Saab, Abdul (a pseudonym) v The Queen [2022] VSCA 116

CRIMINAL LAW - Appeal - Conviction - Two charges of intentionally causing injury, two charges of false imprisonment, two charges of rape (charges 4, 6) constituted by lingual penetration of complainant's vagina, one charge of rape (charge 5) constituted by penile penetration of complainant's vagina, one charge of sexual assault - Ambiguity in complainant's evidence regarding penetration by 'tongue' or 'mouth' - Whether complainant's evidence sufficient to prove beyond reasonable doubt that applicant penetrated complainant's vagina with his tongue - Appeal allowed in relation to charges 4 and 6.

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) 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 11 years, 6 months' imprisonment with non-parole period of 7 years, 6 months.