CRIMINAL LAW - Appeal - Conviction - Charges of rape constituted by lingual penetration of complainant's vagina - Whether Court can substitute conviction for rape constituted by penetration by applicant's mouth, or for sexual assault, where applicant charged with rape constituted by penetration by his tongue - Kargar v The Queen [2018] VSCA 148, Mareangareu v The Queen [2019] VSCA 101; (2019) 277 A Crim R 319 considered - Criminal Procedure Act 2009, ss 239, 277(1)(c).

CRIMINAL LAW - Appeal - Conviction - Temporal gap between charged conduct - In final address, prosecutor stated that applicant's motive for committing later charged conduct could be inferred from earlier charged conduct - Whether prosecutor invited impermissible tendency reasoning - Whether prosecutor's subsequent clarification and judge's directions overcame risk of tendency reasoning.

CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 15 years, 6 months' imprisonment with non-parole period of 11 years, 6 months - Applicant resentenced to total effective sentence of 12 years, 6 months' imprisonment with non-parole period of 9 years, 3 months.

1 I have had the advantage of reading in draft the reasons for judgment of Kyrou and T Forrest JJA. I agree with their Honours that proposed ground 3 should be rejected, for the reasons which they give.

2 Grounds 1 and 2 concern the applicant's convictions on two charges of rape. Each charge alleged that the applicant had penetrated the complainant with his tongue. Their Honours have concluded that her evidence in support of those charges was insufficient to prove penetration with the tongue.

3 For the reasons which follow, I respectfully disagree. In my opinion, it was open to the jury acting reasonably to be satisfied that both acts of penetration by tongue occurred.

4 As will appear, the challenge to the two convictions rests on the imprecision of the language used by the complainant to describe the acts of penetration. Initially, and predominantly, she used the word 'mouth', as in 'he put his mouth in there'. At other times, with apparent reluctance, she used the word 'tongue', as in 'he put his tongue there'.

5 This means, so it is said, that the jury must have had a doubt as to whether the complainant was describing penetration by tongue (which the Crown specifically alleged) and not penetration by mouth (which the Crown disavowed). That uncertainty would persist, it is said, even if it were concluded that she was using the two words interchangeably.

6 In my opinion, a reading of the complainant's evidence as a whole makes clear that she was describing penetration by tongue. Far from indicating uncertainty, her preference for using the imprecise word 'mouth' rather than the precise word 'tongue' is unsurprising, given her obvious discomfort at being asked such intimate questions. The complainant clearly - and understandably - found it difficult to be explicit about the applicant's tongue having entered her vagina.

7 But she did use the word 'tongue' on a number of occasions. As will be seen, the contexts in which she did so demonstrate two things: first, that she was describing penetration by tongue; and, secondly, that when she used the word 'mouth' in other answers about the same event, she was referring to the same act of penetration.

8 It must be excruciatingly difficult for a woman to speak in front of strangers (judge, jury and counsel) about an experience of non-consensual sexual penetration. That must be especially so when - as in the present case - she must answer questions formulated by reference to aspects of her genital anatomy.

9 In the present case, it is readily apparent from the transcript that the complainant was embarrassed about having to answer such questions. For example, she began her evidence about the first alleged rape in these terms: 'Yes, I woke up, and then he was - he was - he was in the bed, um, he just started doing, like, I don't know how, um, like, sexual oral, whatever.'

10 The complainant said that she was shocked when the applicant lifted her dress and removed her underwear. She asked him, 'What are you doing?'. Asked by the prosecutor to tell the jury what the applicant then did, the complainant answered:

So he - I went back then he just continued - he ah, he took my underwear and just done a - oral, like - - -

COUNSEL: Yes, and anything else?---He just done, um, he went in and then when he came he just - that's it.

11 Plainly, the complainant was reluctant to do more than give a brief, general description of what occurred. The prosecutor himself was alive to her reticence, as he made clear when he returned to the topic:

Now you've told the jury something about what happened. And this is a court of law, you understand, so I need to ask you to state that, very precisely, and I apologise for having to do that, but that's the procedure. You said that he did oral? ---Well, he went down, and I was pulling, pulling, but - and then, not oral, but he had (indistinct) intercourse, or (indistinct).

12 Part of the complainant's embarrassment was obviously cultural. As she told the jury, she was born in Somalia but left as a refugee, travelling via Kenya and New Zealand to Australia. Asked by the prosecutor why she had not told her brother that she was going to the applicant's house, she said: 'Because in our culture, normally female and a male should not be friends.' The point was reinforced in cross-examination, when the complainant agreed with the applicant's trial counsel that, in her Somali community, it 'really wasn't appropriate for a man and a woman to be friends with each other, especially when they're not married'.

13 When that cultural factor is combined with the intrinsic difficulty of the subject-matter, it is hardly surprising that the complainant's description of the alleged sexual acts was halting, hesitant and imprecise. It can be safely assumed that she had never before been asked to speak about such intimate matters.

14 Relevantly to this ground of appeal - the unreasonableness ground - the jury were well able to take those matters into account when considering what to make of her evidence. The jury saw and heard the complainant give her evidence, which is a well-recognised advantage over this Court. In my view, this Court should be slow to interfere with verdicts which were, necessarily, based on the jury's observation of the complainant, of her use of language and of the manner in which she gave her evidence.

15 I turn now to examine the relevant portions of her evidence which, in my view, provide a sound basis for the guilty verdicts on the rape charges.

16 Immediately after the awkward exchanges set out above, the prosecutor asked the complainant further questions about the first alleged rape, as follows:

COUNSEL: Well, let me ask you this: on this first occasion of a sexual incident, in that apartment, did [the applicant] do - perform any act of oral sex?---Sorry.

Did he perform oral sex on this first occasion?---Yes.

Yes? Okay, all right. In relation to that, I have to ask you this, what part of his body did he use?---Sorry?

Could you tell the jury exactly what he did. I just need you to be quite precise about it. What did the oral sex consist of. What did he do?---Orally - he pull my dress up, um - he put his mouth there and I said, no, I didn't want it, and he goes - - -

Did he touch you with his tongue?---Only that part of my body, just vagina and he (indistinct words).

Okay, all right. So, when you say he touched your vagina with his tongue, did he put his tongue on your vagina, or in your - - -

HER HONOUR: She said mouth.

COUNSEL: I'm sorry, Your Honour. Did he use - Her Honour's informed that you said 'mouth' not 'tongue'. Is that correct?---Yeah.

Did he use his - did he touch your vagina with his tongue?---I'm not sure, honestly, I don't know.

Yes, well don't guess. Just so that you know. Is the answer about the tongue that you're not sure?---He went and put his mouth down there.

Yes. Did he touch you with his mouth down there?---Yes.

Yes. Okay. Can you say any more precisely what he did. If not, just say so, please?---Um, he put his tongue there, and I pulled back, but he put it - he continued to put it back, and - and then he put his penis there.

All right. Okay. Well, I need to ask you about the use of his tongue. And I need to ask you where his tongue went. Did his tongue go on the outside of your vagina, or did it go between the lips of your vagina?---Um, I wasn't comfortable, honestly, and I wasn't comfortable, so I can't say it precisely where it went. But all I know he did went, ah, put his mouth in there.

Right, okay. And you've said that he put his penis?---Yes.

Yes. Where did he put his penis?---Inside the vagina.

17 Counsel for the applicant in this Court made two related submissions about this evidence. The first was that what the complainant described did not amount to an act of penetration. Phrases such as 'he put his mouth down there' were said to be equally consistent with the applicant 'just touching' her vaginal area.

18 Secondly, it was said, the complainant here 'drew a distinction' between the mouth and the tongue. It followed that, because she said more than once that the applicant had 'put his mouth there', the jury could not have been satisfied that he had used his tongue. This was said to be confirmed by the 'I'm not sure' answer which the complainant gave when asked whether the applicant 'touched [her] vagina with his tongue'.

19 I am not persuaded by either of those submissions. First, this sequence of questions and answers exemplifies the complainant's reluctance to be specific and her obvious preference for the word 'mouth' rather than 'tongue'. When the prosecutor followed up on her 'not sure' answer, the complainant answered by saying, 'He went and put his mouth down there'. A little later, when asked a very specific question referring to 'the lips of [her] vagina', she verbalised her discomfort: 'Um, I wasn't comfortable, honestly, and I wasn't comfortable, so I can't say precisely where it went. But all I know he did went, ah, put his mouth in there.'

20 Secondly, the highlighted answer in the above extract is particularly significant. As can be seen, the prosecutor asked the complainant an entirely open question, inviting her - if she could - to say 'more precisely' what the applicant did. Her unprompted response was: 'He put his tongue there, and I pulled back, but he put it - he continued to put it back, and - and then he put his penis there.'

21 Thus, the complainant used the word 'there' to identify both where the applicant's tongue went and where he put his penis. And she confirmed in the final answer in the extract that his penis went 'inside the vagina'. Reading the evidence as a whole, therefore, the jury were entitled to conclude that the complainant was describing penetration with the tongue, followed by penetration with the penis. The fact that her very next answer was, 'He put his mouth in there'[2] confirms that she was describing penetration, not mere touching.

22 It is, of course, inherently unlikely that the complainant was intentionally drawing a distinction between 'mouth' and tongue'. The fact that in successive answers she switched from 'tongue' to 'mouth' confirms that she was not. For her, they meant the same thing. The word 'mouth' was simply a more comfortable way for her to refer to the tongue.

23 Asked to describe what happened on the second occasion, the complainant said:

And then we had conversations and then, um, the next I know he's - he, um - being on top of me and then this time (indistinct) again, but this time he only done oral. He did not, um - he just put his mouth there and I said - and I wasn't comfortable. I didn't know what to do.

24 In response to further questioning, the complainant told the jury that the applicant had told her to 'lay down'. The prosecutor then asked her what the applicant had done after she lay down. She answered: 'He just put his mouth there and that's it.' Once again, she was clearly wanting to say as little as possible about the details of what actually happened.

25 Then came the critical exchange, which was as follows:

COUNSEL: Well, this is a court of law and I have to ask you what you mean by, when you say, 'He did only oral'?---As in he put his mouth in my vagina.

Did he touch you with his tongue?---Yes he did. He just put his mouth in there.

Did any part of him go in your vagina?---Sorry. Yes?

Did any part of his body go in your vagina?---Yes, his mouth. The tongue, whatever. His mouth.

26 As can be seen, these answers took the same form as the answers which the complainant had given about the first occasion. And the same analysis applies. First, she was clearly describing an act of penetration when she said that the applicant put his mouth 'in my vagina'. When specifically asked whether he had touched her with his tongue, she answered affirmatively. And then, as if to confirm what she had said, she added, 'He just put his mouth in there'. And, finally, to eliminate any doubt, the complainant gave an affirmative answer to the question whether any part of the applicant's body went 'in [her] vagina'.

27 Secondly, this passage provides further confirmation that the complainant was not drawing a distinction between the words 'mouth' and 'tongue'. On the contrary, the sequence of questions and answers shows that for her they meant the same thing. As already noted, in the course of a single answer she confirmed that the applicant had touched her with his tongue, and then stated that he put his mouth 'in there'.

28 Her final answer puts the point beyond doubt. Asked whether any part of the applicant's body went into her vagina, the complainant said, 'Yes, his mouth. The tongue, whatever. His mouth.' This answer - especially the words 'The tongue, whatever' - shows once again her reluctance to be explicit and her clear view that in this context the two words meant the same thing.

29 In her charge, the judge told the jury that there was 'a live issue' for their determination on charge 4, but the issue she identified was whether there had been penetration. Her Honour commented that the jury might think the complainant's evidence as to penetration was 'genuinely ambiguous'. Her Honour did not, however, suggest that any ambiguity had arisen through the complainant's use of the words 'mouth' and tongue'.

30 Subsequently, at the request of the prosecutor, her Honour gave this further direction in relation to charge 4:

I have been reminded in relation to Charge 4 that - so this was the first act of alleged sexual penetration by introducing his tongue into her vagina on the indictment. And I reviewed the evidence and I will remind you of that evidence. 'Did he touch your vagina with his tongue?' 'I'm not sure honestly. I don't know. He went and put his mouth down there and he touched me with his mouth down there', and at one point she said 'mouth in there.' That is Transcript 182.

The way that the charge is identified is that you must be satisfied beyond reasonable doubt that he introduced his tongue in to her vagina, not his mouth into her vagina. So if you are left with a reasonable doubt that sexual penetration occurred, you must find him not guilty of Charge 4.

31 The jury's attention was thus squarely drawn, though without elaboration, to the linguistic issue now under consideration. Having seen and heard the complainant give her evidence, the jury were satisfied beyond reasonable doubt that there had been penetration, and that on both occasions it was penetration by the applicant's tongue.

32 For the reasons I have given, that conclusion was reasonably open on the evidence. Leave to appeal on grounds 1 and 2 should therefore be refused.

33 On 24 March 2020, a County Court jury found the applicant guilty of eight charges on Indictment J11961629.1 ('trial indictment'). They were two charges of intentionally causing injury[3] (charges 1 and 11), two charges of false imprisonment[4] (charges 3 and 13), three charges of rape[5] (charges 4, 5 and 6) and one charge of sexual assault[6] (charge 14). He was also found guilty of one summary charge of threatening to distribute an intimate image.[7] The judge directed verdicts of not guilty in relation to four additional charges of rape (charges 7, 8, 9 and 10) because the complainant did not give any evidence in support of those charges. Charges 2 and 12 (recklessly causing injury) were alternatives to charges 1 and 11.

34 The applicant pleaded guilty to two charges of possessing a drug of dependence[8] on Indictment J11961629.A ('plea indictment').

35 On 14 September 2020, a County Court judge imposed a total effective sentence of 15 years and 6 months' imprisonment with a non-parole period of 11 years and 6 months.[9]

36 The applicant seeks leave to appeal against his conviction on the following grounds:

1 The verdict of guilty on charge 4 (rape) is unreasonable and cannot be supported having regard to the evidence.

2 The verdict of guilty on charge 6 is unreasonable and cannot be supported having regard to the evidence.

3 A substantial miscarriage of justice was occasioned by a substantial risk that the jury impermissibly engaged in propensity reasoning in proof of charges 11 to 14.

37 The applicant also seeks leave to appeal against his sentence on the ground that the order for cumulation on charge 5, the total effective sentence and the non‑parole period are manifestly excessive.

38 For the reasons that follow, we would: grant leave to appeal on grounds 1 and 2; refuse leave to appeal on ground 3; allow the appeal on grounds 1 and 2; set aside the convictions for charges 4 and 6; enter judgments of acquittal for those charges; and resentence the applicant as set out at [192] below.

39 The applicant was a family friend of the complainant's family. The pair met at the applicant's apartment on 9 June 2018 and smoked ice. The applicant said to the complainant that she had a devil inside her and struck her with a metal torch on her arms, face and head, resulting in a fractured eye socket and bleeding into the complainant's eye (charge 1, intentionally causing injury).[10]

40 The complainant passed out and woke the next morning in bed. The applicant told her that she could not leave his apartment. He locked the door and took the keys whenever he left the apartment and told her that there would be trouble if she left or told police. This lasted for 30 hours (charge 2, false imprisonment).

41 The prosecution alleged that the rape the subject of charge 4 took place on the night following the assault the subject of charge 1, and involved lingual penetration of the complainant's vagina. The complainant's evidence in support of charge 4 is discussed in detail below under grounds 1 and 2.

42 Immediately following the incident the subject of charge 4, the applicant inserted his penis into the complainant's vagina. She asked him what he was doing, and told him to stop (charge 5, rape).

43 The complainant was subsequently permitted to go to the shops, but the applicant kept her telephone. On one occasion, the complainant left the apartment and attended the Royal Melbourne Hospital where she gave a false account of how she obtained her injuries. After this, she returned to the applicant's apartment.

44 After attending the Hospital, the complainant smoked some ice she obtained from the applicant. The prosecution alleged that the rape the subject of charge 6 then took place, and involved lingual penetration of the complainant's vagina. The complainant's evidence in support of charge 6 is discussed in detail below under grounds 1 and 2.

45 The complainant continued to live with the applicant until 24 July 2018. On that morning, she took her belongings to her brother's house, intending to stay there. She then attended the applicant's apartment to return his key. The evidence relating to the circumstances in which the complainant returned to the applicant's apartment is discussed in detail below under ground 3.

46 When the complainant arrived at the applicant's apartment on the afternoon of 24 July 2018, she entered his bedroom to return his key. The applicant closed the bedroom door and locked the front door (charge 13, false imprisonment). He then assaulted her over a number of hours with the metal torch, a hunting knife, a sword, a gas lighter and a blowtorch. She suffered swelling, bruising and abrasions to her body, a laceration to her scalp, a burn to her right arm and a fracture on her finger (charge 11, intentionally causing injury).

47 During the course of the night, the applicant smoked ice and told the complainant to also smoke it. He told her to take her clothes off and, when she did so, he took photographs of her. He also bound her with black tape and told her to pose in certain positions. He said that if she went to the police, he would post the photographs on social media (summary offence, threat to distribute an intimate image). The applicant also grabbed the complainant's breast, flicking it away (charge 14, sexual assault).

48 The applicant then told the complainant to make dinner and that things would resume after this. She was able to escape the applicant's apartment while she was naked. The police found her after they were notified by witnesses.

49 On 26 July 2018, police arrested the applicant. He was found to be in possession of methylamphetamine and MDMA (charges 1 and 2 on the plea indictment).

50 In his record of interview, the applicant denied that any of the offending had occurred. He said that the complainant was already injured when she came to his apartment and that he tried to assist her. He admitted having 'normal', consensual sex with her once or twice about one and a half months previously and denied ever having oral sex with her. He said that the complainant's behaviour was affected by drug taking.

Complainant's evidence in support of charges 4 and 6

51 The trial indictment described the sexual penetration the subject of charges 4 and 6 as the introduction of the applicant's tongue into the complainant's vagina. In his opening address, the prosecutor stated that there had been penetration by 'licking' of the vagina.

52 The complainant gave the following evidence in chief in support of charge 4:

The first occasion of a sexual incident - - -?---I remember I was sleeping - - -

...

... Is it in the day time, or the night time?---It was more on the evening.

Yes. Okay. Right?---Because I remember I was laying down. I had just woken up.

...

Okay. You said that you had woken up, you'd been asleep and you woke up?‑‑‑Yes, I woke up, and then he was - he was - he was in the bed, um, he just started doing, like, I don't know how, um, like, sexual oral, whatever.

All right. Well, let me ask you this: before you woke up, were you wearing any clothing, or pyjamas, or anything of that sort. Underwear, anything?---Um, yes, I was wearing, um, a pyjama. Long dress kind.

...

... Did you say you were laying?---I was laying on his side of the bed.

Yes?---And then he was - but when I woke up, he being - him being on top of me.

Right?---And he just went under and then - and then I - - -

...

Did your clothes, whatever you were wearing, did it remain on or was it removed?---It was - ah, (indistinct) but halfway.

Yes. Well, what do you mean by that?---Like, one pulled up, but not taken off.

Yes. Well, who pulled it up?---Um, he did.

Were you awake at that time?---Um, I woke up, yes, I was awake.

Yes?---Yes, yep.

Okay. Did you have on underwear on underneath?---I'm pretty sure I did.

Yes?---But I was actually asleep, woken up by him being on top, so it was bad.

Yes. Did your underwear remain on?---No.

How did your underwear come off?---He took them off.

...

Did you want him to lift your dress and take your underwear off?---No, I didn't.

Were you expecting that to happen?---No, I wasn't expecting at all.

...

... When he lifted your dress and removed your underwear, did you say anything to him about that?---Yes, I pulled, but I sort of - I was shocked. I pulled back and then he just continued.

Yes. Well, I'm just trying to get the clear answer to my question of whether - you say you were shocked, but did you say anything to him?---I said, 'What are you doing?' and he goes 'shoosh', so.

Right. Okay. Did you say anything to indicate to him that you wanted him to do that?---No, I didn't.

Did you do anything to indicate you wanted him to do that?---No, I did not do - - -

Were you and he touching and or kissing each other?---We never kissed or touched each other, no.

Right. Did you tell him to stop what he was doing?---Yes, I said, 'What are you doing?' and then I pulled back, but he just - - -

Yes, well, apart from saying 'what are you doing', did you tell him to stop?---Yes. I indicated that I want him to stop so I pulled it back, and - - -

What do you mean you 'pulled it back'? I don't understand?---Like, I pulled myself back off him.

Right?---But he just continued.

...

And tell the jury, please, what he did?---So he - I went back then he just continued - he, ah, he took my underwear and just done a - oral, like - - -

Yes, and anything else?---He just done, um, he went in and then when he came he just - that's it.

...

Right. Now, you've told the jury something about what happened. And this is a court of law, you understand, so I need to ask you to state that, very precisely, and I apologise for having to do that, but that's the procedure. You said that he did oral?---Well, he went down, and I was pulling, pulling, but - and then, not oral, but he had (indistinct) intercourse, or. (Indistinct).

Well, let me ask you this: on this first occasion of a sexual incident, in that apartment, did [the applicant] do - perform any act of oral sex?---Sorry.

Did he perform oral sex on this first occasion?---Yes.

Yes? Okay, all right. In relation to that, I have to ask you this, what part of his body did he use?---Sorry?

Could you tell the jury exactly what he did. I just need you to be quite precise about it. What did the oral sex consist of. What did he do?---Orally - he pull my dress up, um - he put his mouth there and I said, no, I didn't want it, and he goes - - -

Did he touch you with his tongue?---Only that part of my body, just vagina and he (indistinct words).

Okay, all right. So, when you say he touched your vagina with his tongue, did he put his tongue on your vagina, or in your - - -

HER HONOUR: She said mouth.

[Prosecutor]: I'm sorry, Your Honour. Did he use - Her Honour's informed that you said 'mouth' not 'tongue'. Is that correct?---Yeah.

Did he use his - did he touch your vagina with his tongue?---I'm not sure, honestly, I don't know.

Yes, well don't guess. Just so that you know. Is the answer about the tongue that you're not sure?---He went and put his mouth down there.

Yes. Did he touch you with his mouth down there?---Yes.

Yes. Okay. Can you say any more precisely what he did. If not, just say so, please?---Um, he put his tongue there, and I pulled back, but he put it - he continued to put it back, and - and then he put his penis there.

All right. Okay. Well, I need to ask you about the use of his tongue. And I need to ask you where his tongue went. Did his tongue go on the outside of your vagina, or did it go between the lips of your vagina?---Um, I wasn't comfortable, honestly, and I wasn't comfortable, so I can't say it precisely where it went. But all I know he did went, ah, put his mouth in there.

Right, okay. And you've said that he put his penis?---Yes.

Yes. Where did he put his penis?---Inside the vagina.[11]

53 The complainant gave the following evidence in chief in support of charge 6:

Okay. I'm going to ask you about each of [the occasions of sexual incidents]. I've asked you about one, now I'm going to ask you about the second, all right? Yes. Now, when did it happen?---The - the second one, um, I was - still I was at his house and I've smoked ice from him.

...

Right. All right. Okay, so you - on the second - second - yes, go on?---And then we had conversations and then, um, the next I know he's - he, um - being on top of me and then this time (indistinct) again, but this time he only done oral. He did not, um - he just put his mouth there and I said - and I wasn't comfortable. I didn't know what to do, so.

...

Yes. How long after going to the Royal Melbourne Hospital was this second occasion?---I think it might have been the next week. Um, a week after.

Yes, all right. Okay. Were you still suffering from the injury to your face?---Yes. I still had the bruises.

Yes. All right?---Yeah.

And did this incident where you were smoking ice with him, or had a puff, is this in the daytime or the night time?---It was the night time.

...

At the time when you were having the conversation, were you - were you wearing clothes?---Of course I was.

Yes?---I was always - I mean, I was dressed, even I mean when he went down, I never took off my clothes, ah, no.

...

All right. And so how do you say that it was that he - that he gets on top of you; were you awake?---The second time, yes, I was awake.

Yes, so you were awake, you're on the bed and did you lie down?---Ah, we were sitting talking.

Yes?---And then he just decides to go - and of course I was sitting so I lay down.

...

Yes?---Then we just - he just comes and pulls my, um, dress.

Yes?---And when I said, 'What?' and just - says, 'Lay down' and then, up.

He said 'Lay down' did he?---M'mm.

Yes?---And I did, and.

Why did you do that?---I don't know. Same reason why I didn't go to anywhere because I was scared of him. So we - it's just - you can't reason with him, like.

Okay. So you lay down. What did he do?---He just put his mouth there and that's it.

All right, well what about your clothes and your underwear?---Um, he took underwear.

Yes?---And - - -

Did you assist in removal of your underwear?---No. No, no, he can see that I wasn't comfortable and I didn't want it, he can clearly see the way I was acting, he can tell that I did not want it.

Why do you say that?---Because I didn't want it and my body was saying that, like I was - I clearly tell, like.

Well how was your body saying it?---I was resisting, pushing back. I didn't want it.

...

Well, what do you mean, explain to the jury what you mean by saying that you were resisting or pushing back?---Like I told him, 'What are you doing? Why do this' and 'Stop it', and then he would continue, just say 'Lay down' and then pull my dress up more and - like, I lay down and then when I didn't continue he went and put his mouth there - when I didn't continue he would - like he could see that I didn't - not continue with him.

What do you mean by you didn't continue, I don't know what you mean?---Like I didn't continue - I didn't - didn't show that I wanted - I was - I didn't show him that and that's when he pulled the dress and.

Yes, all right. Okay, all right. You're just telling the jury that you didn't show him - show him what?---That I didn't - I didn't - I wasn't interested in - and.

All right. But you say that he continued to, what, remove your clothing, did he?‑‑‑Um, I had my clothing, the only thing that was removed was the underwear only, and.

Yes, okay. All right. And you said a little while ago that he did the same again, this time only oral?---Yes.

Yes?---Yeah.

Well, this is a court of law and I have to ask you what you mean by, when you say, 'He did only oral'?---As in he put his mouth in my vagina.

Did he touch you with his tongue?---Yes he did. He just put his mouth in there.

Did any part of him go in your vagina?---Sorry. Yes?

Did any part of his body go in your vagina?---Yes, his mouth. The tongue, whatever. His mouth.

On that occasion, the second occasion, did you - did he do any other sexual act apart from that?---No.

And as regards what he did do, did you want him to do it?---No.

Did you say or do anything to him to indicate that you were consenting to it?‑‑‑Um, no, there was no consent. No, I didn't.[12]

54 In cross-examination, defence counsel (who did not appear on the appeal) put to the complainant that 'what sexual activity there was [between her and the applicant] was in fact wholly consensual'.[13] The complainant denied this. Defence counsel did not cross‑examine her about the physical acts constituting charges 4 to 6.

55 In the absence of the jury, the prosecutor took issue with the fact that defence counsel had not put to the complainant the applicant's denial in his record of interview that he had had any oral sex with her. In response, defence counsel stated that, in his closing address, he would focus on the issue of consent rather than the issue of penetration.

56 Consistent with his record of interview,[14] the applicant's defence at trial was that none of the offending occurred. He did not give evidence.

Submissions of counsel and judge's charge relevant to charges 4 and 6

57 Charges 4 and 6 on the trial indictment were relevantly in the following terms:

The Director of Public Prosecutions charges that [the applicant] at ... between the 16th day of June 2018 and 24th day of July 2018 raped [the complainant] by intentionally sexually penetrating [the complainant] by introducing his tongue into her vagina without her consent in circumstances where [the applicant] did not reasonably believe that [the complainant] consented to the penetration.

58 Following the complainant's evidence, the prosecutor did not apply to amend the trial indictment to allege penetration by the applicant's mouth rather than his tongue. In discussions with counsel at the end of the complainant's evidence but prior to the close of the prosecution case, the judge stated that she considered that it was 'a live issue as to whether the evidence is sufficient in relation to Charge 4 to go to the jury'.[15]

59 Shortly after the judge's statement, the prosecutor said that, in relation to both charges 4 and 6, he would 'be asking for the alternative of sexual assault'.[16] The judge referred to the 'red pencil test' discussed in Mareangareu v The Queen[17] - which we will consider below - and expressed doubt as to whether that test could be satisfied in relation to the offence of sexual assault based upon the particulars in the indictment for charges 4 and 6. The prosecutor said that he would consider Mareangareu.

60 The judge returned to this issue during the discussion with counsel regarding the directions to be sought under the Jury Directions Act 2015 ('JDA'). The judge referred to s 11(a) of the JDA, which relevantly provides that, after the close of all evidence and before the closing address of the prosecution, the prosecution must inform the trial judge whether it considers that an alternative offence is open on the evidence. In response, the prosecutor stated that he had considered Mareangareu and AJS v The Queen,[18] in which the plurality held that an allegation of incest by digital penetration of a descendent who was aged under 16 at the time of the offending necessarily included an allegation of committing an indecent act with a child under 16 for the purposes of the predecessor to s 239 of the Criminal Procedure Act 2009 ('CPA').[19] The prosecutor said that he was instructed not to press for any alternative verdicts to be left to the jury in relation to charges 4 and 6.

61 At the conclusion of the prosecution case, defence counsel sought a directed acquittal in respect of charge 4. That application was refused. The judge ruled that the complainant's evidence that the applicant 'put his mouth in there', taken at its highest, was capable of supporting a verdict of guilty on charge 4.

62 Initially, in her charge, the judge stated that it was open to the jury to convict the applicant on charge 4 based on evidence of penetration by the applicant's tongue or mouth. The prosecutor took exception to this direction and requested that the judge 'make it clear to the jury that the allegation that must be proven is the introduction of the tongue.'[20] The judge redirected the jury as follows:

The way that [charge 4] is identified is that you must be satisfied beyond reasonable doubt that [the applicant] introduced his tongue in to her vagina, not his mouth into her vagina. So if you are left with a reasonable doubt that sexual penetration occurred, you must find him not guilty of Charge 4.[21]

63 In her charge, the judge stated that the jury 'might think it is genuinely ambiguous as to whether sexual penetration occurred'.[22] She then stated that '[i]n relation to Charges 5 and 6, [the complainant's] evidence was less ambiguous'.[23] Defence counsel did not take any exception.

64 Grounds 1 and 2 rely upon s 276(1)(a) of the CPA, which provides that the Court of Appeal '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'.

65 Section 276(1)(a) of the CPA requires this Court to ask itself whether we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty of charges 4 and 6.[24] In M v The Queen, the majority observed:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[25]

66 In Pell v The Queen, the High Court endorsed the approach in M, and said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[26]

67 In the present case, in relation to charges 4 and 6, the applicant is not alleging that, having regard to internal inconsistencies or discrepancies or other evidence, the complainant's evidence was not credible or unreliable. Rather, he is alleging that, considered as a whole, that evidence does not amount to evidence that he penetrated her vagina with his tongue. In other words, it is contended that the evidence is not sufficient to establish, beyond reasonable doubt, that such penetration occurred.

68 Thus, the critical issue in the present case in respect of charges 4 and 6 is whether, considered in its entirety, the complainant's evidence referable to each charge could support a finding that the applicant's tongue penetrated her vagina.

69 It was common ground between the parties that penetration by the mouth did not necessarily involve penetration by the tongue, such as where the lips of the mouth are placed within the outer lips of the vagina. However, whilst the Crown accepted that penetration by the tongue necessarily involved penetration by the mouth, the applicant did not do so.

70 The Crown conceded that a statement that oral sex had occurred, on its own, would be insufficient to establish lingual penetration beyond reasonable doubt.

71 The applicant submitted that there was no evidence upon which the jury could be satisfied beyond reasonable doubt that lingual penetration had occurred. This was said to be because the complainant herself drew a distinction between the mouth and the tongue. He contended that her evidence that she could not say whether penetration by the tongue had occurred clarified her general evidence about 'oral' sex, and stood in contradistinction to what she could say about his mouth.

72 In his written case, the applicant argued that, at its highest, the complainant's evidence in relation to charges 4 and 6 that he had 'put his mouth in there' was evidence of uncharged acts of penetration by the mouth, as opposed to evidence of penetration by the tongue as alleged in the trial indictment. In oral submissions, counsel for the applicant clarified that no concession was being made that the complainant's evidence was sufficient to establish penetration by the mouth.

73 The applicant referred to the following evidence of the complainant in relation to charge 6 as to what went into her vagina: 'his mouth. The tongue, whatever. His mouth'. He submitted that the evidence was not sufficient for the jury to find lingual penetration beyond reasonable doubt for two reasons. First, the complainant gave no evidence of the licking alleged in the prosecutor's opening address. Secondly, her statement was not unequivocal evidence of penetration of the vagina by the tongue despite being in response to a leading question.

74 In oral submissions, counsel for the applicant contended that the applicant could only have been found guilty of rape on charges 4 or 6 if the trial indictment had been amended to allege penetration by 'mouth and/or tongue', or the prosecutor had asked further questions to establish the charges as alleged. She argued that, had the prosecutor taken either course, the applicant may have cross-examined the complainant or closed his case in a different manner.

75 The Crown submitted that a fair reading of the totality of the complainant's evidence revealed a sound evidentiary basis for the jury verdict on charges 4 and 6, despite communication difficulties due to technical problems giving evidence remotely, English being an additional language for her, or embarrassment regarding the sexual content.

76 The Crown contended that, viewed in combination and in the totality of her evidence, the complainant's references to 'there', 'down there' and 'in there' sufficiently supported the occurrence of penetration of her vagina by the applicant's tongue. In particular, it argued that the complainant's evidence in relation to charge 4 that 'he put his tongue there ... and then he put his penis there' was sufficient evidence of penetration by the tongue to prove that charge. That was said to be because, in describing the offending the subject of charge 4, she used similar language as when she described the offending the subject of charge 5 (rape by penetration of the penis) and no challenge was made to the applicant's conviction of that offence.

77 According to the Crown, a careful reading of the complainant's evidence revealed that she used the words 'mouth' and 'tongue' interchangeably. Consequently, it was said that no meaningful distinction between those words could be drawn from her evidence and that the jury could be satisfied beyond reasonable doubt of the applicant's guilt on charges 4 and 6.

78 The Crown submitted in relation to charge 6 that the complainant gave sufficient evidence that the applicant sexually penetrated her by putting his tongue into her vagina when she said that 'his mouth. The tongue, whatever. His mouth' went into her vagina.

79 In oral submissions, counsel for the Crown contended that defence counsel would not have conducted his cross-examination of the complainant in a different manner if the trial indictment had alleged penetration by the 'mouth and/or tongue'. That was said to be because the applicant denied that the conduct the subject of charges 4 and 6 occurred and therefore penetration was not in issue at trial.

80 In our opinion, the complainant's evidence in support of charge 4 was insufficient to prove beyond reasonable doubt that the applicant penetrated her vagina with his tongue.

81 As appears from [52] above, the complainant made statements that the applicant 'just started doing, like, I don't know how, um, like, sexual oral, whatever', 'just done ... oral, like' and 'put his tongue there'. However, she did not say, in terms, that his tongue went into her vagina. Her evidence about the applicant's tongue is to be contrasted with her evidence about his mouth ('he ... put his mouth in there') and his penis (he put his penis '[i]nside the vagina').

82 It may be accepted, as submitted by the Crown, that in her evidence the complainant did not always draw a clear distinction between the applicant's mouth and his tongue. That is why the prosecutor sought to clarify her evidence by asking her direct questions which were confined to the applicant's tongue.

83 At one stage, the complainant appeared to assent to the prosecutor's proposition that the applicant had touched her vagina with his tongue. However, in response to the question '[D]id he touch your vagina with his tongue?' she said 'I'm not sure, honestly, I don't know'. In response to the question 'Can you say any more precisely what he did?', she said '[H]e put his tongue there'. In response to the question 'Did his tongue go on the outside of your vagina, or did it go between the lips of your vagina?', she said 'I can't say it precisely where it went' and added that 'he ... put his mouth in there'.

84 In our opinion, as the complainant was not able to say whether the applicant's tongue went into her vagina, the jury must have had a reasonable doubt about whether this element of the offence of rape, as charged, was made out.

85 Even if it is accepted that, in her evidence, the complainant used 'mouth' and 'tongue' interchangeably, that would not be sufficient to prove lingual penetration beyond reasonable doubt. That is because such evidence leaves open a reasonable possibility that penetration was solely by the mouth. Such evidence would have been sufficient to establish the offence of rape if the particulars of the charge had been amended to allege penetration by the tongue or the mouth.[27] However, the prosecutor did not seek such an amendment. Indeed, when the judge told the jury that they could find the applicant guilty if they were satisfied beyond reasonable doubt that he had penetrated the vagina with either his mouth or his tongue, the prosecutor requested a redirection that the jury had to be satisfied beyond reasonable doubt of penetration with the tongue.[28] As the charge was left to the jury on this basis, the complainant's evidence was insufficient to prove it.

86 We reject the Crown's submission that the complainant's evidence was to the effect that the applicant put his tongue inside her vagina because she stated that 'he put his tongue there', then stated 'he put his penis there' and further stated that he put his penis '[i]nside the vagina'. In our opinion, whilst the statement that the applicant put his penis '[i]nside the vagina' was evidence of penile penetration that was sufficient to prove charge 5 beyond reasonable doubt, the statement that 'he put his tongue there' was not evidence which was sufficient to prove lingual penetration beyond reasonable doubt. When the complainant's evidence in support of charge 4 is viewed as a whole - and particularly her responses to direct questions concerning the applicant's tongue - it is simply insufficient to establish that the applicant penetrated her vagina with his tongue in the same way that he penetrated her vagina with his penis.

87 It follows that ground 1 is made out. We will defer consideration of the consequence of this finding until after we consider ground 2.

89 We accept that the complainant's evidence in support of charge 2 is stronger than the evidence in support of charge 1. That is because, in response to the question 'Did any part of his body go in your vagina?', she stated 'Yes, his mouth. The tongue, whatever. His mouth.' On one view, that answer may be interpreted as accepting the proposition that the applicant's tongue went into the complainant's vagina. However, such an interpretation would involve consideration of the words 'The tongue' in isolation and without regard to the immediate context in which those words were used as well as the overall tenor of the complainant's evidence.

90 The immediate context in which the complainant used the words 'The tongue' was 'Yes, his mouth', 'whatever' and 'His mouth'. Even if one confines the analysis to this immediate context, it is readily apparent that the complainant is using 'mouth' and 'tongue' interchangeably and with indifference as to the distinction between them. For the reasons set out at [85] above, evidence that uses 'mouth' and 'tongue' interchangeably is insufficient to prove beyond reasonable doubt a charge which is specifically limited to penetration by the tongue.

91 Of course, it is inappropriate to confine the analysis of the complainant's evidence to the immediate context in which she used the words 'The tongue'. Her evidence in support of charge 6 must be considered as a whole. That evidence included her statements that 'He just put his mouth there', 'he went and put his mouth there', 'As in he put his mouth in my vagina' and 'He just put his mouth in there'. The third of the statements quoted in the preceding sentence is very significant because it was made in response to the question 'Well, this is a court of law and I have to ask you what you mean by, when you say, "He did only oral"?' In other words, when the complainant was asked to give precise and unequivocal evidence for the purposes of the proceeding in 'a court of law', she did not say that the applicant put his tongue in her vagina. Rather, she stated that he put his mouth in her vagina.

92 In a criminal trial where each element of a charge must be proved beyond reasonable doubt, it is impermissible for the jury to speculate or guess to a conclusion. It might be that in this case the complainant was intending to indicate by her answers that the applicant's tongue penetrated her vagina. However, despite repeated direct questioning by the prosecutor, her answers were sufficiently unclear that, in our view, the jury could never exclude the competing hypothesis that penetration was by the mouth, and not by the tongue. For the reasons already discussed, penetration by the mouth, which was specifically disavowed by the prosecutor, was insufficient to prove a charge limited by the prosecution to penetration by the tongue.

Disposition of appeal against conviction on charges 4 and 6

93 Our conclusion that grounds 1 and 2 are made out means that the appeal against conviction in respect of charges 4 and 6 must be allowed.

94 In its written case, the Crown made a very brief submission that, in the event that this Court decided to set aside the convictions on charges 4 and 6, it could enter judgments of conviction of offences of rape constituted by penetration of the complainant's vagina by the applicant's mouth rather than his tongue. That course was said to be available under s 277(1)(c) of the CPA. The Court directed the parties to file written submissions on this issue. After the parties did so, at the Court's request, they also filed further written submissions on whether it would be open to the Court to enter judgments of conviction of offences of sexual assault for the convictions for rape on charges 4 and 6.

95 In deciding the orders to be made consequent upon the appeal being allowed, it is necessary to consider certain provisions of the Crimes Act 1958 and the CPA, and some cases that have considered those provisions. After doing so, we will set out the parties' submissions and our decision in relation to them.

(a) Relevant provisions of the Crimes Act and the CPA

96 The Crimes Act contains the following relevant provisions in relation to the offences of rape and sexual assault:

35A Sexual penetration

(1) A person (A) sexually penetrates another person (B) if -

(a) A introduces (to any extent) a part of A's body or an object into B's vagina; or

(b) A introduces (to any extent) a part of A's body or an object into B's anus; or

(c) A introduces (to any extent) their penis into B's mouth; or

35B Touching

(1) Touching may be done -

(a) with any part of the body; or

(b) with anything else; or

(c) through anything, including anything worn by the person doing the touching or by the person touched.

(2) Touching may be sexual due to -

(a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or

(c) any other aspect of the touching, including the circumstances in which it is done.

...

35D Sexual activity

An activity may be sexual due to -

(a) the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or

(b) the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or

(c) any other aspect of the activity, including the circumstances in which it is engaged in.

...

38 Rape

(1) A person (A) commits an offence if -

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

...

40 Sexual assault

(1) A person (A) commits an offence if -

(a) A intentionally touches another person (B); and

(b) the touching is sexual; and

(c) B does not consent to the touching; and

(d) A does not reasonably believe that B consents to the touching.

97 Section 277 of the CPA sets out the Court's powers when it allows an appeal against conviction relevantly as follows:

277 Orders etc. on successful appeal

(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must -

(a) order a new trial of offence A; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B -

enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or

(d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; ...

98 Section 159(3)(c) of the CPA, read together with cls 1(b) and 2(1) of sch 1, requires an indictment to set out such particulars of the offence as are 'necessary to give reasonable information as to the nature of the charge'. Section 165 provides for the amendment of indictments relevantly as follows:

165 Order for amendment of indictment

(1) The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2) If an indictment is amended by order under this section, the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the trial.

99 Section 239 of the CPA makes provision for alternative verdicts in the following terms:

239 Alternative verdicts on charges other than treason or murder

(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

(2) For the purposes of subsection (1), an allegation of an offence includes an allegation of an attempt to commit the offence.

100 The predecessor to s 239 of the CPA was the now repealed s 421(2) of the Crimes Act, which contained similar wording. The now repealed s 425(1)(a) of the Crimes Act provided that the offence of sexual assault was an alternative to the offence of rape.

101 The power in s 277(1)(c) of the CPA and its equivalents in other Australian jurisdictions is most likely to be exercisable in situations where the 'other offence' is one which is wholly within the ultimate facts of the offence on which the accused has been convicted.[29] The power is enlivened in at least the following situations:

(a) where it appears that the accused did not complete the full offence charged, but his or her conduct suffices to establish that he or she was guilty of an attempt to commit it;[30]

(b) where the jury is entitled to return an alternative verdict either by statutory provision or at common law;[31] and

(c) where the other offence was included in the indictment as an alternative to the charge the conviction for which is being set aside.[32]

102 The substitution power is not confined to offences actually alleged on the indictment.[33]

103 In Spies v The Queen, the plurality of the High Court stated that the substitution power can only be exercised where the appellate court is able to say that, given the evidence at the trial and what was common ground, the conviction verdict demonstrates that the jury were affirmatively satisfied of those facts which constitute the 'other offence'.[34]

104 The power in s 277(1)(c) of the CPA must be exercised with caution in order to avoid this Court supplanting the jury as the constitutional tribunal charged with the responsibility for findings of fact in criminal matters.[35]

105 Section 239 of the CPA and its predecessor, s 421(2) of the Crimes Act, operate in the same way as the common law.[36]

106 In Mareangareu, to which we previously referred, this Court considered the circumstances in which 'the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence' for the purpose of s 239 of the CPA. It approved a statement in R v Salisbury[37] that this question has to be determined upon a consideration of the terms in which the offence is laid, and does not depend on the evidence led at trial except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge. The Court added the following:

[T]he question of whether an alternative offence is expressly or impliedly included in the indictment is answered by the application of what is often described as the 'red pencil test'. The red pencil test involves the deletion of words from the particulars of an offence contained in the indictment, thus leaving the particulars of an appropriate alternative offence.[38]

107 The Court in Mareangareu held that the offence of common assault was not an alternative to the offence of intentionally causing injury. That was because the former offence required direct application of force to the victim's body by the offender whereas the latter offence could be committed without such force.

108 Our research, and that of the parties, has not revealed any authority which considered the question whether the particulars of the offence for which the offender has been convicted may be substituted pursuant to s 277(1)(c) of the CPA (or its equivalents in other Australian jurisdictions), as opposed to substituting a separate offence.

109 Contrary to the Crown's submissions (see below), Kargar v The Queen[39] is not such an authority. In that case, this Court substituted a conviction of aggravated burglary under s 77(1)(a) of the Crimes Act (burglary with an offensive weapon) with a conviction of aggravated burglary under s 77(1)(b) (burglary when a person was present). The offender and the prosecutor had agreed that the offender would plead guilty to aggravated burglary under s 77(1)(b). The indictment simply stated that the offence was contrary to s 77, although the description of the offence reflected s 77(1)(a). However, the facts set out in the agreed prosecution opening could support a conviction for an offence under s 77(1)(b) but not under s 77(1)(a). On appeal, the Crown conceded that a conviction for an offence under s 77(1)(b) should be substituted. Although each of the offences created by s 77(1)(a) and s 77(1)(b) fall under the rubric 'aggravated burglary', they are based upon different statutory provisions with distinct elements and therefore constitute separate offences.

110 Eade v The Queen[40] is also not such an authority. In that case, the offenders pleaded guilty to arson particularised as the intentional destruction of a building, whereas the evidence only established that they intentionally destroyed some milk crates wrapped in plastic that were in the building. They were subsequently granted leave to appeal against their sentence. In the context of that appeal, they sought an order that the appeal be allowed, that the Court amend the indictment to allege that the property that they intentionally destroyed was the crates (rather than the building) and that they be resentenced accordingly. The Crown agreed to the making of such orders. The Court made those orders. It amended the indictment under s 165 of the CPA and did not rely upon s 277(1)(c).

(c) Parties' submissions on disposition of appeal against conviction; charges 4, 6

111 The Crown submitted that, if this Court allows the appeal against conviction on charges 4 and 6 and sets aside the convictions on those charges, s 277(1) of the CPA confers power on the Court to adopt one of three courses. First, the Court can substitute a conviction for rape constituted by penetration by the mouth under para (c). Secondly, the Court can substitute a conviction for sexual assault under para (c). Thirdly, the Court can order a new trial under para (a). The Crown contended that the first course was the most appropriate in the circumstances of this case.

112 The Crown contended that s 277(1)(c) of the CPA confers upon the Court a broad discretion to make orders that are necessary to do justice in the circumstances of a particular case. It argued that there is no requirement for the substitute offence to be an alternative offence to the substituted offence or even that it be a different offence. That was said to be because the language of the section is that the substitute offence is 'some other offence' instead of the offence of which an appellant has been convicted. According to the Crown, this refers to some other offence other than the very offence pleaded on the indictment of which an appellant has been convicted. The Crown submitted that s 277(1)(c) simply requires that the proposed substitute offence must be 'other' than the charged offence of which the appellant has been convicted, and does not mandate that the offence be a different or alternative offence.

113 The Crown submitted that s 277(1)(c) of the CPA encompasses more than simply a consideration of what alternate offences were available to the jury in the applicant's trial. The plain language of the section was said to not support such a narrow construction because it makes no reference to s 239 of the CPA or to 'alternative' offences. According to the Crown, the use of the far broader phrase 'some other offence' must be seen to be a deliberate choice by Parliament not to constrain the Court to considering only the 'alternate' verdicts available to the jury in the case.

114 The Crown contended that the first limb of s 277(1)(c) of the CPA makes no reference to the jury that tried an appellant nor to the indictment on which an appellant was tried. The Crown argued that s 277(1)(c) asks, objectively, whether there was evidence adduced on which an appellant could have been found guilty of offence B. Thus, so it was said, the first step of the process is one which is not concerned with the task which was actually performed by the jury at an appellant's trial and what verdicts were open to that jury, but rather it is concerned with the evidence presented and whether, in the Court's view, on that evidence an appellant could have been convicted of that offence. According to the Crown, the next step is an evaluative one, and is undertaken by reference to a consideration of the facts necessarily found in an appellant's trial by the jury. Thus, so the Crown argued, the jury's role as the tribunal of fact is not disturbed as it is only if the facts as the jury must have found them can support the proposed offence B that the Court can enter a judgment of conviction of offence B.

115 The Crown relied upon Kargar in support of its submissions. It contended that in Kargar this Court substituted a conviction for the same offence (aggravated burglary) as that for which the appellant in that case had been convicted by simply substituting the particulars by which the offence was made out.

116 The Crown also relied upon Vyater v The Queen.[41] In that case, this Court set aside a conviction for trafficking of not less than a commercial quantity of ephedrine and substituted a conviction for the offence of possessing a substance, material, document or equipment for the purpose of trafficking in a drug of dependence, notwithstanding that the substituted offence was not on the trial indictment.

117 The Crown submitted that, in the present case, the jury must have been satisfied of all the elements of the offence of rape and that the element of penetration was constituted by penetration by the applicant's tongue, which necessarily included penetration by his mouth. In those circumstances, so it was said, it is open to this Court to enter a judgment of conviction for charges 4 and 6 particularised as rape constituted by penetration by the mouth ('offence B') in place of the differently particularised rape (penetration by the tongue) charged on the trial indictment ('offence A').

118 According to the Crown, if the Court is not prepared to substitute a conviction for the offence of rape constituted by penetration by the mouth, it can substitute a conviction for sexual assault for the following reasons:

(a) Objectively, on the evidence presented at the applicant's trial, he could have been found guilty of sexual assault arising from the episodes charged as rape by lingual penetration.

(b) Given that the jury convicted the applicant of rape in respect of each episode, it would be open to the Court to conclude that, on the facts found by the jury, the jury must have been satisfied of the acts of the applicant placing his mouth at least on the complainant's vagina. Those facts, which were necessarily found by the jury in the course of convicting the applicant of the rapes, are sufficient to prove his guilt of sexual assault.

119 The Crown submitted that, if this Court is not minded to make an order under s 277(1)(c) of the CPA, it would be appropriate for it to order a new trial for the rape charges under s 277(1)(a) rather than entering a judgment of acquittal under s 277(1)(b). That was said to be because the purported deficiency in the evidence was proof of a particular rather than an element of the offence of rape. According to the Crown, it was open on the complainant's evidence for the jury to be satisfied that sexual penetration had occurred in the case of each of charges 4 and 6 and, if there truly was any controversy surrounding that evidence, it was as to the particulars of how that penetration had occurred.

120 The Crown contended that, in these circumstances, it would not be in the interests of justice for this Court to enter judgments of acquittal, notwithstanding that grounds 1 and 2 are couched in terms of 'unreasonable or cannot be supported having regard to the evidence'. According to the Crown, as the applicant denied that the relevant acts of penetration had occurred, whatever arguable unfairness could be said to arise from the purported uncertainty in the complainant's evidence as to the manner of penetration (as against the fact of it), such unfairness was most properly overcome by an order for a new trial, rather than an order for acquittal.

121 The applicant submitted that there are two conditions precedent to the exercise of the power in s 277(1)(c) of the CPA.[42] The first condition precedent was said to be that the appellant 'could have been found guilty of some other offence'. The applicant contended that this requires that the substitute offence must be one of which the jury could have found the appellant guilty, whether as a statutory or common law alternative or as an alternative offence included on the indictment.[43] According to the applicant, the first condition precedent is incapable of being satisfied where the proposed substitute conviction is for rape particularised in a different manner to the charge of rape on the indictment.

122 The applicant submitted that the second condition precedent is that this Court must be satisfied that the jury must have been satisfied (to the criminal standard) of facts that proved the appellant's guilt of the substitute offence. The applicant contended that even if, contrary to his primary submission, a charge alleging a rape involving penetration by the mouth could satisfy s 277(1)(c)(i) of the CPA, this Court could not be satisfied that the jury were satisfied beyond reasonable doubt that there was penetration by the mouth. According to the applicant, following the judge's redirection, the jury were not required to reach a conclusion as to whether there was penetration by the mouth and s 277(1)(c)(ii) could not apply because it was not apparent from the jury's verdict that they were satisfied as to the contended fact of penetration by the mouth.

123 In relation to whether a conviction for sexual assault could be substituted for a conviction for rape, the applicant submitted that the first condition precedent was not satisfied in the present case. That was said to be because sexual assault is not a charge of which the applicant 'could have been found guilty' at his trial had the jury not found him guilty of rape, as sexual assault was not on the indictment as an alternative and it is no longer a statutory alternative to rape. According to the applicant, the jury could not have found him guilty of sexual assault because the prosecutor decided not to pursue the steps necessary to place that offence before the jury.

124 The applicant contended that it is clear that s 239 of the CPA applies where the allegations in the alternative offence are wholly included in the charged offence. He argued that it is necessary that every instance of the charged offence necessarily encompasses all the elements of the included offence.[44] It was said that the assessment is by reference to the terms of the indictment and not to the evidence led.[45] According to the applicant, whether a charge is included is a question answered by the application of the 'red pencil test' that was considered in Mareangareu.[46]

125 The applicant submitted that s 239 of the CPA cannot be relied upon to support a conviction for the offence of sexual assault on charges 4 and 6 for the following reasons:

(a) The red pencil test simply cannot produce a charge of sexual assault from the words of charges 4 and 6.

(b) Even if the red pencil test could do so, sexual assault contains an element not required in proof of rape: namely, that the touching was sexual. By contrast, rape requires only sexual penetration (as defined) and there is no element concerning whether the penetration was sexual. Thus, sexual penetration cannot be said always, in all cases, to amount to and include sexual assault.

(c) Given the alternative only becomes relevant where the existing conviction is unreasonable, the particular 'tongue into her vagina' in charges 4 and 6 would have to be omitted. The red pencil cannot be used to add particulars and therefore the charges would be left without any particulars of touching to identify what was touched by what, and to what the mental state relates.[47] Section 239 does not permit an alternative that itself could not comply with s 159(3)(c) and sch 1 of the CPA.[48]

126 The applicant submitted that, even if the Court had power under s 277(1)(c) of the CPA to substitute a conviction for the offence of sexual assault in respect of charges 4 and 6, the Court should not exercise that power because the prosecutor made a forensic decision not to seek an alternative verdict or to seek leave to amend the trial indictment. According to the applicant, s 277(1)(c) is not a mechanism for relief from the forensic choices made by the Crown in the conduct of the trial and it does not facilitate the substitution of a verdict for an offence the Crown made a considered decision not to put before the jury.[49]

127 The applicant argued that an order for a new trial in the present case would constitute an abuse of process because it would involve the applicant being prosecuted again on the same charges. The applicant contended that there is no alternative offence in respect of which a retrial could be ordered. According to the applicant, a judgment of acquittal should be entered under s 277(1)(b) of the CPA.

(d) Decision on disposition of appeal against conviction; charges 4, 6

128 In our opinion, the appropriate disposition of the appeals against conviction on charges 4 and 6 is that the convictions be set aside and that judgments of acquittal be entered pursuant to s 277(1)(b) of the CPA.

129 For the reasons set out at [109] above, we reject the Crown's submission that Kargar is authority for the proposition that s 277(1)(c) of the CPA empowers this Court to substitute a conviction for offence B where the difference between offence B and offence A is a particular (rather than an element) of the offence.

130 The case of Vyater upon which the Crown also relied does not assist in the resolution of the issues raised in the present case. That is because it dealt with entirely different offences and the offender in that case conceded that it was open to the Court to substitute a conviction for the proposed alternative offence.[50]

131 Since the repeal of s 425(1)(a) of the Crimes Act, which specified that the offence of sexual assault was an alternative to the offence of rape, it has been unclear whether the latter offence can be left to the jury as an alternative to the former offence under s 239 of the CPA. That is because it is physically possible for one form of sexual penetration for the purposes of the offence of rape (penetration of a complainant's mouth with the offender's penis) to be undertaken without necessarily encompassing one of the elements of the offence of sexual assault, namely, sexual touching.[51] As such, Mareangareu, R v Smith,[52] Reid v The Queen,[53] Pollard v The Queen[54] and Director of Public Prosecutions v Ayyad[55] suggest that s 239 may not apply. On the other hand, an issue arises as to whether AJS indicates that an approach which is less strict than the approach adopted by the abovementioned cases may be open.

132 In the present case, it is not necessary for us to express a view upon the precise parameters of the power in s 277(1)(c) of the CPA. That is because, even if the power was wide enough to cover the present case, in the particular circumstances of the present case, it would not be in the interests of justice to exercise the power to substitute either the offence of rape, constituted by penetration by the mouth, or the offence of sexual assault. Those circumstances include the following:

(a) The trial indictment did not include the offence of sexual assault as an alternative to the charges of rape.

(b) In the trial indictment and the prosecutor's opening address, charges 4 and 6 were particularised as penetration by the applicant's tongue.

(c) For the reasons discussed already, in her evidence in chief, the complainant did not state that the applicant's tongue penetrated her vagina but seemed to say that his mouth did so.

(d) In cross-examination, defence counsel put to the complainant that any sexual activity that took place was consensual, but did not cross-examine her on the mode of penetration.

(e) The judge directed the jury that they could find the applicant guilty of charges 4 and 6 if they were satisfied that he penetrated her vagina either with his tongue or his mouth.

(f) The prosecutor took exception to this direction and requested that the judge redirect the jury on the basis that the applicant could be found guilty of charges 4 and 6 only if the jury were satisfied that he penetrated her vagina with his tongue. The judge made the requested redirection.

(g) The prosecutor also took issue with the fact that defence counsel had not put to the complainant the applicant's denial that he had had oral sex with her. In response, defence counsel stated that, in his closing address, he would focus on the issue of consent rather than the issue of penetration. Defence counsel's closing address was formulated accordingly.

(h) After initially informing the judge that he would seek an alternative verdict for sexual assault for charges 4 and 6, the prosecutor told the judge that, on instructions, he would not seek such alternative verdicts.

(i) The prosecutor did not seek to amend the trial indictment to include the offences of rape, constituted by penetration by the mouth, or the offence of sexual assault.

133 In our opinion, it would be inappropriate for this Court to substitute a conviction for rape, constituted by penetration by the applicant's mouth, or a conviction for sexual assault in circumstances where the Crown made a deliberate forensic choice that the jury be precluded from finding guilt on these alternative bases. The discretion to decide which offences are prosected is vested in the Crown and s 277(1)(c) of the CPA is not intended to be a mechanism to facilitate a change of heart by the Crown, after a trial, as to how that discretion should be exercised. The following observations by the High Court in James v The Queen, which were made in the context of s 239 of the CPA, are particularly pertinent in this regard:

The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this Court's decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.[56]

134 Furthermore, in the present case, defence counsel was entitled to make forensic choices concerning cross-examination based upon the particularisation of charges 4 and 6 in the trial indictment and the prosecutor's opening.

135 The case the applicant was required to meet in relation to those charges was penetration by his tongue. Defence counsel was entitled to formulate his cross‑examination and closing address on the basis that the complainant's evidence in chief did not establish such penetration. In those circumstances, it would have been forensically unreasonable to pursue this issue. We are not satisfied that defence counsel's cross‑examination and closing address would not have been different if charges 4 and 6 were particularised and opened as penetration by either the applicant's tongue or mouth. In these circumstances, this Court would be denying the applicant procedural fairness if it were to substitute convictions for rape constituted by penetration by his mouth for the convictions for rape constituted by penetration by his tongue.

136 As appears from [69] above, it was not common ground on the appeal that penetration by the tongue necessarily includes penetration by the mouth. This issue was not discussed at trial and, accordingly, there was also no common ground at that stage of the proceeding. In these circumstances, having regard to the observations of the High Court in Spies set out at [103] above, it would be inappropriate for this Court to exercise the power in s 277(1)(c) of the CPA on the basis that the jury must have been satisfied that the applicant penetrated the complainant's vagina with his mouth. The simple fact is that, due to the forensic choices made by the Crown, the jury were not asked to consider this issue or whether any of the elements of the offence of sexual[57]ssault were satisfied.57

137 Although the Crown did not rely upon the amendment power in s 165 of the CPA, it would not be appropriate for this Court to exercise that power in the present case. That is because, for the reasons we have outlined, such an amendment would cause injustice to the applicant. In this regard, we note that the amendment power was exercised by this Court in Eade with the agreement of both parties. In the present case, the applicant does not consent to the adoption of such a course and, as we have already mentioned, the prosecutor did not seek to amend the trial indictment at the conclusion of the complainant's evidence.

138 As to the Crown's alternative submission that the Court should order a new trial under s 277(1)(a) of the CPA, in the light of the matters to which we have already referred, such an order would be highly unjust and inappropriate.

139 To a lay observer, it may appear incongruous that the applicant will be acquitted in relation to charges 4 and 6 notwithstanding that the complainant gave evidence, which the jury accepted, that the applicant's mouth made contact with her vagina on two occasions without her consent. However, that outcome is the direct result of deliberate and considered forensic choices made by the Crown:

(a) not to particularise the penetration the subject of charges 4 and 6 as penetration of the complainant's vagina by the applicant's mouth or his tongue;

(b) not to include in the indictment charges of sexual assault as alternatives to charges 4 and 6; and

(c) not to seek leave to amend the trial indictment to include the matters set out in (a) and (b) above at the conclusion of the complainant's evidence.

Statutory provisions relating to tendency evidence

140 Section 97(1) of the Evidence Act 2008 relevantly provides that '[e]vidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind' unless two conditions are satisfied. Those conditions are that prior written notice of the intention to adduce such evidence is given and the court thinks that the evidence will have significant probative value. Section 101(2) imposes a further restriction on the use of tendency evidence by the prosecution in a criminal case, namely, that such evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect it may have on the accused.

141 Section 26 of the JDA defines 'other misconduct evidence' as including 'tendency evidence' within the meaning of the Evidence Act. Section 27(1) provides that defence counsel may request under s 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution. Section 27(2)(a) provides that, in giving such a direction, the judge must identify how the other misconduct evidence is relevant to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose. Section 29 of the JDA provides as follows:

29 Direction to avoid risk of improper use of other misconduct evidence

(1) If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.

• Note
• Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence.

Application that charges 1 to 10 be tried separately from charges 11 to 14

142 On 11 March 2020, defence counsel made an application for charges 1 to 10 to be tried separately from charges 11 to 14. One of the bases for the application was that there was a significant risk that the jury would engage in impermissible propensity reasoning rather than considering the evidence in relation to the different incidents separately. Defence counsel submitted that the jury might reason that, 'if [the applicant] has committed the offences [the subject of charges 1 to 10,] he will tend to be more likely to be the kind of person who would commit the offences [the subject of charges 11 to 14] ... [a]nd vice versa'.[58]

143 The prosecutor stated that it was not his intention to rely upon tendency reasoning. He agreed with a statement by the judge that, if severance was not ordered, 'there may be some limitation that [she] may need to impose at the conclusion of the trial in relation to the way in which [the prosecutor] can go to the jury as to how each set of evidence can be relied upon in relation to each successive set of evidence.'[59] The judge refused the application for separate trials.

144 The complainant gave evidence that, after she left the applicant's apartment on 24 July 2018, she let him know by telephone that she was going to stay with her brother. She stated that he responded 'Okay. Well, that's good. I'm - I'm happy that you got this, but I need my key.'[60] She said that he told her to return the key to the apartment within the hour, that he knew where her brother lived, and that, if she was not at his apartment within the hour, 'expect anything'.[61] She said that she told him that she was scared to return because she did not want 'what happened to [her] last time' to happen again, but that he had promised that he was not going to touch her.[62]

145 The complainant gave evidence that, after she entered the applicant's bedroom in the apartment for the purpose of returning the key, he closed the bedroom door and locked the front door. She said that the applicant told her that she could not leave unless she correctly answered some questions. She said that she could not remember the questions. She said that, if she answered the questions incorrectly, he hit her with a metal torch and then told her to take her clothes off. She said that it was 'just a game for [the applicant]'.[63]

146 The complainant also gave evidence that, at some point during her stay at the applicant's apartment, he said to her 'This is not your turn, it's my turn' and it was like 'now I'll do what I want and you can't say anything about it'.[64]

147 The complainant gave evidence of not feeling free to come and go from the applicant's apartment as she pleased and of being scared of him.

Jury Directions Act discussion, prosecutor's closing address, judge's charge

148 The use of evidence relating to charges 1 to 6[65] in support of charges 11 to 14 was referred to in discussions between the judge and counsel concerning the directions to be given to the jury under the JDA. The prosecutor indicated that, in his closing address to the jury, he would refer to the assaults and sexual offending the subject of charges 1 to 6 as having some relevance to the applicant's motive for the offending the subject of charges 11 to 14. He said that he would submit to the jury that the applicant's motive for committing the offences the subject of charges 11 to 14 was that the complainant had 'effectively left [the applicant's apartment] without approval in circumstances where those other offences had been committed'.[66]

149 The judge stated that she would give a separate consideration direction. She asked the prosecutor the following question: 'So it is not the fact of the findings of guilt or [the jury's] deliberations in relation to proof of those charges, it's the same matrix of evidence that you use to explain and contextualise behaviour on a later occasion.'[67] The prosecutor replied: 'Yes'.[68]

150 In his closing address, the prosecutor said the following:

Why did [the applicant] commit this assault if he did do it? Is there any reason for why he would commit such an assault? Is there any reason why he would false imprison this woman in the apartment? Well, I ask that you consider two possibilities in relation to that. In relation to the assault and the false imprisonment, she had been under his control and direction on her account for about six weeks. And had 'gone and come' according to what he told her and then she had 'upped and out' of her own accord. And she was prevailed on, she was persuaded, on her account, under threats to come back. And when she came back, she'd made the choice - it was her choice to leave. He hadn't approved it. And when she came back on her account, he said to her, 'Now, it's my choice. Now, it's my choice.' And his choice was to punish her most severely by a prolonged assault and by imprisonment for having gone off independently of his wishes.

And she had gone to get out of this place and this person who had assaulted and raped her. He had not approved it and she stood to be punished. And you might think that there, what followed was an exercise of - an exercise in pure domination. Pure dominating of one human being by another. Complete subjugation on one person to the will of another with the various dimensions to it that you know and that I don't need to repeat.[69]

151 In the absence of the jury, defence counsel objected to this aspect of the prosecutor's address. He told the judge that either the prosecutor should 'walk back those comments to the jury, or [the judge should] very strongly direct in relation to not considering the evidence in that fashion'.[70]

152 The judge also expressed concern that the prosecutor's statement may carry the risk of 'pre-packaging and assuming the veracity of [the complainant's] evidence ... because it invites a motive ... a retributive animus, and ... almost bad character or tendency reasoning that there was a menace'.[71] She also stated that 'context was in principle a permissible use.'[72]

153 It was agreed between counsel and the judge that the prosecutor would clarify with the jury that he did not assert evidence of motive could be found independently of the evidence of the complainant and that the judge would direct the jury as to the permissible and impermissible uses of the evidence concerning charges 1 to 6 in relation to charges 11 to 14.

154 When the jury returned, the prosecutor stated the following:

Members of the jury, lest there be any misunderstanding from anything I've said before lunch, obviously a critical issue in this case is your assessment of the credibility, reliability of the complainant who you've heard from and the account that she's given you. I made reference to motive and I don't suggest that there's any evidence of motive other than what the [complainant has] told you. So it's not as if I'm suggesting there's external support for a motive. It all comes back to this issue of whether you accept what the complainant has told you.

In terms of the relationship between the earlier events and the later events and particularly, your assessment of the later charges, the later alleged assault, false imprisonment, the prosecution certainly says, well, you'll find the context for those events, both later events in the earlier events and so that you need to consider those early events, whether you accept that they happened to give you some understanding of context for the later events. And the prosecution says certainly that there's been an escalation of events that culminates in those last events over 24 and 25 July.[73]

155 Defence counsel did not seek a direction under s 29 of the JDA in respect of the use of evidence pertaining to charges 1 to 6 for the purposes of considering charges 11 to 14.

156 The judge directed the jury that they must give separate consideration to each charge on the trial indictment in the light only of the evidence relevant to that charge. She reiterated that direction on a number of occasions. She then said the following concerning the permissible use of earlier charged conduct in relation to later charged conduct:

Members of the jury, I now remind you on the third occasion, this is how important it is, of the requirement that you give each charge separate consideration. And I have reminded you that simply because you reach a verdict one way or the other in relation to one charge, it does not infect your deliberations in relation to any other charge.

You may be wondering whether and to what extent evidence of events earlier in the narrative, for instance allegations of violence, can be used by you in relation to events later in the narrative such as later acts of violence. The prosecution has led the evidence of the narrative from beginning to middle to end from [the complainant], it says, to present a full picture of the context of their relationship. And the prosecution says, of escalation in violence within that relationship.

The prosecution urges you to take that into account to consider, for instance, when you come to evaluate the defence assertion, why did she decide to return to the house, it must be viewed in light of that relationship. But it can only be used in that way which is the context of their relationship. You cannot and must not substitute evidence led earlier in the narrative as a makeweight to determine verdicts later in the narrative. The issue for you in relation to each individual charge squarely rests on your evaluation of [the complainant's] evidence as to each individual event and, the prosecution says, substantiated by the other circumstances which is disputed by the defence.

This evidence of their relationship is not evidence independent to her ...

You can only find [the applicant] guilty of any charge if you are satisfied of his guilt of that charge beyond reasonable doubt based on the whole of the evidence. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you may have learned about the [applicant]. The evidence has been led for the very limited purpose of helping you to understand these circumstances of their relationship and, the prosecution says, that context which is disputed by the defence as I have mentioned.[74]

157 Later in her charge, in summarising the closing addresses of counsel, the judge said that the prosecutor 'urged you to look at the relationship, contextualise [the complainant's] behaviour in returning to the house in that clear context of escalating violence'.[75]

158 Defence counsel did not take any exception to the judge's charge.

159 The applicant submitted that the explanations in the prosecutor's closing address as to why the applicant committed the offending the subject of charges 11 to 14 impermissibly invited the jury to engage in propensity reasoning. That was said to be because the prosecutor invited the jury to reason that, based upon the truth of the allegations in charges 1 to 6, the applicant tended to violence and control and therefore had a motive to 'punish' the complainant for her assertion of independence.

160 According to the applicant, there was no foundation for the asserted motive in the evidence which was not based upon propensity reasoning. He contended that the complainant gave evidence of not feeling free to come and go from his apartment as she pleased and of being frightened of him. However, he argued that there was no evidence of violent and controlling behaviour by him after she sustained her facial injuries until the occasion to which charges 11 to 14 relate. He submitted that the relationship evidence in the trial rested almost entirely upon the evidence led in support of charges 1 to 6.

161 The applicant contended that nothing said by the prosecutor or the judge precluded the jury from taking up the prosecutor's invitation to reason that the applicant committed the offending the subject of charges 11 to 14 because, as demonstrated by the evidence led in support of charges 1 to 6, he was a violent and controlling sort of person. The applicant argued that, whilst the prosecutor clarified that all evidence of motive came from the complainant, he did not resile from his invitation to reason from it directly towards guilt.

162 In oral submissions, counsel for the applicant submitted that defence counsel in effect requested that a direction be given to the jury in the nature of s 29 of the JDA. She contended that there were compelling reasons for such a direction to be given in this case and the judge's charge did not avert the jury engaging in impermissible propensity reasoning.

163 According to counsel for the applicant, the relationship evidence could have appropriately been used as context to explain why the complainant returned to the applicant's apartment. However, counsel argued that the prosecutor instead impermissibly invited the jury to use the relationship evidence to explain why the applicant committed the offending the subject of charges 11 to 14. Counsel accepted that the judge directed the jury that the relationship evidence could be used as context. However, counsel contended that the judge's reference to 'substantiated by the other circumstances' in the italicised sentenced at [156] above was to the applicant's motive and, therefore, it did not preclude the jury from utilising the evidence adduced in support of charges 1 to 6. Counsel submitted that the applicant's motive was his predisposition and therefore the judge's direction did not convey to the jury that they could not use tendency reasoning base[76]on motive.76

164 The Crown submitted that the prosecutor did not suggest to the jury that the applicant committed the offending the subject of charges 11 to 14 because he was a violent person predisposed to violence, or because he was a controlling person predisposed to control. Rather, it contended that the prosecutor invited the jury to reason that the applicant had committed the offending the subject of charges 11 to 14 as a response to the complainant having left the apartment against his 'rule' that she not leave without his permission. It argued that the alleged earlier conduct provided relevant context to show that there had been a 'rule' for the complainant to have 'broken' and thus fall to be punished. It submitted that it was legitimately open on the evidence for the prosecutor to advance this argument and he did not invite propensity reasoning.

165 The Crown acknowledged that it was not necessary for the prosecutor to prove a particular motive. However, it contended that, in a case such as the present where the applicant denied the offending, it was particularly relevant for the prosecutor to advance a motive where one was reasonably open on the evidence. That was said to be because the existence of an arguable motive for the applicant to act in the way alleged by the complainant was relevant to whether the jury accepted her evidence regarding the occurrence of the offending the subject of charges 11 to 14.

166 In oral submissions, counsel for the Crown drew a distinction between evidence of motive and evidence of motivation. Counsel contended that evidence of motive - such as that in the present case - is admissible whereas evidence of motivation may be inadmissible because it might be underpinned by tendency reasoning, such as an offender's predisposition to act in a particular manner.

167 In written submissions, the Crown argued that the prosecutor's closing address and the judge's charge appropriately reinforced the legitimate use of the evidence relied upon in support of motive. Accordingly, it submitted that the risk of propensity reasoning never arose from the prosecutor's address, therefore there was no basis for defence counsel to request a specific direction under s 29 of the JDA in respect of that evidence. In oral submissions, counsel for the Crown contended that this was especially so because, after completing his closing address, the prosecutor addressed the jury for a second time in order to disavow any invitation for the jury to engage in propensity reasoning.

169 If the statement in the prosecutor's closing address as set out at [150] above had not been the subject of clarification by the prosecutor and direction by the judge, it may have been arguable that there was a possibility that the jury could have understood the statement as inviting them to engage in tendency reasoning on the following basis. First, the prosecutor's references to 'pure domination' and '[c]omplete subjugation on one person to the will of another', which arose from the evidence in support of charges 1 to 6, meant that the applicant had a propensity to be controlling and domineering. Secondly, the applicant acted on that propensity in committing the offences the subject of charges 11 to 14. Thirdly, the applicant's motive for doing so was that propensity, in the sense that he wanted to punish the complainant because she had disobeyed him by leaving his apartment when he had forbidden her from doing so.

170 It is not necessary for us to consider the merits of the argument set out at [169] above. That is because, even if that argument might have had some merit, any such merit was completely negated by the prosecutor's subsequent statement that is set out at [154] above and the judge's directions that are discussed at [156]-[157] above.

171 The effect of the prosecutor's subsequent statement was to make it clear to the jury that his previous observations about motive amounted to no more than the proposition that, for the purposes of charges 11 to 14, the evidence in support of charges 1 to 6 could only be used by them to place the relationship between the applicant and the complainant in context. That context was relevant to the jury's assessment of the complainant's credibility and reliability because it was capable of providing an explanation as to why she returned to the applicant's apartment after she was, on her evidence, subject to serious physical and sexual abuse by him. Use of the evidence for the purpose of providing context was then emphasised by the judge in her directions. The evidence was admissible for such a purpose and did not involve impermissible tendency reasoning.

172 Having regard to the above conclusion, it is not necessary for us to consider the distinction between motive and motivation upon which counsel for the Crown relied.

173 We reject the applicant's submission that the judge's reference to 'substantiated by the other circumstances' in the judge's charge[77] was to the prosecutor's submission relating to the applicant's motive in committing the offences the subject of charges 11 to 14 and that this left it open to the jury to consider the evidence pertaining to charges 1 to 6 in relation to charges 11 to 14. In our opinion, it is clear from the context in which the above reference was made that it was to evidence of matters such as complaint, bloodstains and telephone records upon which the prosecutor relied to bolster the complainant's credibility and reliability.

174 As we have previously stated, defence counsel did not seek a direction under s 29 of the JDA or take any exception to the judge's directions in relation to the use of evidence pertaining to charges 1 to 6 for the purposes of assessing charges 11 to 14. Thus, defence counsel may be taken to have been satisfied that the prosecutor's clarification statement and the judge's directions appropriately addressed any risk of the jury engaging in tendency reasoning.

175 In the absence of a request by defence counsel for a direction under s 29 of the JDA, the judge was not obliged to give such a direction unless she was of the view that there were substantial and compelling reasons for her to do so.[78] For the reasons set out at [170]-[173] above, the judge was justified in concluding that no such reasons existed. In our opinion, in the light of the prosecutor's clarification statement and the judge's directions, there was no real risk that the jury might use the evidence pertaining to charges 1 to 6 as tendency evidence that supported findings of guilt in relation to charges 11 to 14.

176 For the above reasons, we are not satisfied that the prosecutor's statement that is set out at [150] above resulted in an irregularity in relation to the trial such as to require this Court to consider whether there has been a substantial miscarriage of justice under s 276(1)(b) of the CPA.

177 The individual sentences imposed by the judge and the orders for cumulation she made are shown in the following table:

Total Effective Sentence: 15 years and 6 months' imprisonment

178 The offence of rape is subject to the standard sentence scheme in ss 5A, 5B and 11A of the Sentencing Act 1991. The standard sentence for rape is 10 years' imprisonment.

179 The applicant was sentenced as a serious sexual offender in relation to charges 6 and 14 pursuant to pt 2A (ss 6A-6F) of the Sentencing Act.[79] Pursuant to s 6D(a) of that Act, the judge was required to have regard to protection of the community from the applicant as the principal purpose for which he was being sentenced.

180 As we have already stated, the applicant seeks leave to appeal against his sentence on the ground that the order for cumulation on charge 5, the total effective sentence and the non-parole period are manifestly excessive.

181 The applicant was 35 years of age at the time of the offending and 37 at the time of sentence.

182 The applicant is the eldest of six children. He was born in Somalia and lived in a refugee camp in Kenya before migrating to Australia. After he finished Year 12, he completed a year-long course in photography at a TAFE college. He has played soccer professionally and twice moved to Sweden in 2003 and 2005 to pursue the sport. He has been involved in volunteer soccer coaching.

183 The applicant has held continuous employment in various positions, including as a transport driver.

184 In a report dated 15 May 2020, a psychiatrist, Dr Prashant Pandurangi, concluded that the applicant was not suffering from any serious mental illness or intellectual disability. Dr Pandurangi assessed the risk of further sexual violence by the applicant as 'moderate'.

185 The applicant was placed on good behaviour bonds in 2011 and 2013 for offences involving criminal damage, entering a private place without authority and failing to comply with a lawful request to provide his name and address.

186 The judge described the applicant's offending as 'gravely serious and deeply concerning'.[80] She stated that it was unusual for the Court 'to observe such an egregious and terrifying series of incidents involving violence, sexual violence, threats and confinement'.[81] She considered that each of the charges represented 'a serious example' of the offending they encompassed.[82]

187 The judge stated that the applicant raped the complainant 'while she was significantly injured, and also in pain, untreated, protesting her opposition to [him]'.[83] The judge observed that the complainant was 'acutely vulnerable' as a result of the applicant's conduct the subject of charges 1 and 3.[84]

188 Although the judge said that she was unable to evaluate conclusively the applicant's prospects of rehabilitation, she noted that he had family support, a largely unblemished criminal history and a good work ethic.[85]

189 The judge took into account the provisions in the Sentencing Act relating to standard sentences and serious sexual offenders. She also took into account the hardship for prisoners caused by the COVID-19 pandemic. She stated that she was 'acutely mindful of the totality principle of sentencing in considering the orders for cumulation in this case'.[86]

190 It is not necessary for us to consider the parties' submissions regarding sentence. That is so for two reasons. First, our conclusion that the convictions for charges 4 and 6 must be set aside means that the sentencing discretion is reopened. Secondly, that conclusion also means that the applicant's complaint about the order for cumulation for charge 5 - based upon the offending for charges 4 and 5 occurring as part of the same incident - falls away.

191 We have increased the cumulation for the sentences for charges 1, 11 and 13 on the trial indictment because the compressive effect of the principle of totality is lessened by the setting aside of the convictions and sentences for charges 4 and 6 on that indictment.

Total Effective Sentence: 12 years and 6 months' imprisonment

Non-Parole Period: 9 years and 3 months' imprisonment

193 As can be seen from the above table, we have maintained the individual sentences for all the charges other than for charge 14. We have reduced the sentence for that charge as well as the cumulation because the effect of the setting aside of the convictions for charges 4 and 6 is that the applicant is no longer being sentenced as a serious sexual offender in relation to charge 14.[87]

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

[3] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[4] Contrary to common law. The maximum penalty is 10 years' imprisonment: Crimes Act, s 320.

[5] Crimes Act, s 38. The maximum penalty is 25 years' imprisonment.

[6] Crimes Act, s 40. The maximum penalty is 10 years' imprisonment.

[7] Summary Offences Act 1966, s 41DB. The maximum penalty is 1 year's imprisonment.

[8] Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is 1 year's imprisonment.

[9] DPP v Saab (a pseudonym) [2020] VCC 1468 ('Sentencing remarks').

[10] Unless stated otherwise, all references to charges below are to charges on the trial indictment.

[11] Transcript of Proceedings (13 March 2020) 170.7-182.18.

[12] Transcript of Proceedings (13 March 2020) 185.12-190.17.

[13] Transcript of Proceedings (18 March 2020) 350.10-350.11.

[14] See [50] above.

[15] Transcript of Proceedings (18 March 2020) 433.11-433.12.

[16] Transcript of Proceedings (18 March 2020) 433.30-433.31.

[17] (2019) 277 A Crim R 319; [2019] VSCA 101 ('Mareangareu').

[18] (2007) 235 CLR 505, 511 [11] ('AJS').

[19] Section 239 of the CPA is set out at [99] below.

[20] Transcript of Proceedings (23 March 2020) 689.13-689.15.

[21] Transcript of Proceedings (23 March 2020) 691.14-691.19.

[22] Transcript of Proceedings (23 March 2020) 677.15-677.16.

[23] Transcript of Proceedings (23 March 2020) 677.17-677.18.

[24] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493, 494-5 ('M').

[25] [1994] HCA 63; (1994) 181 CLR 487, 494-5 (citations omitted).

[26] (2020) 268 CLR 123, 145 [39] (citations omitted).

[27] Such an amendment would have been permissible: El-Waly v The Queen [2012] VSCA 184; (2012) 46 VR 656.

[28] See [62] above.

[29] Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603, 611-12 [23]-[24] ('Spies'). In Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47, 62 [44] ('Sio'), the High Court stated that the substitution power 'applies to offences of which [the offender] "could" have been found guilty on the basis that the elements were necessarily subsumed within the offence of which [the offender] was found guilty'.

[30] Calabria v The Queen [1983] HCA 33; (1983) 151 CLR 670, 676 ('Calabria').

[31] Calabria [1983] HCA 33; (1983) 151 CLR 670, 676.

[32] Calabria [1983] HCA 33; (1983) 151 CLR 670, 676; Spies [2000] HCA 43; (2000) 201 CLR 603, 612-13 [25].

[33] Sio [2016] HCA 32; (2016) 259 CLR 47, 62 [44].

[34] [2000] HCA 43; (2000) 201 CLR 603, 613 [27]. See also R v Cervelli [1998] 3 VR 776, 788 ('Cervelli').

[35] Spies [2000] HCA 43; (2000) 201 CLR 603, 620-1 [47]; Cervelli [1998] 3 VR 776, 787-8.

[36] Reid v The Queen [2010] VSCA 234; (2010) 29 VR 446, 450 [15] ('Reid'); Pollard v The Queen [2011] VSCA 95; (2011) 31 VR 416, 423 [33] ('Pollard').

[37] [1976] VicRp 45; [1976] VR 452, 454.

[38] Mareangareu [2019] VSCA 101; (2019) 277 A Crim R 319, 331 [44]; [2019] VSCA 101. See also Chaarani v The Queen (2020) 61 VR 353, 380 [83].

[39] [2018] VSCA 148 ('Kargar').

[40] [2012] VSCA 142; (2012) 35 VR 526 ('Eade').

[41] (2020) 282 A Crim R 65, 88-9 [103]-[105]; [2020] VSCA 32 ('Vyater').

[42] The applicant relied upon Cervelli [1998] 3 VR 776, 787; Spies [2000] HCA 43; (2000) 201 CLR 603.

[43] The cases that the applicant relied upon in support of this proposition included Cervelli [1998] 3 VR 776, 787; Calabria [1983] HCA 33; (1983) 151 CLR 670, 676-7; Spies [2000] HCA 43; (2000) 201 CLR 603, 612-13 [25]-[27]; Dibbs v The Queen (2012) 225 A Crim R 195, 203-4 [37]; [2012] VSCA 224.

[44] The applicant relied upon Reid [2010] VSCA 234; (2010) 29 VR 446, 450 [15]; Pollard [2011] VSCA 95; (2011) 31 VR 416, 423-4 [33]-[35].

[45] The applicant relied upon R v Salisbury [1976] VicRp 45; [1976] VR 452, 454; DPP v Ayyad [2014] VSC 629; (2014) 44 VR 346, 351 [16].

[46] [2019] VSCA 101; (2019) 277 A Crim R 319, 331 [44]; [2019] VSCA 101.

[47] The applicant relied upon R v Smith [2009] VSCA 85, [15].

[48] See [98] above.

[49] The applicant relied upon Youssef v The Queen [2019] VSCA 240, [20] ('Youssef') and James v The Queen [2014] HCA 6; (2014) 253 CLR 475, 490 [37].

[50] Vyater (2020) 282 A Crim R 65, 88-9 [103]-[105]; [2020] VSCA 32.

[51] See [96] above.

[52] [2009] VSCA 85, [4], [15]-[16].

[53] [2010] VSCA 234; (2010) 29 VR 446, 450 [15]-[16].

[54] [2011] VSCA 95; (2011) 31 VR 416, 423-4 [34]-[35].

[55] [2014] VSC 629; (2014) 44 VR 346, 351 [17].

[56] [2014] HCA 6; (2014) 253 CLR 475, 490 [37] (citations omitted).

[57] Cf Youssef [2019] VSCA 240, [20].

[58] Transcript of Proceedings (11 March 2020) 23.18-23.24.

[59] Transcript of Proceedings (11 March 2020) 35.15-35.20.

[60] Transcript of Proceedings (17 March 2020) 228.23-228.24.

[61] Transcript of Proceedings (17 March 2020) 228.29.

[62] Transcript of Proceedings (17 March 2020) 230.8-230.23.

[63] Transcript of Proceedings (17 March 2020) 238.28.

[64] Transcript of Proceedings (17 March 2020) 247.7-247.11.

[65] As stated at [33] above, the complainant did not give any evidence in support of charges 7 to 10.

[66] Transcript of Proceedings (19 March 2020) 540.4-540.6.

[67] Transcript of Proceedings (19 March 2020) 540.12-540.15.

[68] Transcript of Proceedings (19 March 2020) 540.16.

[69] Transcript of Proceedings (20 March 2020) 581.9-582.3. We note that the phrase 'Now, it's my choice' which the prosecutor attributed to the complainant did not form part of her evidence.

[70] Transcript of Proceedings (20 March 2020) 588.9-588.12.

[71] Transcript of Proceedings (20 March 2020) 589.29-590.3.

[72] Transcript of Proceedings (20 March 2020) 592.12-592.13.

[73] Transcript of Proceedings (20 March 2020) 603.7-603.28.

[74] Transcript of Proceedings (23 March 2020) 657.22-659.4 (emphasis added).

[75] Transcript of Proceedings (23 March 2020) 696.22-696.24.

[76] Counsel relied upon ES v The Queen [No 1] [2010] NSWCCA 197, [38]-[39] and Ritchie v The Queen [2018] VSCA 31, [34]-[42] for the proposition that motive reasoning may, in a practical sense, be indistinguishable from tendency reasoning, which provides a direct pathway to guilt.

[77] See [156], [163] above.

[78] JDA, s 16.

[79] See definition of 'serious sexual offender' in s 6B(2) of the Sentencing Act.

[87] See Sentencing Act, s 6B(2) (definition of 'serious sexual offender'); Sentencing remarks, [47]; CPA, s 277(3).