//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] QCA 114
respondent. Appeal dismissed.
No linked legislation citations have been extracted yet.
The Court of Appeal dismissed SEH's appeal against his rape conviction. The key question was whether the complainant was capable of consenting when intercourse occurred, given her alcohol and cannabis use and the medications she had taken. The jury was entitled to accept that she had fallen asleep before intercourse. The Court considered that conclusion consistent with the medical evidence about sedation and that it also disposed of the asserted mistaken-belief defence on the facts. The Court therefore found that the conviction was open to the jury on the evidence.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,004 words · generated 08/10/2026
SEH appealed a jury conviction for one count of rape. The offence was said to have occurred on 31 March 2021. The appeal was heard by Mullins P, Boddice JA and Brown AJA, and dismissed on 14 June 2024. There was one ground: that the verdict was unreasonable or could not be supported by the evidence. [1]-[2], [22]
The complainant and SEH had previously been friends and had once had a physical relationship involving oral sex. They had later stopped speaking for a period. About a fortnight before the incident, they resumed contact through Facebook messages. On the evening before the alleged offence, the complainant had been drinking and smoking with friends. She testified that she had consumed more than half of a litre bottle of Jack Daniels before going to SEH's home, and described herself as fairly intoxicated. She had also used medicinal cannabis. [3]
At the home, the complainant continued to consume alcohol and cannabis. At about 4.00 am, she took her night-time medications, which included Topiramate, Clomipramine and Quetiapine, also known as Seroquel. She testified that she usually fell asleep quickly after taking them. She said she was falling asleep in the lounge room when SEH called her. According to her evidence, she said she wanted to stay in the lounge, but he pulled her top down as she pulled it up, and pushed her into the bedroom. She remembered falling back onto the bed and then nothing until she woke at about 10.00 am. [4]
The complainant later noticed that her trousers were undone and their ankle zippers were unzipped. She went home and later noticed vaginal discharge and a hair. She contacted a support worker and attended hospital. The judgment records that no rape-kit examination was performed. She subsequently attended the police station with the clothes she had worn that night. [4]-[6], [12]
The occurrence of sexual intercourse was not disputed at trial. The contested questions were whether the complainant had the cognitive capacity to consent and whether the prosecution could exclude the possibility that SEH honestly and reasonably, but mistakenly, believed she was consenting. [2], [18], [20]
The judgment's account of the evidence included a pretext telephone call. The complainant asked SEH whether anything had happened between them. SEH said they had “hooked up”, confirmed they had sex, agreed she was conscious, and said she was “pretty drunk”. [10] The forensic medical officer explained that the substances described by the complainant could combine to increase sedation. She could not specify exactly how the complainant would have presented, but considered it likely that she was at least moderately sedated, possibly in a moderate-to-deep sedation state, and that her memory and cognition were significantly impaired. [13]-[15]
The Court did not decide the appeal by treating any one piece of evidence as conclusive. Its reasoning focused on what the jury was entitled to accept when considering the whole of the evidence. [21]
The complainant's account was that she fell asleep as soon as she was lying on the bed. The Court reasoned that, because the jury convicted, it must have accepted that account. It then treated that finding as meaning the complainant lacked the cognitive capacity to consent to intercourse. [21] This is the central factual and reasoning step in the judgment: the Court understood the jury's verdict as involving acceptance that the complainant was asleep before the sexual activity, rather than awake but later unable to remember it.
The Court also considered that finding consistent with the evidence about the combination of alcohol, cannabis and medications. That evidence did not establish an exact level of consciousness or sedation. Dr Mirakian expressly could not say precisely how the complainant would have presented, because people respond differently. But the expert considered moderate-to-deep sedation likely and significant memory and cognitive impairment likely. [14]-[15] The Court treated this evidence as support for the jury's conclusion, not as a precise measurement of the complainant's state at the relevant time.
The appellant's argument, as summarised by the Court, relied in part on the possibility that the complainant had consensual sex but could not remember it. The Court recognised that the distinction between incapacity and consensual intercourse followed by memory loss was subtle on the evidence. [19]-[20] It nevertheless concluded that the jury was entitled to prefer the complainant's evidence that she had fallen asleep.
That factual finding also mattered to the mistaken-belief issue. The Court stated that the jury's finding that the complainant lacked capacity had the consequence of excluding the defence of honest and reasonable, but mistaken, belief. [21] The judgment does not separately analyse each item of evidence relevant to what SEH perceived or believed. Its reasoning on this issue is brief and linked to the jury's inferred finding about the complainant's state.
The Court's ultimate question was whether the verdict was unreasonable on the whole evidence. It concluded that it was open to the jury to be satisfied beyond reasonable doubt that SEH was guilty and that he had not shown the verdict to be unreasonable. [21] It therefore dismissed the appeal. [22]
The judgment is a case-specific appeal decision, not an exposition of a new legal test. The supplied text does not cite legislation or earlier cases, and it does not set out a detailed general test for capacity to consent or for honest and reasonable mistaken belief. Its express legal context is that the prosecution had to exclude beyond reasonable doubt the mistaken-belief defence and that the appeal challenged the reasonableness or evidential support for the verdict. [2]
Accordingly, the text does not support a detailed account of the law “before” or “after” the decision. It identifies how the issues operated in this trial: the jury had to assess the complainant's capacity in the circumstances, and the prosecution also had to exclude the asserted mistaken belief. [2], [18] The Court's contribution in this judgment is its conclusion that this jury could rationally resolve the evidential dispute against SEH.
The decision should not be read, on the supplied material, as establishing that particular combinations of alcohol, cannabis and medication necessarily remove a person's capacity to consent. The Court relied on the evidence in this case, including the complainant's account and the medical officer's qualified evidence. [13]-[15], [21] Nor does the text state a general rule that later memory loss proves incapacity at the time. The Court distinguished the competing possibilities by accepting that the jury could find the complainant had fallen asleep before intercourse. [19]-[21]
At [2], the Court states that the prosecution had to exclude beyond reasonable doubt an honest and reasonable, but mistaken, belief that the complainant was consenting. In plain English, the case involved two related but distinct questions: whether the complainant could consent, and whether SEH might reasonably have thought she was consenting even if she was not.
At [18], the Court says the reliability of the complainant's recalled events before entering the bedroom and immediately afterwards mattered to the mistaken-belief issue. This explains why the appeal involved more than the expert evidence about sedation. The jury also had to consider the surrounding events and what they might show about consent or SEH's asserted belief.
At [20], the Court describes the difference between the prosecution and the appellant as “subtle”. The dispute was not whether intercourse occurred. It was whether the complainant had fallen asleep and lacked capacity, or whether she could have participated consensually but later had no memory of it.
At [21], the Court reasons that the jury must have accepted the complainant's evidence that she fell asleep as soon as she was lying on the bed. In ordinary terms, the Court understood the guilty verdict to reflect a finding that she was asleep before intercourse. It considered that finding consistent with the substances she had taken and sufficient to resolve the capacity and mistaken-belief issues on the facts of this case.
The Court's concluding statement at [21] is that the appellant had not shown the verdict was unreasonable. In practical terms, the appeal failed because the evidence allowed the jury to reach its conclusion beyond reasonable doubt. The Court did not say that every jury would have to reach the same conclusion on different evidence.
The decision is most directly relevant to an appeal challenging a jury verdict as unreasonable where consent and capacity are disputed, intercourse is admitted or otherwise not in issue, and the evidence includes a complainant's account of falling asleep before intercourse. It may also be relevant where evidence of alcohol, drugs or medication is used to assess the complainant's state, but the precise effect is disputed or cannot be measured exactly. [2], [18]-[21]
The factual features the Court addressed included a complainant who had consumed alcohol and cannabis, taken several medications with sedating properties, and described becoming sleepy before entering the bedroom. A medical witness gave qualified evidence about the likely combined sedative effects and possible cognitive and memory impairment. There was also evidence about the complainant's interactions with SEH, including the pretext call in which he confirmed intercourse and said she was very drunk. [3]-[15]
The decision should be applied cautiously outside that setting. The judgment does not establish that intoxication alone determines capacity, nor that memory impairment alone proves a lack of capacity. It does not state a general formula for assessing the reasonableness of a mistaken belief. Its conclusion rests on the jury's ability to accept the complainant's account of falling asleep and the way that account fitted the other evidence. [19]-[21]
The supplied judgment contains no discussion of subsequent cases, and no later judicial treatment can be identified from the material provided. It also does not cite or analyse earlier precedents. The precedential relationships field is therefore empty: the judgment text gives no case citations that can reliably be classified as applied, followed, distinguished or otherwise treated.
For legal research purposes, this means the decision's later treatment would need to be checked against an up-to-date case-law source. Nothing in the provided text supports a claim that later courts have adopted, limited or criticised its reasoning.
The judgment leaves several matters unexplained in the supplied text. First, it does not give a detailed account of the general legal test for cognitive capacity to consent, or explain how that test should be applied in circumstances involving sedation and memory impairment. It states the result reached on this evidence but does not develop a broader framework. [18]-[21]
Second, the reasons do not set out a separate, detailed analysis of the mistaken-belief issue. The Court says that the finding of incapacity had the consequence of excluding that defence, but does not explain in detail how the evidence about the complainant's conduct, the parties' prior relationship, or the pretext call informed the assessment of SEH's belief. [3], [10], [19], [21]
Third, the expert evidence was expressed in qualified terms. Dr Mirakian could not identify an exact level of consciousness or sedation, and acknowledged variation in how people are affected. The Court considered the evidence consistent with the jury's finding, but the judgment does not explain what weight should generally be given to expert evidence of likely effects where there is no precise reconstruction of the person's condition. [14]-[15], [21]
Finally, the judgment does not address how a court should resolve, as a general matter, competing explanations of sleep, unconsciousness, participation and later amnesia. It records that the distinction was subtle in this trial and upholds the jury's choice on the whole evidence. [20]-[21] Those limits matter when using the decision: it is a short, fact-specific ruling on whether this particular verdict was unreasonable, rather than a comprehensive statement of the law of consent.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, 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 SEH [2024] QCA 114
PARTIES: R / v / SEH / (appellant)
FILE NO/S: CA No 65 of 2023 / DC No 653 of 2022
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Southport – Date of Conviction: 1 March 2023 (Kent KC DCJ)
DELIVERED ON: 14 June 2024
DELIVERED AT: Brisbane
HEARING DATE: 7 June 2024
JUDGES: Mullins P, Boddice JA and Brown AJA
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty after trial before a jury on one count of rape – where the complainant visited the appellant at his place after consuming alcohol and cannabis and continued to consume alcohol and cannabis and take prescription medication – where there was no issue at the trial about whether sexual intercourse occurred – where the issues at trial were the complainant’s cognitive capacity to give consent to the sexual intercourse and whether the prosecution could exclude the defence of honest and reasonable but mistaken belief as to the complainant’s consent – whether the verdict was unreasonable
COUNSEL: The appellant appeared on his own behalf / S L Dennis for the respondent
SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant was found guilty on 1 March 2023 after trial in the District Court before a jury of one count of rape committed against the complainant on 31 March 2021.
The appellant was represented at trial but is unrepresented on this appeal. There is one ground of appeal that the verdict is unreasonable or cannot be supported by the evidence. The trial turned on the question of consent and specifically the complainant’s cognitive capacity to give consent. The prosecution also had to exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to sexual intercourse with the appellant.
Summary of relevant evidence
The complainant’s evidence in chief included the following. Before the incident, she had been friends with the appellant. On one occasion they had a physical relationship when she gave the appellant oral sex. The friendship continued for short periods of time when they would see one another. They then had a dispute in which they ceased talking for between two to four months. About a fortnight before the incident, the appellant contacted the complainant on Facebook. They exchanged messages. On the evening of 30 March 2021, the complainant was out drinking and smoking with friends, when she received a text message from the appellant. The complainant had bought a litre bottle of Jack Daniels and was drinking that with Coke. The appellant invited the complainant to go over to his place which she did after having consumed over half the bottle of Jack Daniels. She described herself as “fairly intoxicated”. She had also been smoking medicinal cannabis for anxiety and an eating disorder. She went over to the appellant’s house to have a drink and smoke with him. They sat in the lounge room with one of his housemates who was playing a video game and another one was sitting on the lounge. They were talking. There was also a third housemate but he was asleep.
When it got to about 4.00 am, the complainant realised she was “very tired”. She went into the appellant’s room where she left her bag and took her night-time medication which was Topiramate, Clomipramine and the sedative Quetiapine which is also known as Seroquel. She usually fell asleep “very quickly” after taking those medications. After she took her medication, she returned to the lounge room but was falling sleep and the appellant called her. She followed him and said she wanted to stay in the lounge. He was pulling her top down and she kept pulling it up. He pushed her in the bedroom door. She remembered “falling back onto the bed” and that was it. The appellant told her that he was watching her “get sleepy”. The complainant did not recall anything else and said she fell asleep. She remembered waking up about 10.00 am. She noticed that the tie around the waistband of her trousers was undone and the two zippers on the outside of each of her ankles were also undone. She got up and went home. When she went to the toilet at home, she felt like she had had intercourse.
On 1 April 2021, the complainant had an appointment with her psychologist. When she returned home from that appointment, she had a shower for the first time since being at the appellant’s house. There was a discharge coming from her vagina and she noticed a hair come from inside her vagina. She called her support worker and went to hospital where no rape kit examination was undertaken.
On 17 May 2021, the complainant attended the police station with the bag of clothing she wore the night of the incident which she had kept without washing it.
The complainant remembered nothing at all after she fell asleep on the bed. She did not consent to having sexual intercourse with the appellant. She made a pretext telephone call to the appellant from the police station on 28 July 2021.
Was the verdict unreasonable?
Even though the critical issue at the trial was the complainant’s cognitive capacity to give consent to the sexual intercourse that did occur with the appellant, the credibility and reliability of what the complainant did recall preceding her entry into the bedroom and immediately thereafter was in issue at the trial, particularly to the question of whether the prosecution could exclude beyond reasonable doubt that the appellant had an honest and reasonable, but mistaken, belief that the complainant was consenting to sexual intercourse with the appellant.
The appellant’s contentions at trial included that it was relevant that the complainant attended the appellant’s home in an intoxicated state after a sexualised texted conversation and brought a bag that she put in the appellant’s bedroom. The primary contention of the appellant was that, in reliance on Dr Mirakian’s evidence, it was possible that the complainant did not remember having consensual sexual intercourse.
There was no issue at the trial about the extent of the alcohol, cannabis and prescription and other medication that had been consumed by the complainant leading up to her entry into the bedroom. The difference between the prosecution and the appellant at the trial on the issue of whether the complainant did not have the cognitive capacity to consent or whether she did and had no memory of it was subtle.
As the jury found the appellant was guilty, the jury must have accepted the complainant’s evidence that she fell asleep as soon as she was lying on the bed and therefore found that the complainant did not have the cognitive capacity to consent to sexual intercourse with the complainant. That finding had the consequence of also excluding the defence of honest and reasonable but mistaken belief. That finding was also consistent with the level of medications, alcohol and cannabis consumed or taken by the complainant. On the basis of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The appellant has not shown that the verdict of the jury was unreasonable.
Order
R
SEH [2024] QCA 114
Appeal dismissed.
The complainant’s evidence in cross-examination included the following. Before she arrived at the appellant’s house on 31 March 2021, she had consumed one gram of cannabis. That was not in her first statement to the police but was in a subsequent one. She did not tell the psychologist on 1 April 2021 about what occurred, because she did not know at that time. She had many conversations with her support worker about what happened. She also discussed what happened with the psychologist in subsequent weekly appointments. She estimated she had drunk about 70 per cent of the Jack Daniels bottle before arriving at the appellant’s house. Throughout the night she had taken Valium (or Diazepam) tablets and some Phenergan (or Promethazine). She drove to the appellant’s house. After she fell asleep, the complainant had no memory at all of being awake until she woke up at 10.00 am. She had smoked some cannabis while she was at the appellant’s house. When the complainant smoked cannabis, consumed alcohol and took her night-time medication, especially the Seroquel, she blacks out and does not remember anything until she wakes. It was not about not having no more memories but it was about whether she was awake.
The complainant was recalled and gave further evidence in chief as follows. When she takes her medications, she has “a very deep level of sleep”. She had no recollection of participating in sexual activity that night. She used the expression “black out” to mean that she was no longer conscious or making movements or making decisions, as she was no longer awake but was asleep. Her further cross-examination included the following. She takes a low dose of Seroquel which is prescribed for her as a sedative. It also assists with the regulation of her emotional state. At the time she weighed 40 or 45 kilograms. Before she arrived at the appellant’s home, they had a text conversation about her nipples.
In the pretext call on 28 July 2021, the complainant referred the appellant to the night she came over to his place and asked whether anything happened between them because she was having memories or flashbacks and she thought something did. The appellant responded that they “hooked up”. The complainant said that she could not remember because she had a lot to drink. She asked whether they had sex and the appellant responded in the affirmative. She asked whether she was conscious and the appellant responded affirmatively and, when she asked for further information as to what she was doing, he responded “Ah, you just enjoying yourself I guess”. He confirmed that she was conscious. He also commented that she was “pretty drunk”.
There were admissions made at the trial that a sample of the appellant’s DNA was examined and compared with a mixed profile of DNA found in several areas on the complainant’s underpants and the result of the examination was that it was 100 billion times more likely that the appellant had contributed DNA to that mixed profile, rather than if he had not.
The support worker gave evidence of preliminary complaint. On 1 April 2021, in a telephone call, the complainant informed the support worker about “having bloating”, the discharge coming out of her genital area and the hair inside of her genital area that did not belong to her. The complainant also told her about her pants had been undone and the zippers on each side of her legs were unzipped and she was concerned that something may have happened to her during that time. The complainant told her about the appellant ushering her into the bedroom and that she believed she fell asleep.
Dr Mirakian who is a forensic medical officer with Queensland Health gave the following evidence. In relation to the medications that the complainant said she had taken during the evening of 30 March 2021 and then at 4.00 am on 31 March 2021 and the information provided about the dosages and the complainant’s weight, Dr Mirakian explained that Diazepam (which can act as a sedative) taken with alcohol which also causes sedation multiplies that effect. The complainant was on a small dose of Topiramate and that would not be particularly sedating but it is not recommended to be used with alcohol. Clomipramine is very sedating and is also not recommended for use in combination with alcohol. Seroquel is often used at night for anxious people who cannot sleep and should not be used with alcohol because it increases the sedation. Promethazine is an over the counter antihistamine that has sedating properties.
Dr Mirakian could not say exactly how the complainant would have presented in the early hours of 31 March 2021, as people are affected differently by the various substances. It was likely that the complainant was at least moderately sedated with all those medications in combination with the alcohol and the cannabis. She would have been somewhere in the moderate to deep sedation state.
Dr Mirakian was cross-examined on the effects of the various medications, alcohol and cannabis on memory impairment. Dr Mirakian agreed it was likely that the complainant’s memory and cognition were impaired significantly but she could not identify an exact level of consciousness or sedation but it was likely that her memory (in the sense of not remembering something had happened) was also significantly impaired.
The investigating police officer, Detective Harden gave evidence. Detective Harden executed a search warrant at the appellant’s home on 4 August 2021. There were two housemates present. The two housemates told police they had no recollection of 31 March 2021 as they had been drinking heavily and smoking cannabis.
The appellant neither gave nor called evidence.