events. Ultimately, trial counsel, in his closing submissions, conceded that the complainant was a reliable witness while there
were “a couple of issues there on credibility”.
 The manner in which trial counsel conducted the cross-examination does not suggest that there was any proper exercise
of professional judgment. Rather, trial counsel appears to have
proceeded on a mistaken understanding of the law. This is
revealed both in his closing arguments and in the fresh evidence.
His argument was that the complainant admitted she was awake,
and that she had not given evidence that she had refused the
sexual act. He relied on the assertion that a “drunken consent” is
 The appellant also points to trial counsel’s failure to introduce an expert toxicologist’s report at trial. The report, which
was included in the Crown’s disclosure, contained two opinions
that might have assisted the appellant in his defence: first, that
chronic heavy users of alcohol may show fewer signs of intoxication due to tolerance; and second, that “blackouts” could occur
without loss of consciousness. Indeed, trial counsel referred to the
report in his closing submissions, appearing to believe that it was
already in evidence. It is impossible to say whether such evidence,
if admitted at trial, would have affected the outcome. What is
apparent is that counsel overlooked this potential evidence, and
may even have failed to appreciate its importance.
 I am satisfied that this is a case where the appellant was
denied representation at trial by competent counsel and that this
caused a miscarriage of justice. I would emphasize that this is
not a determination of the appellant’s guilt or innocence of the
offence charged. I would allow the appeal, quash the appellant’s
conviction and order a new trial.