The Crown has defended evidence produced at the second trial of a former Wellington taxi driver who has twice been tried and convicted for raping a teenaged passenger.
Abdirazak Mussa, a Somalian refugee, was jailed for nine years in April last year.
His lawyer told the Court of Appeal in Wellington on Thursday that evidence his client used two condoms should not have been before the jury.
Dr Donald Stevens, QC, said the evidence about Mussa's HIV positive status was also highly prejudicial.
However, Crown lawyer Kristy McDonald, QC, said consent was at issue in the trial and to remove that evidence would have put a sanitised version of events before the jury.
The court has reserved its decision.