1. The applicant contends that each of the convictions depends on PG's evidence, which was demonstrably unreliable. In respect of charge 1, the applicant contends as well that PG's account of digital penetration was inherently improbable, if not impossible. In respect of charge 2, the applicant contends that the evidence did not foreclose the reasonable possibility that lingual penetration had been accompanied by consent or a reasonable belief in consent, as he had described. In respect of charge 3, the applicant contends that the circumstantial case supporting penile penetration did not exclude an inference consistent with innocence that was reasonably open - namely, that the applicant had not penetrated PG with his penis but had transferred her DNA to his penis from his hand while urinating.

1. For the reasons that follow, leave to appeal will be granted but the appeal will be dismissed.

1 Criminal Procedure Act 2009 s 276(1)(a).

1. Before turning to the evidence of the applicant and PG as to each of the charges, it is convenient to set out an overview of the factual background.

10 The alleged offending occurred on the morning of 16 December 2018. Just before

1:00 am the applicant and PG separately arrived at the Orange Whip nightclub in Ringwood. They did not know each other. At the time, PG was 19 years old; the applicant was 26 years old.

1. PG was heavily intoxicated; the applicant was not. PG had attended a friend's birthday celebrations earlier in the evening, across several venues. Over the course of the evening, PG had consumed a 'big cup' that was half-filled with vodka, around six to eight 'vodka and raspberries', and a shot of tequila. She had also had consensual sexual intercourse with a different man at one of the venues.

1. Before she arrived at the club, she was 'feeling very sick', 'tipsy' and 'drunk'. She had vomited once that evening and had been refused re-entry to a different bar because she was intoxicated.

1. After arriving at the club, another patron, Bakhshish Singh, ordered her a 'bucket' containing an alcoholic beverage called a 'Fruit Tingle'. She drank some of it. She also drank at least two more 'vodka and raspberries' in quick succession. Half an hour after arriving at the club, she felt 'very drunk'. Mr Singh described PG as so intoxicated that

'she wasn't able to stand properly on the dance floor'.

1. At around 2:00 am, the club's head of security, Amir Sultan, approached PG to check on her. He asked her whether she was all right or needed any help. He offered her water and observed her to be 'slightly drunk' and 'wobbly'.

1. Urine and blood specimens collected from PG later in the morning showed a blood alcohol content of 0.0440 per cent, which indicated a blood alcohol content of between

0.131 per cent and 0.218 per cent at around 2:30 am. The urine specimen also showed the presence of other substances, including methylenedioxy-methamphetamine ('MDMA'), that PG had unknowingly consumed.

1. In contrast, the applicant had consumed only two drinks - a scotch and soda earlier in the evening, and a vodka and Red Bull at the club.

1. Shortly after 2:30 am, the applicant and PG left the club together. Mr Singh described the applicant as 'forcefully pulling' PG toward the exit. Security footage showed the two of them leaving the club, trailed by Mr Sultan. The applicant had his arm around PG's shoulder. PG was visibly unsteady on her feet.

18 They departed together in the applicant's car, which was parked at the front of the club.

PG entered through the front passenger door. At around this time, PG and Mr Singh spoke by phone. She told him that she was in an 'Uber going home'.

1. As mentioned, it is uncontentious that at least some sexual activity occurred in the car, with the applicant performing oral sex on PG. Ultimately, the applicant drove PG to his home in Endeavour Hills. By this stage, she had given him her home address in

Clematis, but he drove her to his home instead. The two of them entered his home and went into his bedroom, via the kitchen. A short time later, they left the bedroom.

1. PG then asked the applicant for her phone, and he gave it to her. She phoned a friend, Lachlan Wray. She told him that she thought she was at 'the Uber driver's house' and had been raped. She said that the 'Uber driver' had 'tried to put his fingers in me'.

1. Afterwards, the applicant drove PG home. They arrived at around 4:00 am. PG's mother was there. PG appeared to her mother to be upset and dishevelled. PG kept repeating the words 'just an Uber'. PG's mother asked her if she had been raped. PG responded that 'he put his fingers inside me'. PG looked at her mobile phone to try and identify the 'Uber driver' who had delivered her home.

1. Police were called. They arrived at PG's home at around 4:50 am. One of the attending officers was Leading Senior Constable Christie Martin. PG appeared to her to be coherent and neither drug affected nor intoxicated 'to any extreme'. Still, she appeared

'in shock' and 'struggling to comprehend' what had just happened. PG reported to police that she had exited the club and entered the backseat of what she thought was her Uber. The driver, she said, had reached from the driver's seat to touch her between the legs, requested sex, and then took her, despite her requests to be taken home, to what she thought was his home. There, he led her into the house, pushed her onto a bed in a

bedroom, and put her on all fours. At that point she 'froze' and was unable to remember

1. Police attended the applicant's home early that morning. One of the attending officers, Sergeant Denai Fitzpatrick, told the applicant that they were investigating an alleged sexual assault. She recorded that he said 'I know' before saying:

I met a girl at Orange Whip and actually she came with me. I didn't touch her. At my house, she kept crying and was upset and I kept saying I would take her home. She was vomiting also.

1. The applicant was arrested and interviewed by police that morning. In the interview, he said that he attended the club with a male friend at around midnight, danced alone and did not speak to anyone else at the club, and left shortly before the club closed at

5:00 am. During the record of interview, he accepted that Sergeant Fitzpatrick had accurately recorded what he said when she arrived at his house, although he later said that he could not recall precisely what he had said to her.2

25 That morning, PG was medically examined by Dr Georgios Manolis. He recorded that

PG told him that the applicant had performed oral sex on her, and that:

1. His evidence was ultimately that what was recorded was largely accurate, except for the words 'at my house'. He denied that PG was crying and upset while at his house, as opposed to in his car. He said that his statement in the record of interview that he did not speak to anyone else at the club was based on a misunderstanding of the question, and that he had asked PG if she wanted a drink and also spoke with her when he agreed to leave with her.

He put his fingers inside me in the car and house. When we got to his house, he penetrated me with his penis. No condom used. I don't remember much.

1. PG told Dr Manolis that the applicant penetrated only her vagina with his penis. She said she was unsure whether the applicant had ejaculated.

1. Dr Manolis observed redness affecting PG's vulval region, and two small 'split lacerations' measuring 5 and 3 millimetres in the lower vulval region. Dr Manolis took a number of forensic swabs, for the purposes of DNA testing, including vulval and endocervical swabs.

28 Forensic swabs were taken from fingernails from the applicant's right and left hands.

They were also taken from his penis - the shaft of the penis, the glans penis (the head of the penis) and the coronal sulcus (the area below the head of the penis).

1. Analysis of the swabs very strongly supported PG being a contributor to the DNA profile of the swabs from the applicant's right-hand fingernail and penis shaft. On the other hand, PG was excluded as a contributor to the DNA profile of the swabs from the left-hand fingernail, the glans penis and the coronal sulcus.

1. Analysis of the swabs obtained from PG indicated that the applicant was likely to be the sole contributor to the DNA profile obtained from the vulval swab; and that he was likely to be the major contributor (of two male contributors) to the DNA profile obtained from the endocervical swab.

1. As may be seen, the broad outline of events is not controversial. That is, it is not controversial that the applicant, who was sober, escorted the heavily intoxicated PG, whom he had just met, from the club. They left in his car, where at least some sexual activity took place. He later drove her to his house rather than to hers. They entered the house, proceeded through the kitchen, and remained in his bedroom for a short period. Almost immediately afterwards, PG complained to a friend that she thought she had been raped. The applicant drove her home, where she complained to her mother and then to attending police. Her DNA was indicated on the shaft of the applicant's penis (but not elsewhere on his penis) and on his right fingernail (but not his left). His DNA was indicated in the region of her vulva and cervix.

1. What remains controversial is whether the jury could have been satisfied to the requisite standard as to what happened in the car (charges 1 and 2) and in the bedroom (charge 3)

• that is, whether they could have been satisfied that:

(a) the digital penetration the subject of charge 1 and the penile-vaginal penetration the subject of charge 3 occurred at all; and

(b) the lingual penetration the subject of charge 2 was unaccompanied by consent or

a reasonable belief on the applicant's part that PG consented.

1. Against that background, it is now convenient to address in more detail the evidence as to what happened in the car, and in the bedroom.

1. In respect of charge 1, PG's evidence was that she had decided to leave the club to go home. She could not recall if she was with anyone when she left the club. Once she was outside the club:

a car, um, pulled up and I remember a man saying, um, like, 'I'm your Uber' or

'I can take you home' and then that - that thought, like, it came into my mind that I must have ordered an Uber, I thought I must have already ordered one, because that's what I thought.

1. She said that she got into the back seat of the car, and sat in the rear right passenger seat behind the driver, whom she had not met before. She gave him her address, and put her purse and phone on the 'middle console'. The driver took the phone and purse from there and moved them somewhere else. She put her feet up on the backseat, and

'relax[ed] back' with her 'head resting against the door' as she was 'quite dizzy and drunk' and 'in and out of ... consciousness'. She continued:

Um, at one stage he started reaching back, the driver started reaching back with his left hand to like start touching my legs.

Before this happened, was there any conversation?---Not that I know of.

And with his hands, what was he doing?---He was - at first he was just touching my leg. And then he started moving his hand closer toward like my underwear.

Yes, and then what happened?---Um, he, I believe he moved eventually moved my underwear aside and started touching me.

And how was he touching you in the vagina? --- Um, he was, at first it was just on the outside like on the clit and then eventually he started forcefully putting his fingers inside.

And we have to be specific, sorry about this, but when you say inside, what do you mean by inside?---Ah, inside the, I can't remember the name of it. Ah, inside the vagina. Um. I can't remember the name of it.

And when you say inside, are you able to say how far inside the vagina?---As far as his fingers could reach.

All right now you've given evidence of his fingers being inside your vagina. Are you able to say how long that was for?---I can't say. It would have been

36 PG said that the applicant's digital penetration of her was 'quite forceful' and 'it hurt'.

PG said that after this occurred, the applicant then 'pulled over onto the side of the road and ... got into the back seat' with her.

1. In cross-examination, it was put to PG that the CCTV footage from the club showed her leaving the club with the applicant rather than alone and entering the front (rather than the back) seat of his car. She accepted this was a 'mystery' to her. She maintained that she recalled sitting in the rear right passenger seat behind the driver. She said that the driver reached behind 'with his left hand as he steered the car' while driving, and that this happened 'after she got into the car'. However, she said that

I - I - I - I had no - I have no memory of time. I don't know any times really. So, it was - it wasn't straight away, but it was - he was driving, so, I just don't know when exactly it was.

1. It was then put to her that if she had been, as the CCTV indicated, seated in the front passenger seat of the car, her account would be wrong. She responded:

No, I know it definitely happened, so I didn't - I thought I got in the back seat. Maybe I - that's what I remember. Maybe I moved to the back seat. I know him reaching behind definitely happened.

1. Later, it was again put to her that her account was impossible if she was seated in the front passenger seat:

[B]ut you agree that if you're sitting in the front passenger seat, it's going to be impossible for someone to reach into the backseat with their hand and put their finger in your vagina. Correct?---Yes. Well I could've easily - I must've moved to the back or he pulled over and I moved into the back. I was in the backseat.

Yes, or you just don't remember? Is that a possibility, you just don't remember?-

--I don't remember getting into the front seat, that's all I don't remember.

Sure. All right. See, what I suppose I'm ultimately suggesting to you ... is that you've convinced yourself that a certain thing happened that just didn't happen. You've just got a faulty memory about it. It didn't happen at all?---It's just one little part.

And so we're at a situation ... where if you have a recollection of shortly after this person picked you up in what you took to be an Uber, the person reaching behind and putting his fingers in your vagina, that is a memory that you have but it is a false memory, isn't that right?---You can't say it's a false memory ... Me getting in the front seat doesn't exclude the fact that I could have moved to the back seat.

1. Counsel for the applicant accepted that the final sentence could be read in one of two ways. On one reading, the words 'no less than' reinforce the previous phrase 'more than', and confirm that the penetration lasted more than five minutes. On another, the words 'no less than' correct the previous phrase 'more than', meaning that the penetration lasted less than five minutes.

Yes, but it's not the way you reported it to the police, is it?---I don't remember. I can't help that I don't remember that little part.

1. The applicant also gave evidence. He said that he had met PG on a dancefloor in the club at around 2:00 to 2:15 am. They danced together and 'hugged' for around five to ten minutes but did not speak with each other. He then offered to buy her a drink. While at the bar purchasing the drink, the applicant saw PG conversing with Mr Sultan, the security guard. By the time the applicant returned to her, the conversation had ended. PG now told the applicant that she wished to 'go out'. He said 'Yes, we'll go out'. Before this, he said that he had spoken only two phrases to her: 'shall I buy you a drink?' and 'is it all good?' Just after 2:30 am, around fifteen to twenty minutes after first meeting, they exited the club holding hands.

1. On leaving, PG said to a security guard 'I'm going but I'll be back.' At this stage, the applicant didn't think that PG was 'that much drunk ... she didn't have any trouble to walk'. After they entered the car - she in the passenger seat and he in the driver's seat

• he asked 'Where shall we go? Shall we go to a park?' PG answered 'Yeah, fine'. He said that he did not leave the club with the intention of having sex with her, but instead:

I wanted to have a quiet time with her, to have a chat with her, to get to know with her because straightaway I didn't want to have sex with her.

1. He drove to Ringwood Lake Park, which was nearby. The drive to the park took around five minutes. They drove in silence. He denied that he reached around and put his left hand on her inner thigh and digitally penetrated her vagina during the drive. He also denied that at any point during the drive PG was lying on the backseat with her head on the driver's side door and her legs towards the left passenger seat. However, he accepted that she assumed this position once they arrived at the park.

1. The applicant said that when they arrived at the park they started 'kissing and hugging' in the front seats for about five or six minutes. Then, 'without saying anything' PG went to the back seat of the car, and laid down with her head to the back driver's side window.

1. In respect of charge 2, PG's evidence was that, after the applicant 'pulled over onto the side of the road', he:

came through the left rear door and he um got in and he um, kind of -

I remember, he's like spread my legs and then he started giving oral sex.

Well could you just describe please what you mean by oral sex?---Oh, he started um putting his mouth and tongue on my um, ah, the outside of my vagina like the clit and stuff.

All right. Did his tongue stay on the outside?---Ah, it went inside I believe as well.

And are you able to say how far inside?---Um, as, I can't really say. It'd be as far as he could reach.

All right and emotionally how were you during this period?---Um, I don't remember much of it. I remember being a bit scared, but I was still feeling so drunk that I wasn't really taking in what was happening.

1. The applicant's evidence was that after PG went from the front passenger seat to the back seat of the car, and laid down with her head to the back driver's seat window, he also came to the back seat:

when I come around I can directly see her so she spreaded her legs, she opened her legs, ah, I could, at that time I saw, her underwear so after that, um, it indicated to me that, um, she's willing to do oral sex. She want me to do oral sex so ah, I did oral sex to her.

All right. Did she say anything? Did she ask you to give oral sex?---No she didn't. No she didn't. But she spreaded her legs. She fully spreaded her legs. Then - - -

Did she have her underwear on [at] that stage?---yeah, yeah.

What happened with her underwear?---Ah, I took it side. I sided it.

You didn't take it down. You just took the underwear to the side, is that correct?

All right, and go on, tell the ladies and gentlemen what happened?---I sided it and I licked her vagina then after that, ah, when I was doing that, her body started shivering, I think she (indistinct). Then it went for like say four minutes and what she said was, she asked me to fuck her. She said it two times and when I was preparing to do that, suddenly she started vomiting. She started vomiting and I don't know for sure the vomit is in the car. She managed to put her head out from the car, from the left side passenger seat. Then, I stopped, I what I was going to do and I when she vomit, like, it was not, I felt that it was not same as a drunk person vomiting because she was like suffering. The sound is very different ...

1. The applicant said that the oral sex lasted around five or ten minutes. He thought that while he was giving her oral sex, 'she was okay', but afterwards, she was not - she was 'falling asleep'.

1. PG gave evidence that she asked the applicant 'multiple times' if he was taking her home, and every time he would say 'I want to go back to my house for a quick fuck'.
2. She recalled vomiting out the window of his car, although she was unsure whether this was on the way to his house, or on the journey from his house to hers. She recalled arriving at his house and the applicant:

pulling me out of the car and he was taking me to his front door but I remember him having to hold me up because I was quite stumbly, I couldn't really stay on my feet so he was kind of holding me up with his arm kind of dragging me away.

And how were you feeling at this time?---Very drunk and scared.

Where did you go with him?---He took me to the front door and opened the front door and he took me into the first room I think on the left of the house.

And did he say anything to you at that time?---I believe he said something about asking me to be quiet because um I think he said there may have been someone else in the house.

And inside the house where did you go to?---So, it was a bedroom on the left of the house and, yeah, that was the only room we went into except for like the entrance hallway.

What happened in the bedroom?---So he was behind me and he kinda pushed me onto the, like guided me onto the bed and I was on like my hands and knees.

And what then happened?---I, I remember hearing him behind me so I looked behind and I saw that he was starting to undress so then I eventually rolled onto my back and um looked at him and he was naked.

All right and from where you were on the bed, how far away was he?---Um, he was like half a metre.

And on the bed, which direction were your legs facing at that time?---I was, so the bed was on the left of the room. I was, so I wasn't sitting on a bed like how you'd sleep on one, I was on the side and my legs were facing him when I was on my back and I had like, I was laying kind of across the bed.

And you've said that he was about half a metre from you? ---Yeah.

Apart from being naked at this time, was he doing anything else?---The last thing I remember was he was fully naked and he was just looking down at me.

1. PG said that while there were aspects of her time in the bedroom she could not remember, she had a distinct memory of the applicant standing over her naked and

1. After that, she recalled nothing more of her time in the bedroom. Her next memory was of being outside the applicant's house, and calling Mr Wray and telling him that she thought she had been raped by her 'Uber driver'. She clarified that this referred to what had just occurred in the house:

What were you meaning when you said the words, 'I thought I was raped'. About what incident?---I was um talking about the incident that just happened

'cause I didn't know - I had no memory of what had just happened. So that's what I was - I was referring to what happened in the house.

1. The applicant gave evidence that after PG's vomiting brought the oral sex in the backseat of the car to an end, he asked her 'What do you want to do? Do you want to go back to the club?' She responded 'Take [me] wherever you want'. It was around

3:00 am. The applicant decided to drop her home, and asked for her address, which she provided. He began driving in that direction, travelling on the Eastlink freeway. PG remained in the back seat, and vomited three or four times out of the back left passenger window. She was sobbing. She asked for water. The applicant then decided to take her to his house to give her some water. When they arrived at the house, PG seemed 'sick' and had trouble walking. The applicant guided her into the house. They entered the kitchen, and he showed her to his room. The applicant poured a glass of water and followed her into the room. He continued:

Um, when I went to my room, ah, actually I got surprised by what I saw. She was on all her fours in doggy type position, half naked - - -

When you say half naked what part of her was naked?---Um, her skirt and underwear. She has removed it.

All right, ... did you see where she put her skirt and underwear?---yeah, both of them were on the bed, on the mattress and she looked round me and she's asked me to fuck her for the third time.

Are you able to use the words that she used. What did she say to you?---She just told me fuck her.

And at that stage what you say is she's on all fours, is that right?---Yes, yes.

All right. What did you do? What did you say?---I said nothing. I said nothing and I um obviously I didn't want to have sex with her because I already know the status of - the state of her. She is sick and I - I stepped out from there. I didn't go out from the room, I stepped out from because when she - when she said, 'Fuck me', I was right behind her and ah I said - when she asked me to fuck her, I said nothing and I walked from there to the other area to other side of the room so ah she understood that ah I'm not going to do that.

Yes?---So she looked at me again, she looked at me actually in a very ah disappointing nature and ah - yeah, disappointing nature and she said me,

1. The applicant said he then left the room and returned to the kitchen. PG dressed and came out of the room. They headed toward the car and she asked to make a private call.

The applicant gave PG her phone and purse which were in a console near the front passenger seat. After a few minutes, while PG was still on the phone, the applicant asked 'Shall we go?' PG said 'Yes, we'll go' and hung up. He drove her home, which took around 20 minutes. She slept most of the way. The applicant returned to the club to pick up his housemate. The two of them returned home. Before going to sleep, the applicant urinated.

1. In general, the applicant submitted that the convictions were unreasonable because each conviction centrally depended on the testimony of PG, which was demonstrably unreliable. At the time the events occurred she was impaired by alcohol and drug intoxication. Her memory of events was - as she accepted - patchy and incomplete. Further, her evidence was in many cases falsified by objective evidence. For example:

(a) she said she had not met the applicant before entering his vehicle, when she had interacted with him before and while leaving the club;

(b) she said she was 'alone' when leaving the club when CCTV footage captured

(c) she said she entered the applicant's car by the rear passenger door, when CCTV

footage showed that she entered by the front passenger door; and

(d) she thought - and said to others on the night in question - that the applicant was an Uber driver when in fact he was not.

1. The respondent contended that the errors identified were either not really errors or were at any rate not so significant as to undermine the reliability of PG's evidence. In terms of the matters above, the respondent submitted that:

(a) the fact that PG did not recall meeting the applicant before leaving the club was not significant given that, on any view, she had interacted with him only very briefly (and largely non-verbally) before they departed;

(b) the fact that PG said she was 'alone' before leaving the club was never falsified.

PG did not say that she left the club alone, simply that she was alone when she decided to leave, and couldn't remember whether she ultimately left with anyone;

(c) the fact that PG misremembered entering the applicant's car by the back passenger door rather than the front passenger door was not significant given that, even on the applicant's evidence, she ended up in the back seat lying in the manner she described very shortly after leaving the club, and remained there for the drive to his house.

1. Further, the respondent contended that PG's evidence was corroborated in key respects, including by the applicant. He accepted, for example, that PG had been crying and vomiting during their time together, and that he had moved her mobile phone and purse from the centre console of his car. He accepted, critically, that lingual penetration had

occurred in the backseat of his car, and that PG had ended up on his bed on her hands and knees. Further, the evidence of other eyewitnesses, such as Mr Sultan and Mr Singh, supported aspects of her account. And, while the CCTV footage falsified her account of entering the backseat of an unknown driver's car, it also supported the prosecution case in other ways: it showed the applicant guiding PG out of the club and touching her with some intimacy while she was visibly unsteady on her feet, which informed the jury's assessment of the applicant's knowledge of her intoxication and his intentions.

57 The applicant submitted that PG's account of digital penetration was all but impossible.

Her evidence was that digital penetration occurred while she was seated behind the driver who, while driving, reached behind with his left hand and digitally penetrated her vagina for around five minutes. It was said that this account was contradicted by the CCTV footage which placed PG initially in the front rather than the rear passenger seat. In any event, even if she had moved to the rear passenger seat, the notion of the applicant simultaneously driving the car while reaching behind and digitally penetrating PG over a number of minutes was said to defy biomechanics and human experience. Further doubt was cast on PG's account by virtue of the fact that the first complaint, made to Mr Wray, was that the applicant had 'tried' to penetrate her with his fingers.

1. The respondent accepted that details of PG's account were misremembered: PG accepted as much under cross-examination. Allowing for the possibility of certain misremembered details, or for some slippage in her chronology, it was said, eliminated the improbability identified by the applicant. If, for example, the digital penetration occurred once the car was stationary and PG had relocated to the rear seat (which the applicant accepted occurred minutes after departing the club) PG's account was neither biomechanically unlikely nor called into question by the CCTV footage. In any event, the fact that certain details of PG's account were imperfectly remembered did not detract from the essential feature of her account, about which she remained resolute under sustained challenge: that is, that the applicant digitally penetrated her in the car. This part of her account was also supported by the complaint evidence: PG had complained that morning that she had been digitally penetrated to Mr Wray, her mother, and Dr Manolis.

1. The applicant submitted that the evidence failed to exclude the reasonable possibility that his account of his lingual penetration of PG, in which there was consent or a reasonable belief in consent, was true. For the purposes of this submission, the applicant relied on PG's heavy intoxication and impaired memory. It was said that the fact that her evidence was affected by lapses in memory left open the possibility that his evidence to the contrary was accurate.

1. The respondent submitted that PG's intoxication cut both ways. Her heavy intoxication might have affected the clarity and completeness of her account, but it also made it much less likely that there was either consent or a reasonable belief in consent. The respondent contended that, given that on both PG's and the applicant's evidence the sexual act in issue occurred, it was then open to the jury to conclude that it was unaccompanied by either consent or a reasonable belief in consent.

1. The applicant submitted that there was no direct evidence to support this charge, and the circumstantial evidence was insufficient to exclude a reasonable hypothesis consistent with innocence. The hypothesis in question was that the penile penetration the subject of this charge had never occurred. Instead, the applicant had transferred PG's DNA to the shaft of his penis from his hand when he urinated in the morning. In this regard, the applicant pointed, in particular, to the fact that PG's initial complaints to Mr Wray and her mother referred only to digital penetration.

1. The respondent contended that the circumstantial case excluded any reasonable hypothesis consistent with innocence. The case rested on evidence including:

(a) PG's evidence that she asked the applicant 'multiple times' if he was taking her

home, to which he said 'I want to go back to my house for a quick fuck';

(b) the uncontested evidence that the applicant had PG's home address but did not drive her there directly, driving her to his home first;

(c) the uncontested evidence that at some point during the drive, PG was vomiting and in distress;

(d) the uncontested evidence that once at his home, the applicant and PG progressed through the kitchen, and entered the bedroom;

(e) PG's evidence that once in the bedroom, she was pushed or guided by the applicant onto his bed, onto her hands and knees, and saw that he had undressed and stood above her fully naked;

(f) the DNA evidence that very strongly supported PG being a contributor to the DNA profile taken from the shaft of the applicant's penis, and which indicated that the applicant was the sole contributor to the DNA profile obtained from PG's vulval swab and the major contributor to the DNA profile obtained from PG's endocervical swab. In this regard, it was said that the absence of evidence of PG's DNA on other parts of the applicant's penis was inconclusive; and

(g) PG's immediate complaint of rape to Mr Wray while still at the applicant's house

and immediately following her time in the applicant's bedroom.

63 The proposed ground of appeal is based on s 276(1)(a) of the Criminal Procedure Act

2009, which provides that the Court must allow an appeal if it is satisfied that a verdict

of the jury is 'unreasonable or cannot be supported having regard to the evidence'.

1. This requires the Court to ask itself whether it thinks 'upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.4

(a) give full weight to the principle that the jury is the body entrusted with the responsibility of determining the guilt or innocence of the accused, and has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form;5

(b) undertake an independent assessment of the whole of the evidence, as to its sufficiency and its quality;6

(c) assume, in a case of this type, that the complainant's evidence was assessed by the jury to be credible and reliable, but nonetheless examine the record to see whether 'either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence' the jury, acting rationally, ought nonetheless have entertained a reasonable doubt.7

1. Where, as is the case with charge 3, a conviction rests on a circumstantial case, the Court must assess that case as whole, and not in a piecemeal fashion.8 The assessment of the sufficiency of the evidence requires the Court to:

weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.9

1. It was common ground that the jury could not have found the applicant guilty of any of the charges unless it accepted the critical parts of PG's evidence. The applicant submits that she was not a reliable witness, by virtue of her intoxicated state on the night in question and her poor memory of events as a result. He also points to evidence which is flatly inconsistent with some of her evidence.

1. PG was cross-examined extensively about the state of her memory, and it is true that there were many details she was unable to provide, including the location of the events the subject of charge 2. As well, as has been seen, some of her evidence regarding

4 M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) ('M'); Dansie v

The Queen [2022] HCA 25, [8]-[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ) ('Dansie').

1. M [1994] HCA 63; (1994) 181 CLR 487, 493; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) ('Baden-Clay'); Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219, 1234 [81]

(Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37 ('Fennell').

6 Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey and Gaudron JJ); Dansie [2022] HCA

25 [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

7 Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and

8 Fennell [2019] HCA 37; (2019) 93 ALJR 1219, 1234 [82] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

1. Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654, 675 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) (citation omitted); Dansie [2022] HCA 25 [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

charge 1 was contradicted by the CCTV footage, and this bears directly on her memory of the events she described in that alleged incident.

1. However, the jury was not required to discount her evidence generally on the basis of these deficiencies. PG was very specific and resolute about the essential features of the offending, including the physical acts constituting charges 1 and 2, and events immediately preceding the act alleged in charge 3.10 While her memory of events in the CCTV footage was faulty, there was no reason why that would cause the jury to conclude that her evidence as a whole was unreliable. There is nothing surprising in a person, especially an intoxicated person, recalling some events accurately and not others. Moreover, many aspects of PG's account were consistent with the evidence of the applicant, including that they had said very little to each other, that she placed her purse and mobile telephone on the centre console in the car and he had moved them from there, that he performed oral sex on her in the back seat of the car, and that he drove her to his house where she was at one point on all fours on his bed.

1. In the circumstances, there is no reason why the jury was required not to accept the reliability of the critical parts of PG's evidence. It is then necessary to turn to the individual charges.

71 In her evidence, PG described the events alleged in charge 1 in a very particular way.

She stated that, while the applicant was driving, he reached into the back seat and inserted his fingers into her vagina for a period of some minutes. When confronted with the CCTV footage that showed her getting into the front seat of the applicant's car, not the back as she had said, she speculated that she might have moved to the back seat after the car departed the club. She described the question of how she got to be in the back seat as 'one little part' that she could not recall.

1. At the very least, it would not be easy for a person to drive a car with one hand and simultaneously reach into the seat behind him so far back as to forcefully insert his fingers into a passenger's vagina for a period of minutes. However, we accept that much depends on the exact location of the passenger, and that it may have been possible in the present case, given the way PG said she was positioned: with her feet on the back seat while resting her head against the door. On that account, she was more or less lying across the back seat with the middle of her body in the centre of the seat. Lying in that position, it would have been easier for the applicant to have reached behind and penetrated her in the way she described.

1. The defence at trial highlighted the fact that, even so, PG's account of how she was in the back seat at all was disproved by the CCTV footage. She described the digital penetration as having occurred before the second offence, during the trip from the club to the location where oral sex took place in the back seat. There was no evidence that PG had been in the back seat before that point, and it is both speculative and fanciful to

1. See, eg, BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101, 108 [46] (Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 48; Paull v The Queen [2021] VSCA 339, [35] (Priest, Kaye and Niall JJA); Roberts v The Queen (2012) 226 A Crim R 452, 456 [52] (Tate JA, Nettle JA agreeing at 454 [1], Ferguson AJA agreeing at 483 [131]); [2012] VSCA 313.

think that she moved to the back seat while the vehicle was in motion. The offending could therefore not have happened in precisely the circumstances she described.

74 The jury was, of course, entitled to accept parts of PG's evidence and reject other parts.

The only reasonable course was to reject her account of the actual sequence of events, given that she was not in the back seat at the time she identified the digital penetration as having occurred. However, it does not necessarily follow that the jury was bound to reject her clear account of the applicant penetrating her vagina with his fingers while driving the car at some time after she had entered the back seat. It is significant that the evidence concerning charge 2 had PG positioned in the back seat in the same way as she alleged she had been when charge 1 was committed. At some point, even according to the applicant's evidence, she was lying in the back seat in that position. And for the reasons given, PG's account of the digital penetration was not so inherently improbable that the jury was bound to doubt that the applicant could have penetrated her with his fingers, while driving, as she lay there.

1. It was not an element of the offence that it happened at any particular stage during the night or in a particular location. This was evidently a matter that concerned the jury, as revealed by a question they asked in the course of their deliberations.

1. After the judge's charge, defence counsel raised the fact that the indictment alleged that the events of charge 2 took place outside the applicant's house, while the applicant's evidence was that oral sex took place in his car in a park near the club. After discussion, the jury was brought back. The judge told the jury that if they accepted the applicant's evidence of what he said happened at the park, they would find him not guilty of charge 2. She went on to tell the jury that the prosecution was not required to prove where or when the conduct alleged to constitute charge 2 took place. The jury then retired.

1. On the next day, the jury asked, 'Regarding charges 1 and 2, is the location important in relation to the element, eg where it happened, when it happened?' The judge, after discussion with counsel, told the jury the answer was 'no', adding that the prosecution was not required to prove 'where it happened and when it happened' and that only the elements of the offence had to be proved beyond reasonable doubt. It is plain that the case went to the jury on the basis that they could convict on charge 1 even if they did not accept that the act took place during the journey immediately after leaving the club.

1. Consistently with that understanding, and acting on a submission made by defence counsel at the plea hearing, the judge sentenced the applicant on the basis that the digital penetration occurred after the lingual penetration. In other words, the digital penetration occurred, not while the applicant was driving from the club, but while he was driving from the scene of the lingual penetration, PG remaining in the back seat of the vehicle after that event.11 In the circumstances, this was the obvious way to interpret the jury's verdict on charge 1. It was, moreover, open to the jury to decide the case that way, for the reasons given.

1. In our view, the fact that, when PG first described the conduct alleged in charge 1 (later that night, to Mr Wray), she said that the applicant had 'tried' to put his fingers in her

11 DPP v Palliyaguruge [2021] VCC 958, [13].

vagina, is insufficient to have required the jury to doubt her evidence that she had, in fact, been digitally penetrated. Only a short time later, she told her mother that the applicant had indeed penetrated her with his fingers, and her account remained consistent since then.

80 For these reasons, the jury was not bound to entertain a doubt about the applicant's guilt

1. Turning to charge 2, as already explained, the jury was entitled to accept the reliability of PG's evidence in general. There was nothing to indicate that her account of the oral sex in the back of the car was attended by any doubt. The DNA testing was consistent with the applicant's saliva having been in her vagina. Although the defence case was that the act alleged in the car on the side of the road never happened, the applicant's evidence of a similar incident, in which he performed oral sex on PG in the car in a park, after inferring her consent from her physical deportment and not from anything she said, tended to indicate that PG's memory was not faulty when she described the key events of charge 2.

1. The real issue in respect of charge 2 was consent, and the applicant's reasonable belief in it.12 The evidence of PG that she was 'so drunk that [she] wasn't really taking in what was happening' was amply corroborated by the expert evidence as to her intoxication, coupled with the CCTV evidence of her departure from the club and the evidence of Mr Singh and Mr Sultan. The jury was not bound to accept the applicant's evidence that, when he performed oral sex on her, she was consenting or he had a reasonable belief to that effect.

1. The applicant placed specific reliance on the evidence of Leading Senior Constable Christie Martin who attended PG's house some hours after the alleged offending and stated that PG was 'definitely coherent' and did not appear 'intoxicated to any extreme'. This afforded some basis for inferring that PG might have appeared coherent to the applicant when oral sex took place some hours earlier. But the jury also had the more contemporaneous evidence of witnesses who had been present at the club, and the CCTV footage, which suggested the contrary. The jury was entitled to give decisive weight to that evidence.

84 In short, there is no reason to doubt the jury's verdict in respect of charge 2.

1. The circumstantial case in respect of charge 3 depended on the jury finding the elements of the charge proven beyond reasonable doubt upon an evaluation of the whole of the facts found by them. In the hearing in this Court, both counsel accepted that the presence of PG's DNA on the shaft of the applicant's penis was an essential step in reasoning to a conviction, and that without that evidence, the applicant would have had to be acquitted. That concession, on the part of the respondent, was correct and properly

12 See Crimes Act 1958 ss 36(1), 36(2)(e).

made. That part of the DNA evidence was an 'indispensable link in a chain of reasoning towards an inference of guilt'.13 As such, if there had been doubt about that fact, the offence could not have been proved beyond reasonable doubt. That is no obstacle to conviction, however, because there was no question that the DNA of PG was found on the applicant's penis.14

1. Importantly, it was not also an 'indispensable link' in reasoning to an inference of guilt that the DNA of PG found on the applicant's penis was transferred by direct contact with PG (via penile penetration), rather than by secondary transfer. Rather than constituting a step in reasoning towards guilt, this was the conclusion urged by the prosecution, which the jury was required to evaluate based on all the evidence comprising the circumstantial prosecution case.15

1. The circumstantial prosecution case is to be contrasted, in that respect, with that in Fitzgerald v The Queen,16 in which DNA evidence on a didgeridoo was the only evidence upon which the prosecution relied to prove the accused's presence at the scene of an alleged joint criminal enterprise, and it was therefore necessary to prove beyond reasonable doubt that it was placed there by the accused directly and not by secondary transfer. In the present case, however, the evidence of PG's DNA on the applicant's penis was accompanied by a number of other pieces of evidence, some uncontested, which supported the inference that penile-vaginal penetration occurred.17

1. Accordingly, it is not the case that the jury had to exclude any reasonable hypothesis, consistent with innocence, by which the DNA could have found its way on to the applicant's penis other than by him placing it in her vagina. The expert evidence was, indeed, that (if there was 'a large amount to start with') PG's DNA could have been transferred from his hand to his penis when urinating. On one view, that explanation was indicated by the absence of PG's DNA on the areas at the end of his penis which would first have penetrated her vagina, if that had happened.18 On another view, the fact that there was a possibility of secondary transfer did not rule out the possibility that there could also have been direct transfer. All of this was evidence which the jury was required to weigh in the balance when considering the case as a whole. The task for the jury was to decide whether, on the whole of the evidence, there was a reasonable hypothesis consistent with the applicant's innocence which the jury could not exclude.

1. Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579-80 (Dawson J, Toohey J and Gaudron J each agreeing at 586); see also 576 (Mason CJ).

14 No issue was taken as to the manner in which the jury was directed; see Jury Directions Act 2015 ss 61,

1. [2014] HCA 28; (2014) 88 ALJR 779; see also Sumner v The Queen (2003) 117 SASR 271, 275 [16], 283 [50], 287 [60]-[61], 292 [82] (Gray and Sulan JJ).

1. It was not sought to exclude the DNA evidence on the basis that it invited speculation between two alternatives, one exculpatory and the other inculpatory; cf DPP v Wise (a pseudonym) [2016] VSCA

The defence case was that penile-vaginal sex never occurred and, as noted, that the presence of PG's DNA on the shaft of the applicant's penis was explained by the applicant urinating while he had PG's DNA on his hand.

1. The absence of DNA on or around the head of the applicant's penis did not constitute affirmative evidence that penetration did not occur. The evidence fell well short of proving such a thing. Instead, the acknowledged possibility of secondary transfer, together with the absence of other DNA on the penis, were parts of the whole of the case for the jury's assessment.

1. In our opinion, once the jury accepted the evidence of PG, as they were entitled to do and we must assume they did, they were not bound to entertain a reasonable doubt that the applicant had penetrated her with his penis. Inherent in the jury acting on PG's account is a rejection of the applicant's evidence. Again, the jury were entitled to do that. While it would have been open to find the applicant's evidence of the night's events plausible and doubted the account of PG as a result, they were not bound to do so. Apart from the issue of intoxication already addressed, decisions as to the credibility and reliability of both witnesses rested substantially on the jury's advantage of seeing and hearing the evidence, and it is not for this court to substitute its own view in that regard, in the absence of factors not attributable to that advantage.19PG described a scenario in which the applicant took her to his house, rather than hers, after saying several times that he wanted to go there 'for a quick fuck', and took her to his bedroom, rather than the kitchen through which they first passed, despite his professed intention of getting her a glass of water. On her account, she was placed on the bed in a position consistent with sexual intercourse, and the applicant took off all his clothes. She then recalled nothing, but her DNA was found on his penis, and his DNA was indicated in her endocervix. In those circumstances, the DNA evidence was consistent with the applicant having carried out his professed desire and there was nothing to require the jury to have a reasonable doubt that he did so.

1. For these reasons, while leave to appeal should be granted, the appeal must be dismissed.

1. I have had the advantage of reading in draft the reasons for judgment of Beach and McLeish JJA. I gratefully adopt their summary of the factual background, and also agree with their reasons and conclusions, save for their reasons and conclusions regarding charge 1.

1. In respect of charge 1, I would grant leave to appeal and allow the appeal for the reasons that follow.

19 M (1994) 181 CLR 481, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

1. As highlighted by Beach and McLeish JJA, the applicant alleges that the verdict in respect of charge 1 was unreasonable or cannot be supported having regard to the evidence.20 This requires the Court to ask itself whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, having regard to the whole of the evidence.21 In doing so, this Court must undertake its own independent assessment of the evidence.22

96 The starting point is that the evidence of PG was assessed to be credible and reliable.

However, the issue then becomes whether, notwithstanding that assessment - by reason of other inadequacy or evidence - the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt.23 As the High Court stated in Pell v The Queen:

Upon the assumption that the jury assessed A's evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence... nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt.24

1. The critical evidence was that of PG in circumstances where the applicant denied that the digital-vaginal penetration the subject of charge 1 occurred.

1. There were clearly aspects of PG's evidence that could be disregarded, including her evidence about the timing of the offence. However, her evidence contained the following key components:

(a) PG got into the back seat of the applicant's car, behind the driver (the rear right

(b) she had her back against the door and her feet up on the seat, because she was feeling quite dizzy and drunk;

(d) while continuing to drive, the applicant reached back with his left hand to touch her leg, and eventually moved her underwear aside and started touching her, at first outside 'like on the clit';

(e) the applicant then 'forcefully' put his fingers inside her vagina 'as far as his fingers could reach';

(f) the applicant's fingers remained in PG's vagina for a period of time; (g) the applicant's fingers were quite 'forceful' and 'hurt';

20 Criminal Procedure Act 2009 s 276(1)(a).

1. M [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie [2022] HCA 25, [8] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
2. M [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie [2022] HCA 25 [8] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

23 Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

24 Ibid 164 [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

(h) the applicant then pulled over and got into the back seat;

(i) before he got into the back seat, PG was laying in the same position though she

'may have slid down more'. Her head was still resting against the door.

1. During cross-examination, PG said that she got into the back seat on the driver's side of the car, and that the person who was driving the car started reaching behind with his left hand 'as he steered the car' to touch her legs and eventually her vagina. She conceded that she was not sure when exactly this occurred, but maintained that 'he was driving' when it happened. After being pressed about the CCTV footage (which indicated that she first entered the car via the front passenger door), she conceded that she might have 'moved' to the back. She maintained that the applicant 'reaching behind' definitely happened.

1. On PG's account, it would have been extremely difficult for the applicant driver to make contact with her given her position, which was behind him, with her legs facing towards the left passenger seat. This is so even accepting that she may have 'slid down' a bit more into the seat.

1. However, even if contact was not impossible, PG's account went much further than alleging some contact. Rather, she maintained that the applicant reached around from the driver's seat, manipulated her underwear, touched her clitoris, and ultimately put his (left) fingers in her vagina over such a period of time and with such force that it

'hurt'. This all occurred while he also steered a car (with his right hand).

1. Acknowledging the weight to be given to the jury's important role,25 this combination of circumstances would surely 'defy human experience'.26 The compounding improbabilities of the applicant performing the physical acts alleged with one hand over a sustained period of time whilst simultaneously driving, were such that the jury must have had a reasonable doubt.

1. Viewing the evidence as a whole, I therefore consider that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant's guilt in relation to charge 1.

104 I would therefore grant leave to appeal, and allow the appeal in relation to charge 1.

I would also set aside the applicant's conviction and order that an acquittal be entered in relation to that charge. Given that the order of the Court will be that the appeal is dismissed, there is no utility in also considering the sentencing disposition if the appeal had been allowed.27

25 M [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Baden-Clay (2016) 258 CLR

308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Fennell [2019] HCA 37; (2019) 93 ALJR 1219, 1234 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

26 Arbogast (a pseudonym) v The Queen [2022] VSCA 143, [81] (Emerton P and T Forrest JA).

1. This may involve consideration of the fact that the applicant would no longer be sentenced as a 'serious sexual offender' in respect of charge 3 pursuant to the definition contained in s 6B(2)(a) of the Sentencing Act 1991.