1. On 17 December 2021, KG was interviewed by police and gave an account of the events of the evening of 14 December 2021. This was recorded and became her evidence in chief ('VARE'). On 30 August 2022, KG was cross-examined by the applicant's counsel at a special hearing.
2. On 22 December 2021, the applicant participated in a record of interview ('ROI') with police concerning the events of 14 December 2021. He told police that KG had initiated the oral sexual activity.
3. The applicant sought leave to appeal his conviction on the basis that the jury's verdict is unreasonable and cannot be supported having regard to the evidence. The applicant contended that there were several significant inconsistencies in KG's account of events to various witnesses, in her VARE and at the special hearing, such that the jury, acting rationally, ought to have entertained a reasonable doubt about his guilt.
4. The applicant's application for leave to appeal was filed some five months out of time. He thus sought an extension of time.
5. For the reasons that follow, we would refuse the application for an extension of time on the basis that the proposed ground of appeal has no real prospect of success.

1. The principles applicable to the application for an extension of time are uncontroversial and were summarised by this Court in Madafferi v The Queen.[2] In particular, it is necessary to consider both the reasons for the delay and the prospects of success of the application for leave to appeal.[3]
2. In the present case the applicant gave early instructions of his intention to appeal, subject to receiving advice. Rather, the delay was caused by counsel availability (including by reason of illness and a death in the family, as well as other work commitments). It should not be thought that delay on the part of counsel is a justification for the delay in filing the application for leave to appeal. If counsel find themselves unable to complete the necessary documents in a timely fashion, it is appropriate for counsel to return the brief so that different counsel may be briefed and the statutory time periods adhered to as closely as possible. However, we accept that the delay was not of the applicant's own making. In those circumstances, the merits of his grounds of appeal assume greater weight.

1. There were two trials of the charges against the applicant before the trial at which he was convicted. The first trial resulted in the jury being unable to reach a verdict. The second trial resulted in the jury being discharged due to the informant giving some inadmissible evidence in the course of the hearing.
2. At the first trial the prosecution called the following witnesses (in addition to playing KG's recorded evidence):

(a) KG's father, TK;

(b) JM, a resident living nearby;

(c) AC, JM's partner, also a resident living nearby;

(d) Sergeant Michael Downes, who had spoken with KG at the home of JM and AC in the early hours of 15 December 2021;

(e) Senior Constable ('SC') Wainwright, who had also spoken with KG at the home of JM and AC in the early hours of 15 December 2021;

(f) Detective Senior Constable ('DSC') Walton, a member of SOCIT, who had also spoken with KG at the home of JM and AC in the early hours of 15 December 2021;

(g) DSC Beier, also a member of SOCIT, who had taken notes while DSC Walton was conducting her interview with KG on 15 December 2021; and

(h) DSC Michael Fawcett, the informant. He had attended at KG's home later on the morning of 15 December 2021, together with DSC Tanique McFarlane. His role that morning was to take notes of the conversation between the police officers and KG.

1. The evidence given at the first trial was recorded.
2. At the third trial, the recorded evidence from the first trial was played to the jury, save for the evidence of the informant, who gave direct evidence in the third trial.
3. The applicant's ROI was also played to the jury. The applicant did not give evidence. Nor did he call any other evidence.

KG's evidence in her VARE and at the special hearing

1. It is appropriate to set out in some detail the account KG gave in her VARE. She started by explaining that she had caught a train home from Flinders Street, and that she had walked down the main road towards her house. She then explained that her phone was 'dead' and that she had called her father from a telephone box, but he was too tired to pick her up, and that made her angry. She then gave the following account of what occurred:

[T]hen I started walking until I reached the medical centre right across the - where the people get the COVID vaccine things. And then that's when this car turned on it's headlights, and said, 'Come here,' so I went to him, and the he's like, 'Give - if he could give me a ride home,' and I said, 'I'm not sure,' and then he said, 'Come on, I'll just drop you off at your house or on your street.' And I was too tired to hesitate, so I just got in the car - the truck, and when I got in the truck, he grabbed me and that's when he pulled me towards him, and I didn't know he was naked, so he took off his pants basically, and he grabbed my head and he pushed me towards his private part. And then - what I saw in the car was a bucket hat thing, glasses, yellow vest, a fish logo thing, which he might work at a fish place. And he was - after that, he - he - he spermed, his sperm came out, and he, like, grabbed my chin towards, like, my neck - - -

(DEMONSTRATES GRAB WITH RIGHT HAND)

- - - and he was basically, like, threatening me, saying, 'If you scream or do anything, I'll - I'll kill you or I'll punch you.' So then I started begging him for my life, and I said to him, 'My mum and my dad's waiting for me at home, I don't wanna get them worried or anything,' and so - what do you call it - he started giving, like - what do you call, like - started kissing and, like, tried sucking my neck and stuff. And then he forced me to kiss him, and after all of that, he let me go, but he said, 'Oh, if you say or do anything, I'll come after you,' But he let me out, and I started walking, and then once I reached, like, the end of - or the start of the school, St Albans Secondary College. I started, like, speed walking and I started running, and then I reached to this two-storey house, it's grey, and I told the couple to call triple zero, and told them I need help. And then we went on the staircase, and that's basically when police came, and I made my statement towards them, and then - yeah.

1. She later repeated this account, and then expanded on some aspects in response to questions, as follows:

A 22 ... And then I kept on walking, and then I looked up and that's when I heard the guy say that, 'Come here,' and say - offer me a ride home.

Q 23 Mm'hm.

A And that's it.

Q 24 Mm'hm. So at that point, the - you heard someone call out to you?

A Yeah.

Q 25 Tell me about that.

A Where - do you want me to say well, like, what he said?

Q 26 Yeah.

A So basically when I got to the truck, well we were there for, like, a good two, one minute. And he was - like, I was just unsure because I watch movies, and I just - I - I don't feel safe sometimes, but I was just tired at the same time. And we were just saying like, 'Oh, do you' - oh, he was saying like, 'Do you want to come in, or do you want to walk home?' And, like, I don't wanna, like, be rude, 'cause I'm not like that type of person anymore, so then I just hopped in the truck, and then that's basically what happened.

Q 27 Mm'hm.

A And that's when I hopped in, and then he grabbed me.

1. Later in the VARE, KG explained how the applicant 'grabbed her', as follows:

Q81 Now, earlier you said that he was sitting in the passenger seat.

A No, like, there's - it looks like three seats, like, all the seats are connected.

Q 82 Uh'huh.

A And then basically - like, he was, like, leaning over like this to open the door, but I already opened it. And then - it's, like, a high thing, like, you have to put your feet on steps - - -

Q 83 Uh'huh.

A - - - and basically sat in, and that's when he grabbed me and did what he did to me.

Q 84 O.K. So then you've gotten into the - the car?

A Yeah.

Q 85 The truck, and you sat in that passenger seat. Is that - - -

A Yeah.

86 - - - right? So then how - you said that then he grabbed you?

A Yeah.

Q 87 Describe for me that.

A Basically - oh, I'll show you how he grabbed me.

Q 88 If you'd like to.

A He basically went like this.

(IMITATES PULLING FROM LEFT SHOULDER)

A And, like, I had a wig on, and he grabbed my wig.

(IMITATES PULLING HAIR)

A And he basically, like - he's, like, trying to pull it off my head. And he, like, kept on, like, what do you call it, like, doing this to me. And then he took off his pants straightaway, and that's when he, like, put my mouth on his private part. And he was, like, pushing my head down onto it, and then I - I was, like, mumbling and, like, crying at the same time, and then - what do you call it - he's, like, telling me to shut up. And he's, like, still pulling my wig, like, it nearly came off, and he's, like, basically, like - he's saying like, 'Oh, shut up or otherwise I'll punch you,' and then that's when I - like, I shut up. Because, like, I don't wanna get hurt, or I don't wanna get bruises or anything. And - what do you call it - after that, like, he did this - - -

(IMITATES GRABBING CHIN AND THROAT)

- - - there's, like - there's, like, a glass - like, a glass thing behind and he just did this and I - I was screaming but, like, in - in my - my mouth. Like, 'Mm,' like I just kept on doing that, and I was begging him, I was like, 'Please, please let me go, because my mum and my family's waiting for me, I can't - I can't be here at this time doing this with you, like, can you just let me go?' And he was like, 'Just shut up,' and that's when he, like - he was, like, kissing me and stuff, and I was just sitting there crying, looking at the - looking outside, hoping that someone could, like, you know, notice. 'Cause, like, you could see - you could actually see us from the outside, but I was hoping any cars see us - - -

Q 89 Mm'hm.

A - - - but - yeah. And then that's when he said, 'Oh, I'll let you go, but don't tell anyone otherwise I'll come after you.'

1. KG also gave an account of how she, JM and AC had seen the applicant drive past their house, as follows:

And so when he let me go, that's when I started running to the thing - yeah. And at the - the lady's house that I went to, when we were talking, we were literally talking about him, and then he comes on the side 'cause there's, like, shops and stuff, and then it's .......... right across the lady's house. And he came in front, and I told the lady, 'Look, that's him,' and then she - she tried to get her phone to take a picture of the number plate, and then we all tried running down the street to see if we can get it, but he already went. And, yeah, basically, yeah, that's it, and she told - oh, they told the police about it, the - like, when we saw him.

1. Later in the VARE, KG was asked about her statement that the applicant had 'spermed', as follows:

Q 116 O.K. Now, you said that - earlier you said that after he was pushing your head down, you said he spermed?

A Yeah.

Q 117 What do you mean by that?

A Oh, like, he cummed, but he didn't cum, like, on me, he cummed out of his way. Like, he pushed - - -

(DEMONSTRATES MOVEMENTS)

A - - - basically, like, he shoved my head out of the way, and then he just cummed. And then he - that's when he grabbed me again, and he's like - he was, like, basically licking and sucking on my neck and stuff.

Q 118 Uh'huh.

A Yeah.

Q 119 So then what happened?

A And after that, that's when he threatened me even more, and then he's, like, telling me to kiss him, but I said no. So basically he pushed my head like this - - -

(DEMONSTRATES PUSHING HEAD)

A - - - and made me kiss him, but I pulled away because, like, that's yuck.

1. Later KG explained how the applicant had threatened her:

Q 262 ... [T]ell me again what those words were he said.

A He said, 'Don't - don't scream or do anything, otherwise I'll kill you or either punch me'. He said that twice, though.

Q 263 So he said, 'Don't scream or anything or I'll kill you'?

A Yeah, he said - - -

Q 264 Or, 'I'll punch you.'

A Yeah, he said the first one when I was, like, pushing away from his thing when he - like, putting it in my mouth.

Q 265 Uh'huh.

A And the second one was - - -

Q 266 Well, describe for me how you were pushing away when - - -

A Like, I was basically like this - - -

(DEMONSTRATES PUSHING WITH BOTH HANDS)

A - - - trying to push him away.

Q 267 Uh'huh.

A On his - like, my hands were on his lap, and I was just basically, like, pushing him away.

Q 268 Uh'huh.

A And the second one was when I was crying and looking at - outside, and he was, like, onto me, like, licking, suck - kissing my neck.

Q 269 Uh'huh.

A And then, yeah, those are the only times he said that.

1. At the special hearing counsel for the applicant had the following exchange with KG concerning where the applicant 'grabbed' her:

[COUNSEL]: ... I'm just going to take you to the video you made with police?

---Yep.

Where you told them about the defendant grabbing you?---M'hmm.

...

[COUNSEL]: In that, ... you said basically, 'Oh, I'll show you how he grabbed me.' 'If you'd like to,' the police officer said. You said, 'It basically went like this,' and then you imitate pulling from the left shoulder?---Yep.

And said you had a wig on, and he grabbed your wig?---Yep.

1. In his ROI the applicant denied forcing his penis into KG's mouth. He told police that she had initiated oral sex with him. In relation to the circumstances in which the encounter occurred, he was initially uncertain about what had happened:

A [97] Trying to think what happened. Can't think what happened. I think she stopped me, I think - I think, or I - and - trying to think. I dunno what actually happened but - yeah, like, she stopped me. Or did I - she waved at me or something, I think, or - and I think - I'm not a hundred per cent sure. And - yeah, and started talking to her.

...

Q 99 Yep.

1. And just started to talk or something. I'm sure it was early in the morning. I'm sure it was about - I don't know, 4.00, 5.00 in the morning. You know what I mean? And then she said something, I'm a good-looking bloke or something. And then - yeah, move - moved over and that's - that's right, I - I asked - I said, 'How old are you?' You know what I mean?

Q 100 Mm'hm.

A 'Cause I said, 'I'm worried about your age.' She goes, 'I'm 23.' And I said, 'Is that a hundred per cent right? Are you 23?' You know what I mean? And she goes, 'Yes.'

Q 101 Mm'hm.

A And then she came and sat beside me, I think. And I think I asked again her - 'Are you from here?' Or, 'What's going on?' And she goes, 'I just live up - up the - couple of doors up.' And I think she asked me to move the truck and I said, 'No, look, I'm staying here.' You know what I mean? After - I thought, fuck the cars. And - yeah - and then - so I don't know. Started talking and then she gave me oral, I think.

1. He said that he offered to take her somewhere, but she said no.
2. At various points in the ROI the applicant told police that he asked KG how old she was and that she said she was 23. He also said he asked her whether she was transgender a couple of times.
3. The applicant said that KG gave him oral sex for about two minutes. He said that he did not ejaculate. He said that it ended by him saying 'thank you, that's it'. Later in the ROI he said

And I - I - I think I even pushed her off and said, 'Don't worry about it.'

...

Wasn't interested. You know what I mean? 'Cause at that stage, I was too worried about her age and her - her gender.

1. When asked how he ended up with his penis out of his pants, he said this:

A I don't know. She could've unzipped me pants or something. It's not by me. I'm not a big oral person, I can tell you that much. I could tell you why if you want.

Q 193 Explain.

1. I mean, well, since we're here. We - we may as well explain - when I met my first wife, she gave me oral and her tooth - the - the end of my penis, her tooth chipped the end of my penis when I - chipped or cut the end of my penis. A couple of days later, a - I've forgotten what the doctor called it, but a - a sore started growing. I had to get that cut off.

Q 194 Mm'hm.

1. And it was with the family doctor, good old Irish family doctor. And it's the worst - nearly the - one of the worst things what ever happened to me. I had, like, five injections in the end of my penis and I had stitches.

1. The applicant also said that he thought he put his arm around KG, and that 'maybe' he kissed her neck, but that there was no kissing. He also said this:

I think she said something about she loves - loves giving - I don't know how she put it. She didn't say sucking dick or anything - I - I can't remember what she said. You know what I mean?

1. Later in the ROI, the applicant was sketching the area in which the encounter had occurred, and said as follows:

That's Main Street. Footpath. And that garden bed. And I pulled up here. I think I saw her and I pulled up. And then she kept on taking a couple of steps into here, coming back, you know, and then taking a couple more steps back in there again and coming back. And I just sat in me truck. I think I undone the window and said, 'Come here.' You know what I mean?

1. Under s 276(1)(a) of the Criminal Procedure Act 2009 this Court must allow an appeal against conviction if the appellant satisfies the Court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. The relevant legal principles governing this ground of appeal were not in dispute.
2. To succeed, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on a particular charge or issue.[4] Another way of expressing that enquiry is to ask whether the jury must, as distinct from might, have entertained doubt about the applicant's guilt.[5] To conclude that it was not open to the jury to be satisfied of guilt beyond reasonable doubt, and thus to set a jury's verdict aside, is a 'serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial'.[6]
3. The High Court explained in Pell v The Queen[7] that an appellate court, generally speaking, does not 'duplicate the function of the jury in its assessment of the credibility of witnesses when that assessment is dependent on the evaluation of the witness in the witness box'[8] (or, we interpolate, in statutory substitutes for the witness box such as by the playing of video-recorded evidence). Importantly, the Court explained that the availability of video recordings of evidence does not disturb the principle that the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given remains the province of the jury.[9]
4. In an oft-cited passage, the Court in Pell held:

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 the present case the applicant relied upon this passage, and contended that, in view of various inconsistencies in KG's account, that occurred over a relatively short period of time, the jury, acting rationally, ought to have entertained a reasonable doubt as to the proof of guilt for Charge 1.

1. As is apparent from what has been set out above, the broad outline of events is not controversial. That is, it is not controversial that the applicant was in his truck on Main Road East in St Albans at around 11:40 pm on 14 December 2021. He had pulled his truck over to the side of the road, and he called out 'come here' to KG. KG came over to the truck, climbed in and shortly thereafter oral sexual activity occurred - that is, the applicant's penis was in KG's mouth. After the oral sexual activity had finished, KG left the truck and walked away. Almost immediately afterwards, KG approached two adults who were nearby, at the front of their house, and complained that she had been raped. She also complained to attending police.
2. What remains controversial is whether the jury could have been satisfied to the requisite standard as to whether KG consented to the oral penetration.[11] The only direct evidence concerning whether KG had consented was her evidence. She gave a consistent account that the oral sexual activity was not consensual. The applicant sought to impugn her credibility in that regard by pointing to inconsistencies in relation to other aspects of her evidence about the events of 14 December 2021.
3. The inconsistencies upon which the applicant relied fell into five categories, each of which will be examined in turn. But first it is relevant to make some observations concerning the nature of KG's interaction with the various witnesses on the evening of the events.
4. First, it is relevant to observe that KG was 13 years old, and had reported having been sexually assaulted by an unknown adult male, who had since left the area. By the time police arrived, it was after midnight. KG's initial interactions with police occurred before her parents had been notified, and in their absence.
5. KG initially encountered, and reported the matter to, people who happened to be at the front of their house on the street where the events had occurred. She did not know them to speak to, although she had seen them before.[12] She was seeking help and asked them to call the police. She told them she had been raped. Her initial account to JM was in the context of answers to questions posed by the triple zero operator. Those answers were largely directed to obtaining personal information about the caller, KG, and (to the extent possible), the alleged offender. No questions were asked about the specifics of the allegation. KG's conversation with JM after the triple zero call occurred while they were waiting for the police to arrive. It was a conversation, not a formal interview, and there is no reason to think that KG gave a comprehensive account of what had occurred, or was asked to give a comprehensive account. No notes were taken of this conversation.
6. The first responding police, Sergeant Downes and SC Wainwright, were uniform members. They arrived at JM's and AC's house after midnight. They obtained a relatively brief account of what KG said had occurred, and then called the local SOCIT unit to attend. They briefed the SOCIT unit and that was the end of their involvement in the matter. Based on their evidence, it does not appear that KG gave them, or was asked by them to give, a comprehensive account of what had occurred in the course of the offending.
7. Around half an hour later, members of SOCIT arrived (DSC Walton and DSC Beier). They conducted what they described as a 'disclosure interview'. DSC Walton explained a disclosure interview as follows:

the aim is to get a free narrative from the complainant as to what's occurred, um, in the best possible way. So, letting them talk, asking questions, open ended questions ...

1. DSC Walton gave evidence that she took the lead in questioning KG, but that she also took some notes. DSC Beier was present and her role was to take notes. After the disclosure interview, DSC Walton and DSC Beier took KG down the road to where she said the offending had occurred. They then took KG back to her parents which concluded their involvement in the investigation. That was because SOCIT deals with cases where the alleged offender is known to the complainant. In the present case, the applicant was not known to the complainant, thus the investigation handed over to the sexual crimes squad within Victoria Police.

1. We also note that, in this case, the Court resolved that it was unnecessary to view the VARE. In Pell the High Court said this about whether an appellate court ought to view a video-recording of evidence:

There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.[13]

1. In the present case there were several relevant parts of the VARE where the transcript recorded that KG demonstrated a particular matter. Most relevantly, the transcript of the VARE revels that KG demonstrated where she was 'grabbed', which is one of the inconsistencies upon which the applicant relied. DSC Beier had recorded that KG said she was 'grabbed' around the waist. However, neither party submitted that we needed to view the VARE. Relevantly for present purposes, the Crown conceded that in the VARE the applicant demonstrated being grabbed on the shoulder or upper arm (as reflected in the transcript), and not near the waist. Given that concession, we did not consider it necessary for us to view the VARE.
2. We now turn to what were said to be the inconsistencies in KG's evidence. We will first consider each alleged inconsistency individually, before turning to a cumulative assessment of them.

1. KG consistently maintained that the applicant had ejaculated in the course of the alleged offending. The applicant submitted that KG had given inconsistent accounts about where the applicant ejaculated.
2. As set out above, in her VARE KG said that the applicant had 'spermed'. When asked to explain what he meant by that, KG said this:

A [117] Oh, like, he cummed, but he didn't cum, like, on me, he cummed out of his way. Like, he pushed - - -

(DEMONSTRATES MOVEMENTS)

A - - - basically, like, he shoved my head out of the way, and then he just cummed.

1. Other witnesses gave evidence about what KG had said to them on the evening of the events concerning whether the applicant ejaculated.

(a) JM gave evidence that KG told her that the man had ejaculated in her mouth and on her left hand, and that KG did not want to touch her face because her hand 'had sperm on it'. She said that KG had said this to her before the police came. JM also gave evidence that she had told police that KG had wanted to spit but JM wouldn't let her.

(b) Sergeant Downes gave evidence that KG told him that the applicant had ejaculated in her mouth.

(c) SC Wainwright gave evidence that KG told her that the applicant had ejaculated in her mouth. She also gave evidence that she asked the complainant whether she had something in her mouth because of the way the complainant's voice sounded. She said that KG said that it was the applicant's sperm in her mouth. She then sought to try to preserve something as evidence, and so she had KG spit into a tamper proof evidence bag. SC Wainwright also gave evidence that KG had told her that KG had 'sperm' on one of her hands.

(d) DSC Beier gave evidence that in her notes she had recorded that KG said the applicant ejaculated, and KG didn't know 'where it went but maybe on my hand'.

(e) DSC Walton gave evidence that KG said that, after the oral penetration, the applicant pulled her face towards him and wanted her to masturbate him, and he then ejaculated and let her leave the vehicle. DSC Walton had no recollection (or notes) about being told about semen in the complainant's mouth or on her hand.

1. The applicant contended that the accounts KG gave to JM, Sergeant Downes, SC Wainwright, DSC Beier and DSC Walton were inconsistent with what she had said in her VARE.
2. We do not accept that the accounts KG gave to the different witnesses are necessarily inconsistent.
3. First, in relation to KG's statements to JM and DSC Beier that she had 'sperm' on her hand, that is not inconsistent with her evidence that the applicant ejaculated away from her head. It would have been open to the jury to conclude that, in such circumstances, it was possible that some ejaculate ended up on KG's hand.
4. The evidence in relation to whether the applicant ejaculated in KG's mouth is less clear. The account she gave in her VARE was to the effect that he did not 'cum ... on me', and that he had pushed her head away before he ejaculated. That account is, on its face, inconsistent with her account that he had ejaculated in her mouth. But KG's belief that she had semen in her mouth was not necessarily inconsistent with her account in the VARE of the applicant having ejaculated very shortly after 'shoving' her head out of the way. In that regard, we accept the respondent's submission that it would have been open to the jury to conclude that, although KG observed that the applicant ejaculated after he had pushed her head away, he had begun ejaculating before he did so, so that some of his ejaculate was in KG's mouth, as she said on the night in question.
5. However, even accepting that there was an inconsistency in KG's account concerning where the applicant ejaculated, we do not consider that this inconsistency was such as to require the jury to have had a doubt about KG's account. She consistently maintained that he had ejaculated; it was only the question of where the ejaculate had ended up that was the subject of a potential inconsistency in her accounts. There was no reason why the jury had to conclude that the ejaculate all ended up in one place. It is also necessary to bear in mind that where the applicant's ejaculate ended up was not directly relevant to an element of the offending. The physical element of penetration was admitted. The question of whether force was used arose at the commencement of the oral penetration, not at the end of it, or afterwards. And ejaculation was not an element of the offence.
6. Thus the only relevance of this inconsistency was the impact it might have had on KG's credibility. We do not consider that impact was such that it would have not have been open for the jury to be satisfied of the applicant's guilt beyond a reasonable doubt.

1. In his written submissions, the applicant submitted that there were inconsistencies in KG's description of how she was grabbed by the applicant:

a. in the VARE she says she was grabbed around the shoulder;

b. the complainant told witness [JM] that 'he told me to put his thing in my mouth' there was no mention of being grabbed by the man in the truck;

c. the complainant told police witnesses Wainwright and Walton that the applicant grabbed her by the head, whilst police witness Beier, who was taking notes for police witness Walton gave evidence that the complainant said she was grabbed around the waist by the applicant.[14]

1. It is clear that, in the VARE, KG describe the applicant grabbing her on three distinct occasions, involving three different areas of her body:

and when I got in the truck, he grabbed me and that's when he pulled me towards him, and I didn't know he was naked, so he took off his pants basically, and he grabbed my head and he pushed me towards his private part. And then - what I saw in the car was a bucket hat thing, glasses, yellow vest, a fish logo thing, which he might work at a fish place. And he was - after that, he - he - he spermed, his sperm came out, and he, like, grabbed my chin towards, like, my neck - - -

(a) the first 'grabbing' KG described in the VARE was immediately after she got into the truck. Later in the VARE she demonstrated this by showing a grabbing of her shoulder. She also said at this point that the applicant had grabbed her wig.

(b) The second 'grabbing' KG described in the VARE was after this: 'he grabbed my head and he pushed me towards his private part'. Later in the VARE she described him pushing her head down onto his private part.

(c) The third 'grabbing' KG described in the VARE was after the oral penetration had ceased, and she described the applicant grabbing her chin. Later in the VARE she demonstrated this by imitating grabbing her chin and throat.

1. In oral argument, the applicant accepted that KG's statement to SC Wainwright and DSC Walton that the applicant grabbed her by the head was referable to a second, distinct incident of 'grabbing', and did not rely on this as a relevant inconsistency. Rather, he relied upon the fact that the applicant told DSC Beier that the applicant had grabbed her around the waist, but stated by her demonstration in the VARE that she was grabbed on the shoulder (or perhaps the upper arm).
2. The fact that KG did not tell JM that the applicant had grabbed her is not an inconsistency. Rather, it is an omission. As noted above, there was nothing to suggest that KG had provided, or had intended to provide, a complete account to JM, who was a civilian witness KG approached shortly after the event in order to obtain help. Furthermore, precisely what KG said to JM is also unclear, given there were no notes taken and JM gave evidence some 16 months after the events in issue.
3. The only inconsistency in KG's accounts of how the applicant grabbed her concerned the first 'grabbing'. In her VARE she demonstrated this as being a grabbing of her shoulder (and she confirmed this in her answer to a question at the special hearing). In contrast, DSC Beier, who was taking notes for DSC Walton, gave evidence that in her account to them on the evening of the events, KG said she was grabbed 'around the waist' by the applicant.
4. Even if the jury considered there was an inconsistency between the complainant using the word 'waist' to police on the evening of the events, but gesturing towards her shoulder in the VARE, the inconsistency is not material. It does not contradict KG's account that the applicant used force to compel the oral penetration. At its highest, this inconsistency could have affected the jury's assessment of KG's credibility - but it was not such as to require the jury to conclude that she was not a credible witness. This matter was not capable of raising a reasonable doubt as to the applicant's guilt.

Evidence about any discussion between KG and the applicant about KG's age

1. The applicant submitted that there was an inconsistency concerning whether KG and the applicant had spoken about her age. He submitted that she 'did not disclose any discussion between her and the applicant regarding her age to any of the complaint witnesses that she spoke to on the night of the incident'. In contrast, she told the informant the next day that the applicant had said she looked 19, but she told him that she was 13. In her VARE, she did not mention a conversation about her age.
2. Again, this was not an inconsistency, it was an omission. However, as the respondent submitted, there was nothing in KG's account to any of the witnesses on the evening of the events to indicate that the sexual penetration was consensual, or that it took place in circumstances suggesting a reasonable belief in consent, so as to make the complainant's age appear relevant at that stage. It could not be suggested that, on the evening of 14 December 2021, KG herself ought to have appreciated the significance of this conversation so as to volunteer to police that it had occurred.
3. In the VARE, KG was not asked directly about the conversation where she told the applicant she was 13, and she did not mention it. She was asked some more open questions concerning her conversation with the applicant, as follows:

Q 313 Is there anything that you've left out, or anything - other conversation that you would like to tell me about - - -

A Um - - -

Q 314 - - - between you and this person?

A (NO AUDIBLE REPLY)

Q 315 So you've spoken from the start, he called out, asked you for a lift - if you wanted a lift.

A Could - he said that - oh, can I tell you, like, he didn't say anything else when we were out - when I was out, but can I tell you what he said inside the truck?

Q 316 Yeah.

A He just kept on saying, like, he was horny and stuff this whole day.

Q 317 And is this before he grabbed you or after?

A No, this - this was, like - this was, like - what do you call it - when he had me against the chair, when he was like this, he just kept on saying it. And, yeah, that's it, I didn't hear much of his voice.

1. Later in the VARE, KG was asked 'Was there any other conversation that you had with him at all' and she replied that they 'didn't have a conversation, but I think he tried to show me his [phone] number'.
2. Still later, the following exchange occurred:

Q 337 O.K., O.K ... is there anything else that you'd like to tell me in relation to this incident?

A Mm, no. But I have questions.

Q 338 Well, if they're about the investigation we can talk about that afterwards. In turn, this is the time that we - that you're telling me what happened on that night, so if there's anything that you may have left out on that night?

A No, I think that's all of it, yeah.

1. We accept that KG did not give evidence in her VARE about the conversation she had reported to the informant concerning her age. Again, this was not an issue that was relevant to the elements of charge 1. The only relevance of this difference in her accounts was the impact it might have had on KG's credibility. We do not consider that impact was such that it would have required the jury not to be satisfied of the applicant's guilt beyond a reasonable doubt.

Evidence about the sighting of the truck when KG was with JM and AC

1. The applicant submitted that there was an inconsistency between KG's account of when she, JM and AC later saw the applicant's truck drive past the house. KG had said, in her VARE, that JM had 'tried to get her phone to take a picture of the number plate' and that 'we all tried running down the street to see if we can get it'.
2. In contrast, in their evidence JM and AC contradicted that account.
3. In cross-examination JM said this:

Now, during the 000 call, a truck drove past your house?---Yes.

And [KG] said, 'that's the truck', didn't she?---Yes.

Now, at that time, you were inside your house, is that right?---Yes.

And the security door was still locked, yes?---Yes.

Now, it was not the case that you went running down the street trying to get a photograph of the truck, is it?---No, no.

... [KG] pointed a truck out as it passed your house; is that right?---Yes.

That's why [sic] your partner was on the phone to Triple 0; is that right?

---That's right.

You didn't - you just saw it go past. You didn't see anything else?---Yes, I saw it go past, didn't - yeah, I saw the truck go past our house and that's it. Didn't - didn't get the rego.

Didn't run down the road with a camera and tried to get a picture?---No.

1. We accept that KG's evidence that 'we all tried running down the street' is inconsistent with the evidence given by JM and AC at the first trial. Of course, the jury was not required to accept their version of events. But, assuming that the jury accepted JM's and AC's evidence that they had not 'tried to run' down the street after the truck, and that the jury disbelieved KG's evidence on that issue, this was not an inconsistency concerning the circumstances of the assault, or any of the elements of the offence. In particular, it did not have anything to do with the crucial issue at trial, namely whether KG had consented to the oral penetration. Rather, it was an inconsistency concerning a peripheral detail of later events. It was not such as to fatally undermine KG's credibility and it did not require the jury to have entertained a reasonable doubt about KG's lack of consent or about the applicant's guilt.

Inconsistency concerning KG's phone call to her father

1. The fifth, and final, inconsistency upon which the applicant relied was what was said to be an inconsistency between her account of a phone call with her father that evening, prior to the events in question, and other accounts of that call.
2. Relevantly, the applicant relied upon the following matters:

(a) KG said in her VARE that, after she got off the train, she had called her father from a phone box, and had been angry when he was not able to pick her up because he was too tired.

(b) KG told DSC Wainwright that she had spoken to her parents on her mobile phone and they were angry that she was not home already.

(c) KG's father's evidence was that he thought KG had called him from her mobile phone, and that she had asked him to pick her up but he said he couldn't because he was too tired. He said that they did not have an argument that night.

1. There is no significant inconsistency between these accounts. There was no dispute that KG had called her father. Given that there was CCTV evidence showing KG entering a phone box in the vicinity of the St Albans station and remaining there briefly before leaving, it was well open to the jury to accept her evidence that she used that phone to call her father. And while KG's father said that they did not argue, it does not follow that KG was not angry about his refusal to pick her up.
2. Any inconsistency concerning the phone call was so unimportant that it could not undermine KG's credibility and it did not require the jury to have entertained a reasonable doubt about KG's lack of consent or about the applicant's guilt.

1. KG's evidence was supported by evidence of immediate complaint. KG gave evidence and was cross-examined. The applicant's version of events was before the jury in the form of the record of interview. Self-evidently, the jury could only properly have convicted the applicant of the charge of rape if the main substance of KG's evidence was capable of being, and was, accepted beyond reasonable doubt, and if the applicant's account in the record of interview of consensual sexual activity did not engender a reasonable doubt in the jury's mind. Thus the jury could not have found the applicant guilty of any of the charges unless it accepted the critical parts of KG's evidence concerning her lack of consent. As a general proposition, the jury could accept the critical parts of KG's evidence without accepting other parts of her evidence.
2. Before turning to an assessment of KG's evidence, it is important to observe that under s 54D(1) of the Jury Directions Act 2015 the judge was required to give, and gave, the jury directions concerning differences in a complainant's account. The judge gave extensive directions about the various inconsistencies alleged by the applicant at trial. Consistently with s 54D(2)(b), he directed the jury that:

if you consider that there have been differences in the accounts given by [KG] ... you can use the differences in assessing [KG's] credibility and her reliability, so honesty and accuracy, and you can look at those differences and you can decide for yourselves whether she has given credible evidence, that is honest evidence, and whether she has given reliable evidence, that is accurate evidence.

1. Consistently with s 54D(2)(c), his Honour directed the jury that:

When you are assessing the evidence, you must bear in mind that experience, that is the experience of the court, shows that, first, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Second, trauma may affect people differently, including by affecting how they recall events. Third, it is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts, and both truthful and untruthful accounts of a sexual offence may contain differences.

1. While s 54D in terms concerns directions to be given to the jury, the matters identified in that section must equally be borne in mind by this Court when considering whether a jury verdict is unreasonable and cannot be supported having regard to the evidence.[15]
2. It is also relevant to bear in mind that KG was a 13 year old child at the time of the events and when she was describing them to other people and in her VARE. In that regard, the judge directed the jury in accordance with s 44N of the Jury Directions Act. That section provides that if a trial judge considers the reliability or credibility of a child witness is likely to be in issue then the judge must give the directions set out in s 44N(4). In summary, those directions are that (a) children can accurately remember and report past events, (b) children are developing language and cognitive skills and this may affect the completeness of their account and how they respond to questions, (c) depending on a child's level of development, they may have difficulty understanding certain language or concepts, may not request a question to be clarified, and may not clarify that their answer to a question has been misunderstood. The judge gave such directions twice - before evidence and during the judge's charge.
3. Significantly, KG gave generally consistent accounts of the events of 14 December 2021 to the various people she spoke with. She remained resolute about the essential features of the offending, including the physical act and the events that occurred both before and after the oral penetration. In particular, her account of the following matters was consistent over time:

(a) the applicant was in his truck, parked on the side of the road and he had called out to her 'come here';[16]

(b) he had offered her a ride home;[17]

(c) she had voluntarily got into the truck;[18]

(d) the applicant had grabbed her immediately upon entering the truck;[19]

(e) the applicant had removed his pants and forced her head down onto his penis;[20]

(f) the applicant had ejaculated;[21]

(g) the applicant had kissed her neck and licked her;[22]

(h) the applicant had threatened her with violence if she told anyone what had occurred;[23] and

(i) she had been able to leave the truck voluntarily.[24]

1. Moreover, there was nothing in the cross-examination of KG that detracted in any significant way from her essential account.
2. It is also relevant to observe that various details in KG's account were consistent with details in the account given by the applicant in his ROI, in particular that:

(a) he had called out to her 'come here' from his truck;

(b) oral sexual activity had occurred; and

(c) he had 'maybe' kissed her neck.

1. As to consent, KG's evidence in her VARE contained a clear narrative with respect to the act of penetration founding the charges of rape. Importantly, she made it clear in her evidence that, not only was she not consenting to sexual penetration, but that the applicant had forced her mouth down onto his penis, and that she had tried unsuccessfully to push away from him.[25]
2. While KG's accounts to the different people with whom she spoke included some inconsistencies about some of the details, and some omissions, those accounts are generally consistent as to the critical aspects of the offending. The inconsistencies and omissions relied on, taken together, were not such as to require the jury to conclude that her evidence as a whole was unreliable or that she lacked credibility in some general sense. It is unsurprising that a 13 year old child might recount some aspects of an event accurately and not others. That is so even though the accounts were all given reasonably close in time to the events in issue.
3. As already noted, the jury was entitled to accept parts of KG's evidence and reject other parts.[26] Even if the jury had rejected, or was required to reject, KG's evidence about where the applicant ejaculated, where on her body he had first grabbed her, what she had said about her age, the details of her phone call to her father, and the later sighting of the truck, it does not follow that the jury was bound to reject her clear account of the applicant forcibly penetrating her mouth with his penis after she had entered the truck, and her evidence that she had not consented to that penetration. It was open to the jury to reject the applicant's account, in his ROI, that KG had initiated the oral sexual activity; and to accept in reliance on KG's evidence that, when his penis was in KG's mouth, she was not consenting and he did not have a reasonable belief that she was.
4. Bearing in mind ss 36 and 36AA of the Crimes Act 1958 - that consent means 'free and voluntary agreement' - and that the circumstances in which a person does not consent to an act include where 'the person does not say or do anything to indicate consent to the act' or where 'the person submits to the act because of force', KG's evidence about the commencement of the oral sexual activity, if accepted, was plainly capable of proving beyond a reasonable doubt that she had not consented to the applicant penetrating her mouth with his penis.
5. Her evidence, if accepted, was also capable of demonstrating that any belief the applicant might have had about her consent was not reasonable within the meaning of s 36A of the Crimes Act. That is because, on her account, the applicant had forcibly penetrated her mouth with his penis, without having said or done anything to find out whether KG consented to that penetration.
6. For the reasons we have given, there is no reason why the jury was required not to accept the credibility or reliability of the critical parts of KG's evidence.

1. For these reasons, we would refuse the application for an extension of time.

[1] Contrary to s to s 38(1) of the Crimes Act 1958. The applicant had also been charged with an alternative offence, namely sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958, because KG was 13 at the time of the offending.

[2] [2017] VSCA 302.

[3] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA); citing Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [60] (Priest JA); [2013] VSCA 83.

[4] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329-30 [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 ('Baden-Clay').

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

[6] Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.

[7] (2020) 268 CLR 123; [2020] HCA 12 ('Pell').

[8] Pell (2020) 268 CLR 123, 144-5 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[9] Pell (2020) 268 CLR 123, 144-5 [35]-[38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[10] Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (citation omitted).

[11] While at trial the applicant put in issue whether the prosecution had proved that he lacked a reasonable belief that KG was consenting, that was not a matter that was in dispute on the appeal. Rather, the appeal turned on whether the jury must have had a doubt about KG's evidence concerning whether she had consented - a matter which did not bear upon the applicant's belief as to consent.

[12] GK said she had seen JN and AC before and said that, at some (unspecified) time, she had attended the same school as their son. However said she would not 'say hello' to them on the street.

[13] Pell (2020) 268 CLR 123, 144 [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12. We consider that the Court's reasoning applies equally to evidence recorded as a VARE under s 367 of the Criminal Procedure Act as it does to evidence recorded at a trial.

[15] Pell (2020) 268 CLR 123, 159 [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 [91]; Cavanaugh v The Queen [2021] VSCA 347, [261]-[262] (Walker JA, Maxwell P agreeing at [6]).

[16] The applicant gave an account to this effect to the informant the following morning and she said this in the VARE.

[17] The applicant gave an account to this effect to AC immediately after the event, to DSC Wainwright that same evening, to the informant the following morning and in the VARE.

[18] The applicant gave an account to this effect to AC immediately after the event, to DSC Walton that same evening, to the informant the following morning and in the VARE**.**

[19] The applicant gave an account to this effect to JM in the course of the triple zero call, AC immediately after the event, to DSC Wainwright that same evening, to DSC Beier that same evening, to the informant the following morning and in the VARE.

[20] The applicant gave an account to this effect to JM shortly after the event, to DSC Wainwright that same evening, to Sgt Downes that same evening and in the VARE.

[21] The applicant gave an account to this effect to JM shortly after the event, to DSC Wainwright that same evening, to Sgt Downes that same evening, to DSC Beier that same evening and in the VARE.

[22] The applicant gave an account to this effect to JM shortly after the event, to DSC Wainwright that same evening, to DSC Beier that same evening and in the VARE.

[23] The applicant gave an account to this effect to AC immediately after the event, to JM shortly after the event, to DSC Wainwright that same evening, to DSC Walton that same evening, and in the VARE.

[24] The applicant gave an account to this effect to DSC Wainwright that same evening, to DSC Walton that same evening, to the informant the following morning and in the VARE.

[25] See above, paragraphs [17], [19] and [20] of these reasons.

[26] Palliyaguruge v The Queen [2022] VSCA 159, [74] (Beach and McLeish JJA).