sex. She accepted that the messages they exchanged on Facebook thereafter, until 22 August 2020, were quite flirtatious. She assumed that one of his messages “well, you know the rest”, was insinuating something sexual. She replied with a simple “Sounds good to me”, as it was not something she was wanting to discuss with him.[4]
[3]AB 327/30.
[4]AB 329/24.
The complainant accepted that when they kissed on the night of 22 August 2020, it was quite passionate. They were quite excited to see one another. Whilst she was at the apartment, she messaged her brother. There was also a video call with him during which the appellant spoke to her brother. She accepted that they almost immediately went into the bedroom, after that video call. She agreed that the first call she made to her brother, after leaving the apartment, was 12 minutes later.
The complainant denied that grabbing of each other’s throat was something they did together in their prior relationship. She also denied that she wanted more than a casual relationship with the appellant and that she was upset that night because it felt that they were back where they were in 2015. The complainant accepted the appellant did not prevent her from leaving that night.
Preliminary complaint
The complainant’s aunt gave evidence that on 23 August 2020, the complainant told her “I couldn’t make him stop; He was choking me”. The complainant also said, “I said no. I said no. I said no.”[5] She did not know if the complainant used the word “rape”, but the words she used, “that he forced her” made her think she said “rape”.[6]
[5]AB 228/40.
[6]AB 229/5-10.
The complainant’s mother gave evidence that she received a telephone call, early on the morning of 24 August 2020. The complainant said she needed to talk to her. The complainant’s mother could tell she was very upset. She asked the complainant if she had been raped. The complainant replied “Yes”. When the complainant arrived at her mother’s home, the complainant told her that the appellant had his hand around her throat so tightly that she could not move her head. She showed her several markings on the back of her neck and one on her chest. The complainant said she felt him release his grip from her throat and that she tried to roll away, but he put his hand around her throat and she was unable to move.
B gave evidence that she had been friends with the complainant since high school. On 23 August 2020, she participated in a Facebook group chat with the complainant and another school friend, J. The complainant’s message said,
“[K] had [P] last night, i went to the pub for a bit, then come home, got dressed and went into surfers and saw [the appellant] at the q1.. it was fun and fine for a bit there was people at the apartment and we were all drinking and then we went into his room. And he was really forceful and rough, he was getting too rough so I started saying no and telling him to stop and he just choked me out and told me to shut the fuck up and do as I was told Eventually I got the strength to scream no and jumped up because at one point I tried getting up and he pulled me back down onto the bed I jumped up and put my undies on and just grabbed my bag and ran out and [bawled] my eyes out and face timed [N]. He ended up coming over with [C] and he held me on the couch while I cried and told them everything.”
After receiving that message, B spoke briefly to the complainant. They did not go into any details at that time. On 25 August 2020, she went to the local police station with the complainant. It was closed. They returned to the complainant’s house and the complainant filed an online report.
J gave evidence that as a result of receiving the Facebook group chat message on 23 August 2020, she went to see the complainant that afternoon. The complainant told her that she had met the appellant at a hotel and it went wrong and he ended up assaulting her. He grabbed her around the neck. J took some photographs of marks around the complainant’s neck. On 25 August 2020, she travelled with the complainant and B to the local police station. It was closed. They returned to the complainant’s house and a report was made via the online app.
The complainant’s brother gave evidence that on the evening of 22 August 2020, he had a text message exchange with the complainant, starting at 10.14 pm. It included a photograph of the complainant with the appellant. He returned a photograph of himself and two females at 10.27 pm. At 10.39 pm, he had a brief audio call from the complainant. He then received a two minute video call at 10.41 pm. On one of those occasions, the appellant was on the call.
Later, he received a call from the complainant. She was uncontrollably crying. She kept saying, “I’ve been choked. I’ve been raped.”[7] She said the appellant had raped her. He travelled to the complainant’s house with a friend, C. The complainant told him that she had been raped; that she kept begging the appellant to stop; that the appellant could see that she was crying; and that he refused to stop. The complainant kept saying it was hard to breathe “because he choked me”. The complainant said “I couldn’t breathe; I had to kick him off me. The more I kept telling him to stop, the more he kept going. It was like he was enjoying it. I don’t know he would do this to me.” The complainant also said that the appellant said, “Just shut your fucking mouth and do as you’re told.” When he went to see the complainant the following morning, he noticed she had red marks on her neck, up against her throat. It was clear “that there was a grip of a hand that had been held on her neck … Because you could see the fingerprints.”[8]
[7]AB 237/33.
[8]AB 239/31-34.
In cross-examination, the complainant’s brother said that he hung up the phone in his conversation with the complainant and the appellant, as the appellant was “incoherent”. He accepted the appellant was most certainly intoxicated at that time.
C gave evidence that she went to the complainant’s residence with the complainant’s brother on the evening of 22 August 2020. The brother spoke to the complainant outside. When they returned, the complainant told her that she had been messing around with the appellant; that she asked him to stop and he did not stop; that it was not until she was able to kick him off, that she was able to grab her clothes and run downstairs; and that the appellant held her down by her neck and she was asking him to stop.
Investigation
Lee Harnden (Harnden) was the police officer tasked with the complainant’s online report, received at 5.37 pm on 25 August 2020 in these terms:
“I was at a party at the Q1 on Saturday night. There was one person there that I knew, his name is [the appellant]. We had met before and used to work together, and four other people there that I didn’t know. We were drinking before we were meant to go out to the casino later on. After a few hours of drinking and hanging out, [the appellant] asked me to come into a room with him. He proceeded to push me down onto the bed and kissed me, which I was okay with at the beginning. I told him that nothing was going to happen without a condom. He ignored me and forced himself on top of me. I had no control of the situation whatsoever, and just remember being thrown around and held down by my throat and very scared. At one point, I tried to remove his hands from my neck and say, ‘Stop.’ This is when he told me to shut the fuck up and do what I was told. I couldn’t breathe at one stage, and after he got his hand off me, I tried to roll over and attempt to crawl off the bed when he grabbed the back of my neck and pulled me back and continued to take me. There was intercourse, and whenever I tried to speak up or move away, he would just keep telling me to shut the fuck up and do what I was told and aggressively hold me down. It all happened so quickly. At one stage, I began to cry and continued to say over and over, ‘No, no, no,’ and, ‘Please stop,’ where he would say, ‘Shut up.’ I finally screamed, ‘No,’ loud enough and used all my strength to kick and push him off me and jump up. I remember him making a smart remark and saying that was a big no, as I was quickly putting my undies on and ran out the room. I ran to the kitchen of the apartment and grabbed my bag; I still had my shoes on.”[9]
[9]AB 255-256/7.
During his investigations, Harnden was made aware that there were other people in the apartment that night. The leaseholder was asked whether he was prepared to provide a statement. He declined to do so. Several months later, Harnden was provided with another name. That person declined to make a statement. A third male was identified, but also declined to provide a statement. That male was re-contacted, but again declined to provide a statement. A fourth male, who was identified, stated that he had never been to the apartment, and he did not know the appellant.
In cross-examination, Harnden accepted that he did not make any notes of these conversations. He did not take any action in relation to a request to have those persons subpoenaed to give evidence at the trial, as it was “not my job”. He was never provided with subpoenas to serve on these people.
Forensic
Dr Maria Nittis (Nittis) reviewed the doctor’s report of the complainant’s examination at the hospital on 26 August 2020. There was a very faint, ill-defined area of redness on the front of the neck; a one-centimetre diameter circular bruise on the left side of the neck; an area of tenderness on the back of the neck; a poorly-defined, faint, circular blue, grey, yellow bruise on the right side of the front of the chest; and a poorly-defined, faint, circular, blue, grey bruise on the left side of the front of the chest, beneath the collarbone. No injuries were noted to the genitalia.
The bruising was likely caused by blunt force trauma, but it was unable to be dated. The most common causes for bruising to the neck, are suction injuries, such as hickeys or love bites, and then, less commonly, strangulation. The complainant had given an account of having a husky voice and a headache for two days. She also had a sore neck, especially when bending her neck towards the left. Whilst such complaints are potential consequences of strangulation, they were not, in themselves, proof of strangulation as they can occur through other mechanisms.
In cross-examination, Dr Nittis said that accidental bruising was quite uncommon, but that she could not say that the bruise was not caused by consensual choking, during sex. A scratch observed to the neck could have been caused by the complainant trying to remove a hand from her neck.
Dr Lai gave evidence that she saw the complainant when she attended her general practice on 24 August 2020. The complainant gave a report of having attended a party the previous Saturday night and that she had been raped by a person that was known to her from a while ago; that it had started as consensual intercourse, but he turned aggressive and did not stop when she said no; and that she had managed to leave the apartment. The complainant reported that she had bruises on her neck, but no genital injury. At that stage, police had not been contacted by the complainant. Dr Lai noted bruising to both sides of the neck. There was a full range of motion of the neck. A genital examination revealed no bruises or tears. Dr Lai could not tell from her observations what was the exact mechanism that caused the bruising to the neck. She also could not tell the exact time or date of that bruising.
Appellant
The appellant gave evidence that when he had worked with the complainant in 2015, they had several sexual encounters but they were not in an exclusive relationship. He estimated they had sexual intercourse approximately three times. It was usually pretty rough. The complainant liked to be choked. It was reciprocated. They discussed the use of a safe word, “pineapples”. Not once did he wear a condom.
The appellant said that the last time he had seen the complainant prior to 2020 was around 2016. They were swimming in a pool with some co-workers. The complainant was trying to hug him. He pulled back and said stop. The complainant was “cut about it”. She had a sad look on her face. The next time he saw her was two weeks prior to 22 August 2020, at a fast food outlet. The complainant said to him “when are you going to come back to my place and fuck me”.[10] He was a little taken aback but thought it was a bit funny. So did his male friend.
[10]AB 363/4-5.
The appellant said he added the complainant to Facebook the following day. They then had conversations about catching up. Their Facebook messages were casual and “pretty flirty”. During one of these message exchanges the complainant asked him to come to her house. It was late at night and he had been drinking. He replied that he could not come that night. They agreed to do it another night.
On 22 August 2020, they arranged to meet at the apartment block where he was staying with friends. They kissed in the lift before entering the apartment. His friends were present in the apartment. They chatted for a time. He also spoke to the complainant’s brother on the phone. The appellant then went into the bathroom with the complainant. The complainant thanked him for having sex with her when she was overweight. He kissed her on the stomach and she grabbed him by the throat and “by the balls as well”.[11] They kissed passionately for a couple of minutes before going into a bedroom. The four other males were in the kitchen, less than four metres away.
[11]AB 368/9.
The appellant said once they were in the bedroom the complainant unbuttoned his pants and he took down her underwear. The appellant pushed the complainant onto the bed. She pushed his head towards her crotch area and he started performing oral sex. They continued to touch each other all over. At one point he placed his hand on the complainant’s throat while she was kissing him at the same time. When they were touching each other all over the complainant said “No. No, don’t stop”.
The appellant said he continued for a bit longer and then he placed his penis into the complainant’s vagina. The complainant was lying on her back on the bed. At one point, she rolled over and arched her back and they continued having intercourse from behind. The complainant did not say anything apart from “Oh yeah, harder”. They also continued having sex when she was on her back and he was on top of her.
The appellant said he heard a vibrating sound coming from the complainant’s phone. She looked at her phone and rolled off the bed. She grabbed her panties and walked out of the room. He was really confused. When he went outside the complainant was not in the hallway. He said “Oh, whatever.”[12] The males in the apartment said, “What was that about?” The appellant did not at any time see the complainant crying or struggling. At no stage did she use her hands to try and push him off. He never said, “Shut the fuck up and do as you’re told.”
[12]AB 372/25.
The appellant said at the time of the pretext telephone call with the complainant he was very drunk. His response to the complainant’s question whether he had heard her say “No. Stop, stop, stop” was to stay “Yeah” as in “go on” not “Yeah, I agree with that.” His statement “It’s like a game until it’s not” was a reference to the way they had always had sex. His statement “That’s usually what happens when you have sex” was in respect of the complainant’s statement that she had bruises all over her neck. It was a reference to what usually happened when they had sex the way the complainant liked to have sex – “girls bruise pretty easily”. At no stage did he think she was not consenting to what was happening between the two of them.
In cross-examination, the appellant accepted that at no time that evening did he wear a condom. His hand remained on the complainant’s throat for maybe 10 seconds. He accepted that at no stage did he ask the complainant if it was okay for him to put his hand on her neck or to penetrate her vagina with his penis. Not once in their three previous occasions of sexual intercourse in 2015 was there such a discussion. There was discussion about role play. The complainant liked him to call her names. He accepted the complainant had not suggested anything like that in her evidence.
The appellant accepted that at no time between seeing the complainant at the fast food outlet and their interactions on the night of 22 August 2020, was there any discussion about safe words or role play. It was just what they had always done on the three occasions five years earlier. The complainant was also giving physical signs that it was okay for him to place his penis into her vagina. He denied that his thumb was in the centre of the front of her throat. That would be “very stupid”.[13] He applied very light pressure for about 10 seconds to slow the blood flow. The complainant did not ask him to wear a condom.
[13]AB 379/43.
The appellant accepted that the complainant had not been asked, in her evidence, about discussions about “pineapples”. He denied it was something he had just made up. The complainant liked that kind of sexual intercourse. It was very mutual. He accepted that in the pretext call he had said that other girls had said to him “Stop, stop” and when he stopped, they said, “Why have you stopped?”
The appellant accepted that the complainant was never asked about whether she had said “Oh yeah, harder”. He denied that was something new he had invented that day. When it was put to the appellant that his barrister did not ask or suggest to the complainant that she had her phone under the pillow the appellant said “It’s – it’s in my statement. It’s in my – it’s been in my statement since day one.”[14]
[14]AB 384/13-14.
The appellant said he would describe the complainant as just a sexual partner in the past. The relationship was purely sexual in nature. He accepted that the purpose of inviting her to the apartment that night was to have sex. He was concerned she left and did not come back. His thought “whatever” was because he was in a state of confusion. He did not go down in the elevator to look for her because he received a phone call from her brother saying, “If you contact my sister again, I’ll break you.” He did not accept that the complainant tried to pull his hand off her neck. He did not accept that she said “no” very loudly.
Consideration
Ground 1
During the cross-examination of the appellant, the prosecutor asked the appellant about aspects of his evidence which had not been the subject of cross-examination of the complainant. Relevantly, those aspects included:
“… [the complainant] wasn’t asked about the safe word between the two of you, being ‘pineapples’, yesterday, was she?---I – I don’t recall. No, I don’t think so.
No. That’s because that’s something you just made up today, wasn’t it?---No.
…
[the complainant] never told you or never said the words, ‘Oh yeah, harder’ when she was in the bedroom with you in the [apartment] did she?---She did.
That wasn’t put to her yesterday either, was it?---Don’t believe so.
No. And that’s because that’s something new that you’ve invented today?---Incorrect. It’s what happened.
And [the complainant] never had her phone underneath the pillow in the [apartment] bedroom, did she?---No, she did.
And she wasn’t asked about that yesterday, was she?---I wasn’t – didn’t have a chance to speak to her.
Your barrister didn’t ask her or suggest that she had her pillow – her phone under the pillow, did she?---It’s – it’s in my statement. It’s in my – it’s been in my statement since day one.”
Such cross-examination was plainly directed to impugning the appellant’s credit. The prosecutor, in address, used it for that purpose. Relevantly, the prosecutor said:
“I want to turn to [the appellant’s] evidence. What you do with it is a matter for you, members of the jury. But when you think about his evidence, apply the same filters that you do to [the complainant’s] evidence. Consider the plausibility of what he told you. Consider the ring of truth, the likelihood of the things he said happening. Is there a convenience to his evidence, members of the jury? Think about that. Think about the level of detail that we heard that [the complainant] didn’t have an opportunity to comment on in her cross-examination. Think, particularly, about his demeanour when he gave evidence.
All of those things, in my submission, are important when assessing what he said to you today. You might simply reject what he says.”[15]
[15]AB 381/35 – AB 384/14.
In Hofer v The Queen[16] the plurality observed:-
“Where there remains a number of possible explanations as to why a matter was not put to a witness there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subject to this kind of questioning. The potential for prejudice to an accused is obvious.
Proceeding on the basis of a mere assumption as to a lack on instructions is likely to be productive of further unfairness in the course of the cross-examination.”
[16](2021) 274 CLR 351 at [34] – [35].
Having regard to the circumstances of this case, the cross-examination undertaken by the prosecutor could only have proceeded on the basis of the mere assumption. Such cross-examination was prejudicial to the appellant and its use, in address, was unfair.
Whilst defence counsel did not seek a specific direction as to these matters, a miscarriage of justice arose by reason of the failure of the trial judge to address the highly prejudicial aspects of that cross-examination, in summing up to the jury. As was observed in Hofer, it was “necessary for the trial judge to warn the jury about any assumption made by the cross-examiner, to draw attention to the possible reasons why the matter had not been put and to direct the jury as to whether any inferences are available.”[17]
[17]Hofer at [37].
In the present case, the miscarriage of justice was exacerbated as the trial judge did not merely fail to give a necessary direction. The trial judge specifically reminded the jury of the prosecutor’s invitation to disregard the appellant’s evidence, taking into account “the likelihood, the consistency in his evidence, his [demeanour], the extra detail he put into it that was not put to the complainant”[18] when dealing with the rival contentions, in the course of the summing up.
[18]AB 67/18-20.
As credibility was central to a resolution of the issues at trial, the failure to so direct the jury was a material irregularity, inconsistent with a fair trial, according to law. Further, that failure must have been prejudicial with “‘a real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ or ‘had the capacity for practical injustice’ … or was ‘capable of affecting the result of the trial’”.[19]
[19]HCF v The Queen [2023] HCA 35, [2], citing Zhou v The Queen [2021] NSWCCA 278, [22].
Ground 2
The conclusion on ground 1 renders it unnecessary to determine ground 2. Further, it will be for the trial judge, at any new trial, to determine whether evidence, from the male present with the appellant at the time of his conversation with the complainant at the fast food outlet, is admissible.
However, the trial judge’s ruling that the proposed evidence was inadmissible, because it amounted to secondary evidence going solely to credit, failed to have regard to any potential relevance of that evidence to determining whether the Crown had negatived, beyond reasonable doubt, an honest but mistaken belief as to the complainant’s willingness to engage in the type of sexual intercourse which had taken place on 22 August 2020. Evidence that the complainant, upon meeting the appellant by chance at a fast food outlet some five years after their previous sexual encounter, had specifically raised with the appellant, in blunt terms, coming to her apartment to engage in sexual intercourse, could be relevant to the jury’s assessment of that issue.
Ground 3
The conclusion on ground 1, also renders it unnecessary to determine this ground. However, in the course of argument, it was accepted by the parties that the provision of this information could be the subject of an application, pursuant to s 590AP of the Criminal Code (Qld).
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