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Be careful who you date! – A cautionary case

On 29 April 2020, His Honour Judge Smith delivered a verdict of not-guilty in relation to a single count of rape made against our client.


man covering his face


R v MMH (2020) QDC 70

On 29 April 2020, His Honour Judge Smith delivered a verdict of not-guilty in relation to a single count of rape made against our client.  This judgment was delivered approximately 18 months after our client was charged with this offence.

The allegation against our client arose from a complaint made three days after the alleged rape.  The complainant provided a statement to police alleging that during an overnight visit to the defendant’s friend’s house, she awoke to find the defendant lying on top of her and having sex with her. 

The woman stated that she had been drinking that night and was heavily intoxicated, vomiting at some stage before being carried to the bedroom by the defendant.    

The defendant provided a record of interview to the police officers.  He disputed this account, stating that he did take the complainant to the bedroom after she was unwell.  Following this, he slept on the floor until he was awoken by the complainant and invited into the bed.  At some stage early in the morning (around 6 or 7am), he engaged in consensual sex with the complainant. 

The pair stayed in the bedroom until the defendant’s friend awoke them and dropped them both home. The defendant then stated that the complainant and him had previously engaged in consensual sexual encounters.  Despite participating in this record of interview, he was subsequently charged with one count of rape.

The complainant was interviewed a second time due to the defendant’s statement of previous consensual sex.  She accepted this had happened, although indicated that the defendant had been coercive. 

During this interview, her version of events significantly changed, changing her statement about the amount of alcohol she consumed that night, said the defendant was still clothed (not naked as she originally stated) and most importantly disclosed that she was having an argument with her on/off boyfriend at the time of her physical relationship with the defendant.

This final point was utilised in cross-examination.  She admitted that she was having an argument with her boyfriend at the time of the alleged offence.  She admitted that when she would argue with the ex-boyfriend, she would seek comfort from the defendant.  

The complainant gave evidence that she attended her house the morning of the alleged offence, showered and went to bed.  She had a brief conversation with her mother, saying she was tired and wanted to go to sleep.

She denied receiving 66 text messages and 55 missed phone calls from her boyfriend over a period of minutes.  Upon not receiving any response, the boyfriend arrived at her residence and she went back to his house.  She denied being out with “another man” and said she was at home drinking vodka by herself.  She admitted that this lie was because she was too afraid to tell her boyfriend where she was. 

Upon giving her boyfriend access to her social media accounts, he discovered conversations with the defendant and the complainant.  It was after a day of questioning by the ex-boyfriend that the complainant alleged she had been raped.  She admitted that it was the ex-boyfriend that first used the term rape to describe what happened.  She disclosed to her mother three days later that she “thought I’ve been raped”.   

What are the implications?

Our client was 19 years old at the time of the alleged offence.  He was an Afghani national, born in Iran, a permanent resident of Australia.  He has resided in Australia for a number of years and highly educated and employed. 

Ultimately, these are supposed to be the best years of this man’s life.  Instead, for nearly 18 months, he had a potential life imprisonment looming over his head.  His citizenship application was put on hold pending the outcome of this trial, he lost his respected and hard-earned employment, he was stigmatised as a rapist by former friends. 

During the trial, his brother was hospitalised and his family were unable to attend.  He sat in the dock of a criminal court alone, without familial support.  The stress he went through during those three days is awful to comprehend.

The defendant now seeks to spend time with his family and proceed with his application for citizenship.  It is difficult to say how this allegation will affect him in the coming months, however the team at McMillan Criminal Law wish him all the best for the future and want to put an end to the string of false accusations that plague not only the individuals but waste the valuable time and resources of our justice system.

Have you been charge with a sex offence?

With a person’s liberty at stake, the importance of a specialist criminal law firm cannot be understated. As seen from the above brief outline, the Crown will continue to prosecute these types of matters, regardless of the glaring deficiencies in the case. 

McMillan Criminal Law has a proven track record of defending matters in all jurisdictions, from simple offences in the Magistrate’s Courts to indictable offences in the District and Supreme Court.

McMillan Criminal Law has now introduced a pro-bono criminal law scheme. If you've been charged with a sex offence, call Michael McMillan on 1800 330 355, day or night, to discuss. 


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