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[2026] QCA 13
respondent. Appeal against conviction dismissed. Application for leave to appeal against sentence imposed on each count on indictment 438 of 2023 refused. The Court did not need to consider the...
1 cited instrument linked from this judgment.
The Court of Appeal rejected both challenges to the convictions. It found that counsel had a defensible reason for not using the sexually explicit photographs and videos and for advising the appellant not to testify, and that the appellant accepted that advice. The trial evidence did not raise a sufficient basis for a jury to consider that the appellant honestly and reasonably believed the complainant consented. Because the conviction appeal failed, the Court did not consider the separate sentence argument, and refused leave to appeal sentence.
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2,959 words · generated 08/10/2026
RBQ appealed convictions entered after a jury trial in the District Court at Brisbane. The jury found him guilty of two counts of sexual assault and one count of rape, arising from events on 21 December 2020 involving a complainant who was a friend of his then partner, described in the judgment as “the friend” ([1], [3]).
The complainant's evidence was that the group spent time at the friend's father's house and a local hotel, where the complainant and RBQ consumed alcohol. She described three incidents after they returned to the house: RBQ moved her bikini top aside and exposed her breast; he ejaculated on her leg; and he pushed her over a chest freezer, lifted her skirt and penetrated her vagina ([5]-[7]). She said she did not consent to any of those acts. She described herself as highly intoxicated and unable to think clearly before the rape ([7]). The friend gave evidence that the complainant appeared “out of it” and that she saw her wiping something from her leg, while RBQ laughed and blamed the dog ([14]-[15]).
The complainant did not report the events on the morning after they occurred. In October 2021, after the friend found photographs of the complainant on a computer, the complainant told the friend what had happened and then reported the events to police ([4], [9]-[10], [17]). At trial, the complainant denied sending RBQ the photographs in the exhibit and denied that she had sent other photographs or encouraged him sexually ([10]-[13]).
The appeal concerned two principal trial issues. First, RBQ argued that his trial counsel should have cross-examined the complainant using 37 photographs and videos that he said she had sent him before the offences, and should have called him to give evidence. Second, he argued that the judge should have directed the jury about mistake of fact as to consent ([2]). He also advanced a sentence ground, but only if his conviction appeal succeeded ([2]).
The appeal court heard evidence from RBQ, his trial counsel and his solicitor about their discussions and the decisions made at trial. The Court found that their memories were imperfect, but considered the lawyers' evidence more reliable. It found that counsel had told RBQ during the prosecution case that he would not cross-examine the complainant on the 37 files, and that RBQ did not challenge that position at the time ([31]-[32]). The Court also found that RBQ accepted the lawyers' advice not to give evidence ([33]).
The Court dismissed the conviction appeal. It also refused leave to appeal the sentences imposed on the sexual assault counts. Since the conviction appeal failed, it did not consider whether those sentences were manifestly excessive ([53]-[54]).
On the first ground, the Court treated the use of the photographs and videos and the decision about RBQ giving evidence as connected issues. It considered that the files would probably only have been able to be introduced through RBQ's own evidence, so a decision to use them would have affected whether he testified ([34], [38]).
The governing approach was that a criminal defendant is usually bound by legitimate forensic choices made by counsel. The Court quoted the High Court's statement in R v Baden-Clay that parties generally are bound by counsel's decisions about what issues to contest, witnesses to call, evidence to lead or exclude, and lines of argument to pursue ([36]). It also relied on TKWJ v The Queen and Orreal v The Queen for the proposition that an appellant claiming a miscarriage from a course taken at trial must establish that the course was not an informed and deliberate forensic decision ([37]).
The Court identified several risks in using the files. The photographs and videos were sexually explicit and, in counsel's assessment, might alienate the jury without materially advancing the defence. Counsel's trial strategy instead emphasised the complainant's gaps in memory and challenged her credibility and reliability. The Court considered that focus could be undermined if the jury became distracted by the files or by questions about RBQ's possession of them ([35], [38]-[39]).
The complainant had denied sending the photographs in the trial exhibit and denied sending other images. The Court considered it unlikely that the prosecution would introduce the 37 files through its case. It also noted that the friend had seen RBQ scrolling through the complainant's Snapchat and looking at naked photographs, providing another possible explanation for how he obtained the material. The Court considered the number and content of the files, and the fact that RBQ had kept them, could strengthen the prosecution's argument that he had a sexual interest in the complainant ([38]).
The Court also assessed how the decision about RBQ testifying was made. It found that counsel had advised him that he did not need to give evidence, partly because counsel considered the complainant had performed poorly as a witness. Counsel also had a concern that RBQ might harm the defence if he testified, though that particular concern was not conveyed to him. The Court found that the lawyers understood that the decision belonged to RBQ, and that he ultimately accepted their advice. His signed trial instructions also recorded that he would not give or call evidence ([30], [33]).
The Court's conclusion was not that any decision by counsel is immune from appeal. Rather, it found these decisions were explicable forensic choices on the particular trial evidence, and could not be characterised as causing an error or irregularity ([39]-[40]).
On the second ground, the Court asked whether evidence at trial raised a mistake-of-fact issue for the jury. It relied on R v Makary for the threshold that there must be evidence raising mistaken belief for the jury's consideration, and on R v Millar, R v FAV and R v Kalisa for the question whether the jury could legitimately have entertained a reasonable doubt about an honest and reasonable belief in consent ([43]-[44]).
The Court considered the statutory provisions applicable to the alleged offences. Section 348(3) provided that a person is not taken to consent merely because they do not say or do anything to communicate non-consent. Section 348A governed the assessment of an honest and reasonable, but mistaken, belief in consent. In deciding whether a belief was reasonable, the applicable provision excluded consideration of the accused's voluntary intoxication ([45]-[46]).
The appellant relied on the complainant's memory gaps, her not recalling saying anything, the fact that she and RBQ had been drinking, and the complainant's account of the acts themselves ([47]). The Court considered that some of these points had limited relevance in light of the statutory rules about silence and intoxication, and that the acts described by the complainant did not themselves supply evidence of a reasonable belief in consent ([48]). It also rejected the invitation to speculate about what might have occurred during periods the complainant could not remember ([50]).
In the overall context, the Court found no evidence of sexual interest from the complainant towards RBQ, evidence that she was interested in R, and evidence that she appeared substantially intoxicated ([49]). It concluded that this was not a case where the jury could legitimately have entertained a reasonable doubt about an honest and reasonable mistaken belief in consent, so the judge was not required to give the direction ([51]-[52]).
The judgment explains the law through two related but distinct questions: how an appeal court assesses counsel's trial decisions, and when the evidence requires a mistake-of-fact direction.
For trial decisions, the Court applied the general adversarial principle that parties are ordinarily bound by counsel's legitimate forensic choices. The judgment cites R v Baden-Clay for counsel's broad discretion over issues, witnesses, evidence and argument, while acknowledging that the principle is subject to “well-defined exceptions” ([36]). It then states that an appellant alleging a miscarriage caused by a course taken at trial must establish that the course was not an informed and deliberate forensic decision, relying on TKWJ and Orreal ([37]). The decision applies those principles to the particular evidence and counsel's reasons; it does not state that counsel's decisions can never amount to a miscarriage.
For mistake of fact, the Court framed the threshold as whether there was evidence raising the issue for the jury. If there was no such evidence, the jury did not have to be directed to consider the s 24 excuse ([43]-[44]). The judgment does not suggest that the accused must testify before mistake of fact can be considered. Instead, it examines all evidence adduced at trial and asks whether it could support the relevant belief.
The Court also sets out the applicable versions of ss 348(3) and 348A of the Criminal Code (Qld). Under s 348(3), silence or failure to communicate non-consent does not, by itself, amount to consent. Under s 348A, a court assessing an honest and reasonable belief may have regard to what the accused said or did to ascertain consent, while voluntary intoxication cannot be considered when deciding whether the belief was reasonable ([45]-[46]). The Court applied those statutory provisions to this trial and said that the complainant's not recalling or saying anything had reduced relevance to the asserted belief ([48]).
The judgment notes that the offences were charged after the commencement of the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), and that s 754 made the relevant new provisions applicable to the counts ([45]). It does not provide a comprehensive account of the earlier law or decide how the statutory provisions would apply to other fact patterns. Its contribution is the application of the specified provisions to the evidence in this appeal.
As to the position after this decision, the judgment states the Court of Appeal's conclusion on the facts before it. The material supplied contains no account of subsequent appellate decisions applying, distinguishing or reconsidering R v RBQ. Any claim about later doctrinal change or treatment would therefore go beyond this judgment.
At [36], quoting R v Baden-Clay, the Court says parties are generally bound by counsel's choices about what to contest, what evidence to use and what arguments to pursue. In plain English, a defendant cannot ordinarily appeal simply because, after trial, they would have preferred a different defence strategy. The qualification is important: the judgment recognises exceptions and does not establish that every decision by counsel is necessarily legitimate.
At [37], the Court says an appellant must establish that the course taken at trial was not the result of an informed and deliberate forensic decision. In plain English, an appellant needs to do more than show that another approach was possible. The appeal question includes whether the challenged approach was a considered trial choice, rather than an error or irregularity.
At [39], the Court describes counsel's choices as “explicable forensic decisions”. In this case, that conclusion rested on the perceived risks of using the files, the complainant's answers in cross-examination, and the defence strategy of focusing on memory and reliability. The phrase is a conclusion tied to this record, not a general rule about how lawyers should handle similar evidence.
At [43], the Court states that the key question is whether evidence raises mistaken belief for the jury, so that the prosecution must exclude the s 24 excuse. In plain English, a judge does not have to give a mistake-of-fact direction just because consent is disputed. There must be evidence capable of putting that issue before the jury.
At [45]-[46], the Court sets out the statutory provisions it applied. Section 348(3) means that a person's silence or failure to communicate non-consent is not, on its own, consent. Section 348A concerns whether a belief in consent was honest and reasonable, including what the accused did to ascertain consent and the exclusion of voluntary intoxication from the reasonableness assessment. The Court's analysis depends on the versions of these provisions applicable to the trial.
At [50], the Court rejects filling gaps in the complainant's memory by speculation. In plain English, the appeal could not be decided by imagining events that were not in evidence. The relevant question was what the trial evidence actually supported.
At [51], the Court says the jury could not legitimately have entertained a reasonable doubt on the mistake-of-fact issue. That was the direct reason it found no error in the judge's failure to give the direction.
For forensic-choice arguments, the decision is relevant where an appellant says counsel's trial conduct caused a miscarriage of justice. The judgment indicates that the appeal analysis will examine whether the choice was deliberate and informed, what reasons counsel had, and how the choice fitted the defence case and trial evidence ([35]-[40]). Here, the challenged decisions were linked: using the 37 files was unlikely to be possible without calling RBQ, while calling him carried risks identified by counsel ([34], [38]-[39]).
The facts that mattered included the content and number of the files, the complainant's denial that she sent them, the friend's evidence about RBQ using the complainant's phone, and counsel's strategy of challenging the complainant's memory and reliability ([35], [38]). The decision may therefore be relevant where the proposed evidence could both support a defence argument and create damaging inferences or divert attention from the central issue. It does not decide how a different body of material, a different trial strategy, or different client instructions would be assessed.
For mistake-of-fact directions, the decision is relevant where a party argues that evidence raised a reasonable possibility of an honest and reasonable belief in consent, but the trial judge gave no direction. The focus is on the evidence actually adduced, not on hypothetical events that might explain memory gaps ([41], [43]-[44], [50]). The statutory provisions on silence and voluntary intoxication also formed part of the Court's analysis ([45]-[48]).
The judgment is particularly relevant to arguments based principally on a complainant's failure to object or inability to recall words spoken during the incident. The Court said those matters had reduced relevance under the applicable s 348(3), which prevents silence alone from being treated as consent ([48]). It also rejected the use of the complainant's intoxication as a basis for finding that an accused's belief was reasonable, because the applicable s 348A excluded the accused's voluntary intoxication from that assessment ([46], [48]).
The decision does not establish that evidence of silence, memory gaps or intoxication is always irrelevant. It explains how those matters were treated under the provisions applicable to this trial and in the context of the evidence as a whole.
The judgment itself does not discuss any later cases treating R v RBQ. The supplied text identifies no subsequent decision that applied, distinguished, followed, criticised or reconsidered it. Because the judgment was delivered on 10 February 2026, this analysis does not infer later treatment from sources outside the judgment.
The authorities discussed in R v RBQ are earlier authorities. The Court cited R v Baden-Clay for the general principle about counsel's forensic discretion and referred to TKWJ v The Queen and Orreal v The Queen on the need to show that the challenged course was not an informed and deliberate forensic decision ([36]-[37]). On mistake of fact, it relied on R v Makary, R v Millar, R v FAV and R v Kalisa for the evidentiary threshold and the question whether a jury could legitimately entertain a reasonable doubt ([43]-[44]).
Those citations show the legal sources the Court used, but they do not establish how courts after R v RBQ have treated its reasoning. The judgment's own holdings should therefore be described as its application of those earlier principles to this record, rather than as a demonstrated account of subsequent precedent.
The judgment's findings about counsel's decisions depend on the appeal evidence about communications, instructions and the trial strategy. The Court found the lawyers' evidence more reliable than RBQ's, and found that he accepted their advice not to testify ([31]-[33]). The judgment does not decide how the same appeal ground would be resolved if the evidence showed that counsel had not explained the strategy, had not conveyed the decision about the proposed material, or had not obtained the client's agreement to the decision not to testify.
The Court also did not decide whether the photographs and videos would have been admissible, or what their precise evidentiary value would have been. Its reasoning concerned the forensic risks of using them and the practical point that RBQ's evidence would likely have been needed to rely on them ([34]-[39]). Questions about admissibility or probative value in another case would require assessment of that case's evidence and procedural context.
On mistake of fact, the Court held that the evidence at this trial did not raise the issue, but did not catalogue all circumstances that might be sufficient to require a direction. It addressed the evidence relied on by RBQ, the complainant's memory gaps and silence, and the statutory provisions applicable to these counts ([45]-[51]). The decision leaves open how a different combination of evidence about communications, conduct to ascertain consent, or surrounding events would meet the threshold.
The Court also did not determine the sentence ground. It was pressed only if the conviction appeal succeeded, and the Court's dismissal of that appeal meant there was no need to consider manifest excessiveness ([2], [53]). The order refusing leave to appeal sentence is stated at [54], but the judgment gives no substantive sentencing analysis from which to extract a broader sentencing principle.
This is general legal information based on the judgment text, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v RBQ [2026] QCA 13
PARTIES: R / v / RBQ / (appellant/applicant)
FILE NO/S: CA No 171 of 2024 / DC No 437 of 2023 / DC No 438 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 16 July 2024; Date of Sentence: 18 July 2024 (Jarro DCJ)
DELIVERED ON: 10 February 2026
DELIVERED AT: Brisbane
HEARING DATE: 31 March 2025
JUDGES: Mullins P, Brown JA, Cooper J
ORDERS: Appeal against conviction dismissed. Application for leave to appeal against sentence imposed on each count on indictment number 438 of 2023 is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted after trial before a jury of two counts of sexual assault and one count of rape – where the appellant signed trial instructions not to give or call evidence – where the appellant provided his lawyers photographs and videos with the belief they would be used to cross-examine the complainant – where the appellant advised his lawyers he was willing to give evidence – where the appellant’s lawyers made a forensic decision not to tender the photographs and videos – where the appellant’s lawyers advised the appellant that it was not necessary for him to give evidence – where the appellant accepted that advice – whether the appellant’s lawyers’ decision not to tender the photographs and videos and the failure to call the appellant to give evidence amounted to a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of two counts of sexual assault and one count of rape – where the trial judge did not give directions to the jury on the exclusion of mistake of fact in relation to consent – whether there was evidence adduced at the trial that would have allowed to jury to consider whether the appellant had a mistaken belief as to consent – whether the trial judge was required to give directions on the exclusion of mistake of fact in relation to consent / Criminal Code (Qld), s 24, s 348, s 348A / Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, cited / R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited / R v FAV [2019] QCA 299, cited / R v Kalisa [2024] QCA 198, cited / R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited / R v Millar [2000] 1 Qd R 437; [1998] QCA 276, considered / R v Millar [2000] 1 Qd R 437; [1998] QCA 276, considered
COUNSEL: S J Farnden KC for the appellant / M A Green for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: The appellant was convicted after trial in the District Court before a jury on 16 July 2024 of two counts of sexual assault (counts 1-2) and one count of rape (count 3) that were committed on 21 December 2020 against the complainant who was a friend of the appellant’s partner. The appellant’s then partner will be referred to as “the friend”.
The grounds of appeal are:
The failure of the appellant’s trial counsel to cross-examine the complainant in accordance with the appellant’s instructions and to call the appellant to give evidence in the trial either separately or together amounts to a miscarriage of justice.
The failure of the trial judge to direct the jury in relation to mistake of fact in respect of consent was a wrong decision on a question of law.
The sentence imposed on the sexual assault indictment (438/23) was manifestly excessive (which ground is pressed only if the appeal against conviction is successful).
The circumstances that resulted in the charges
The friend invited the complainant to come over to the friend’s father’s house to spend the afternoon and evening with the friend and the appellant. They had a swim in the pool. The friend was pregnant and was not drinking alcohol. The complainant and the appellant had drinks around the pool. The friend then drove them to the local hotel where the complainant and the appellant had more alcoholic drinks and they played some pool. They returned to the friend’s father’s house and the pool area. The complainant was wearing a bikini top and a skirt. She and the appellant drank more alcohol. She believed they were drinking spirits of some sort. She was snapchatting R whom she had just started seeing but was not dating him. The complainant gave evidence of the three incidents that resulted in the charges. She stayed the night at the friend’s father’s house. When the complainant left the following morning, she did not say anything to the appellant or the friend about what had happened the preceding evening.
The friend telephoned the complainant on 5 October 2021 after finding four photos of the complainant on the appellant’s computer or a hard drive or a USB. They were photos from the complainant’s Facebook or Instagram that had been uploaded before 21 December 2020. The complainant told the friend what happened on the night of 21 December 2020. Those four photographs were exhibit 1 at the trial and the complainant stated she had never sent them to the appellant or the friend. She reported what had happened on 21 December 2020 to Constable Finn on 6 October 2021.
The trial
The complainant’s evidence in chief at the trial included the following. By the time they left for the hotel, the complainant may have drunk three alcoholic drinks. She could not remember what they were. She probably drank about three alcoholic drinks at the hotel but could not remember what she was drinking. By the time they left the hotel, the complainant was feeling quite drunk. When they returned to the house, the appellant poured her one strong drink from something he had. She was extremely intoxicated. The complainant described that “extremely intoxicated” meant to her loss of memory and blackout. After having that strong drink, the next thing she remembered was sitting at the back patio table when the appellant reached across and used his hand to pull her bikini top to the side to reveal her breast and he said “show him this” (count 1). He was referring to the complainant showing her breast to R with whom she was snapchatting. The complainant did not consent to the appellant pulling her bikini top to the side to expose her breast.
The next recollection of the complainant was that she was sitting on the back step that steps out from the house to the back patio and was looking down at her phone, when she looked up and saw the appellant with his penis in his hand and he ejaculated on her right leg while she was sitting on the step (count 2). She did not consent to the appellant doing that to her. She then “went like that” and demonstrated a wiping motion. She did not recall saying anything to the appellant.
One other thing that happened that night was the appellant had the complainant’s phone in his hand and pushed her over a chest freezer that was on the back patio. He said “show him this” and he lifted up her skirt and put his penis inside her vagina (count 3). The complainant did not consent to any sexual activity with the appellant at all. She did not say anything to the appellant at the time. The complainant was “highly drunk” and had probably never been that drunk in all her 31 years. She remembered sitting on the back step just before the rape and swaying and feeling out of touch, unable to make decisions, unable to think clearly and unable to properly sit up.
The friend had walked outside straight after the appellant had ejaculated onto the appellant’s leg and said something to the effect of “What’s she doing?”. The appellant told the friend that the complainant’s dog had ejaculated on her leg because she was playing with him. The complainant’s two dogs were with her but neither of them had done that.
The complainant could not recall how she got to the spare room where she slept that evening. The next morning her conversation with the friend and the appellant was normal and she did not say anything to them about what had happened. She did not see either the friend or the appellant after she left that morning.
When the complainant got a call from the friend on 5 October 2021, she drove to her house that evening to talk to her. The complainant told the friend what had happened on 21 December 2020. The only details that the complainant had were the “snapshots” that she had put in her statement. The friend showed the complainant the photos that she had found of the complainant. They were photos from Facebook or Instagram and they had been uploaded by the complainant before 21 December 2020. One was very old and could date back to about 2015. The complainant identified four photographs of her that were shown to her by the friend (exhibit 1). Her Instagram profile had been public in the past. Her Facebook profile was public. The complainant had never sent those photographs to the appellant or the friend.
“I remember snippets of it. I remember everything that I’ve given today and in my statement.”
The appellant sent the video he recorded on the complainant’s phone of what happened with the complainant at the freezer to R. R was upset after he saw that video.
The complainant denied that she was “encouraging [the appellant] all night sexually”. The complainant disagreed with the propositions that she and the appellant did not have sexual intercourse with each other on that evening but they both masturbated in front of each other. She denied the suggestion that the appellant had never ejaculated on her. She denied the suggestion that she was sending photos of her breasts to R. She also denied the suggestion that she was the one who moved her bikini so that her breast was exposed. Apart from the photos in exhibit 1 which the complainant denied sending to the appellant, the complainant also denied the suggestion that she had sent the appellant some other photos. The complainant accepted that she had trouble remembering what happened that night but she could remember “the snippets that have happened in what sequence and how it happened”.
The friend’s evidence in chief included the following. When she, the appellant and the complainant went to the hotel on the afternoon of 21 December 2020, the friend observed the complainant to be drunk. She and the complainant were texting R on the complainant’s phone through Snapchat and the appellant was messaging on the complainant’s phone too. When they returned to her parent’s house, the appellant was on the complainant’s phone, saying he was texting R, but the friend saw him scrolling. She snatched the phone out of his hand and saw he was on the complainant’s Snapchat looking through her naked photos. They had a bit of an argument after that. The friend told the appellant that she wanted to take the complainant home but the appellant begged the friend not to. They had dinner and the friend ended up going into the lounge room, lying down and watching a movie. When she got up to walk outside, she saw the complainant sitting in the doorway and wiping something off her leg. The appellant was laughing and said “that the dog had came on her leg”. The complainant was “out of it”. Her eyes were glazed over, her head was “kind of rolling” and she had her phone down looking at it.
The friend returned to lie on the couch and eventually the appellant came in and told her that “it was getting really weird”. The friend got up and saw the complainant walking in and she was “just so out of it”. The friend put her into the spare room to go to sleep. After the complainant left that morning, she did come back because she had forgotten her hair straightener. The next time the friend spoke to the complainant was on 5 October 2021 after she found photos on her laptop in early August 2021 that were saved hidden in a work folder. The laptop was used by both the friend and the appellant.
The friend’s evidence in cross-examination included the following. The messages that the friend and the complainant were sending to R on the complainant’s phone were teasing R and flirting with him. The couch that she was lying on was a fair distance from the freezer. When she was watching television, she did not hear or see the appellant doing anything to the complainant.
Evidence on the appeal
The appellant relied on his affidavit affirmed on 20 January 2025 which included the following. He was originally represented by a different firm of solicitors and counsel than those who acted for him at the trial. (The indictment shows that the solicitors who acted for him in the trial were his solicitors by the time the indictment was presented on 2 March 2023.) On 11 July 2024, he forwarded a Google Drive link to his solicitor Mr Kennedy. It contained 37 files that were a combination of videos and photographs of the complainant that he instructed she had mostly sent to him on Snapchat prior to 21 December 2020. They were mostly sexually explicit. He saved the files to his phone when he received them. His phone does not have a record of when the photos were sent to him. They were uploaded to his computer and saved to a Google Drive. The appellant had a few telephone conferences with his trial counsel prior to the trial and one face to face conference. The second time that the appellant saw his trial counsel in person was the first morning of the trial. At the commencement of the trial, the appellant understood that the photographs and videos would be used in the trial and no one had said they would not be used. On the morning of the second day of the trial, the appellant asked his counsel why he did not use the photos. His counsel said they made the appellant look “creepy” and like a bit of a “stalker”. The only written instructions that the appellant provided to his lawyers were the three pages of a handwritten statement that he provided when he was first arrested and the typed instructions that he signed on the first day of the trial. He did not read the document headed “Trial Instructions” properly because he was nervous and feeling unwell. He did not recall receiving any verbal advice from Mr Kennedy or his trial counsel about giving evidence apart from them telling him that he would only need to give evidence if the trial was going badly. The appellant recalled that in conference on the morning of the second day of the trial he told his representatives that he was happy to give evidence and wanted to and they told him that there was no need “as they were confident that we were going to win the trial”. He believed the lawyers and accepted their advice. He was told by his trial counsel to say “No” when the judge asked if he wished to give evidence.
The appellant’s evidence in chief on the appeal included the following. He understood that he would be giving evidence and that it was then the lawyers who decided he would not give evidence. His cross-examination included the following. Despite what the Trial Instructions recorded in detailed terms about advice given by the lawyers on the charges, the evidence and trial procedure and that the advantages and disadvantages of giving and/or calling evidence had been discussed with him, the appellant repeatedly asserted that had not occurred. The in-person conference had been held before the date of the trial listing in November 2023. The appellant understood that it was his role to get the text messages, photos and images and send them to the lawyers. The only discussion they had regarding the giving of evidence by the appellant was that, if the trial was going “bad”, he would take the stand and, if the trial was going “good”, he would not take the stand. That was repeated multiple times by the lawyers. It was their decision and not his that he did not give evidence. He never read any of the “Trial Instructions” document before he signed it. He knew he had a right to give evidence at his trial but that it would be the lawyers’ decision and not his as to whether he did. He did not consider that the lawyers were giving him advice as to whether he should give evidence. After the prosecution case closed, there was a short break when the appellant popped out of the courtroom with the lawyers. He told the lawyers that he wanted to take the stand. Mr Kennedy never said anything to the effect that he could go back and redo the Trial Instructions. They went straight back into court and the lawyers turned to the appellant and said to just say no. The magistrate then asked the appellant whether he would like to take the stand and he said “No, your Honour”. The appellant recalled the discussion that he had with his lawyers at the conclusion of the first day of the trial and also again on the second day of the trial when they both believed he would potentially be found guilty of count 2 but not guilty of the other two counts. Later in the cross-examination, the appellant gave another version about the circumstances in which he was called upon. There was no discussion between the appellant and his lawyers on the morning of the second day of the trial about whether he would give evidence or not. He went into court fully expecting to give evidence and was taken by surprise when he was asked whether he would give or call evidence and the lawyers turned around, his counsel said “No” and the appellant said “No, your Honour”.
“He was further advised that he could give evidence and we could tender the photos and videos through him but it was not advisable.”
Mr Kennedy recalled that the appellant told him that he was happy to give evidence but not that he wanted to. Mr Kennedy told the appellant that, if he wanted to give evidence, Mr Kennedy would go across to the office and print out new instructions. The appellant instructed that he trusted the advice of Mr Kennedy and counsel. The Trial Instructions were not replaced.
Mr Kennedy’s evidence in cross-examination included the following. His receipt of the Google Drive link from the appellant on 11 July 2024 was the first time the photographs and videos had been given to him, although he believed they may have been provided to his office previously. No written instructions were taken from the appellant about how those photographs might be used in the trial. Mr Kennedy and the trial counsel spoke to the appellant after the end of the first day of the trial. Counsel advised the appellant that he did not think he needed to give evidence and that, if the appellant were to give evidence, it would probably make the case worse for him. When the “Trial Instructions” were presented to the appellant on the first morning of the trial, Mr Kennedy watched the appellant flick through the pages before he signed them. Mr Kennedy agreed with the proposition put to him that the effect of the trial counsel telling the appellant he did not think it was a good idea for him to give evidence was counsel’s explanation for his decision not to call the appellant to give evidence. It was clarified in re-examination, that it was the appellant’s decision not to give evidence. That was communicated when the appellant did not require Mr Kennedy to prepare a new instructions document for the appellant to sign if he wanted to give evidence.
Findings on evidence adduced on the appeal
The appellant, his trial counsel and Mr Kennedy had imperfect recollections of their discussions preceding and during the trial but the appellant’s evidence was less credible and reliable than his lawyers’ evidence. The lawyers’ familiarity with the criminal trial process was the framework for their evidence. Even when the lawyers could not recall the details of all their discussions with the appellant, they were able to confidently state what they did not say. I infer that the fact that the appellant was not feeling well at the commencement of the first day of the trial was due to the stress of being on trial and that it affected his being able to recall the specific advice given by his lawyers about the trial procedure. His recollection also has been affected by his focusing on the two aspects of the trial which angered him after being convicted, namely that the lawyers did not use the 37 videos and photos which he wanted to use to undermine the complainant’s credibility and that he wanted to give evidence of his version of what happened. His imperfect recollection is shown by the fact that he asserted he spoke for himself when he was called upon at the commencement of the second day of the trial, when the transcript shows that his counsel answered for him. His oral evidence that there was no discussion with his lawyers on the morning of the second day of the trial about whether he would be giving evidence contradicts paragraph 23 of his affidavit where he recalled in conference on the second day of the trial that the lawyers told him there was no need for him to give evidence “as they were confident that we were going to win the trial” and that he believed them and accepted their advice. That paragraph of his affidavit is also contradicted by his oral evidence that he was taken by surprise when called upon, as he was expecting to give evidence, and his counsel turned to him and told him to say “No”.
The appellant’s trial counsel made a forensic decision not to cross-examine the complainant on the appellant’s assertion that prior to 21 December 2020 the complainant had sent the appellant the 37 mostly sexually explicit photos and videos that the appellant had saved and kept in his possession. It is apparent from the transcript of the trial that counsel requested a short break before concluding the cross-examination of the complainant. Even though there is a discrepancy between trial counsel’s evidence and that of Mr Kennedy as to when the discussion with the appellant took place about using the photos and videos, counsel’s recollection that it was during the prosecution case, even though he was hazy on some aspects of the discussion, is more compelling about the timing of such a discussion in relation to the progress of the trial. I therefore find that before the end of the prosecution case, trial counsel had conveyed to the appellant that he would not be cross-examining the complainant on the 37 videos and photos and that the appellant did not challenge that position taken by his counsel at that time.
To the extent that the appellant has a recollection of discussions with his lawyers, the appellant has put his own interpretation on what he recalls he was told by his counsel and Mr Kennedy. His counsel advised him against giving evidence for the reason that was expressly conveyed to the appellant that his counsel considered that the complainant had performed poorly as a witness. That advice was not unreasonable because of the admitted gaps in the complainant’s recollection of the events and the disparity between the complainant’s evidence and the friend’s evidence about the use by the friend of the complainant’s phone in sending snapchat messages to R. There was a second reason for counsel’s decision which was that he had formed the view that the appellant would likely harm his defence, if he were to give evidence. That second reason was not conveyed by counsel to the appellant. The evidence of both counsel and Mr Kennedy showed that they understood the role of lawyers to give advice and that it was the appellant who made the decisions and gave instructions. The appellant used the language that it was the lawyers’ decision that he would not give evidence. The lawyers did not depart from the usual practice of advising the client (rather than telling the client) about whether to give evidence and they advised him that he did not need to give evidence in the circumstances of the evidence adduced in the prosecution case at the trial. The lawyers had the signed Trial Instructions that the appellant would not give or call evidence. The invariable role of the solicitor in a criminal trial is to ensure that written instructions are obtained from the client for the conduct of the trial. The appellant was obviously indicating to the lawyers he wanted to give evidence, as otherwise Mr Kennedy would not have raised with the appellant that he could return to the office and get new trial instructions prepared. The fact that the appellant did not require Mr Kennedy to do so showed that the appellant took notice of the lawyers’ advice that he did not need to give evidence. The appellant’s ultimate acceptance of the lawyers’ advice made it his decision not to give evidence.
Ground 1 – Failure to cross-examine the complainant on the 37 photos and videos and to call the appellant to give evidence
There are two aspects of the conduct of the trial on behalf of the appellant that are relied on separately and together to constitute a miscarriage of justice. The first aspect is the failure of the trial counsel to cross-examine the complainant on the 37 videos and photos. The second aspect is the failure to call the appellant to give evidence in the trial. Both aspects are interrelated, as it was unlikely that the 37 videos and photos would have been able to be adduced into evidence unless the appellant gave evidence.
Because there were numerous answers given by the complainant in her evidence to the effect that she did not remember and there were gaps in her memory, the appellant’s trial counsel made a forensic decision to focus on the issue of her credibility and reliability. As part of that decision, counsel determined the risks to the appellant in cross-examining the complainant on the 37 photos and videos outweighed any benefit that might be gained for the appellant in doing so. Counsel’s anticipation of the negative effect of putting those 37 sexually explicit photos and videos of the complainant to her when they were not directly relevant to what occurred on 21 December 2020 and when he considered the complainant had otherwise performed poorly as a witness is a most relevant consideration.
A defendant in a criminal trial is usually bound by the legitimate forensic decisions made by the defendant’s counsel. As was observed by the High Court in R v Baden-Clay (2016) 258 CLR 308 at [48]:
“Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’.” (footnote omitted)
As shown by TKWJ v The Queen (2002) 212 CLR 124 at [8], [16], [24]-[32], [76]-[79] and [111]-[112], where a miscarriage of justice is claimed to be the result of a course taken at the trial, an appellant must establish that the course was not the result of an informed and deliberate forensic decision. See also Orreal v The Queen (2021) 274 CLR 630 at [14]-[16].
The question of a miscarriage of justice in respect of the failure to cross-examine the complainant on the 37 photos and videos depends on the appellant showing that the failure was an error or irregularity in the conduct of his trial. There are at least four problems with the assertion that the failure to cross-examine the complainant on those 37 videos and photos was an error or irregularity in the conduct of the trial on the appellant’s behalf:
the use of the photos and videos that were sexually explicit to impugn the complainant’s credibility in her account of the conduct that constituted the offences had the potential to alienate the jury which reliance on the complainant’s patchy recollection of the events would not;
the complainant’s evidence was that she did not send to the appellant four photos that constituted exhibit 1 and denied the suggestion that she sent other photos to the appellant made it unlikely that the prosecution would cooperate in the tender of the 37 videos and photos through the prosecution case, so that the only way of relying on the 37 photos and videos would have been for the appellant to give evidence;
it did not reflect well on the appellant that he kept the collection of 37 photos and videos (considering the number and the content), particularly when no complaint was made about the events on 21 December 2020 until October 2021 and would have strengthened the prosecutor’s reliance on the appellant’s sexual interest in the complainant; and
the friend’s evidence at the trial was that she saw the appellant scrolling on the complainant’s phone and saw that he was on her Snapchat looking through her naked photos provided an alternative explanation for how the appellant obtained the photos and videos.
There was an explicable forensic decision for not cross-examining the complainant on the 37 videos and photos. The advantage in not distracting the jury from the primary defence argument that the paucity of the complainant’s recollection precluded the jury from being satisfied beyond reasonable doubt of the credibility and the reliability of her evidence of the offences would have been significantly eroded by the risks that counsel perceived from their sexually explicit nature and the evidence of the appellant of how he said those 37 videos and photos came into his possession and the fact that he held onto them. That aspect of ground 1 is inextricably tied up with the failure to call the appellant to give evidence. The advice which the appellant’s lawyers gave him not to give evidence which he accepted in the context of how the prosecution case unfolded in the trial was an explicable forensic decision for the same reasons. Those forensic decisions cannot be characterised as causing an error or irregularity in the appellant’s trial.
The appellant fails on ground 1.
Ground 2 – Failure to direct the jury on mistake of fact as to consent
Ground 2 must be considered by reference only to the evidence adduced at the trial and not the additional evidence that was adduced on the appeal for the purpose of ground 1.
It is open to the appellant to pursue this ground, even though the appellant’s express instruction for the trial in his handwritten statement was that he did not do any of the acts particularised for each of the counts, including that he did not have sexual intercourse with the complainant, and the complainant was cross-examined in accordance with that instruction. That is because the acceptance of the complainant’s account of the acts that constituted the offences still obliges the prosecution to exclude all possible defences, even if not embraced by the appellant in advancing his arguments to the jury as to why guilt was not proved beyond reasonable doubt.
For the operation of s 24 of the Code to be relevant at a trial, there must be some evidence of mistaken belief by the defendant. As Sofronoff P (with whom Bond J agreed) observed in R v Makary [2019] 2 Qd R 528 at [55]:
“In truth, the only question is whether there is evidence which raises the issue of mistaken belief for the jury’s consideration so that the prosecution must exclude the excuse afforded by s 24.”
The question on this appeal is whether the appellant can show “that there was material on which the jury could legitimately have entertained a reasonable doubt about that issue, which was whether the appellant honestly and reasonably believed that the complainant has consented” to the conduct that was the subject of each of the charges: R v Millar [2000] 1 Qd R 437 at [7] which was referred to with approval in Makary at [90], R v FAV [2019] QCA 299 at [5], and R v Kalisa [2024] QCA 198 at [4], [9] and [65].
The appellant was charged with the offences after the commencement the Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld). The effect of s 754 of the Criminal Code (Qld) that was inserted by that 2021 Amendment Act is that the new provisions of the Code in force from the commencement of the 2021 Amendment Act (on 7 April 2021) applied to counts 1‑3. The new provisions included s 348(3) of the Code which provided:
“A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.”
“Mistake of fact in relation to consent
This section applies for deciding whether, for section 24, a person charged with an offence under this chapter did an act under an honest and reasonable, but mistaken, belief that another person gave consent to the act.
In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.
In deciding whether a belief of the person was reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.”
The appellant submits that there were parts of the evidence of the complainant which were not inconsistent with the reasonable possibility of an operative mistake on the part of the appellant:She could not really remember what happened and recalled the evening in “snapshots”.She believed that the appellant was also drinking alcohol.The appellant pulled her bikini top to one side while she was snapchatting with R.Her inability to recall saying anything to the appellant at that time.She did not say anything to the appellant when he ejaculated on her leg and that she could not remember anything other than that she was sitting on the step on her phone at the time.The next thing she remembered that happened was that the appellant had her phone in his hand, he pushed her over the chest freezer, and he said “show him this”. That was when he lifted her skirt and raped her and she did not say anything when the appellant inserted his penis into her vagina.
A mistaken belief as to consent must not only have been honestly held by the appellant but it must have been held on reasonable grounds which must be objectively reasonable. In view of the application of the version of s 348A(3) of the Code that applied to the appellant’s trial, factor (b) is irrelevant to the issue of whether the appellant’s belief that the complainant was consenting to the conduct was reasonable. In view of the application of the version of s 348(3) of the Code that applied to the appellant’s trial, the relevance of factor (d) and factors (e) and (f) to the extent they refer to the complainant’s evidence that she did not recall saying anything or did not say anything at the time the acts that constituted counts 2 and 3 were committed was reduced. Factors (c), (e) and (f) otherwise merely recite the evidence of the complainant of the acts that constituted each of the offences.
The respondent submits that in the context of the evidence relating to that evening, there was no evidence on which a jury could have been instructed to consider either an honest or reasonable mistake as to consent. The respondent particularly relies on there was no evidence of sexual behaviour between the complainant and the appellant witnessed by the friend, there was no evidence of any sexual interest from the complainant towards the appellant, there was evidence of the complainant’s interest in R with whom she was snapchatting, and there was substantial evidence that the complainant was so intoxicated that she did not appear to be fully aware of her surroundings.
On this appeal, the appellant invites speculation as to what might have happened to fill in the gaps in the complainant’s patchy memory of the events. Just as it is not an appropriate course of reasoning on which to invite a jury to embark in respect of s 24 of the Code concerning consent to sexual assault or rape to speculate what happened during those times that the complainant had no memory or recall, it is not appropriate on this appeal to consider ground 2 by speculating in the same manner.
Orders
As the appeal against conviction does not succeed, it is not necessary to consider ground 3.
The orders which should be made are:
Appeal against conviction dismissed.
Application for leave to appeal against sentence imposed on each count on indictment number 438 of 2023 is refused.
BROWN JA: I agree with the reasons and the proposed orders of the President.
COOPER J: I agree with Mullins P.
R
RBQ [2026] QCA 13
(2016) 258 CLR 308
(2002) 212 CLR 124
(2021) 274 CLR 630
Appeal against conviction dismissed. Application for leave to appeal against sentence imposed on each count on indictment 438 of 2023 refused. The Court did not need to consider the manifest-excessiveness ground because the conviction appeal failed ([53]-[54]).
The complainant’s evidence in cross-examination included the following. On the evening of the offending, the complainant was messaging only one person R on Snapchat. The appellant had her phone for most of the night. The complainant was not “sexting” R and was not sending photos of herself to him. The friend did not have the complainant’s phone on that evening. The complainant was not sending nude images of herself to R on Snapchat. It was only a short time (minutes not hours) between the appellant masturbating onto her leg and the rape over the chest freezer but she could not say how many minutes. When challenged about the number of times that the complainant had answered that she did not remember about aspects of what happened on that evening, she said:
Constable Finn gave preliminary complaint evidence of the report that the complainant made on 6 October 2021 about the appellant having sex with her without her consent. The complainant had told her there was a snapchat of the incident. Constable Finn explained that a snapchat is not like a recording that is kept, as it disappears.
Detective Smith gave evidence of seeking a statement from R who declined to provide a statement as he did not want to be involved. He was not subpoenaed for the trial.
The prosecution case was closed by the end of the first day of the trial. In the discussion that then ensued between the trial judge and counsel about the directions that should be given to the jury, the appellant’s trial counsel agreed with the prosecutor and the trial judge that mistake of fact as to consent did not arise on the evidence. Before the trial resumed in front of the jury on the second day of the trial, the trial judge had further exchanges with counsel about the directions during which the appellant’s counsel advised that the appellant would not be giving evidence. The appellant was called upon at the commencement of the second day. His counsel responded on his behalf that he would not give or call evidence at the trial.
The focus of the addresses to the jury was on whether they could be satisfied beyond reasonable doubt of the reliability and credibility of the complainant’s evidence. The prosecutor emphasised the consistency between the complainant’s evidence and the friend’s evidence, particularly in relation to the evidence relevant to count 2. The prosecutor submitted to the jury that they would infer the photographs which were exhibit 1 had been downloaded and saved by the appellant and they proved that the appellant had a sexual interest in the complainant which he pursued on the night of 21 December 2020. The prosecutor drew the jury’s attention to there being no evidence that the complainant was encouraging the appellant sexually in any way during the evening and that it was R with whom the complainant had been snapchatting most of the evening and in whom she was interested. It was the unimportant details which the complainant did not remember. The appellant’s trial counsel focused on the complainant’s poor memory, she was affected by alcohol, and it took 11 months to make a complaint. He asked the jury why would the appellant snapchat the rape and send it to R? It was submitted that it was unrealistic for the appellant to ejaculate on the complainant and then have sexual intercourse with her within a short period of time. The appellant’s trial counsel drew the jury’s attention to the inconsistency between the complainant’s evidence that the friend was not using the complainant’s phone and the friend’s evidence that she was using the complainant’s phone when they were at the hotel. It was submitted that the jury could not be satisfied beyond reasonable doubt that the conduct which was the subject of the charges happened.
During his cross-examination, the appellant explained how he saved the photos which he said the complainant sent to him through Snapchat. He saved all photos to his camera roll on his phone and that was backed up to the iCloud. He also saved the videos that came to him through Snapchat.
The appellant’s trial counsel affirmed his affidavit on 5 March 2025. He received a copy of the brief with the appellant’s trial statement and instructions to previous counsel sometime prior to the first listing of the trial in November 2023. The first conference with the appellant in person in November 2023 was at Mr Kennedy’s office in relation to the other indictment (in respect of which the appellant pleaded guilty). They also conferenced before and after a court event on 30 November 2023. When counsel raised with the appellant that the rape trial could be run on a mistake of fact case, the appellant informed him that he and the complainant had never had sex and the appellant referred counsel to the statement that he had provided previously. Counsel then proceeded on the instructions that were given to the previous counsel and the detailed handwritten trial statement. (The handwritten statement recorded that the appellant and the complainant “didn’t even have sex”.) The trial listing in December 2023 was adjourned as the appellant had COVID.
Counsel recalled discussing the matter with the appellant over the telephone on 1 July 2024. When asked by the appellant as to the likely outcome, counsel gave his usual advice that it could be guilty or not guilty or a combination of both and recalled telling him that they would have a problem with the count where the appellant blamed the dog. (The appellant’s version of count 2 in his handwritten statement was that the complainant was rubbing the appellant’s erect penis while filming it herself and the appellant pulled away and ejaculated on the ground.) Counsel did not have an independent recollection of explaining to the appellant the basis on which he would be running the trial, but it was his usual practice to do so. During the trial, the appellant raised the use of the messages and images which he had provided to the lawyers. Counsel explained to the appellant that there were risks involved and he did not think it was a good idea. Counsel recalled that the appellant accepted his advice and his reasons for doing so. Prior to the appellant being called upon, the lawyers specifically discussed with him whether to give or call evidence. Counsel does not remember saying that “we would win” and that was not something he would ordinarily say to a client. Counsel did recall, after the close of the prosecution case, that he thought it was not necessary for the appellant to go into evidence based on how the complainant had come across in evidence. The appellant seemed happy about that and did not debate that advice with them. The lawyers confirmed the appellant’s instructions that he would not give or call evidence. Counsel explained to the appellant what would happen when he was called upon.
Counsel’s evidence in chief on the appeal included the following. Counsel’s recollection was that the appellant raised the use of the messages and images during the prosecution case when there was a short adjournment. (Even though counsel speculated that it may have been when one of the witnesses broke down and started crying, the transcript of the complainant’s evidence shows that towards the end of counsel’s cross-examination, he asked for a short break so that he could confer with his solicitor and his client. There was a break of about 10 minutes after which counsel completed his cross-examination, including suggesting to the complainant that she had also sent the appellant some other photos as well as those in exhibit 1 which the complainant denied.) Counsel’s advice about those 37 photos and videos was that they gave rise to risks that the appellant would be advancing the Crown case, because it was material the Crown could then use in their case. Counsel also thought it would put the jury “off side” and it would not advance the appellant’s case substantially. Counsel could not recall what the appellant specifically said in response to his advice but nothing caused counsel to think that the appellant was not happy about the advice. It was possible that counsel did say to the appellant that those photos and videos may have made him look like a creep. Counsel recalled that after the Crown closed their case and the lawyers walked outside with the appellant and had a discussion with him, the appellant was happy not to give or call evidence. Counsel would normally say to a client that it was his decision. Counsel did remember saying that the complainant did not come across well and that his advice was that the appellant did not need to give evidence.
Counsel’s evidence in cross-examination included the following. Counsel decided to run the appellant’s trial based on challenging the credit of the complainant. Counsel knew that the photographs and videos existed, because the appellant had told the previous barrister about them. Counsel did not look at those photos and videos until he received them on 11 July 2024. As counsel, he made the forensic decision not to use those photographs and videos. Counsel did not communicate with the appellant prior to the commencement of the trial that he decided not to use those photographs and videos. Counsel had not made the decision prior to the trial that he would advise the appellant not to give evidence. Counsel did not recall the appellant saying he was happy to give evidence but that sounded like something he would have said. Counsel knew that the appellant would be happy to give evidence. Counsel could not recall using the terms like “well” or “badly” but he would have said that the decision on the appellant giving evidence would be made during the trial and it depended on how things went and it might be the case he did not need to give evidence. When the lawyers had the discussion with the appellant on the morning of the second day of the trial, it was not a shock to the appellant that he did not have to give evidence. He agreed readily with the lawyers that he did not think he needed to give evidence. The decision not to call the appellant to give evidence was made after the lawyers spoke to him on the morning of the second day of the trial. Apart from counsel’s view that things were going well for him, counsel feared that the appellant would hurt things more than he would help himself if he gave evidence – there was a possibility “he would say something that would throw everything into disarray”. Counsel did not convey to the appellant that part of counsel’s reasoning that he did not think that the appellant would “come across well in the box”. Counsel did not recall specifically saying to the appellant that it was his decision whether he gave evidence. Counsel would not have said that it was counsel’s decision, as it was the appellant’s decision.
Mr Kennedy swore his affidavit on 17 March 2025. He exhibited the Trial Instructions signed by the appellant on the first day of the trial. Mr Kennedy had advised the appellant to read those instructions carefully and to ask any questions if he did not understand. (Mr Kennedy added in his evidence in chief that the appellant did not ask any questions of him.) The appellant did not mention feeling unwell. After the prosecution closed its case, counsel advised the appellant that the photos provided were creepy and would paint him in a bad light to the jury. Mr Kennedy stated:
As the respondent’s submissions show, there was a dearth of evidence relevant to the application of s 24 in respect of an honest but mistaken belief on reasonable grounds as to the complainant’s consent to the acts that constituted each of the offences. This was not a case where the jury could legitimately have entertained a reasonable doubt on that issue. There was no error on the part of the trial judge in not giving directions on the exclusion of mistake of fact in relation to consent.
The appellant fails on ground 2.