Didulica v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0124

MARIO DIDULICA	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR AND OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2023
DATE OF JUDGMENT:	30 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 292
JUDGMENT APPEALED FROM:	DPP v Didulica [2023] VCC 982 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with, and sexual penetration of, a child under 16 – Extradition – Whether applicant tried in Australia for offence other offence for which he was surrendered – Whether verdicts unreasonable or cannot be supported by the evidence – Whether verdicts inconsistent – Leave to appeal refused.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms J Warren
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
OSBORN JA:

Introduction

On 2 March 2023, the applicant was arraigned in the County Court on an indictment that charged him with committing an indecent act with a child under the age of 160F[1] (two charges – charges 1 and 5); taking part in an act of sexual penetration with a child under 161F[2] (four charges – charges 2, 3, 6 and 7); and attempting to take part in an act of sexual penetration with a child under 162F[3] (one charge – charge 4). He pleaded not guilty and a jury was empanelled.
[1]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s 47(1).
[2]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s 45(1).
[3]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), ss 45(1) and 321M.
Following a submission by defence counsel at the conclusion of the prosecution case that there was no case to answer, on 14 March 2023 the trial judge directed that verdicts of not guilty be entered on the record on charges 1 to 5.3F[4] The trial then proceeded on charges 6 and 7, resulting in (majority) verdicts of guilty being delivered on both charges on 17 March 2023.4F[5]
[4]See Criminal Procedure Act 2009, s 241(2)(b) (‘CPA’).
[5]Following a plea, on 16 June 2023 the applicant was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 16 months.
The applicant now seeks leave to appeal against his conviction on two grounds:
1The conviction on charge 6 should be quashed and a verdict of acquittal entered because:
(a) The judge erred in refusing permanently to stay charge 6 (as amended) of … and the applicant’s trial on charge 6 was an abuse of process; and/or
(b) The judge erred in permitting the trial to proceed in contravention of s 42 of the Extradition Act.
2The verdicts of the jury on charges 6 and 7 are unreasonable and cannot be supported by the evidence.
(a) The verdicts were not open on the evidence having regard to the way the prosecution put its case; and
(b) The conviction on charge 7 is inconsistent with the conviction on charge 6 and vice versa.
For the reasons that follow, we would refuse leave to appeal.

Background

At the time of the alleged offending, the applicant, aged between 38 and 39 years,5F[6] was a sworn member of Victoria Police. ‘SKL’, the complainant, was aged between 14 and 15 years, and attended a secondary college.6F[7] The applicant was a friend of SKL’s parents. They lived in the same street in a suburb of Geelong and the families socialised together.
[6]His date of birth is 24 June 1971.
[7]She was born in June 1995.
In late 2009, SKL sought advice from the applicant in his capacity as a police officer about a security issue at her after-school job. She gave him her mobile phone number. The applicant then commenced communicating with her via mobile phone. Gradually, the frequency of communication between them — generally via SMS, email, or MSN Messenger — increased. Telephone records showed that, in the period between 9 February 2010 and 9 July 2010, they communicated by calls or text messages more than 30,000 times. A large number of emails were also exchanged which demonstrated their infatuation with each other.
At a party at the complainant’s home in November 2009, the applicant gave SKL a passport application, telling her that the two of them could leave for France where they could be together. Later, for Christmas in 2009, the applicant gave the complainant a Pandora charm. And at a New Year’s Eve party at the applicant’s home, a friend of SKL observed her with the applicant, hugging and kissing. Some of the applicant’s colleagues were also aware that he was having an extramarital relationship with a younger woman. He had shown them a picture of the complainant, saying that he was waiting for her to turn 18.
In addition to their unrelenting electronic communications, the applicant and SKL had a physical relationship. They would meet up at the complainant’s home during the day when her parents were at work. The applicant’s work roster and the complainant’s school attendance records reflected overlapping occasions where the applicant was not at work and the complainant was not at school.
At one point, SKL’s parents confronted her about naked pictures that she sent to the applicant, and about the extent of telephone contact they were having. Separately, SKL had told school friends — some of whom had witnessed physical contact between the applicant and complainant — things about her relationship with the applicant. Her school friends took a passport application from the complainant’s school locker and reported their concerns about the relationship to the school principal. As required by mandatory reporting laws, the principal reported the matter. An investigation followed, in the course of which electronic communications revealing the relationship between the applicant and SKL were discovered. The applicant and the complainant continued to communicate, however, after their relationship became common knowledge.
SKL took part in an initial VARE7F[8] with police on 13 July 2010. She admitted an inappropriate relationship, but denied that there was any physical contact. In a second VARE, on 9 August 2010, the complainant described a number of acts of sexual offending, which commenced in late 2009 with kissing, hugging and ‘grinding’, and progressed in April and May 2010 to acts of masturbation and sexual penetration. By a third VARE, conducted on 7 March 2011, SKL provided further details about her sexual contact with the applicant.
[8]Video and Audio Recorded Evidence. See CPA, ss 366 and 367.
Although the applicant was acquitted by direction of charges 1 to 5, as part of the general background it is convenient to provide a brief description of the alleged conduct underpinning those charges, as described by the complainant in the second VARE. Thus, SKL told police that the first occasion of masturbation and sexual penetration occurred sometime towards the end of April 2010. She and the applicant were in her bedroom alone. SKL masturbated the applicant’s penis (charge 1 – indecent act with a child under 16), and, as he was about to ejaculate, put her mouth over his penis, so that he ejaculated into her mouth (charge 2 – sexual penetration of a child under 16). The applicant also penetrated her vagina with his finger (charge 3 – sexual penetration of a child under 16).
SKL told investigators that, except for two specific occasions — which were the foundation of charges 4 and 5 — the sexual contact between her and the applicant only ever occurred at her home, on days when she was off school (either sick or on ‘school closure days’) and the applicant was not at work. On one occasion, however, at a soccer field, the applicant put his hand down her pants and tried to penetrate her vagina with his finger (charge 4 – attempted sexual penetration of a child under 16). And on another occasion, the applicant picked her up in his car and drove to gardens in Geelong, where he parked and she masturbated his penis until he ejaculated into a tissue (charge 5 – indecent act with a child under 16).
The complainant told police that she and the applicant discussed having penile-vaginal sex; and, on two occasions, the applicant used his penis to put pressure on the complainant’s ‘vagina opening’. On one of those occasions, the ‘knob’ of the applicant’s penis entered her vagina (charge 7 – sexual penetration of a child under 16). We pause to note that, in the course of giving evidence at a preliminary hearing on 21 June 2021,8F[9] SKL asserted that, as a prelude to the occasion of penile-vaginal contact embraced by charge 7, the applicant had also penetrated her vagina with his tongue (this act of lingual-vaginal penetration ultimately being relied upon by the prosecution during the trial as an uncharged act of sexual misconduct). SKL did not, however, distinctly describe this alleged act of lingual-vaginal penetration in her second VARE.
[9]See CPA, s 198B.
Finally, on one other occasion, which she described in her second VARE as being ‘more later’ than the circumstances of penile-vaginal penetration founding charge 7, SKL alleged that the applicant penetrated her vagina with his tongue. SKL described lying on the edge of her bed with her thighs on the applicant’s shoulders. He licked her vagina and bottom area, and her clitoris ‘under the lips’ (charge 6 – sexual penetration of a child under 16). We pause once more to note that this was the only instance of lingual-vaginal penetration described by SKL in her second VARE.
After the relationship came to light, the applicant left Australia for Croatia on 26 June 2010. The applicant was notified via email on 5 August 2010 that an investigation was underway by the Victoria Police Ethical Standards Department. A week later, a search warrant was executed at his home address, at his parents’ home and on his vehicle. The applicant returned to Australia on 28 September 2010 and resigned from Victoria Police on 10 October 2010. On 21 August 2013, charges were issued in the Magistrates’ Court and were refiled on 21 December 2015. Several years later, on 13 October 2018, the applicant was arrested in Bosnia Herzegovina. He was extradited to Australia by agreement on 20 January 2019.

Ground 1: Alleged contravention of the Extradition Act

Charge 6 on the indictment alleged that, between 1 May and 31 May 2010, the applicant sexually penetrated SKL, ‘in that he introduced his tongue into [her] vagina’. The Summary of Prosecution Opening9F[10] identified the basis of charge 6 as the activity described by SKL in her second VARE, which included the applicant licking her clitoris.10F[11] Significantly, the other alleged incident of lingual-vaginal penetration — which was alleged to be a precursor to the penile-vaginal penetration alleged in charge 7, and which was revealed for the first time in SKL’s pre-trial evidence11F[12] — was not the subject of a charge, and was relied upon as tendency evidence.12F[13]
[10]See CPA, s 182.
[11]See [14] above.
[12]See [13] above.
[13]The prosecution had filed a tendency notice under s 97(1)(a) of the Evidence Act 2008. See also Jury Directions Act 2015, s 26.
Prior to arraignment, the applicant sought a permanent stay on charge 6, contending that s 42 of the Extradition Act 1988 (Cth) (‘the Act’) had been infringed. Counsel for the applicant submitted that neither the charged act of lingual-vaginal penetration, nor the uncharged act of lingual-vaginal penetration, ‘is assuredly the subject of the extradition request’. As a result, ‘neither can be prosecuted in certain compliance with s 42’. Counsel contended that it was not open to the prosecution simply to elect which occasion to prosecute. That is because s 42 is directed to ‘an actual concrete act’,13F[14] but no such act can be identified from a comparison between the extradition request and the evidence to be adduced at trial. The judge did not uphold these submissions, however, and refused to stay proceedings on charge 6.
[14]Counsel relied on Truong v The Queen (2004) 223 CLR 122, 142 [29] (Gleeson CJ, McHugh and Heydon JJ).
In this Court, under cover of ground 1, counsel for the applicant contended that the judge had erred, submitting that s 42 of the Act had been contravened. Counsel submitted that the prosecution had proceeded to trial on the basis that there were two instances of lingual-vaginal penetration: one, the conduct the subject of charge 6, and the other, an uncharged act, immediately preceding the conduct the subject of charge 7. Counsel for the applicant submitted that there was no sound basis for the prosecution to identify which instance of lingual-vaginal penetration was the subject of the extradition. It simply was not open to the prosecution to elect which instance would be included on the indictment. The prosecution was obliged — as, indeed, was the trial judge — to ensure the applicant was only prosecuted for the ‘acts’ upon which he had been extradited.
We do not accept these submissions.
So far as relevant, s 42 of the Act provides:14F[15]
42 Speciality
Where an extraditable person^[15F[16]^] in relation to Australia is surrendered to Australia by a country …, the person shall not … :
(a) be … tried in Australia for any offence that is alleged to have been committed … before the surrender of the person, other than:
(i)any offence in respect of which the person was surrendered or any other offence … of which the person could be convicted on proof of the conduct constituting any such offence; ...
[15]Emphasis added.
[16]It was not suggested that the applicant was other than an ‘extraditable person’. See s 6 of the Act.
By virtue of s 10(2) of the Act, a reference to conduct constituting an offence ‘is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed’.
Somewhat simplifying the analysis, s 42 prohibited the applicant from being tried for an offence other than an offence for which he was surrendered.
Contrary to the submissions advanced by the applicant’s counsel, it is plain that the applicant was indeed tried for the offence — constituted by the act of penetrating SKL’s vagina with his tongue — on which he was surrendered.
Originally, police laid 20 charges against the applicant. Charge 19 was in the following terms:
19The accused at Geelong between the 1st and 31st of May 2010 took part in an act of sexual penetration with [SKL] a child under 16 years to whom he was not married in that he inserted his tongue into the vagina of [SKL].
In support of the request for the applicant’s extradition, Detective Acting Senior Sergeant Stylianos Spyrou swore an affidavit on 24 October 2018. At paragraph 45 of that affidavit, under the heading ‘Detailed statement of the acts and omissions alleged against [the applicant] in respect of the offences’, he deposed to the following:
45In about May 2010, [SKL] recalls one occasion at her home where she was lying on her bed with her legs over [the applicant’s] shoulders. [The applicant] licked her clitoris ‘under the lips’ of her vagina. [Charge 19]
It is abundantly clear that the contents of the paragraph of Detective Spyrou’s affidavit set out above are drawn from — and accurately reflect — SKL’s second VARE.16F[17] It is also abundantly clear that charge 6 on the indictment was based on charge 19 of the charges initially laid by police.
[17]See [14] above.
Moreover, it will be remembered that, at the time that Detective Spyrou swore his affidavit for the purposes of extradition, SKL had not provided any specific or distinct evidence about the act of oral sex that was said to have closely accompanied the act of penile-vaginal penetration upon which charge 7 was based.17F[18] Indeed, as we have indicated, the complainant did not provide any account of that act of oral sex — relied upon by the prosecution at trial as tendency evidence — until she gave evidence on 21 June 2021, well in excess of two years after the affidavit relied upon to extradite the applicant was sworn. The closest SKL had come to disclosing another act of lingual-vaginal penetration beyond that founding charge 6 was a highly equivocal answer given to a question in the course of the second VARE. Thus, having told police that the applicant put his tongue ‘under the lips’ of her genitals, police asked the following questions, and SKL gave the following answers:
Q… So you said that that actually occurred, actually when did you say that that first occurred?
ANo, I don’t remember the exact, like, the exact time that that had occurred.
QO.K. All right. How many times do you think that occurred?
AEither once or twice, yeah.
[18]See [13] above.
In light of the foregoing, there can be no doubt that, at the time that they sought the applicant’s extradition, police were aware only of one specific act of lingual-vaginal penetration.18F[19] That was the act to which charge 19 related. It is thus beyond argument that the offence upon which the applicant was surrendered was an offence involving an act of lingual-vaginal penetration, which was alleged to have occurred between 1 and 31 May 2010. Since charge 6 on the indictment was based on charge 19 as initially laid by police, it is plain that s 42 of the Act was not infringed.
[19]In oral argument, counsel for the applicant accepted that another reference in Detective Spyrou’s affidavit (at paragraph 36) to the applicant penetrating SKL’s vagina with his tongue was an obvious mistake.
The first ground cannot be upheld.

Ground 2: Unreasonable verdicts

Charge 6 alleged an act of oral sex between 1 and 31 May 2020; and charge 7 alleged an act of penile-vaginal penetration between 1 April and 31 May 2010.
The trial was conducted — so much having been conceded by the prosecution — on the basis that the dates alleged in charges 6 and 7 were material particulars.19F[20] Hence, the prosecution accepted that the jury could not convict unless satisfied beyond reasonable doubt that the offences alleged occurred within the dates specified in the indictment.
[20]See Farrugia v The King [2023] VSCA 248, [35]–[38] (Priest, Macaulay and Taylor JJA).
Significantly, the prosecution case was that all of the charged offending occurred on specified dates on which the applicant was not at work and SKL was absent from school. The relevant dates were 17 February, 18 February, 30 April, 10 May and 14 June 2010. Not only did the prosecution open the case — and go to the jury — on that basis, but the prosecution limited the evidence it adduced to those dates.
Contending that it was not open to the jury to convict on charge 6, counsel for the applicant in this Court submitted that the evidence demonstrated that the only day within the charged period that SKL was not at school, and the applicant was not at work, was 10 May 2010. Abbreviating the submissions somewhat, counsel for the applicant submitted that the jury was obliged to have a reasonable doubt that the charged act occurred on 10 May 2010, because:
·    SKL’s memory was that the offending occurred on occasions when she had the whole day off school, yet school records showed she was present at school in the morning for ‘pastoral care’;
·    SKL’s evidence was that no offending took place on Monday, yet 10 May 2010 was a Monday;
·    the evidence showed that the applicant was in Melbourne on 10 May 2010 for a relatively lengthy period;
·    there was persistent phone contact between SKL and the applicant during school hours on 10 May 2010, suggesting that they were not in the same place;
·    multiple SMS messages by SKL on 10 May 2010 suggested that, at the times of those messages, the applicant was not offending against her; and
·    the occurrence of the charged act in May 2010 is not consistent with SKL’s evidence that the relevant activity happened ‘towards the end’ of the incidents of sexual contact with the applicant, nor with her chronology of events.

As to charge 7, counsel for the applicant submitted that the only two days upon which the alleged offending could have occurred within the charged period were 30 April and 10 May 2010. For the same reasons advanced with respect to charge 6, the jury was obliged to doubt that the alleged offending occurred in the charged period. Additional matters relied upon included:
·    the evidence showed that the applicant was in Melbourne at some point on 30 April 2010;
·    the evidence was that SKL was present at school for periods 1 and 2 on 30 April 2010, and was present at school for every other school day in April except for periods 1 and 2 on 23 April 2010 (immediately prior to the school athletics day); and
·    SKL turned 15 in June 2010, but SKL’s own evidence was that the applicant had told her that they should wait to have sex until she was 15.
Further, counsel for the applicant submitted that there was inconsistency between the convictions. Counsel submitted that, on the prosecution case, the only date within the period of charge 6 on which the offending could have occurred was 10 May 2010; and the only dates within the period of charge 7 on which the offending could have occurred were 30 April 2010 or 10 May 2010. SKL was clear that the act complained of in charge 7 occurred on a different occasion, and at a later time than the act complained of in charge 6. Given the way the prosecution put its case, counsel submitted, it was not open to the jury to convict the applicant of the offending on both charges 6 and 7. If the offending the subject of charge 6 happened on 10 May 2010, the offending the subject of charge 7 could not have. If the offending the subject of charge 7 occurred on 30 April 2010, the offending the subject of charge 6 could not have occurred on 10 May 2010. If the offending the subject of charge 7 occurred on 10 May 2010, the offending the subject of charge 6 could not have occurred on the same day. Hence, it was not open to the jury to convict the applicant on both charges 6 and 7.
Insofar as ground 2 contends that the verdicts of the jury on charges 6 and 7 are unreasonable or cannot be supported having regard to the evidence,20F[21] the High Court in Lang21F[22] recently once more affirmed that the correct approach to such a complaint is that set out in M.22F[23] Jagot J summarised the position as follows:23F[24]
The relevant test is that identified in M v The Queen. The question ‘which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. This question ‘is one of fact which the court must decide by making its own independent assessment of the evidence’. While ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’, if ‘a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal’ then the court may conclude that no miscarriage of justice has occurred. Accordingly:
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 a case where the evidence is circumstantial, this means that the appeal court must ‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’. A circumstantial case must not be considered ‘piecemeal’. If, on the whole of the evidence, ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’, then the jury is not able to draw that ultimate inference. Accordingly, in a circumstantial case, it is impermissible to consider any piece of evidence in isolation from the whole.
[21]See CPA, s 276(1)(a).
[22]Lang v The Queen (2023) 97 ALJR 758, 781–2 [142]–[143] (Gordon and Edelman JJ), 798–9 [250]–[251] (Jagot J), (‘Lang’). See also Pell v The Queen (2020) 268 CLR 123, 128 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[23]M v The Queen (1994) 181 CLR 487 (‘M’).
[24]Lang, 798–9 [250]–[251] (citations omitted).
Furthermore, insofar as ground 2 contends that there is a factual inconsistency between the verdicts on the two charges, MacKenzie makes clear that appellate intervention is warranted only where ‘the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.24F[25] The Court also made it plain that
the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.25F[26]
[25]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ) (‘MacKenzie’).
[26]Ibid 367.
Carrying out our own independent assessment of the evidence, we consider that it was well open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on charges 6 and 7. Moreover, we consider that the verdicts on charges 6 and 7 are logically reconcilable.
Charge 6 represented an allegation of lingual-vaginal penetration unaccompanied by any other sexual activity, whereas charge 7 related to an act of penile-vaginal penetration, closely accompanied by an uncharged act of lingual-vaginal sexual activity. Importantly, despite the numerical order in which the charges appeared on the indictment, the prosecution alleged that the sexual activity on charge 7 occurred prior to the sexual activity on charge 6. One of the applicant’s central arguments is, however, that SKL’s evidence was that the activity in charge 6 occurred at a time prior to the activity in charge 7.
In her second VARE, SKL said that sexual contact with the applicant ‘sort of started with, like, the hugging, the kissing and all that stuff to more general, no real contact stuff, and then towards the end of April, start of May, it’s the, like, the first time and that’s when he fingered me … he entered his finger into my vagina’. She also said ‘that was also the day, I’m not sure of the exact date, that I gave him a hand job or a wristie, which is moving my hand around his penis’. It was thus open to the jury to find that the intensified sexual activity, involving sexual penetration, occurred for the first time towards the end of April 2010. Moreover, it was open to the jury to conclude from the second VARE that the first occasion on which sexual penetration occurred involved SKL masturbating the applicant’s penis; putting her mouth over his penis as he was about to ejaculate; and the applicant also penetrating her vagina with his finger. Charges 1 to 3 on the indictment embraced these alleged acts.
SKL also said that, save for two specific occasions,26F[27] the intensified sexual activity only ever occurred at her house when she was absent from school. Her school records show that, on 29 April 2010, SKL was marked present for the fourth period only; and that, on 30 April 2010, she was marked present for the first and second periods, and marked absent for the fourth, fifth and sixth periods. Given that prior to 29 April 2010, SKL was either on school holidays or was at school, the intensified sexual activity could only have commenced on 29 April 2010. Significantly, the applicant’s work records showed that, on 29 April 2010, he commenced an eight-hour shift beginning at midday; and that, on 30 April 2010, he was absent from work on carer’s leave. We consider that, based on this evidence, it was open to the jury to conclude to the criminal standard that the penile-vaginal penetration in charge 7 may have occurred during the morning of 29 April 2010, or on 30 April 2010.
[27]See [12] above.
Since SKL also said that the incident of oral sex embraced by charge 6 occurred ‘more later’, we consider it was also open to the jury to conclude to the criminal standard that the act of lingual-vaginal penetration must have occurred in May 2010; and, more particularly, on 10 May 2010. SKL school records showed that, on 10 May 2010, she was present at school for pastoral care in the morning, but was absent for the first, third and fourth periods. Correspondingly, the applicant’s work records showed that he was on a rest day on 10 May 2010. It was thus open to the jury to infer beyond reasonable doubt that the described act of oral sex occurred on that day.
With respect to the various matters relied upon by the applicant’s counsel to found an argument that it was implausible that the activity in charge 6 could have occurred on 10 May 2010, it is enough to observe that they were all matters that the jury were capable of assessing and resolving. We would note, however, that although the evidence suggested that the applicant was in Melbourne for some of that day, it could readily have been concluded that there remained ample opportunity for him to have sexual contact with SKL in Geelong throughout the day. Further, although the applicant’s counsel argued that there was persistent telephone use by SKL on 10 May 2010, during which it was unlikely that sexual activity could have taken place, Exhibit D, which was a record of messages passing between SKL’s mobile telephone and the applicant’s mobile telephone, plainly demonstrated that on 10 May 2010 there was a ‘window’ of about two hours between 9.32 am and 11.39 am when no messages were sent from SKL’s phone to the applicant’s phone.
For the foregoing reasons, none of the submissions advanced by the applicant’s counsel under the cover of the second ground can be accepted. Ground 2 must fail.

Conclusion

The application for leave to appeal against conviction must be refused.

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[2023] VSCA 292

30 November 2023