Wheeler v The Queen

Wheeler appealed his convictions for unlawful sexual intercourse to the Supreme Court of Victoria. The central dispute revolved around the issue of consent, with the appellant arguing that his convictions were unsafe and should be overturned.

The Court was required to determine whether the discovery of fresh evidence, specifically sexually explicit photographs and video recordings, constituted a miscarriage of justice. These materials were discovered after the trial and were argued to be indicative of a consensual sexual relationship between the appellant and the complainant. The Court had to consider the principles applicable to appeals based on fresh evidence, and whether such evidence, if it had been available at trial, might have led to a different verdict.

The Court applied the principles governing the admission of fresh evidence on appeal, which require the evidence to be credible, relevant, and such that it could not have been obtained with reasonable diligence at the time of trial. Crucially, the Crown conceded that the fresh evidence was significant and that its non-disclosure at trial might have led to a miscarriage of justice. The Court, accepting the Crown's concession and considering the potential impact of the fresh evidence on the jury's assessment of consent, concluded that a retrial was warranted.

The Court ordered that the convictions be quashed and that a retrial be held.