1. When allegations made by the complainant were put to the applicant, the applicant said the following:

(a) Contrary to the complainant's allegations, he did not tie her up with rope. The applicant said: 'if you tied someone with rope - I've watched enough of them shows to see that they marks [sic], ropes'.

(b) Contrary to the complainant's allegations, he did not penetrate her vagina with his fist. Rather, he penetrated her vagina with his fingers, probably three of them. When the interviewing police noted that the applicant had not mentioned this earlier, he said that he had not wanted to.

(c) The allegation that the complainant begged him to stop but he did not listen was a lie.

(d) He penetrated the complainant's anus with his penis at her request.

(e) He ejaculated on the complainant's buttocks.

1. When the results of the complainant's medical examination were put to the applicant, he said he did not know how the complainant came to have swelling on her lower abdomen and bruises on her stomach. He had not hit the complainant. Unless 'it was just from the rough sex', he 'wouldn't have a clue'. He also said he did not know why the complainant did not contact police on the Saturday when he was at work, or on the Sunday while he was out, if she thought he had done something wrong. Contacting the police while he was at work would have made more sense.
2. The applicant maintained that the complainant had enjoyed the sex and had not complained.

1. Dr Ping conducted a forensic medical examination of the complainant on the morning of Monday, 23 April 2018, shortly after the complainant arrived at the hospital.
2. In examination-in-chief, Dr Ping said that the complainant told her that she had been sexually assaulted. The complainant said she had been grabbed and her hands tied behind her back. The applicant had penetrated her vagina with his penis, fist and arm, and her anus with his hand and penis.
3. Dr Ping gave evidence that she had conducted a 'whole of body' examination of the complainant and identified the following injuries:

(a) An area of bruising approximately 10 cm by 20 cm in size extending from just above the navel down to the pubic bone.

(b) Two areas of bruising on the right breast. Each bruise was approximately 0.5 cm by 2 cm. The bruises sat at approximately the 12 o'clock and 11 o'clock position. They were about 2 cm apart.

(c) A vertical split in the natal cleft (that is, at the top of the buttocks) approximately 1 mm by 2 cm. There was no active bleeding associated with the split at the time of the examination.

(d) An approximately 0.5 cm laceration in the fossa navicularis, an area of skin at the most posterior part of the opening to the vagina. There was no bleeding or secretion.

(e) Abrasions on the inside of the left and right labia minora, swelling of the left and right labia minora and labia majora, and swelling of the mons pubis at the anterior aspect of the vagina. The swelling covered an area approximately 10 cm by 15 cm, extending from the most posterior part of the vagina forwards over the mons pubis. The swelling covered essentially the entire genital region.

1. Dr Ping gave evidence that she took vaginal and anal swabs, but decided not to conduct further internal examination in light of the extreme pain experienced by the complainant.
2. Dr Ping opined that the bruises to the complainant's right breast area were the result of the application of blunt force trauma. There were no specific characteristics of the bruising to enable the cause to be defined more clearly. The bruising was consistent with the time frame of the complainant's account. The complainant told Dr Ping that the alleged events occurred at approximately 8:30 pm the previous evening, which was approximately 15 hours before the examination. However, Dr Ping gave evidence that it is very difficult to age bruises. It was possible the bruises were days old.
3. Dr Ping opined that the bruising of the lower abdomen area was also the result of the application of blunt force. She could not be more specific than that. She said that the bruising could have occurred within the time frame described by the complainant. However, it could also have been caused earlier.
4. Dr Ping opined that a laceration at the top of the natal cleft was most likely caused by forceful separation of the buttocks. She 'absolutely' believed it would have occurred within the 15 hour period, as these sorts of lacerations tend to heal quite quickly. There was no scabbing, suggesting the laceration had not begun to heal. Dr Ping acknowledged it was 'not impossible' that the laceration occurred outside the time frame of the alleged incident.
5. In respect of the laceration of the fossa navicularis, Dr Ping said that such an injury was generally caused by an object passing through the vaginal opening, causing the skin to stretch. Again, Dr Ping's view was that it was 'absolutely' within the time frame of the alleged incident. Such injuries tend to heal within 24 hours and are often not observed after that time period.
6. As to the abrasions of the labia minora, Dr Ping said that such abrasions are associated with frictional movement across the skin. The complainant's abrasions were associated with blunt trauma. The abrasions were quite extensive. Dr Ping opined that there would have been a considerable amount of force. Her view was that the swelling of the labia minora, labia majora and surrounding areas, when considered in conjunction with the other injuries, was caused by the application of blunt force. The swelling was consistent with having occurred within the time frame of the incident described by the complainant.
7. In Dr Ping's opinion, the injuries observed were 'not inconsistent' with penetration of the complainant's vagina with a fist and arm. There was very likely to have been significant internal injury. Dr Ping also considered that the penetration of the anus with a hand was 'not inconsistent' with there being no observable external anal injury. Dr Ping said she would expect the insertion of an entire hand into the anus to cause internal anal injury, though the insertion of fingers would not necessarily cause the same level of injury. She said that there can be penetration of the anus without injury. Age, and the elasticity and state of the vaginal tissues are some of the factors that influence the likelihood of injury from penetration of the vagina or anus. However, she was unable to comment on whether the complainant was prone to anal or vaginal injury as a result of penetration. Dr Ping said that the complainant told her that her vagina had been penetrated with a fist and arm, but her anus had been penetrated with a hand, but not an arm.
8. Dr Ping said that blunt force trauma can arise from both consensual and non‑consensual activity. The injuries she detected inside the complainant's vagina said nothing about consent. However, Dr Ping said that she had never come across anybody who had consensually received injuries of the kind sustained by the complainant within the labia majora. There are several causes of blunt force trauma, though she had never seen a case in which penile-vaginal intercourse caused blunt force trauma injuries of the sort suffered by the complainant. She considered that penile-vaginal intercourse alone was unlikely to have caused the level of bruising seen on the complainant's lower abdomen. She reiterated that anal penetration does not always result in injury.

1. Dr Brewer undertook a neuropsychological assessment of the complainant between August and September 2021, which included a face-to-face assessment and telephone inquiries to verify some of the claims the complainant had made about her past. The purpose of these inquiries was to verify claims the complainant had made about her developmental history.
2. According to Dr Brewer, the complainant presented in the face-to-face assessment as 'almost like an excitable adolescent'.
3. Dr Brewer recorded that in 2001, the complainant was found to have a large brain tumour - though not the largest in the world - the removal of which left the complainant with a mild to moderate neurocognitive disorder. Cognitive decline had been noted prior to the removal of the tumour. The complainant had cognitive vulnerabilities in (among other things) her working memory. Five years after the surgery, the complainant reportedly developed schizophrenia involving hallucinations and delusions. However, Dr Brewer's investigations suggested the complainant did not have schizophrenia, but instead had an organically-based psychosis characterised by delusional phenomena.
4. According to Dr Brewer's inquiries, the complainant's psychosis had been well-controlled by medication and there was no evidence of delusional phenomena in the past three to five years. The stabilisation preceded 2018. There was no evidence of non-compliance with the medication and no specific evidence to suggest that the complainant had been hallucinating. Dr Brewer observed at the assessment that the boxes of the complainant's Webster-pak were empty up until the day of the assessment.
5. Dr Brewer gave evidence that it was possible for symptoms to return within 24 hours if a person stopped taking anti-psychotic medication. When asked if an email dated 19 March 2018 reporting the complainant saying she was having trouble collecting medication indicated difficulty securing continuity of medication, he said it was possible, but the complainant could have had back-up medication. Counsel for the applicant then referred to a report dated 27 December 2017 of the complainant not taking medication for five days and asked Dr Brewer if he could comment on the effect such a period of non-compliance might have on the complainant. Dr Brewer said he could only comment if there was a medical record suggesting decompensation of the complainant's mental state, which he did not recall having access to.
6. Dr Brewer noted that the complainant had previously been diagnosed with personality disturbance, mood disorder, epilepsy, schizophrenia, bipolar disorder, schizoaffective disorder, post-traumatic stress disorder, delusional psychosis, anxiety and depression. However, in his opinion, there was no evidence to suggest that the complainant had bipolar disorder or schizophrenia.
7. Furthermore, Dr Brewer's view was that, contrary to suggestions in her medical records, the complainant did not have a borderline personality disorder. However, he did find evidence, albeit tenuous, of repeated trauma in the complainant's developmental history or childhood. He was more certain that the complainant had experienced erratic or unstable attachments. According to Dr Brewer, this is a common factor for personality vulnerability, as the brain responds to stable attachments. Without such attachments, the brain grows in a disorganised manner.
8. Dr Brewer found the complainant's IQ to be within the borderline range, just above the range for mild intellectual disability, at 75. Her working memory was significantly reduced and fell within the mildly impaired range. She suffered from temporal confusion, that is, she was prone to confusing dates and times.
9. Dr Brewer also identified a tendency to exaggerate or embellish. As an Indigenous woman, the complainant had a long history of being underestimated and expecting to be ill-treated and looked down upon, and she had evident very poor self-worth. She sometimes regressed to sounding like a young adolescent. In this regard, Dr Brewer noted the tendency of adolescents to embellish accounts to make themselves look better in front of their peers. The complainant similarly embellished to him and her support workers. However, there was always a kernel of truth in what she told people.
10. Dr Brewer considered that the complainant's tendency to exaggerate or embellish was partly connected to the neurocognitive disorder caused by the removal of her tumour. The complainant had a vulnerable personality - a compromised ability to regulate her impulses - prior to the removal of her tumour. The removal of such a tumour could release underlying vulnerabilities.
11. As part of his assessment, Dr Brewer also considered whether the complainant had evidence of a tendency to confabulate, that is, to make up details of an account when the details are not remembered. The tendency more commonly appears in people with a vulnerability for psychosis, such as the complainant (albeit that her vulnerability had stabilised). The complainant also had a vulnerability to confabulation as a result of a hole in her brain after removal of the tumour. In the course of his assessment, Dr Brewer identified only one mild example of confabulation. When he later conducted a specific test for confabulation, there was no sign of confabulation. The complainant tended to say she did not know the answer to questions.
12. In cross-examination, Dr Brewer agreed that embellishment, exaggeration and confabulation could all be described as 'honest lying'. They are different from lying proper, in that there is a lack of sufficient awareness to consciously regulate the propensity for exaggeration. Dr Brewer gave evidence that adolescents sometimes embellish things to trigger a greater appreciation of self-worth. Narrating a dramatic experience attracts to a person with a history of poor or unreliable attachments attention they would not otherwise get.
13. Dr Brewer referred to the implausible claims made by the complainant during the course of his interview with her. When he followed up these claims he found in them 'a kernel of truth'. For example, in relation to her claim that she had been a member of the Western Australian police force for three years and had been secretary to the New South Wales police commissioner, Dr Brewer found that the complainant had been a witness in a case involving bikies. While she may not have been directly employed by the police commissioner, in her mind she had a role that necessitated her going into police headquarters. Dr Brewer found similar 'kernels of truth' in the complainant's claims that she had completed a university course and had inherited money from her father.

1. The defence called Dr Richard Byron Collins, a consultant forensic pathologist, to give evidence. In examination-in-chief, Dr Collins said that he had physically examined the applicant's wrists and hands on 28 August 2019. He observed that they were large, coarse, calloused and gnarled. Dr Collins said that with hands of this size, it 'would not be unreasonable to expect some degree of injury to a female genital tract during exuberant sexual activity'. There was still a likelihood of the complainant's hands causing such injuries if the woman - in this case the complainant - consented.
2. With respect to the complainant's abdominal pain, Dr Collins noted that the complainant had a fibroid (a type of tumour) in the wall of her uterus. If compressed (for instance, during consensual penile-vaginal intercourse), it could cause pain. The complainant's medical records suggested it was possible she had been suffering from abdominal pain three weeks prior to the alleged incident.
3. Dr Collins said that it was impossible to determine whether the injuries were the result of consensual or non-consensual activity in almost all cases. It was reasonable to say that the complainant was potentially prone to genital injuries (whether as a result of consensual or non-consensual intercourse) because of her age and lack of intercourse, at least in the 12 months prior to the offending. He said that if the applicant's fists were placed in the complainant's vagina, there was a likelihood of injury. Dr Collins said that the insertion of the entire arm into the female genital tract is impossible because the female genital tract is not long enough. The most common practices are the insertion of a fist and/or arm up to the level of the elbow. He also gave evidence that there was a likelihood of injury if the applicant's fist was inserted through the anus and into the rectum.
4. In cross-examination, when various parts of Dr Ping's evidence were put to him, Dr Collins said the following:

(a) In almost all cases, bruising is caused by the application of blunt force trauma. The side effects of one of the drugs the complainant was on, Epilim, include an increased tendency to bruise or bleed. The bruises may have been present prior to the alleged event. It was entirely reasonable to say, as Dr Ping had,[3] that the complainant's bruising was unlikely to have been the result of penile-vaginal sexual activity.

(b) Forceful separation of the buttocks was an entirely reasonable causal mechanism for the laceration at the top of the natal cleft. Dr Ping's evidence that the injury could also have occurred outside the 15 hour time frame should be emphasised.

(c) In respect of the laceration of the fossa navicularis, he agreed with Dr Ping that injuries in that area tend to heal quickly. However, he thought the 24 hour time frame posited by Dr Ping was 'a bit short'. A time frame of two days would be more reasonable.

(d) He agreed with Dr Ping that, considered in conjunction with the other observed injuries, the swelling of the genital region was likely the result of blunt force trauma.

(e) In a general sense, the observed injuries were consistent with vaginal fisting, but there was a lack of knowledge of the state of the inside of the complainant's genital tract.

(f) As to susceptibility of the complainant to genital injuries, he was more concerned with the complainant's age rather than lack of intercourse prior to the alleged offending.

(g) He disagreed that the observed injuries to the complainant's external genitalia were consistent with considerable force. The swelling was likely to result from a stronger force than that associated with relatively mild sexual activity.

1. No complaint is made about the judge's charge or the conduct of the trial more generally. In light of the complainant's brain injury and mental health issues, the judge gave the jury an unreliability direction, warning of the need for caution when considering her evidence. His Honour told the jury that the experience of the law is that the evidence of a witness affected by an acquired brain injury and mental health issues that affect memory, perception and behaviour may be unreliable. The unreliability can arise because of the effects of these conditions on thinking and memory. In this regard, the judge referred to Dr Brewer's evidence. His Honour directed the jury to take this potential unreliability into account in determining whether to accept the complainant's evidence and the weight to be given to it.

Ground 1: Verdicts unreasonable or not supported by evidence

Challenging a jury verdict: the legal principles

1. The principles applicable to an appeal against conviction on the basis that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'[4] are well-settled. As stated by the High Court in M v The Queen:[5]

[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused is guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

...

It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[6]

1. In Libke v The Queen,[7] the Hight Court again formulated the question as whether it was open to the jury to be satisfied of guilt beyond reasonable doubt:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[8]

1. In Pell v The Queen,[9] the High Court said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[10]

1. In oral submissions, counsel for the applicant gave three reasons why the Court should set aside the verdicts of guilt on all five charges:

(a) The complainant could not be believed, having regard to the 'fantastical' claims that she made, including in respect of matters unrelated to the offending.

(b) There was a lack of corroborating evidence. In particular, there was no evidence of anal injury (having regard to the nature of anal rape alleged), no evidence of bleeding, and no evidence of the applicant 'going off his nut' when the paramedics arrived.

(c) The complainant gave differing accounts of the offending, first to the paramedics, then to Dr Ping, then to police and then at the special hearing. When the complainant made the initial complaint to paramedics, the complaint was only of vaginal penetration, and a strike to the face. The allegation that she was struck to the face disappeared completely and no injuries to the complainant's face were observed by the paramedics or the doctor. When the complaint of the sexual offending was made to Dr Ping there was, first, a fist and arm in the vagina, a hand in the anus, a penis in the vagina and a penis in the anus. In the VARE, that account became the applicant putting both arms 'into [her] arse'. At the special hearing it had evolved to 'arm-fucking me in both holes'.

1. The applicant also pointed to the fact that the complainant did not make an allegation of rape during her 000 call and did not ask for police despite the applicant apparently being asleep at the time. Furthermore, the applicant did not attempt to flee, was not abusive towards the paramedics, appeared disinterested, and gave a plausible record of interview.
2. According to the applicant, if these matters are put together with the other 'fantastical' claims made by the complainant unrelated to the offending, the verdict must be seen to be entirely unsafe. On the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant.
3. In written submissions in support of the proposition that the complainant was an unreliable witness, the applicant pointed to:

(a) the complainant's cognitive decline before the removal of the tumour;

(b) the reports of post-surgery schizophrenia involving hallucinations and delusions;

(c) the organic-based psychosis triggered by the removal of the tumour; and

(d) past diagnoses of personality disturbance, mood disorder, epilepsy, schizophrenia, bipolar disorder, schizoaffective disorder, PTSD, delusional psychosis, anxiety and depression (though in 2021 Dr Brewer opined that there was no evidence of schizophrenia or bipolar disorder).

1. Moreover, it was submitted, the complainant was known to confabulate, exaggerate or embellish and had a history of delusions and hallucinations. Insofar as there might be a 'kernel of truth' in the complainant's (apparently outlandish) claims, the applicant submitted that the 'kernel of truth' in this case might be found in the applicant's record of interview where he said that he and the complainant had had consensual sex on the Friday night. It was open for the jury to accept that kernel of truth, shorn of embellishment by the complainant that turned it into a horrific, violent, and non‑consensual episode. The applicant's account of the Friday night sex involved consensual penile‑vaginal and penile‑anal sex. The applicant also described digital sex. He described using 'three fingers' which, it was submitted, was consistent with there being no injury to the complainant's anus. The complainant's account that the applicant put his entire arm into the complainant's anus could not be accepted.
2. As to the complainant's injuries, the applicant pointed to evidence that the complainant could have suffered the injury to the natal cleft when she fell to the floor. The injuries to the labia and the vagina were consistent with consensual, exuberant sexual activity, according to Dr Collins. In other words, the injuries said nothing about a lack of consent and the evidence disclosed they could have been caused outside the 15 hour time frame. The applicant also pointed to the lack of evidence of significant internal injury despite the 'fisting' alleged by the complainant being very likely to have caused significant internal injury.
3. As to the abdominal pain and bruising, the applicant pointed out that abdominal pain was consistently complained of by the complainant. There was a medical notation that recorded only three weeks earlier, 'no longer has abdominal pain'. There was also evidence from Dr Collins that the bruising could be there for up to weeks, so there could have been an earlier injury to the complainant's abdomen. Furthermore, the complainant had a tumour in the wall of her uterus that could cause pain if compressed during consensual sexual activity. Additionally, there was evidence that at least one of the medications the complainant was on increased the risk of bleeding and bruising.
4. The applicant also referred to evidence from Dr Brewer that, while the complainant was compliant with her medication and her condition was controlled by it, if the medication was not taken, her psychotic symptoms could return within 24 hours. There was evidence that the complainant had had difficulty obtaining her medications as recently as March 2018 and that she was without them for a five‑day period at the end of December 2017.

1. The respondent submitted that, on the whole of the evidence led at trial, it was open for the jury to be satisfied of the applicant's guilt beyond reasonable doubt on each charge. That a different view of the evidence might be arguable does not render a verdict unreasonable, or unsupported by the evidence. None of the matters relied upon by the applicant meant that the jury was bound to acquit the applicant. At best, they provided the applicant with an argument to present to the jury as to why the jury should have a reasonable doubt about the prosecution case. This was an argument that the jury was entitled to reject.
2. In response to specific matters raised by the applicant, the respondent made the following submissions:

(a) The complainant was compliant with her medication. For upwards of five years, she had not exhibited any delusional behaviours, as her medication had appropriately managed this issue.

(b) Dr Brewer initially only identified one mild example of confabulation. He did not identify any confabulation through his later test that was specifically for confabulation.

(c) There was evidence that lacerations heal quickly, within 24 hours or so. Thus, their presence and lack of healing and scabbing were demonstrative of their infliction in a time frame consistent with that stated by the complainant.

(d) The lack of further internal examination was not evidence of a lack of expected internal injuries.

(e) The difference in the complainant's statements as to where her hands were tied is a quintessential jury matter. This difference was not put to the complainant for comment or explanation.

(f) There was no evidence that the complainant bled onto sheets or clothing. Her evidence was that she washed the blood away. These matters were the subject of closing argument. The jury was entitled to reject this argument.

(g) That the complainant did not complain of rape until out of the house, away from the applicant and in the company of paramedics, is not a matter that bears significantly on the reliability of her account. There is no proper or normal response to sexual offending and delay in making a complaint of a sexual offence is a common occurrence. The evidence was that the complainant did not know that what she described was rape until the paramedics told her.

(h) The fact that the applicant did not abuse the paramedics, was at home when police attended to arrest him, and gave a record of interview did not mean the jury's verdicts were unreasonable or unsupported by evidence.

1. The complainant was in many respects an unreliable witness. She was, as the evidence of Dr Brewer made clear, highly prone to embellishment and exaggeration, and she had a significant hole in her brain after removal of a large tumour, which left her vulnerable to confabulating. Dr Brewer said that, when the complainant embellished or exaggerated when recounting a narrative, there was always a 'kernel of truth' in what she said, and that independent corroboration was needed to determine where that kernel of truth lay and where embellishment began.
2. The complainant gave conflicting evidence as to matters including how recently she and the applicant had had sex (twenty years, two years or one year), the extent of the digital penetrations (variously, fingers, a hand and an arm) and (specific to ground 2), whether the applicant penetrated her anus with his penis.
3. Further, there was evidence suggesting that the complainant had given an unreliable account of certain matters. She told the ambulance officers that the applicant had punched or struck her to the face. Their evidence was that they saw no sign of injury to the complainant's face. In the special hearing, she said that the applicant did not hit her. The ambulance officers also gave evidence at odds with the complainant's account of the applicant 'going off his nut' when they arrived. In addition, the absence of any sign of blood in the bathroom, on the bedsheet or elsewhere, and the absence of semen on the sheet, was surprising if the complainant's account of profusely bleeding from her vagina (at least) and the applicant having twice ejaculated inside her during the charged events were true.
4. The complainant's evidence plainly called for an unreliable evidence direction under s 32 of the Jury Directions Act 2015, which the judge gave. That direction required the jury, as this Court is likewise required, to exercise caution in determining whether to accept the complainant's evidence and what weight to give to it.
5. It is clear that, despite the matters referred to above, the jury accepted the evidence of the complainant as credible and reliable, at least in so far as it concerned the events constituting the five charges the subject of the trial.
6. The High Court in Pell v The Queen[11] stated that this Court, 'in a case such as' Pell, must proceed on the assumption that the jury assessed the complainant's evidence as credible and reliable.[12] That is not just because the jury could not have convicted otherwise. It is because the assessment of credibility (at least) of a witness by the jury proceeds on the basis of what the jury has seen and heard in a trial, which is not to be duplicated by the appellate court.[13] \
7. For the latter reason, nothing is to be gained in such a case by the appellate court viewing a recording of that evidence in order to form its own view as to that matter. If the jury's verdict is to be displaced, it must be by reference to something other than 'the evaluation of the witnesses in the witness-box'.[14] In that way only, the appellate court may ultimately not accept the truth of the complainant's evidence. That is the fundamental issue in an appeal on the ground that a verdict dependent on acceptance of a complainant's evidence was 'unreasonable or cannot be supported having regard to the evidence'.[15]
8. In Pell, that issue turned on whether other evidence before the jury about the alleged events meant that, despite finding the complainant's evidence to be credible and reliable, the jury ought to have had a reasonable doubt about the guilt of the accused.
9. Here the position is different, because the principal issue is whether features of the complainant's own evidence, together with other evidence about the complainant's state of mind, ought to have led the jury to that result.
10. It seems that it is still necessary, in this context, to apply the injunction in Pell to proceed on the assumption that the jury found the complainant's evidence credible and reliable (as it obviously did). The question is still whether the jury ought to have had a doubt about the applicant's guilt, that is, whether the jury ought to have doubted the account given by the complainant. Again, the appellate court's answer to that question must depend on something other than the evaluation of witnesses in the witness-box.
11. As articulated in Pell, the question is whether upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant's guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant's evidence, or in light of other evidence.[16] Put differently, the question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant's guilt.[17]
12. The need to focus on inconsistencies, discrepancies or other inadequacy in the complainant's evidence, or on other evidence, again reflects the fact that the appellate court is not simply giving effect to its own view in place of that of the jury, so as to substitute trial by a court of appeal for trial by jury.[18] It also means that full allowance is given to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial.[19]
13. Applying that focus, if the appellate court considers that it was not open to the jury to be satisfied of the case against the accused beyond reasonable doubt, it must set aside the verdict given by the jury based on that evidence. In that sense, the court's doubt will, in effect, be a doubt which a reasonable jury ought to have had.[20]
14. That is not to say, however, that the appellate court approaches the issue by first asking whether it has a doubt about the conviction and then considering whether the conviction is explicable, despite that doubt, by the advantages enjoyed by the jury.[21] That would invert the process by conducting, in effect, a trial 'on the papers', and would blur the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court.[22]
15. With those matters in mind, we turn to the question whether, by reason of inconsistencies, discrepancies or other inadequacy in the complainant's evidence, or in light of other evidence, the jury, acting rationally, must have entertained a reasonable doubt about accepting the complainant's evidence as to the charged events, upon which conviction depended.[23]
16. The evidence of Dr Brewer suggests the possibility of just such a doubt: the complainant had a tendency to embellishment, and the 'kernel of truth' in her account could not be distinguished from that which was embellished without independent corroboration. In other words, there was no way of knowing, without such corroboration, whether her evidence of the sexual acts and her lack of consent to them, were part of the 'kernel of truth' in her account.
17. In the language of Pell, this would be an instance of inadequacy in the evidence of the complainant.
18. In the context of the whole of the evidence, that inadequacy might suggest that, as the defence contended at trial, the jury ought rationally to have had a doubt about the applicant's guilt because the prosecution had not excluded the possibility that, in giving her account of the events she described as having occurred on Sunday, 22 April, the complainant was embellishing an account of the events, consensual in nature, described by the applicant as having occurred on Friday, 20 April - in effect, confabulating a story of non-consensual sexual activity.
19. But while it was open to the jury to have that doubt, we do not accept that it must have done so. In the first place, the jury was not bound to accept the applicant's account of consensual sexual activity, or any sexual activity at all, on the Friday. It could have rejected that account and put it aside.
20. More importantly, there was corroboration of the complainant's evidence of non‑consensual sexual activity on the Sunday in the evidence of Dr Ping. She gave evidence that injuries of the kind the complainant sustained to the fossa navicularis tended to heal with 24 hours and were often not observed after that period. She also said that, while it was 'not impossible' that the natal cleft injury was sustained outside the timeframe of the incident, she 'absolutely believe[d]' that it would have been within the previous 15 hours. Although it could not be identified from the injuries themselves whether they were sustained consensually, Dr Ping said that the injuries within the labia majora were of a nature she had never seen in any case of consensual sexual activity.
21. Dr Ping's evidence provides the corroboration to which Dr Brewer referred. If the jury accepted her evidence, they could rationally exclude the possibility that the injuries were sustained by the complainant during consensual sexual activity on the Friday. Conversely, the jury could rationally accept that they were sustained on the Sunday, consistently with the complainant's account.
22. The complainant's propensity to embellish or confabulate was therefore not an inadequacy which compelled the jury to doubt the credibility or reliability of her evidence of the charged acts and her lack of consent to them.
23. The other matters to which reference was made earlier amount to inconsistencies or discrepancies in the complainant's account of events, and matters upon which there was other evidence at odds with her account. With two exceptions, however, none of them went to the central matters on which the jury had to be satisfied. As to the officers' evidence that the complainant told them the applicant had punched or struck her to the face, the complainant did not allege this on any other occasion, and the officers themselves differed as to whether she had said she was punched or struck. Either way, there was no physical evidence of a hit to the face. If the complainant did make this claim to the officers, it was at best a discrepancy of minimal significance. The apparent lack of stains on the bedsheet or blood in the bathroom or elsewhere was not necessarily inconsistent with the complainant's evidence. The attitude of the applicant to the ambulance officers was a peripheral matter.
24. The first exception is the varying descriptions the complainant gave of the digital penetration. Read in context, however, those variations reflect the complainant's rather discursive mode of narration. It is clear enough that she was conveying an assault in which the applicant's hands were aggressively and extensively invading her vagina and anus, the applicant having announced that he was going to 'arm fuck' her. The fact that the complainant described herself as being penetrated variously by fingers, a hand or an arm is of little real moment, and the variation in her evidence is consistent with the notion that her evidence may contain embellishments that overlay a kernel of truth (namely, a forceful and sustained assault by multiple fingers). The gist of her evidence was clear and consistent.
25. In this context, we observe that Dr Brewer found very little inclination to confabulate. Indeed, he found that throughout his confabulation assessment of the complainant, she would often say 'I don't know'. On the whole, the complainant did not make up details when there was something she did not remember.
26. The second exception is raised by ground 2. In short, we do not consider that the fact that, at one point, the complainant said that she did not know whether the applicant penetrated her anus with his penis makes the conviction on charge 4 unreasonable. Elsewhere, she gave clear evidence that he did so, and that he had ejaculated in her anus (which she also told Dr Ping).
27. In summary, the judge gave the jury a direction regarding the complainant's reliability, which was a matter that the jury could properly assess when they considered all of her evidence, along with the evidence of the paramedics, Dr Ping, Dr Collins and Dr Brewer. Having carefully examined the record of the trial, we have concluded that the jury acting rationally could exclude any reasonable doubt as to proof of the applicant's guilt.
28. Ground 1 is not made out.

1. The applicant submits the jury should have also had a reasonable doubt in relation to charge 4 as the complainant herself stated that she could not be certain if the applicant placed his penis inside her anus.
2. The respondent submits that, despite the one instance of the complainant's equivocation with respect to this issue, it was on balance open for the jury to be satisfied on the whole of the evidence that the applicant had penetrated the complainant's anus with his penis. The respondent points to the complainant's own evidence elsewhere that the applicant penetrated the complainant's anus with his penis, as well as her complaint to Dr Ping of penile penetration of her anus.

1. There is no substance to this ground. As already mentioned, we accept the respondent's submission that, despite the one instance of the complainant's equivocation with respect to this issue, it was open for the jury to be satisfied on the whole of the evidence that the applicant had penetrated the complainant's anus with his penis. Elsewhere in her evidence, the complainant gave evidence that he had done so, and she told Dr Ping the same thing. The applicant also said it had happened, although on his account it occurred two days earlier and consensually. The jury could properly accept the evidence of such penetration.
2. Ground 2 is not made out.

1. Neither ground being made out, the application for an extension of time to apply for leave to appeal will be dismissed.

[1] To ensure that there is no possibility of identification of the complainant of alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[2] See Criminal Procedure Act 2009, s 367 ('Criminal Procedure Act').

[4] Criminal Procedure Act 2009, s 276(1)(a).

[5] [1994] HCA 63; (1994) 181 CLR 487 ('M').

[6] Ibid 493-5 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted). See also R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 308.

[7] (2007) 230 CLR 559; [2007] HCA 30 ('Libke').

[8] Ibid 596-7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]) (emphasis in original) (citations omitted); [2007] HCA 30.

[9] (2020) 268 CLR 123; [2020] HCA 12 ('Pell').

[10] Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).

[11] [2020] HCA 12; (2020) 268 CLR 123.

[12] Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[15] Criminal Procedure Act 2009, s 276(1)(a).

[16] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39]; see also M [1994] HCA 63; (1994) 181 CLR 487, 494-5 (Mason CJ, Deane, Dawson and Toohey JJ).

[17] Libke [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]).

[18] M [1994] HCA 63; (1994) 181 CLR 487, 494-5 (Mason CJ, Deane, Dawson and Toohey JJ).

[21] Ibid 501 (Brennan J), citing Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 451-2 (Dawson J).

[22] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[23] Pell [2020] HCA 12; (2020) 268 CLR 123, 145 [39]; M [1994] HCA 63; (1994) 181 CLR 487, 494.