A navy recruit who conceded he filmed sex acts with a colleague without her knowledge has won a retrial for his two rape convictions.
The accused man, Keith Eric Calvert, and the then 21-year-old woman were both military personnel stationed at the time at HMAS Cerberus at Crib Point in Victoria when the alleged incidents occurred on January 23, 2009.
Calvert was convicted by a County Court jury last year of two counts of raping the alleged victim at a house off base after a night of drinking.
The Court of Appeal, however, allowed Mr Calvert's appeal today after the Crown conceded that one of the key mobile phone videos that formed the evidence was taken at a different location in the house from what the jury was told at the trial.
"I consider that a miscarriage of justice has occurred," said Justice Terry Forrest, who wrote the lead judgment. Justices Weinberg and Bongiorno agreed. The convictions were set aside and a new trial ordered.
In the judgment, Justice Forrest said of the prosecutorial error: "I should perhaps add, in deference to the trial participants, that the portion of (the misidentified video) which demonstrates clearly that it was filmed in the same general area (as two other videos) is only fleetingly visible, and then only if the DVD is played on a screen larger than that available with a modest Department of Justice desktop computer."