Where a charge of rape is particularised as penetration by a specific body part (here, tongue), evidence that uses that term and a broader term (here, mouth) interchangeably is insufficient to prove the specific particular beyond reasonable doubt, because it leaves open a reasonable possibility that penetration was by the broader body part only. The Court of Appeal will not exercise the substitution power under s 277(1)(c) CPA to substitute a differently particularised offence or an alternative offence where the Crown made deliberate forensic choices at trial to preclude the jury from finding guilt on those alternative bases. The question whether sexual assault remains a statutory alternative to rape under s 239 CPA following the repeal of s 425(1)(a) of the Crimes Act 1958 was left open.
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