R v BEP[2025] QCA 91

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I have had the advantage of reading the reasons of Bradley J.  I agree with his reasons for refusing the application for leave to adduce new evidence and for setting aside the verdict of guilty on count 1.
2. [2]
   I would, however, also allow the appeal in respect of count 2, set aside that verdict of guilty, and order that there be a new trial in respect of both counts 1 and 2.
3. [3]
   Bradley J’s comprehensive summary of the relevant evidence and trial judge’s summing up, allows me to briefly state my reasons.
4. [4]
   A defect in the trial by reason of a misstatement of fact by the trial judge in the summing up is an error or irregularity, giving rise to a miscarriage of justice.^[1]  The misstatement in the present case constituted an error or irregularity which was “fundamental” to the appellant receiving a fair trial according to law.  Accordingly, there was necessarily a substantial miscarriage of justice.^[2]
5. [5]
   In my view, it is not possible to segregate out that miscarriage when considering the jury’s verdict of guilty on count 2.  The misstatement of the appellant’s case in the summing up could also have affected the jury’s deliberation to a verdict of guilty, in respect of count 2.
6. [6]
   Both counts, although to be separately considered by the jury, had to be considered in the context of there having occurred as part of one continuing event, over a relatively brief period of time.

Orders

7. [7]
   I would order:

1. Application for leave to adduce new evidence refused.

2. Appeal allowed.
3. The verdicts of guilty on counts 1 and 2 be set aside.
4. There be a new trial in respect of each count.

8. [8]
   BRADLEY J:  After a three-day trial by jury in the District Court at Brisbane, the appellant was convicted on one count of sexual assault (count 1),^[3] and one count of rape (count 2).^[4]
9. [9]
   At trial, the Crown provided written particulars of the acts relied on to constitute each of the two counts.  These were given to the jury.  The particulars of count 1 were that the appellant “kissed the complainant’s pelvic region, without her consent.”  The particulars for count 2 were that the appellant “penetrated the complainant’s vagina with his penis, without her consent.”
10. [10]
    On the second day of the trial, the complainant had given evidence, followed by the opening of the defence case and the evidence of the appellant.  On the third day of the trial, the appellant’s defence counsel and the Crown prosecutor addressed the jury, the learned trial judge summed up, and the jury retired to consider their verdict.  Before the end of the third day, the jury returned its guilty verdict on each of the two counts.
11. [11]
    In his appeal against the convictions, the appellant raised two grounds.

First ground – misstatement of the defence case

12. [12]
    The first ground of appeal was that a miscarriage of justice occurred because, during the summing up, the trial judge misstated the defence case in relation to count 1.
13. [13]
    The appellant relied on the following passage from the summing up where, in identifying the elements of the offence of sexual assault, her Honour said to the jury:

“The assault the prosecution relies upon in proof of this charge is the defendant kissing [the complainant’s] pelvic region.  The defendant does not dispute that he kissed her pelvic region.  His case is that this was consensual.

Consent means … consent freely and voluntarily given by a person with the cognitive capacity to give consent.  Consent to an act will not have been freely given if it is obtained by force.  If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues [to be done] without consent.  The prosecution must prove beyond reasonable doubt that the complainant … did not give her consent to the defendant to kiss her pelvic region …  For consent to be given, it must be communicated somehow.  Consent can be communicated by words or by actions or by a combination of both.  The relevant time there must be a lack of consent is for the period when the kissing of [the complainant’s] pelvic region occurred …”

14. [14]
    The following matters provide some context for her Honour’s remarks.
15. [15]
    The Crown case was that the appellant committed the two offences while on a camping trip with the complainant and others.  It was alleged he had done so in a swag he had set up on the ground under an awning attached to his car door, committing count 1 first and then count 2.
16. [16]
    The Crown prosecutor opened the prosecution case on count 1 by telling the jury he expected the complainant would say that:

“At this time, when [the appellant] put his head down to her vagina and was trying to take her underwear off, [the complainant] grabbed his neck and said to him, ‘I don’t want you to do that.’  She tried to close her legs, but he removed her arms away from his neck and pushed against her inner thighs, moving her legs apart.  He then kissed her around her pelvic region.  Now, the kissing on the pelvic region was done without her consent and constitutes count 1: sexual assault.”

17. [17]
    The appellant’s defence counsel, in an opening statement to the jury, said:

“Your Honour has given me leave to identify the issues, and one of the critical issues will be consent, but also the reliability of the complainant’s evidence.… [Y]ou have heard some detail this morning about what [the complainant] can remember in terms of what was said in the swag, what was done, and what [the appellant] did in response.  As I’ve indicated to you, my client’s case is that it was all consensual, and, to borrow a phrase that my learned friend used, the lead-up is all consensual, and there’ll be certain parts that might be in dispute with respect to what the complainant says happened in that swag in terms of what was said by her, what was said by [the appellant] in response, and also, ultimately, what he did.”

18. [18]
    The complainant gave evidence in the following exchange with the Crown prosecutor:

“I just want to go back and ask about the sequence of events here.  At some point you said that you grabbed his shoulder and said to him, ‘I don’t want you to do that.’  Can you just tell me at what point you said those things to him and grabbed his neck? --- I did it when he was close to my vagina area.  As I believe I – I didn’t want him to, sorry, I didn’t want him to go any further down than my public bone area, so that’s when I stopped him.

Now, did he continue that after you told him that?  After you grabbed him? --- Yes.

And by that I mean, did he continue to kiss you on the pelvic area? --- Yes.”

19. [19]
    In cross-examination, the complainant had the following relevant exchanges with the defence counsel:

“[The appellant] did pull your tracksuit pants off? --- Yes.

But at that point, you did not say to him, ‘I don’t know what I want to do’? --- I did say that to him.

And at that point, he was also trying to take your underwear off and was kissing your stomach? --- Yes.

And he did try and perform oral sex on you, didn’t he? --- Yes.

But he stopped when you said to him, ‘I don’t want you to do that’? ---No.  He didn’t stop.

And you didn’t say to him the word ‘stop’ at that point? --- I did say the words, ‘stop it’ to him.”

20. [20]
    Defence counsel concluded cross-examination of the complainant with the following exchange:

“So to be clear about it, …, I want you to comment on this: that the whole encounter, from when [the appellant] entered the swag to when the intercourse stopped, the whole encounter was consensual, according to you? --- It was not consensual.  No.”

21. [21]
    The appellant elected to give evidence.  In opening the appellant’s case, defence counsel told the jury the effect of the appellant’s evidence would be:

“that this may not have necessarily been the most romantic proposition, but that any interaction with [the complainant] was always consensual.”

22. [22]
    At the Crown prosecutor’s request, the trial judge required the defence counsel to provide a more detailed opening of the appellant’s evidence.  The defence counsel told the jury the effect of the appellant’s evidence would be that the appellant remembers trying to take the complainant’s tracksuit pants off, kissing the complainant and moving down towards her pelvic region but the appellant did not recall the complainant telling him to “Stop”.  The appellant may however accept the complainant said words to the effect of “I don’t want you to do that anymore” and that when this was said the appellant did stop in reference to trying to perform oral sex.
23. [23]
    In the appellant’s evidence in chief, he said:

“I remember kissing her and then slowly going down and kissing her stomach and removing her tracksuit pants.  Then she grabbed my face and said, ‘I don’t want you to do that.’ And I said ‘Okay’ – well, I didn’t say okay, but I went up to cont- keep kissing her.  And yeah, that was the first of it.”

24. [24]
    Then there was an exchange between the defence counsel and the appellant:

“And I think you said at some point something stopped.  Was that you trying to perform oral sex? --- Yes.  That was.

And so, for the benefit of the jury, are you able just to explain how that occurred, at least from your recollection? --- I tried to go down on her – well, perform oral sex on her.  And she said, ‘Stop.  I don’t want you to do that.’  So I stopped and returned to kissing her.”

And do you recall her saying anything else? --- No.”

25. [25]
    In cross-examination, the appellant gave a somewhat different version.  The following relevant exchanges occurred:

“Now, you then pushed her legs open and pushed her tracksuit pants off? --- Correct.

And she said, ‘I’m not sure if I want to do this’? --- Disagree.

And you didn’t say anything to her at this point in time? --- Agree.

And then you pulled her jumper and her top up underneath her boobs and began kissing her stomach area? --- Agree.

You started to put your head down to her vagina and began to take off her underwear? --- Agree.

… you were still kissing her stomach area and were trying to kiss her pelvic area at that time? --- Agree.

She grabbed you by the neck and said, ‘I don’t want you to do that.’ Do you accept those things? --- Agree.

So both that she grabbed you on the neck? --- Yes.

And she said to you, ‘I don’t want you to do that’? --- Agree.

Now, at this point you put your head back down and she had to grab the same area of your neck? --- Disagree.

Continued to try to do what you set out to do? --- Disagree.

…

She told you to stop it? --- Agree.

So you agree that you did try and continue to kiss her pelvic region? --- Disagree.

All right, but you accept that she told you to stop it? --- In what regard?  The – the oral sex?

Yes? --- I disagree.  Like I didn’t perform … oral sex on her.

All right.  What I’m suggesting to you – you just agreed with the proposition that she told you to stop it.  So you agreed that at some point she said that? --- I don’t agree that she said ‘stop it.’

Okay? --- The only thing I said was ‘Stop.  We got to be quiet.’

Well, it’s a little confusing, because you weren’t being clear when I asked you in that sequence of events whether – that she told you to stop it, you said you agreed? --- I do apologise.  I meant to say disagree.

Okay.  Well, I’ll cover this again then.  You – after she said, ‘I don’t want you to do that’, you disagree that she said that; correct? --- Performing oral sex?

When you were trying to put your head down towards her pelvic area to kiss it.  Before you’ve kissed it? --- Before I’ve kissed it?  She told me not to do it whilst I was down there.

Yep.  And you continued to try and do that? --- Disagree.

She had to tell you to stop it? --- No.

And in fact she was trying to close her legs to get you to stop? --- Disagree.

You then pushed her legs back open forcefully? --- Disagree.

You put yourself in between her legs and you were on your knees? --- Disagree.

And after she’d told you – and just before this time, after she’d told you not to touch her – not to kiss her vagina area by saying, ‘I don’t want you to do that’ and to stop it, you kissed her on the pubic bone area of the pelvic area? --- Disagree.”

26. [26]
    In re-examination, the appellant had the following brief exchange with the defence counsel:

“Do you recall what she may have said? --- ‘Stop.  I don’t want you to do that.’

And do you recall when that was said? --- To the oral sex.”

27. [27]
    In the closing address, the appellant’s defence counsel told the jury “there’s not all that much difference” between what the appellant had said and what the complainant had said happened “at various points in the swag that night.”  He told the jury the difference was that the appellant had been “consistent on the issue of consent.”
28. [28]
    The Crown prosecutor, in his closing address, told the jury that, to convict the appellant on count 1, the jury had to accept the complainant’s evidence that, after she had grabbed the appellant around the neck and said, “I don’t want you to do that”, the appellant “continued to kiss her on the pelvic area.”
29. [29]
    At the commencement of the summing up, the trial judge directed the jury that they were not obliged to accept any comment her Honour made about the evidence, and they were to ignore any such comment on the facts unless it coincided with their own independent view.
30. [30]
    A few minutes after making the statements at [13] above, her Honour gave the jury a detailed summary of the evidence of the complainant and the appellant.  Her Honour told the jury this about the complainant’s evidence on count 1:

“You heard [the complainant’s] evidence that she did not give her consent to the defendant to kiss her pelvic region …

He pushed her legs open and removed her tracksuit pants, and again she said, ‘I’m not sure if I want to do this.’  The defendant said nothing in response.  On [the complainant’s] evidence, he did not say anything to ascertain whether she was giving her consent freely and voluntarily to him to continue to engage in any sort of sexual activity.

He then started kissing her stomach and moving his head down towards her vagina and kissing her pelvic area.  She grabbed him around the neck and said, ‘I don’t want you to do that.’  He said nothing and continued to put his hand down towards her vagina and continued to kiss her on her pelvic area.  Again, she grabbed him around the neck.  He removed her underwear, and she told him to stop it.  The defendant did not say anything to her in response.  On the complainant’s evidence, she made clear by her words and her actions that she was not giving her consent to the defendant to kiss her pelvic region.”

31. [31]
    Her Honour then gave the jury this summary of the appellant’s evidence on count 1:

“The defendant’s evidence was that once [the complainant] said those words, ‘I don’t want you to do that,’ he stopped what he was doing, which was trying to perform oral sex on her.

By his evidence, he acknowledged that [the complainant] had withdrawn her consent to him kissing her in that region and he stopped.  He denied continuing to kiss her pelvic area.

… On the defendant’s case he did not continue to kiss her in the pelvic region … once she withdrew her consent.”

32. [32]
    Neither the Crown prosecutor nor the defence counsel sought a redirection from the trial judge about the parts of the summing up extracted at paragraph [13], [30] or [31] above.
33. [33]
    Early in their deliberations, the jury asked for a transcript of the cross-examination of the appellant.  The trial judge, after seeking counsel’s views, sent the jury two copies of the appellant’s evidence in chief, his cross-examination, and his re-examination.  The jury then asked for a transcript of the complainant’s evidence.  After seeking counsel’s views, the trial judge sent the jury two copies of the complainant’s evidence in chief, cross-examination, and re-examination.

Consideration of ground 1

34. [34]
    There will have been a miscarriage of justice if it is reasonably possible that the trial judge’s reference to the appellant not disputing that he kissed the complainant’s pelvic region may have affected the verdict so that the jury might reasonably have acquitted the appellant, had the misstatement not been made.^[5]  The appellant carried the onus to establish that this error could have influenced the verdict in that way.
35. [35]
    The Crown submitted that, reviewing the whole of the appellant’s evidence at the trial, the appellant had not disputed that he attempted to perform oral sex and had agreed that he was “down there” when the complainant told him she did not want him to do that.  It is possible to read the appellant’s evidence in that way.  The Crown also submitted that the appellant’s defence counsel had not put to the complainant that the appellant did not kiss her pelvic region.  In the relevant exchange, extracted at [19] above, defence counsel had put only that the appellant stopped trying to perform oral sex.
36. [36]
    At the trial, in examining the complainant and the appellant, both counsel had referred variously to the appellant trying to perform oral sex, going down, and kissing the complainant in the pelvic region, the pelvic area, the vagina area, and the pubic bone area, as if these expressions were interchangeable.
37. [37]
    There were no other particulars of count 1 beyond those in [9] above, which only referred to the complainant’s pelvic region.  As there was no explanation of what was meant by the complainant’s pelvic region, this left the evidence somewhat indistinct as to what the complainant and the appellant respectively said had happened.  It also left unexplained the relationship between that evidence and the offence particularised in count 1.
38. [38]
    When the complainant and the appellant were asked and gave evidence about the appellant having kissed the complainant on the “stomach”, this could have been within the pelvic region.
39. [39]
    A possible inference from the evidence of the complainant and the appellant is that both understood that by the words “I don’t want you to do that”, the complainant had indicated to the appellant that she did not wish the appellant to perform oral sex.  This seems to have been more specific conduct than the particulars of count 1.
40. [40]
    A lack of clarity was most apparent concerning evidence about what was said to have happened before the complainant had made known to the appellant her objection to oral sex.  However, consistently with the evidence of both the complainant and the appellant, in the closing address the Crown had not alleged that the appellant had committed the alleged sexual assault (i.e. kissed the complainant’s pelvic area without her consent) before the complainant had voiced her objection to oral sex.
41. [41]
    The evidence was clearer about what was said to have happened after the complainant had said to the appellant, “I don’t want you to do that.”
42. [42]
    The complainant told the jury, “I didn’t want him to go any further down than my pubic bone area, so that’s where I stopped him.”  The complainant agreed with the prosecutor’s statement that, “he continued to kiss you on the pelvic area” after she had said she did not want him to “do that”.  The jury could have understood this as evidence that the appellant continued kissing the complainant’s stomach, and not as evidence that he kissed her “further down” than the area the complainant had called her pubic bone area.
43. [43]
    The contest at the trial about count 1 included a factual one about whether the appellant had kissed the complainant on the pubic bone area of her pelvic area after the complainant had indicated she did not want the appellant to perform oral sex.  The jury had to decide whether the Crown had proved beyond reasonable doubt that the appellant had done so.  This was the one allegation of sexual assault the Crown prosecutor put to the appellant in cross-examination.  See the final exchange at [25] above.  The appellant denied that allegation.  The complainant had not given evidence in such specific terms.
44. [44]
    It follows that the trial judge’s reference to the appellant’s defence case at [13] above was inaccurate.  The trial judge made that reference when outlining the elements of count 1 to the jury.  The reference was brief and general, but it misstated the appellant’s defence case.
45. [45]
    The trial judge corrected the misstatement a little later in the summing up.  The correction did not identify that an error had been made and so did not include a direction to disregard the earlier, brief, but erroneous statement.
46. [46]
    In the context of the trial, the erroneous reference to the appellant’s defence case could have led the jury to give less attention to the lack of clarity in the evidence adduced from the complainant in considering whether the Crown had proved beyond reasonable doubt that the appellant had done the act alleged to constitute count 1.
47. [47]
    Having considered the Crown’s submissions on this ground, I remain of the view that it was reasonably possible this misstatement may have led the jury to a different conclusion.  So, I could not conclude that no substantial miscarriage of justice occurred.^[6]

The effect of the misstatement on count 2

48. [48]
    For the appellant, it was further submitted that the misstatement by the trial judge had “a capacity to infect the verdict” in relation to count 2.  The submission was that by the misstatement the jury had been “in effect, told that the appellant had kissed the complainant’s pelvic region, when his evidence was to the contrary” and the jury “may have reasoned that if his evidence could not be accepted” on count 1, “then it could not be accepted” on count 2.
49. [49]
    The relevant error was a misstatement of the appellant’s evidence.  It was not a suggestion to the jury that they should reject his evidence.  The misstatement was not to the effect the appellant contends.  Indeed, such a characterisation of the trial judge’s error conflicted with the balance of appellant’s case on ground 1, which was that the trial judge’s misstatement may have led the jury to think that in his evidence the appellant had not disputed kissing the complainant’s pelvic region.
50. [50]
    For the appellant it was also submitted that there was “a real potential” for the jury, in considering count 2, to reason “that the appellant had a propensity to engage in non-consensual activity”.
51. [51]
    The appellant admitted penetration of the complainant’s vagina with his penis.  The jury faced no factual question about penetration.  His defence case was that all sexual contact between him and the complainant had been consensual.  The trial judge had instructed the jury that the crucial question was whether the complainant had given her consent, freely and voluntarily.  Her Honour was clear that the appellant’s case and evidence was that the sexual intercourse was consensual.  The trial judge had identified for the jury that they must be satisfied beyond reasonable doubt that the complainant had not given her consent before they could convict the appellant on count 2.
52. [52]
    Her Honour had also instructed the jury to consider each count separately, that the evidence in relation to each count was different, and that their verdicts need not be the same.
53. [53]
    I reject the appellant’s contrary characterisations of the trial judge’s error.  In the circumstances, it was not reasonably possible that the misstatement of the appellant’s position on count 1 may have led the jury to a different conclusion on count 2 in the way contended for the appellant.

Conclusion of ground 1

54. [54]
    It follows that the appellant’s conviction on count 1 should be set aside and a new trial ordered.

Second ground – mistake defence

55. [55]
    The second ground of appeal is that a miscarriage of justice occurred because the trial judge failed to leave to the jury whether the Crown had excluded a defence that the appellant had acted under a mistake of fact, under s 24 of the Criminal Code, in respect of each offence.
56. [56]
    A further submission put for the appellant at the appeal hearing was that the complainant’s express statements that she wanted him to stop sexual intercourse were evidence that raised for determination whether the appellant was under an honest and reasonable mistake about her consenting when he began and continued penetrating her vagina with his penis.
57. [57]
    At the hearing of the appeal, the appellant’s counsel also submitted that if the jury had reached an “intermediate version of the evidence of the complainant and the appellant” there might have been a basis for raising the issue of mistake.

Consideration of the submissions on mistake

58. [58]
    Given the above conclusion on ground 1, the following consideration is focussed on count 2.
59. [59]
    The appellant must show that there was evidence at the trial, viewed fairly or realistically, on which the jury could have legitimately entertained a reasonable doubt about whether, although mistaken, the appellant honestly and reasonably believed that the complainant had consented to him penetrating her vagina with his penis.^[7]
60. [60]
    The appellant and the complainant were not in an intimate relationship.  The appellant said this was the first time that he had slept together with the complainant in the same space.  Asked about any prior physical intimacy, the appellant described “a kiss on the cheek and a hug” when she came to his workplace as an example.  He added an outdoors kiss on the lips, after a lunch and ice cream on a date, as the only other example.
61. [61]
    During cross-examination, the appellant’s evidence was that he penetrated her vagina with his penis immediately or shortly after the complainant had told him she did not want him to perform oral sex.  He did not say anything to the complainant before penetration.  He did not discuss with the complainant the use of any protection.  He did not use any protection.  He said, while he was having sexual intercourse, the complainant said, “I don’t want to do this anymore.” The appellant told the jury he said nothing in response.  He said he kept having sex with her.
62. [62]
    The appellant told the jury the complainant’s “reluctance” to have oral sex meant that the complainant was open to sexual penetration.  When asked what gave him the impression that the complainant wanted to have penetrative sex, the appellant said it was because “she was stroking my penis” on the outside of his underwear.  This had not been put to the complainant in cross-examination.  The appellant had not mentioned any stroking in his evidence in chief.  It had not been opened by defence counsel.  For the appellant, it was also submitted that his evidence that the complainant had removed her bra at his request was “an act which signifies consent to the activity that was then occurring” and “so a development of sexual activity that might have indicated” to the appellant “that she was willing to engage” in penile penetration.
63. [63]
    Her Honour had discussed with counsel whether mistake of fact should be left to the jury.  Both counsel had submitted it should not be left to the jury, on the basis that it could not be reasonably raised on the complainant’s evidence that she had told the appellant she did not want him to perform oral sex and that she had told him she did not want to have sexual intercourse with him.  Nor was it open on the appellant’s evidence, which was that he had stopped trying to have oral sex when the complainant had told him she did not want him to do that, and that the complainant had been a willing and enthusiastic participant in sexual intercourse until she had asked the appellant to stop, at which point he had stopped.
64. [64]
    The appellant’s evidence did not raise a question of honest and reasonable mistake of fact about the complainant having consented to him penetrating her with his penis.  The assessment of the trial counsel and the trial judge was correct.
65. [65]
    The jury plainly rejected the appellant’s evidence that the complainant consented to intercourse by telling him she did not want him to perform oral sex, by removing her bra at his request, and by stroking his penis over his underwear.  In accordance with the instructions given by the trial judge, the jury could not have found the appellant guilty on count 2 unless they were satisfied beyond reasonable doubt of the contrary evidence given by the complainant, and despite the appellant’s evidence.
66. [66]
    The evidence of the appellant, that of the complainant, and any “intermediate” combination of the two, was incapable of giving rise to a reasonable belief that the complainant had consented or invited the appellant to kiss her pelvic region or to penetrate her vagina with his penis.  Even if the appellant had mistakenly construed what he said occurred as meaning the complainant had consented, that belief could not have been regarded as reasonable in the circumstances.
67. [67]
    The existence of any such belief on the appellant’s part was effectively precluded by the absence of any evidence reasonably capable of being mistaken as consent and the evidence (accepted by the appellant) that the complainant told the appellant, successively, that she did not want oral sex, and then that she did not want penetrative intercourse to continue.
68. [68]
    In the circumstances, her failure otherwise to manifest her dissent before the appellant began penetrative intercourse was not evidence that raised a factual issue about whether the appellant believed the complainant had freely and voluntarily given consent in some way to penetration or to its continuation after she had made her dissent known.
69. [69]
    Things happening after penetration commenced (including the complainant saying she did not “want to do this anymore”) could not be a basis for the appellant being mistaken that the complainant had consented to intercourse when it began.

Conclusion on ground 2

70. [70]
    The appellant failed to establish ground 2 of the appeal.

New evidence

71. [71]
    The further evidence the appellant seeks to adduce on appeal is “new evidence”.  It was contained in the complainant’s police statement dated 7 October 2021. That statement had been disclosed to the appellant and was available at trial.
72. [72]
    The Court has a residual discretion in exceptional cases to receive further evidence, which is not fresh evidence in the legal sense, where to refuse to do so would result in a miscarriage of justice.^[8]  A miscarriage of justice would occur if it would be unsound or unsatisfactory to allow the conviction to stand in light of the further evidence.^[9]  The appellant must show there is significant possibility that a jury hearing the new evidence would have reached a different verdict.^[10]  That is not demonstrated in this case.
73. [73]
    For the appellant, it was submitted that two paragraphs in the statement might have caused the jury to doubt the complainant’s evidence.  It is convenient to consider each in turn.
74. [74]
    The first was that the appellant:

“told me to take my jumper and shirt off, but he was taking them off as he was saying it.  He took off all my tops in one motion.  He was trying to take my bra off, but was unable to take my bra off so he told me too [sic], which I did.”

75. [75]
    The complainant did not give evidence about this at the trial.  The appellant’s defence counsel did not put it to her in cross-examination.
76. [76]
    The appellant gave evidence at the trial that:

“We began becoming more intimate – so kissing around the neck, and then she took off her tops and left her bra on.  I then asked for her to remove her bra, which she did.”

77. [77]
    The second paragraph in the statement was that the appellant:

“then started to aggressively thrust into me. I jolted my head back and was able to move his hand off my mouth, I said to him ‘You're being too loud.’ As he was loudly clapping against me, you could hear our skin. He continued to thrust into me for about 1 minute and moved his right hand onto my left boob and was aggressively squeezing and grabbing at it.”

78. [78]
    In her evidence in chief, the complainant told the jury she did not remember what she said (after telling the appellant “I don’t want to do this anymore”).  She said that the appellant “put his hand over my mouth” and told her to “shut up.”  She said he was “squeezing and grabbing [her left breast] quite aggressively” while “still thrusting still very forcefully and aggressively as well.”  She told the jury she “was able to grab his hand off my mouth.”
79. [79]
    In cross-examination, the defence counsel put to the complainant that, when the appellant first put his penis in her vagina, she had said to him “We have to be quiet.”  The complainant had denied this.  Defence counsel then put that the complainant had not said “I don’t want to do this anymore”, but had instead said, “We’re being too loud.”  The complainant rejected this, saying she had told the appellant, “I don’t want to do this anymore.”  She also rejected the proposition that she had said, “Stop.  I don’t want to do this because you’re being too loud.”
80. [80]
    Defence counsel did not cross-examine the complainant about the content of her 7 October 2021 statement to the police.  The statement included other content consistent with her evidence about the events in the swag on the Saturday night, which could have undermined the appellant’s defence.  There may have been rational forensic reasons not to risk the statement being tendered.
81. [81]
    The appellant gave evidence in chief at the trial that the complainant had said, “We have to be quiet” and, “Stop.  We got to be quiet.”  In cross-examination, the appellant had accepted as correct that during intercourse the complainant had said to him, “I don’t want to do this anymore.”
82. [82]
    At the trial, the appellant gave evidence at variance with the complainant’s evidence.  The defence counsel urged the jury, on that and other bases, to reject the complainant’s evidence that she did not consent to sexual intercourse.  For the reasons set out above, I have rejected the appellant’s submission that the complainant removing her bra at his request signified consent to kissing her pelvic region or to penile penetration of her vagina.  Whether or not the complainant had said the appellant was being “too loud” or needed to be “quiet” was of little significance on the issue of consent, given the appellant’s acceptance that she had told him she did not “want to do this anymore.”
83. [83]
    I accept that the evidence in the two paragraphs of the complainant’s 7 October 2021 statement was apparently credible.  However, the appellant did not show there was a significant possibility that a jury hearing the new evidence would have reached a different verdict.  I would refuse leave to adduce the new evidence.

Final disposition

84. [84]
    The order of the Court should be:

1. Application for leave to adduce new evidence refused.

2. Appeal allowed in part.
3. The verdict of guilty on count 1 be set aside.
4. There be a new trial in respect of count 1.

85. [85]
    CROWLEY J:  I agree with Bradley J.