The State of Western Australia v Munmurrie - [2020] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MUNMURRIE [2020] WADC 81
CORAM:   GILLAN DCJ
HEARD:   25-28 MAY 2020
DELIVERED          :   15 JUNE 2020
FILE NO/S:   IND KAR 1 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
CANEEN LEIGH MUNMURRIE

Catchwords:

Criminal law - Trial by judge alone - Assault occasioning bodily harm - Sexual penetration without consent - Identity

Legislation:

Criminal Code (WA)
Criminal Procedure Act 2004 (WA)

Result:

Verdicts of guilty on count 1 and count 2

Representation:

Counsel:

The State of Western Australia	:	Ms T McArthur
Accused	:	Mr Wayne Burg

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Wayne Burg and Associates Barristers and Solicitors

Case(s) referred to in decision(s):

Roser v The Queen (2001) 24 WAR 254
The State of Western Australia v Bilos [2008] WASC 226

GILLAN DCJ:

The accused, Mr Munmurrie, is charged on Karratha indictment 1 of 2018 dated 19 April 2018 that:
(a)Count 1: On or about 31 May 2017 at Millars Well he unlawfully assaulted Ms S and thereby did her bodily harm.
(b)Count 2: On the same date and at the same place he sexually penetrated Ms S without her consent, by penetrating her vagina with his fingers.
Mr Munmurrie pleaded not guilty. On 4 June 2020 I found Mr Munmurrie guilty of both counts and these are my reasons for so finding.

Judge alone trial

A trail by judge alone was ordered on 1 April 2020 after a previously listed trial by jury was vacated as a result of the COVID‑19 crisis.
Section 119 - s 120 of the Criminal Procedure Act 2004 (WA) apply.
In coming to a verdict I am to apply the same law and procedure to this trial that would have applied had the trial been heard before a jury: s 119 Criminal Procedure Act.
Section 120 of the Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law that have been applied and the findings of fact upon which the judge has relied.

Brief overview of the State case

The prosecution case is that Ms S went to the Caltex Service Station in Nickol, a suburb of Karratha, at about 11.30 pm on Tuesday 30 May 2017. When she was there she met Mr Munmurrie and his friend Mr Mills. Both men were unknown to Ms S prior to this.
Ms S had a bottle of alcohol with her which she shared with the men. She also allowed Mr Munmurrie to use her credit card to purchase cigarettes which she shared with Mr Munmurrie and Mr Mills.
The trio remained at the Caltex Service Station until about 1.30 am on the Wednesday morning.
Ms S, Mr Munmurrie and Mr Mills left the Caltex Service Station together in Ms S's car at about that time to go to Mr Munmurrie's house because he had told Ms S that there was more alcohol there. Mr Munmurrie directed Ms S to a house in Millars Well. There was no one present at the house when they arrived. Mr Munmurrie entered the house through a window and then opened the front door. Mr Munmurrie, Ms S and Mr Mills sat at the dining table and had some more cigarettes and talked.
When Ms S learned there was no alcohol at the house she got up from the dining table where she had been sitting and went to leave the house. As she did so Mr Munmurrie turned the light out. Mr Mills said, 'no don't do it' and Mr Munmurrie punched the complainant to her right eye causing bruising, pain and a laceration near her eye which started to bleed.
Mr Munmurrie grabbed Ms S and dragged her to a bedroom and pushed her onto a couch telling Ms S she had disrespected him. Mr Mills witnessed this.
Ms S was frightened, began yelling and screaming. She defecated in her pants in an attempt to prevent Mr Munmurrie from assaulting her any further.
Mr Mills left the home.
Mr Munmurrie directed Ms S to remove her pants and underpants and she did so. Mr Munmurrie was unable to maintain an erection and Ms S taunted him about this in the hope that he would be unable to assault her. Mr Munmurrie asked her to 'suck it off' and she told him she would bite his penis off if he put it in her mouth.
Mr Munmurrie then placed the fingers of his left hand into her vagina. This continued for a short time. When Mr Munmurrie stopped, after a short struggle, Ms S managed to retrieve her car keys and left the home.
Ms S drove to Nickol Bay Hospital and the police were called. Ms S was examined and Ms S received treatment to a wound to her head.

Brief overview of the accused's position

Mr Munmurrie's position is that the State must prove its case beyond reasonable doubt and that the witnesses whose evidence touched on the events of the evening called by the State were all impaired by alcohol or drugs, were mistaken or were not telling the truth so that I could not be so satisfied.
With respect to evidence of identification by Digiboard by Ms S, there were significant doubts about her evidence. Identity was the central issue in this case.
Further, Mr Munmurrie's evidence was that he went in the car with Ms S and Mr Mills but only got as far as the corner before getting out. He was never in the house with Ms S and Mr Mills and his evidence gives rise to a reasonable doubt.

Principles of law

It is necessary to remind myself of the various relevant legal principles that have to be applied in coming to a verdict.
As a matter of law, the following principles apply.
Mr Munmurrie is presumed to be innocent of the charge brought against him.
The State bears the burden of proof of the charge. Each and every element of the offence must be proven beyond a reasonable doubt.
Mr Munmurrie does not need to prove anything.
This is a criminal trial. It must be determined solely on the evidence, without speculation. Other than where statements of witnesses have been read into the evidence with the consent of Mr Munmurrie's counsel, nothing counsel says is evidence and the evidence must be considered dispassionately and objectively. Any feelings of prejudice or sympathy must be put aside.
Part of the evidence of a witness may be accepted and other parts of the evidence by the same witness may be disregarded.
The evidence is the testimony of the witnesses given in court and the documents received as exhibits. The court is bound to consider all of the evidence presented at trial.
I should only accept evidence which I find to be truthful, that is, honestly given, reliable and accurate.
It is for me to decide what weight to give to the evidence. I may accept some, but not all of the witnesses' testimony. I remind myself that a witness can give evidence which they honestly believe is true but which is nevertheless unreliable.
I may have regard to the written transcript of the evidence reminding myself that in the event that I have a distinct recollection of a question answer that differs from that recorded in the transcript, my own recollection must prevail.

Prior inconsistent statements

The defence has pointed to some inconsistencies in the evidence of the complainant compared with prior statements made by her to the police.
I remind myself that the content of the statement is not in any way part of the evidence at this trial of what happened on 30 ‑ 31 May 2017. It is Ms S's evidence on oath which is the evidence I am to consider.
However, if I find that a witness has previously made a statement that is inconsistent with the evidence that the witness has given before me then the fact that the witness had previously made an inconsistent statement is a matter which I can take into account in considering their credibility as a witness in this trial. Whether or not it does affect the credibility of the witness is a matter entirely for me.

Expert evidence

The State relied upon expert witnesses Mr Hedley for DNA evidence and Mr Owen with respect to fingerprint evidence. I approach my assessment of Mr Hedley and Mr Owen as I would for any other witness. I am not bound to accept and act upon any witness's evidence, including an expert witness's evidence. I may reject that expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
Further, the evidence of any expert witness does not have any special weight and is simply part of the evidence in this matter which I must take as a whole.

Usual practices of the court

I also take into account that Ms S's evidence was pre-recorded and that some of the prosecution witnesses gave evidence via video link. These are all part of the usual practices of this court and were applied in this case consistently with new procedures applicable to the COVID-19 practices. In either case, as one of the usual and now necessary practices of this court, no inferences can be drawn from the use of these routine practices.

Liberato

Mr Munmurrie gave evidence in this trial and, as a result he was submitted to cross‑examination by counsel for the State.
The fact that he chose to give evidence does not in any way detract from the important principles of our system of law that:
1.The onus is on the State to prove the charges that it presents against Mr Munmurrie and Mr Munmurrie is presumed to be innocent until the charge against him has been proved beyond reasonable doubt.
2.I cannot deliver a verdict of guilty unless satisfied beyond reasonable doubt of the truth of the evidence against him.
3.If I do not accept Mr Munmurrie's evidence and to reject that evidence then I should put his evidence to one side. He does not have to prove anything. The question will remain; has the State, on the basis of the evidence that I do accept, proved Mr Munmurrie's guilt beyond a reasonable doubt?

Lies

The State attributes lies to Mr Munmurrie in the course of the EROI. If I decide that Mr Munmurrie was telling lies and was doing so deliberately then the fact that he has told a lie may be a factor in my assessment of his credibility.
However the fact that a person told a lie is not evidence that the person is guilty of a crime.

Recent complaint

It is part of the State case that Ms S made a complaint about the sexual assault to the police at the Nickol Bay Hospital very shortly after it occurred.
Proof that a complaint was made can never be proof that the event occurred and evidence of prompt complaint is not to be taken as proof that the conduct complained of did occur.
Evidence of prompt complaint is not separate or additional or corroborative evidence that the crimes were committed.
The State led the evidence to show consistency of conduct. It is something I can take into account in considering the credibility of Ms S and the truthfulness of her evidence but I cannot treat it as separate or additional to her evidence.
However in judging the credibility and the truthfulness of Ms S's evidence I am entitled to know how she acted shortly after the events to see whether she acted in a way which I might expect a person in her position to act after the events of which she has given evidence. The fact of the complaint may bolster her evidence.

Identification by Digiboard

Identification is a crucial issue in this case. The State says that:
(a)Mr Bonney correctly identified Mr Munmurrie from a Digiboard on 31 May 2017; and
(b)Ms S correctly identified Mr Munmurrie from a Digiboard on 1 June 2017.
Mr Munmurrie says that the Digiboard identifications by Ms S are not reliable.
I remind myself that photo identification evidence has its drawbacks. A photograph is two-dimensional, static and limited and only depicts facial features. It does not depict other identifying (or exclusionary) factors, such as manner of moving, posture, variety of facial expressions, complexion, height, build, colouring, nor many of the other subtle physical characteristics that an actual sighting conveys to the mind.
A further danger is that a photograph of a person may resemble the suspect in the recollection of a witness who saw the suspect for a short time, or in inferior circumstances, and so lead to a false identification of the accused.
Photo identification evidence is capable of being influenced by expectations. For example, I should bear in mind the possibility of a witness being influenced perhaps subconsciously by the belief that the offender must necessarily be in one of the photos they have been asked to examine.

Motive to lie

I am also entitled to consider whether the evidence has thrown up anything which might indicate witnesses who gave evidence about Mr Munmurrie being at the house where the events occurred had some motive for giving false evidence because the possible presence of something of that kind has as a matter of common sense the potential to cast doubt on the reliability of the complainant's evidence.
In considering that evidence I must keep in mind that at all times that:
(a)there is no onus on the accused person to point to any such motive or to establish any motive; and
(b)while the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of that is irrelevant and cannot be taken as something which strengthens the prosecution's submission that the complainant's or any other witness' evidence was truthful.

Elements of the offences and separate trials

I remind myself that each element of each offence must be proven beyond reasonable doubt and that the evidence relevant to each offence must be considered separately as if there were separate trials with respect to each offence. The State do not need to prove beyond reasonable doubt each and every thing that their witnesses says but they must prove beyond reasonable doubt each and every element of an offence.
The date and place alleged are not elements of the offence. They do not have to be proven beyond reasonable doubt. They are simply particulars given to Mr Munmurrie so he knows the date and place where the offences are alleged to have occurred. In this case the date and place are not in issue.

Count 1: Assault occasioning bodily harm

The elements of the offence of sexual penetration without consent are provided by s 317(1) of the Criminal Code. To prove the offence the State must prove beyond reasonable doubt the following elements:
(a)Identity. The State must prove beyond reasonable doubt that Mr Munmurrie did the things that constitute the offence;
(b)Assault. The State must prove beyond reasonable doubt that Mr Munmurrie assaulted Ms S;
The law is that a person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person's consent or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault;
(c)Unlawful. The State must prove beyond reasonable doubt that the assault was unlawful.
An assault is unlawful if it is not authorised or justified or excused by law;
(d)Bodily harm. The State prove beyond reasonable doubt that Ms S suffered bodily harm.
Bodily harm means any bodily injury which interferes with health or comfort; and
(e)Causation. The State must prove beyond reasonable doubt that it was the assault which caused the Ms S to suffer the bodily harm.

Count 2: Sexual penetration without consent

The elements of the offence of sexual penetration without consent are provided by s 325(1) of the Criminal Code. To prove the offence the State must prove beyond reasonable doubt the following elements:
(a)Identity. The State must prove beyond reasonable doubt that Mr Munmurrie is the person who is said to have done the act and not some other person;
(b)Penetration. The State must prove beyond reasonable doubt that Mr Munmurrie sexually penetrated Ms S. In this case what is alleged is sexual penetration of her vagina by his fingers;
Section 319(1) of the Criminal Code relevantly defines the expression 'to sexually penetrate' to mean:
(a)to penetrate the vagina (which term includes the labia majora) … with -
(i)any part of the body of another person; or
(ii)an object manipulated by another person,
except where the penetration is carried out for proper medical purposes; or
…
(e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).
The word vagina is used in a non‑technical way. Any degree of penetration of the outer lips of the vagina and is sufficient. Ejaculation is not necessary for penetration to have occurred; and
(c)Without consent: the penetration was without consent. The State must prove beyond reasonable doubt that the penetration occurred without Ms S' consent.
By s 324 of the Criminal Code 'consent' means consent freely and voluntarily given and consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. A failure to offer physical resistance does not of itself constitute consent.

Witnesses

The witnesses called by the State as to the events of 31 May 2017 ‑ 1 June 2017 were Ms S who is the complainant, Mr Mills and Mr Bonney. There were police witnesses Dean Edwards,[1] Matthew Tidman[2] and Andrew Thompson.[3]
[1] ts 324 - ts 345.
[2] ts 346.
[3] ts 418.
I have already referred to the expert witnesses Mr Hedley[4] and Mr Owen.[5]
[4] ts 375 - ts 388.
[5] ts 398 - ts 416.
In addition there was evidence read to the court by consent of Dr Ndangariro Gora,[6] police officer Adam Levak,[7] police officer Thomas Rose,[8] police officer Shane Price[9] and a public servant employed at Forensic Imaging Unit Gamalat Nebhan[10] who selected the images for Digiboards.
[6] ts 389 - ts 390.
[7] ts 390 - ts 391.
[8] ts 391 - ts 392.
[9] ts 395.
[10] ts 436 - ts 437.
There were 45 exhibits tendered by the State.
Mr Munmurrie gave evidence in his own defence.
There was some uncontentious facts and common ground between the State's witnesses, Ms S, Mr Mills and Mr Bonney and Mr Munmurrie. The uncontentious facts and common ground can be summarised as follows:
(a)on 31 May 2017 Mr Bonney had been staying at the house in Millars Well. The house was T's house but she and her children were away;
(b)Mr Mills, Mr Munmurrie, and a relative of Mr Mills, were at T's house with Mr Bonney and they were drinking a carton of beer and also had a bottle of Passion Pop wine;
(c)some time in the afternoon the group left T's house and over the following few hours they walked to a variety of other nearby locations including other houses and a park near the Tambrey bottle shop;
(d)they saw other people during their walk including a Missy Bunam and Mr Bonney's niece and his sister;
(e)two other of Mr Mills' relatives walked with Mr Mills and Mr Munmurrie to the Tambrey bottle shop. Mr Mills and Mr Munmurrie stole two 10 packs of pre-mixed drinks from the bottle shop and returned to a park where Mr Bonney and Mr Mill's uncle were waiting. Each member of the group had some of the pre-mixed drinks and the group continued walking;
(f)eventually the group of four split up and Mr Mills and Mr Munmurrie went to the Caltex Service Station in Nickol in the hope of obtaining some cigarettes. This was at night;
(g)meanwhile Ms S had been with her partner at their home where they were drinking beer. Ms S left, most probably after some conflict with her partner, and had drove her car, a white 4WD, to a dirt road near the Karratha Airport in Nickol and set up her swag to look at the night sky. While there her dog, a miniature poodle, ran off. Upset, she returned to her home to have her partner help her look for the dog;
(h)after an unsuccessful search was undertaken, Ms S and her partner were in conflict and so again she left her home and went to the Caltex Service Station. She parked her car in the parking area of the service station under a light and between an area where there were gas bottles and an electric box;
(i)while at the service station Ms S asked one of the men if they had a spare cigarette and shared a cigarette with that man. After that Mr Mills and Mr Munmurrie both spoke with Ms S and they each sat in her car. At one stage, at Ms S's request, Mr Munmurrie went into the service station and purchased cigarettes using Ms S's card to pay for them. All three then shared cigarettes and also some vodka. Eventually, they all left the service station together in Ms S's car at some time in the early hours of 31 May 2017.

What happened next is not the subject of common ground other than that at a later time, in the early hours of the morning of 31 May 2017, Mr Munmurrie was at the T's house and was seen there by Mr Bonney.
Counsel were agreed that it was only Ms S who gave evidence about the actions which are alleged to constitute counts 1 and 2. Before I could convict Mr Munmurrie I would need to be satisfied that the evidence of Ms S is truthful, reliable and accurate. If I believe Mr Munmurrie or think that his evidence might be true then I must acquit him but if I put his evidence to one side then I still need to be satisfied on the other evidence in the case of each element beyond reasonable doubt.

Evidence of the complainant Ms S

Ms S's evidence about how she came to be at the Caltex Service Station was not substantially challenged on cross-examination other than to test how much alcohol Ms S had drunk prior to her arrival.
Ms S's evidence was that after she arrived at the service station she spoke with two men, who she described as being:
(a)a man who was standing hear the gas bottles who was a medium built, indigenous man who was a fair bit taller than her. She is 5' 2'. That man had short hair on most of his head with a rat's tail.[11] The rat's tail was braided or plaited and pretty long and was thin. That man was neatly and tidily dressed, she thought, in jeans.[12] This man was referred to by Ms S throughout her evidence as the man with the rat's tail; and
(b)a second man, also indigenous, about the same height as the first man but bigger, build wise.[13] His hair was short. This second man was wearing a jacket and Ms S referred to him as the other man or the man in the jacket in her evidence.
[11] MFI 5 Edited pre-recording, ts 42.
[12] MFI 5 Edited pre-recording, ts 43.
[13] MFI 5 Edited pre-recording, ts 43.
There were some differences in each witnesses' recollection about who of Mr Mills and Mr Munmurrie spoke with Ms S first and who had the running of the conversation with her. It is clear however that on all versions of the evidence each of Ms S, Mr Mills and Mr Munmurrie spent a period of time at the service station in each other's company and they left in Ms S's car together.
Ms S's evidence was that she left the service station with the men in her car on the understanding that she would drop them off and stay for a beer.[14] Ms S was pretty sure that the man in front seat was the man with the jacket and the man in the back seat was the man with the rat's tail.[15]
[14] MFI 5 Edited pre-recording, ts 48.
[15] MFI 5 Edited pre-recording, ts 49.
The men directed her to an address which she presumed to be their house[16] and which was a 3 bedroom brick Homeswest house.[17] There was a covering over the front door in the form of shade cloth on the verandah and a blue car, an older Holden Commodore, at the front of the house.
[16] MFI 5 Edited pre-recording, ts 48.
[17] MFI 5 Edited pre-recording, ts 49.
She waited in the car for them to get into the house because the man with the rat's tail had said they had locked themselves out.[18] The man with the rat's tail entered the house through the front window and then opened the front door and she and the man in the jacket went into the house through the front door.[19]
[18] MFI 5 Edited pre-recording, ts 49 - ts 50.
[19] MFI 5 Edited pre-recording, ts 50.
Ms S said that once inside, all three of them went to the dining room table. She sat against the back wall of the house. Only one of the men sat at the table with her, the one with the jacket on. The other man looked in the fridge in the kitchen for beer and then went to another room to look for beer.[20]
[20] MFI 5 Edited pre-recording, ts 50 - ts 51.
When the man with the rat's tail came back to the room and said that there was no beer out there, Ms S said 'Well, I may as well go then' and got up to leave.[21] The lights then went out and the doorway was sort of blocked by the guy with the rat's rail. The other guy said something like 'Don't do it. She's really nice' and she got hit in the face.
[21] MFI 5 Edited pre-recording, ts 51.
Ms S's evidence was that the man in the jacket was still sitting at the table and the voice came from where he had been sitting. Immediately before the lights went out the guy with the rat's tail was standing right in front of her and the hit to her face, her right eye, came from right in front of her.[22] Blood trickled down her face from the hit to her face.
[22] MFI 5 Edited pre-recording, ts 51 - ts 52.
Ms S's evidence was that she became vocal after being hit in the face and said something like 'what the fuck did you do that for'. When she said that she was speaking to the man with the rat's tail who had just hit her.[23] The man responded and said because she had disrespected him.
[23] MFI 5 Edited pre-recording, ts 52.
The other man left. She saw him leave through the front door. She was screaming at him because he was leaving her there. She thinks that man responded but she does not remember what he said.
Ms S was grabbed by her hair and dragged down the hallway to the end bedroom.[24] There was a bed or a lounge in the in bedroom. She was pretty sure that the man who had left was standing outside the house outside the window because the men spoke to each other. They were arguing about what was happening to her. She kept on screaming, non‑stop, the whole time.
[24] MFI 5 Edited pre-recording, ts 53.
She was pretty abusive to the man who had dragged her into the bedroom. Among other things Ms S said to him that he was the worst rapist in the history of the world and other derogatory things. Ms S's evidence was that she then told the man that she had to go to the loo and when he would not let her go she defecated in her pants. That was a deliberate action to make herself as disgusting as she could be so as to repulse him.[25] She told the man what she had done but he did not care.
[25] MFI 5 Edited pre-recording, ts 55.
Ms S thought that by this stage she was in the lounge room but she was not sure. Ms S remembers her underpants coming off but did not remember how and she threw them at him. She thought she was standing in the middle of the room and was pushed down onto a bed or a lounge. The man then lent over her to try and keep her there and started masturbating himself 'extremely vigorously'. The man's penis was not erect and Ms S told him that he was the worst rapist in the history of the world. The man then said to her if she would not mind sucking on his penis and she responded 'If it goes anywhere near my mouth, it's going to get bitten off'.
Ms S's evidence was that the man was still then leaning over her and he was pretty angry and then he used his fingers on her. The man told her he was going to use his fingers on her and he inserted his three middle fingers into her vagina and was extremely rough.[26] He did not do that for very long because she kept talking and he gave up. When he stopped he told her it's because she talked too much. Ms S did not want to have any sexual activity with the man and did not tell him at any point that she did want to.
[26] MFI 5 Edited pre-recording, ts 57.
Ms S got up and tried to leave but remembered having to go back into the back room to try to get something. When she tried to leave she had her keys but the man stopped her from leaving through the front door while she had her phone. Ms S was pretty sure that the man grabbed her again and she ended up grabbing him by the hair and hitting him into the wall a few times. Her recollection of the events at this point in time was not good.
When Ms S went back to the lounge room the man took her phone off her and said she was not having it. She remembers sitting on the lounge feeling a bit defeated and also thinking that she had to get out of there. At that point Ms S's evidence was that she spoke to the man in an effort to keep the tone calm so she could get out of there. Ms S was able to leave but the man stopped at the door and took her phone off her. Her phone contained her driver's license and credit cards and the man said 'Don't go to the police because I know where you live'.[27]
[27] MFI 5 Edited pre-recording, ts 59.
When Ms S left the house she sat in her car for a bit and thought that she should make a note of her surroundings so she could tell the police as much as she knew. She did not see anyone as she left and she went straight to the Nickol Bay hospital where she received medical treatment including five stitches to her eyebrow.[28]
[28] MFI 5 Edited pre-recording, ts 59 - ts 60.
Ms S identified photographs of T's house[29] as being the house where the events had occurred. She remembered the letterbox with the number four and shade cloth covering the front verandah of the house.
[29] Exhibit 3.
Referring to a photograph of the exterior of that house, Ms S identified the window through which the man with the rat's tail had entered as being the one on the left-hand side of that photograph. She also identified the position of the front door behind the shade cloth on the verandah. By reference to the photographs of the interior Ms S identified where she was sitting, on the side of the table closest to the exterior wall and that the man in the jacket was sitting on the opposite side of the table closest to the photographer. She identified the door to the laundry through which the man with the rat's tail had gone.
Ms S identified on photographs of the Caltex Service Station,[30] where she had been parked.
[30] Exhibit 5.
Ms S also gave evidence that on, 31 May 2017, she had identified a person as the offender from a Digiboard and that the following day, 1 June 2017, she made further identifications from Digiboards.
I will set out the Digiboard identification evidence in a little detail. Altogether Ms S was shown five Digiboards, three on 31 May and two on 1 June 2017.[31]
[31] Exhibit 6; Exhibit 42.
On 31 May 2017 Ms S made no selection from the Digiboard marked 17.09744. There was a photograph of Mr Bonney on that Digiboard.
Ms S made no selection from the Digiboard marked 17.09742. She said when looking at the Digiboard that all of the people depicted in the photographs were too young.[32] A photograph of Mr Mills was number 4 on the Digiboard marked 17.09742 and was not identified by Ms S. I will come back to this.
[32] Exhibit 5 - Bundle of 5 Digiboard photographs marked 1-5. Exhibit 36 - Disk containing the recording of the Digiboard process undertaken on 31 May 2017 with Ms Shaw. Exhibit 42 - Bundle of 5 pages of digital Photo Board 'running' sheet for No 17.09742-09744 conducted on 31 May 2017 and No.17.09792-09793 conducted on 1 June 2017 corresponding to Exhibit 6.
Ms S selected photograph 12 on Digiboard marked 17.09743. In her evidence Ms S described that selection as being 'The person with the rat's tail'.[33] There was no other evidence to suggest that the person shown in photograph 12 was at the service station or at the house that night.
[33] MFI 5 Edited pre-recording, ts 68.
On 1 June 2017 Ms S selected number 11 from the Digiboard marked 17.09793. Number 11 is a photograph of Mr Munmurrie. In her evidence Ms S described the person in number 11 as being 'The one that attacked me'.[34]
[34] MFI 5 Edited pre-recording, ts 67.
Ms S selected number 7 from the Digiboard marked 17.09792. Number 7 is a photograph of Mr Mills. In her evidence Ms S described number 7 as being 'The other person that was there'.[35]
[35] MFI 5 Edited pre-recording, ts 68.
Ms S was cross-examined. It was established that prior to her arrival at the Caltex Service Station Ms S had drunk about six beers with her partner,[36] over a couple of hours starting in the afternoon[37] and she took five beers with her when she left the house on the first occasion. Ms S agreed that she was tipsy and could feel she had had alcohol when she left the house of the first occasion.
[36] MFI 5 Edited pre-recording, ts 71.
[37] MFI 5 Edited pre-recording, ts 72.
Ms S also confirmed that she was taking an antidepressant, Escitalopram, once-a-day at that time,[38] for depression and anxiety. Ms S did not recall if she had taken her antidepressant that day but denied that she suffered any side effects when taking that medication including when she drank alcohol. There was no other evidence as to the usual side effects of that medication or effects of a combination of the medication and alcohol.
[38] MFI 5 Edited pre-recording, ts 77.
Ms S was cross-examined about whether she would drive while tipsy[39] which she denied. Ms S said that of the five beers that she had taken with her when she left the house the first time she had drunk maybe one or two while out near the airport. Ms S conceded she was feeling more than tipsy and, she agreed, was fairly drunk when she then went home after she had lost her dog.[40]
[39] MFI 5 Edited pre-recording, ts 80.
[40] MFI 5 Edited pre-recording, ts 80 ‑ ts 81.
Ms S could not recall her partner texting her when she was returning to the house but agreed that in a previous statement she had told the police that he had. Ms S also did not remember telling the police that she had seen some people that she knew while driving home and agreed that her memory of the night was not as good when giving her evidence as it had been when she made her statement.[41] These failures of recollection are relied upon by the defence as prior inconsistent statements.
[41] MFI 5 Edited pre-recording, ts 84.
Ms S confirmed that after smoking cigarettes and drinking vodka with the two men that she was intoxicated when she left the service station.[42]
[42] MFI 5 Edited pre-recording, ts 90.
Ms S was asked the following in cross-examination at:[43]
[43] MFI 5 Edited pre-recording, ts 91.
Mr Burg:I'm just trying to ask you now, [Ms S], about when you're leaving the Caltex
[Ms S]: It's 'Ms'
Mr Burg:Ms. Sorry, I apologise Ms S. You don't recall whether it was your idea or whose idea it was to go for another beer somewhere else?
[Ms S]:No
Mr Burg:Okay. And then you drove the car
[Ms S]:I did
Mr Burg:Is that right?
[Ms S]: I did
Mr Burg:Now, is it possible at that point that one of the males stayed in the car, and one of them got out, before you went to that other house
[Ms S]: I don't remember
Mr Burg:You don't remember Okay. It could have been possible you just don't recall?
[Ms S]: I said I don't recall
Those questions do not put the position clearly to Ms S that Mr Munmurrie got out of the car, did not get back in and was not at T's house.
At the time that she was hit in the face Ms S's evidence‑in‑chief was that she was able to see silhouettes[44]. When it was put to her in cross‑examination that she could not have seen the face of the person that hit her she answered 'Yes. I did, just before the lights went out'. Ms S was adamant there was only a second between her seeing the man standing in front of her and when she was hit. It was an instant. Ms S confirmed that the lights went out and she got hit. To her it felt like an instant.[45]
[44] MFI 5 Edited pre-recording, ts 94.
[45] MFI 5 Edited pre-recording, ts 94 - ts 95.
In cross-examination Ms S agreed that her perceptions at the time were diminished considerably because it was dark, late, she was tired and she had had consumed eight beers and also vodka.[46]
[46] MFI 5 Edited pre-recording, ts 97.
Ms S was asked about having on 31 May 2017 identified photograph 12 on the Digiboard as being the man who attacked her. She agreed that was on the day of the events and that her memory was better at that time than it was now.[47]
[47] MFI 5 Edited pre-recording, ts 98.
Ms S was then asked about having identified another man as her attacker the following day. She did not recall whether she had spoken to the police about the details or the identification between the identification by Digiboard on 31 May 2017 and the identification by Digiboard on 1 June 2017.[48]
[48] MFI 5 Edited pre-recording, ts 99.
It was put to Ms S that when she made the Digiboard identification of Mr Munmurrie on 1 June 2017:
Mr Burg:All right. Thank you. I suggest to you, Ms S, that, when you made the digiboard identification - the second one - that you identified someone that you saw very briefly coming to that house that you had told us about – outside the house, but not inside that house. I suggest to you that the identification was only a fleeting moment when you saw that person, and he wasn't involved in this alleged assault at all. Is that possible?
[Ms S]:I don't remember
The question was convoluted and Ms S's answer was equivocal.
Ms S did not recall seeing any other person at the house that night other than the two men.
When it was again put to her in cross-examination that she did not identify the person who attacked her and that she could not be sure about who had attacked her, Ms S was firm in her response. She said she could identify the person and could be sure.
In re-examination Ms S confirmed that two men left the Caltex Service Station in the car with her and two were at the house she was directed to and the two at the house were the two men she had been speaking to at the Caltex Service Station.[49]
[49] MFI 5 Edited pre-recording, ts 102.
In re-examination Ms S also confirmed that after the light was turned off there was some light in the room and that there was no time for her to have moved positions after the lights went out or for the man who had been standing in front of her to have swapped places with anyone else in the room.[50]
[50] MFI 5 Edited pre-recording, ts 103.
There were areas of uncertainty in Ms S's evidence‑in‑chief and in cross-examination which she clearly and appropriately conceded. Some examples are that Ms S could not remember if she had had an argument with her partner before leaving the house the first time but accepted that she had told the police that she was annoyed with her partner.[51] This is also relied on by the defence as a prior inconsistent statement.
[51] MFI 5 Edited pre-recording, ts 74 - ts 75.
Ms S was uncertain which of the two men she had seen first at the service station,[52] who she had initially spoken with,[53] and which of the two she had shared a cigarette with. She was unable to say what the man with the rat's tail was wearing or if he had shoes on and the photographs of each of Mr Mills and Mr Munmurrie at the Caltex Service Station,[54] establish that neither man was wearing jeans. She was unsure how long she was at the Caltex Service Station.
[52] MFI 5 Edited pre-recording, ts 86.
[53] MFI 5 Edited pre-recording, ts 87.
[54] Exhibit 8.
In respect to her time in the house Ms S was unsure if she was in the lounge room or was still in the bedroom when the sexual assault occurred.
Ms S was not truthful when she said that she would not drive while tipsy.
The defence submitted that Ms S was an unreliable witness. In part because on the night Ms S was definitely intoxicated. The defence submits that intoxication coupled with the circumstances surrounding the identification of the assailant when she was assaulted, such as the house being dark and her only being able to see silhouettes means I should not be satisfied that Ms S's identification of the man with the rat's tail being her assailant was reliable. Further, the defence submits that Ms S demonstrated a difficulty recalling certain matters and that her clouded memory was another factor I should look at when assessing her reliability as a witness generally.
There was objective circumstantial evidence which confirmed significant parts of Ms S's evidence. That is:
(a)Mr Mills and Mr Munmurrie both admitted to being at the service station, speaking with Ms S and leaving in the car with her. CCTV footage shows them both to be there and shows Mr Munmurrie using her bank card to buy cigarettes;
(b)Exhibit 2 - a photograph of Ms S's injury to her eyebrow and her black eye taken at the hospital is consistent with her evidence of being hit or punched in the face;
(c)Exhibit 26 is a photograph of Ms S taken at the hospital showing blood on her shirt and faecal material on her shorts. This is consistent with her evidence that blood trickled down her face after she was hit and that she defecated in her pants;
(d)The evidence of Dr Gora about the wound to her right brow and that it would interfere with Ms S's health and comfort was also consistent with her evidence of being hit or punched in the face;
(e)Exhibit 3, the photographs of the exterior and interior of T's house; are consistent with her description of the house where the events occurred;
(f)Exhibits 5, 22, 23 and 24 were photographs of the Caltex Service Station where she identified where she was parked and the CCTV footage which confirms that evidence;
(g)Exhibit 8 and exhibit 23 file names [S] 2 and 4: are evidence which for reasons I will set out below, I am positively satisfied show Mr Mills and he is wearing clothing consistent with Ms S's description that he was wearing a jacket;
(h)Exhibits 14 and 35 are photographs of the position of Ms S's underwear in the bedroom and of the underwear and her shorts showing what appears to be faecal material taken on the morning of 31May 2017 by the forensic officers. This is consistent with her evidence;
(i)The photographs from the interior of the white 4WD show the vodka bottles still in the car;
(j)The evidence of police officer Tidman about the collection of cigarette butts from the service station consistent with Ms S's account of them talking and smoking together;
(k)The evidence of police officer Tidman about the collection of a swab of what he took to be a blood stain from a mattress in the rear bedroom and the evidence of Mr Hedley that the stain was blood and that it contained Ms S's DNA confirms she was bleeding while in the bedroom.

Given that objective confirmation of her account and without reference to the evidence of Mr Mills I would accept that Ms S was a credible and reliable witness generally notwithstanding that her memory of the events was not perfect and her concession that her perceptions were affected.
The differences between what Ms S told the police and her evidence relied upon as prior inconsistent statements by defence counsel are insufficient to persuade me that her evidence was not, in respect to the important matters, both credible and reliable. This is particularly so because she was not cross‑examined in such a way as to call into question the evidence which went to elements of the offences other than identity.
Further, Ms S acted in a manner that is consistent with her account of both assault and sexual assault by going to the hospital and by her complaint to Detective Senior Constable Thompson about the sexual assault shortly after the events.[55]
[55] ts 421.
Leaving the question of identity to one side, I accept Ms S's evidence and find that all of the other elements of each of count 1 and count 2 are proven beyond a reasonable doubt. Specifically I find that:
Count 1
(a)Ms S's assailant assaulted her by striking her to the right brow;
(b)the assault was not authorised or justified by law;
(c)Ms S suffered bodily harm as the blow split her brow causing interference to her comfort;
(d)it was the strike to her right brow that caused the bodily harm;
Count 2
(e)Ms S's assailant digitally penetrated her most likely in the bedroom; and
(f)she did not consent to that digital penetration.
I will now turn to the evidence about the identity of the offender. This requires further examination of Ms S's evidence of identity along with the evidence of Mr Mills, Mr Bonney and Mr Munmurrie.

Identity

I have already outlined Ms S's evidence of the identity of her attacker. In broad terms the evidence the State relies on is in two parts, that:
(a)It was the man who she met at the service station and whom she described as having the rat's tail who travelled in her car to T's house and then attacked her starting by punching or hitting her in the face in the dining room, dragging her to the bedroom and then digitally penetrating her either in the bedroom or in the lounge room;
(b)She identified Mr Munmurrie on 1 June 2017 by choosing photograph 11 on Digiboard marked 17.09793 and her evidence was that the person in the photograph was the man with the rat's tail.
I will deal first with an objection which was made to me taking into account what was said by Ms S during the Digiboard identification process and then the evidence of identity arising from the Digiboard identification. I have already outlined the warning which I have given myself with respect to Digiboard identification evidence.
Objection to the admissibility of what was said was first made by counsel for the State on the basis that it was not admissible as hearsay but after some discussion about the authority of The State of Western Australia v Bilos [2008] WASC 226 counsel for the State did not press that objection. Objection was then taken in closing by counsel for Mr Munmurrie on the basis that evidence was inadmissible and, if it was not inadmissible, it fell into the class of case where admissible evidence should be excluded because its probative value is outweighed by its prejudicial effect.
In my view the evidence of what is said by an identification witness during the process of identification is relevant and admissible: The State of Western Australia v Bilos and Roser v The Queen (2001) 24 WAR 254.
On 31 May 2017 Ms S identified a man as the man with the rat's tail. There is no evidence would suggest the man was involved in this matter at all. I do not see that what Ms S said on 31 May 2017 during that incorrect identification is prejudicial to Mr Munmurrie. Ms S said words to the effect that she recognised the man in question, she ummed and ahhed and then went ahead and chose him as the man with the rat's tail. That strengthens the defence position that Ms S was prepared to identify someone she recognised and in turn the Digiboard identification of Mr Munmurrie made by Ms S the following day was unreliable.
Further, defence counsel says that the evidence surrounding Ms S's identification of both Mr Munmurrie and of Mr Mills on 1June 2017 further shows why it is necessary to treat the evidence with caution. On 31 May 2017 Ms S did not identify Mr Mills or Mr Bonney whose photographs were in two Digiboards that day.
I am not concerned with Ms S's failure to identify Mr Bonney. She never met him and she denied seeing him on the night as she was leaving the house. She clearly did not hear him if he spoke to her.
Further there is some basis for the State's submission that the photograph in the Digiboard on 31 May 2017 of Mr Mills was from his driver's licence and he appeared to be substantially younger in that photograph than he was as at May 2017. Ms S made the comment that all of the persons whose photographs were on that Digiboard were too young. While I agree that the 31 May 2017 photograph of Mr Mills is not a good likeness of him, the evidence of a failure to identify is evidence which would, without more, call into question Ms S's ability to identify Mr Mills as a person who was present the following day.
The Digiboards prepared for 1 June 2017 for the first time contained a photograph of Mr Munmurrie and a photograph of Mr Mills which was a much better likeness of him as at that day. Ms S swiftly identified Mr Munmurrie as the man who attacked her when as photograph 11 when shown the Digiboard marked 17.09793 the next day and Mr Mills as the other man who was there as photograph 7 when shown the Digiboard marked 17.09792.
Had the Digiboard identification evidence been the only evidence of identity, its inherent unreliability would have meant it was insufficient to establish the identity of Ms S's attacker beyond a reasonable doubt but that was not the only evidence relevant to identification.
There was, first of all, the evidence of Ms S that she met two men at the Caltex Service Station, she drove those two men to T's house and both men went into the house with her. It was the man with the rat's tail who attacked her and the other man, the man wearing the jacket, who left.
Each of Mr Mills and Mr Munmurrie admitted meeting Ms S and speaking with her at the Caltex Service Station.
Mr Mills also gave evidence about the events of the evening which substantially corroborated the evidence of Ms S. Mr Mills can be described as a reluctant witness, at least at first, and although he became more forthcoming during the course of his evidence he was not prepared to identify other people who he saw that day.
Mr Mills' evidence‑in‑chief can be summarised:
(a)That as at 31 May 2017 he had known Mr Munmurrie for some months having met him through Mr Mills' uncle;[56]
[56] ts 205.
(b)He and Mr Munmurrie were together at the Caltex Service Station after dark on the evening of 31 May 2017 just standing around near the electric box and the gas bottles when they saw a lady sitting in her car near the green electric box[57] in a big white car;
[57] ts 207.
(c)He could not remember speaking to the lady but he did see Mr Munmurrie speaking to her;
(d)He left the Caltex Service Station with Mr Munmurrie and the lady in her car to go to T's house. They went to T's house to see if there was more alcohol there and it was Mr Munmurrie's idea to go there;[58]
[58] ts 210.
(e)They arrived at T's house, got out of the car and had a smoke. Then Mr Munmurrie jumped through the front window and opened the front door.[59] Mr Mills and the lady went into the house through the front door.[60] In this respect Mr Mills' evidence is corroborative of Ms S's evidence of how they got into the house;
[59] ts 210.
[60] ts 211.
(f)They went into the dining room and sat at the table. Mr Mills sat across from Mr Munmurrie and the lady. He was on the cupboard side which was away from the external wall[61] In this respect Mr Mills' evidence is partially corroborative of Ms S's evidence that she sat nearest the external wall and the other man sat opposite her at the table;
[61] ts 211 - ts 212.
(g)There was no alcohol there. Mr Munmurrie got up and walked across to the light switch and turned it off. The lady got up and then got hit. He then saw Mr Munmurrie grab her by the hair and drag her down the hallway into Jonah's bedroom.[62] This is corroborative of Ms S's evidence that she was dragged by the hair but I note that later in his evidence Mr Mills did not repeat that he saw the lady get hit[63] and he confirmed in cross‑examination that he did not see that. Both counsel closed on the basis he had not seen Ms S hit in the face;
(h)Mr Mills then walked to the doorway of that room and told Mr Munmurrie 'Don't do that' and swore at him, he then walked outside to the front window and knocked on it saying 'Don't go doing that'. In this last respect Mr Mills' evidence is corroborative of Ms S's evidence that Mr Mills and Mr Munmurrie were speaking to each other through the window;
(i)From the doorway of Jonah's room he could see Mr Munmurrie standing over Ms S who was sitting on a lounge chair.[64] Mr Mills' evidence is corroborative of Ms S's evidence that she was sitting and the man with the rat's tail was standing over her. Mr Mills said 'Stop you dumb cunt';
(j)Mr Mills then left and went to his cousin's house. He left because he did not know what was going on;[65]
(k)Mr Mills and Mr Munmurrie had been drinking in the afternoon. In the afternoon at the Tambrey bottle shop Mr Mills had been wearing shorts, a short-sleeved hoodie over a long sleeved chequered shirt and a hat. He was wearing the hat that night;
(l)At the bottle shop Mr Munmurrie was wearing shorts and a T‑shirt along with a hat. Mr Munmurrie had short hair with a rat's tail;
(m)At the service station Ms S was parked under a street light behind a structure which is a sea container in which ice is stored. This was between the green electric box and the gas bottles. In this respect Mr Mills' evidence is corroborative of Ms S's evidence;
(n)He could not identify himself in a still photograph exhibit 8 number 4 or in exhibit 23 which is CCTV footage from the service station which shows a man wearing a long sleeved checked garment with a hood that has the appearance of a jacket. I am satisfied that the photograph and CCTV show Mr Mills because his evidence was that he went into the service station shop and bought a drink, from the earlier evidence it appears that when at the service station the hoodie was then under the long sleeved checked shirt and Mr Bonney identified him in that photograph;
(o)He gave detailed evidence about the inside of the house at T's house, the position of the dining room and Jonah's bedroom. In this respect Mr Mills' evidence is corroborative of Ms S's evidence; and
(p)In May 2017 he drew a floor plan of the house and a seating plan showing where people were sitting.[66] Those documents were consistent with his evidence.
[62] ts 212 - ts 213.
[63] ts 251.
[64] ts 214.
[65] ts 215.
[66] Exhibit 12 and Exhibit 13.
Mr Mills was cross-examined. During cross-examination he confirmed that he had been drinking quite a bit of alcohol on the night in question, had not had much sleep and had been using methylamphetamine leading up to that night. This is why his recollection of conversations with the lady were unclear.[67]
[67] ts 252.
There was some cross-examination about the details of how Mr Munmurrie came to be at T's house in the afternoon. He did not remember Mr Bonney and his cousin or uncle also being there.[68]
[68] ts 254.
Mr Mills accepted in cross-examination that he and Mr Munmurrie went to the Tambrey bottle shop and that they stole alcohol, specifically two 10 packs of pre-mixed bourbon drinks from there.[69] The two 10 packs were all drunk but he could not remember how many he had drunk.
[69] ts 254.
Mr Mills said he did not remember many details of the afternoon and evening that were put to him. Specifically he could not remember who was with him and Mr Munmurrie at T's house in the afternoon, whether Mr Bonney was there and was then out walking around with them later, if they went to the park, if they met up with a Miss Bunam, if he went to Ms Bunam's sister looking for Ms Bunam, if Mr Munmurrie went to the toilet at the service station, if Mr Mills and Mr Munmurrie had drunk some of the vodka with Ms S, if Ms S shared a cigarette with him.
Mr Mills did remember sitting in the car with Ms S and that Mr Munmurrie sat in the car as well. He remembered that the lady wanted more alcohol.
When it was put to him that Mr Munmurrie was in the car but as it went up the road Mr Munmurrie jumped out Mr Mills answered 'No. I don't remember that'.[70]
[70] ts 263.
Mr Mills firmly denied in cross-examination that it was only he and the lady that went back to T's house that night[71] and that Mr Munmurrie was not in the car when it got back to T's house.[72]
[71] ts 263.
[72] ts 264.
Mr Mills was consistent in cross-examination as to which sides of the table he and Ms S were sitting but was less sure as to which of the chairs Ms S and Mr Munmurrie were in.
Mr Mills confirmed in cross-examination that he did not see the lady get hit but he was firm that Mr Munmurrie dragged her by the hair to the bedroom.
He denied that he was lying about Mr Munmurrie's role in the events in order to save himself from blame[73] but accepted that he had on a number of previous occasions given a false name to police.[74] His explanation was that he would not lie to the police about something serious.[75] He denied that he had fabricated the story about Mr Munmurrie to put Mr Munmurrie in the sights of the police.
[73] ts 267.
[74] ts 269 - ts 271.
[75] ts 271.
In re-examination Mr Mills clarified that he thought there was a distinction between matters like driving without a licence and serious criminal matters like those involved in this trial and was firm that Mr Munmurrie was at the house that night, had gotten into the house through the window and that there was no-one else there.
Mr Mills' memory of some of the events of the day and evening in question were either flawed or he was reluctant to give any evidence which identified any other person who may have any involvement in this matter. In that respect he was an unsatisfactory witness.
Further, Mr Mills has in the past lied to police and might be thought to have an even greater motive to do so on this occasion. Those factors might have persuaded me that he was an unsatisfactory witness but for the fact that his evidence was in the important respects I have already outlined above highly consistent with and corroborative of Ms S's evidence.
There is no suggestion that Ms S and Mr Mills ever met again after 31May 2017 or had an opportunity to collaborate in their evidence and that was not suggested to them.
There is also the evidence of Mr Bonney. Mr Bonney gave evidence by video link from Karratha where he is now living and working. Mr Bonney gave his evidence in a straightforward way.
He confirmed that on the afternoon of 30 May 2017 he had been housesitting T's house when three men came to the house. One was Mr Mills, who Mr Bonney called Casey. Mr Bonney understood that the others were Mr Mill's uncle and his cousin. The four men were drinking alcohol together at the house over some four or five hours.
They all left the house together and walked to a house in Baynton, then to Mr Bonney's niece's house, to a house party across the road then they went together to a place near to the Tambrey bottle shop and Mr Mills and his cousin went to the bottle shop. After that they continued to walk around the area and into the suburb of Nickol until they met a female and a male whose names Mr Bonney did not know.
All six of them walked together for a while but the female and male left and finally Mr Bonney lost track of Mr Mills and his cousin and went back to his niece's house. He then spent some time with his sister and his niece before going to the Caltex Service Station to withdraw some money for his sister from her account through the ATM.
When he arrived at the Caltex Service Station he saw Mr Mills and the cousin he had sent time with earlier in the day talking to a fair skinned, fair haired woman in a white 4WD. Mr Bonney did not speak to them. He took his sister's money out of the ATM and bought cigarettes and something to eat. When he came out of the service station they had left.
Mr Bonney's evidence was that he then walked back to his niece's house to give his sister her money. He had a smoke or two and then walked home to T's house. It was then close to midnight in his estimation.
When he got to T's house he saw a white 4WD parked in the driveway. He recognised it as being the one at the petrol station where the woman in it was talking to Mr Mills and his cousin.
He then saw a woman come out of the front door of the house. She was a fair skinned and fair haired woman who had her head down as she power walked to her 4WD car, got in it and took off around the corner.
Mr Bonney was a bit shocked. He spoke to the woman as she walked to her car asking who she was but she did not reply. Then Mr Mills' cousin walked out the front door.[76] That was the man he had been with earlier in the day.
[76] ts 291.
Mr Bonney asked him 'What are you doing here? Where is Casey?' and the cousin said 'Yeah. Casey's not here'. The cousin then walked away in the opposite direction to the 4WD.
When Mr Bonney went into the house there was no-one else there. He pulled a mattress into the lounge room to sleep on and went to sleep. He was woken the next morning by the police.
Mr Bonney marked in exhibit 17 where the white 4WD was parked at the Caltex Service Station and in exhibit 18 he marked where the white 4WD was parked at the house. His evidence was that he was standing on the gravel (roughly behind the police white 4WD shown in Exhibit 18) when he saw the woman come out and he could see the front door from there.
On 31 May 2017 at the Karratha police station, Mr Bonney identified a photograph of Mr Munmurrie on a Digiboard marked 17.09759 as being Mr Mills' cousin.
Mr Bonney was cross-examined. He could not recall what alcohol was drunk at T's house in the afternoon or who had purchased it but he was consistent with other witnesses as to the number of cans of pre‑mixed were obtained from the Tambrey bottle shop later in the day.
He recalled meeting other people while the group were walking around including a young woman but did not know their names. He thought that Casey and Casey's cousin were trying to chat the young woman up.
Mr Bonney confirmed that the latch on the window at the front of the house was not good and to lock it they needed to put a piece of wood into the window. When asked if he knew whether that piece of wood was in or not he said 'I believe it was' and 'It could have been there'.[77]
[77] ts 314.
The other entry points to the house were not very secure and the only key was for the flyscreen to the back door so to lock up the other doors had to be locked on the inside and then the person locking up went out the back door.
Mr Bonney confirmed that he recognised the woman from the service station because of her car, the height of the driver, her skin tone and her hair colour.[78] The photograph of Ms S show her to have fair skin but not fair hair, so, in this regard Mr Bonney's evidence was inaccurate.
[78] ts 317.
Mr Bonney said when he saw the woman he was standing in a position at about the rear of the car shown in exhibit 10 photograph 1. He had a clear line of sight to the front door from that position.[79] He was clear that he saw Mr Munmurrie coming out of the front door but agreed that he did not see him inside the house.
[79] ts 318

In cross-examination Mr Bonney identified Mr Munmurrie from the still photograph in the Caltex Service Station,[80] taken that night. He also identified Mr Mills from photographs in exhibit 16.
[80] Exhibit 8.
In re-examination Mr Bonney was asked about whether his evidence about the window to the left of the front of the house and whether the wood was in the window. He confirmed that he usually checked the window before leaving and that he did so when leaving the house that day.
Mr Munmurrie gave evidence and was cross-examined.
Mr Munmurrie's evidence‑in‑chief can be summarised as follows:
(a)Mr Mills rang him and asked him to come and meet him for a drink at T's house. Mr Munmurrie arrived at about 1 o'clock or 2 o'clock in the afternoon.[81] He confirmed that Mr Bonney and Mr Mills' uncle were there. They were drinking together in the afternoon;
[81] ts 454.
(b)When the four of them left the house they went to Baynton West and then walked around meeting various people over a period of time. The evidence that Mr Munmurrie gave about where the four men went and who they were with was largely but not completely consistent with the evidence of Mr Bonney about those matters;[82]
[82] ts 455 - ts 456.
(c)Mr Munmurrie confirmed that he and Mr Mills stole alcohol from the Tambrey bottle shop;
(d)He confirmed that they met with a young woman, Missy Bunam, who Mr Mills showed interest in but denied being interested in her himself;
(e)Mr Munmurrie confirmed that he and Mr Mills parted ways with Mr Bonney and went together to the Caltex Service Station[83] he thought to buy some smokes;[84]
(f)When they arrived he spotted a female walking out of the service station but wanted to go to the toilet and so did that. When he returned Mr Mills was speaking to the woman in the passenger side of her car. The car was a white 4WD vehicle.[85] He went to the driver's side of the vehicle. The window was partly up and partly down and Mr Mills was speaking to the woman;[86]
(g)The woman was fair. Her hair was blonde he thought.[87] She was short. She was drinking Smirnoff vodka, about half a bottle, and she shared it with Mr Mills and himself;
(h)The woman asked them to go and get smokes. Mr Munmurrie went and got them using the woman's card. The woman then shared the cigarettes with them.[88] Mr Munmurrie did not have a jumper and so Mr Mills got out of the car so that Mr Munmurrie could get in out of the cold.[89] Mr Munmurrie did not feel right sitting in the woman's car and so he got out again and Mr Mills got back into the passenger seat of the car and Mr Munmurrie went to stand at the front of the car. Mr Mills told the woman that there was more alcohol at the house;[90]
(i)He then saw his partner drive past. He was about to get in the car with them which I understood to be his partner and whoever else was in the car, but they never turned towards him.[91] Mr Mills then said to him that he was going to T's house to get some more drink but he ended up getting in the back of the woman's car;[92]
(j)He asked the woman to drop him off home but Mr Mills wanted to go to the house and so Mr Munmurrie ended up jumping out of the car at the corner.[93] He jumped out to go to his aunt's house. Where he jumped out was about three times the length of the court (I estimate maybe 45 m) down the road. He then walked to his aunt's house but she was not at home.[94] His aunty was not home so he walked to T's house;
(k)When he got to T's house he saw the woman's 4WD parked up. He walked towards the back of the car and the front door of the house on the gravel.[95] He went to knock on the door and a woman walked out. He tried to speak to her and asked where Casey was 'If he was inside'.[96] She put her head down and kept walking toward the car.[97] He recognised the woman as the woman from the Caltex Service Station. She went to the car and he went and knocked on the door singing out for Mr Mills;
(l)He did not go through the door, he knocked on the door. He pushed the door open a little bit, looked inside and then heard the car start up and saw Mr Bonney come walking up so Mr Munmurrie walked over and asked where Mr Mills was.[98] Mr Bonney said that the last time he saw Mr Mills he was in Nickol but from his answer it was not clear exactly where. Mr Munmurrie and Mr Bonney then walked inside together.[99] Mr Bonney and he then walked through the house looking for Mr Mills. The back door was open and Mr Mills was not there;
(m)The white car took off and Mr Munmurrie left and went to his sister's house. He saw Mr Mills the next day to retrieve his mobile phone. Mr Mills had had the phone because Mr Munmurrie had no pockets in his clothes;[100] and
(n)He denied being in the house with the woman and Mr Mills, turning off the light or assaulting the woman or sexually assaulting the woman.
[83] ts 458.
[84] ts 459.
[85] ts 459.
[86] ts 460.
[87] ts 461.
[88] ts 462 - ts 463.
[89] ts 463.
[90] ts 464.
[91] ts 465.
[92] ts 465.
[93] ts 465.
[94] ts 468.
[95] ts 468.
[96] ts 469.
[97] ts 469.
[98] ts 469.
[99] ts 470.
[100] ts 470.
In cross-examination Mr Munmurrie confirmed that day was the first day he met Mr Bonney but he had known Mr Mills for a month and a half.
He also conceded that he did not have a complete memory of the day. He remembered that he was wearing the rhino T‑shirt, but could not recall if he was wearing a hat, shorts or shoes. He said he lost the T‑shirt sometime after he had been at the bottle shop. He was drinking alcohol at the house in the afternoon and could not remember if he was intoxicated after he left there.
Mr Munmurrie would not describe his hair as a rat's tail but, rather, a pony tail.[101] He was not clear as to who exactly was at the park, if it was Mr Bonney's sister and brother in law. He did not know how long they were wandering around the streets. He was intoxicated when he got to the Caltex Service Station.
[101] ts 478.
Under cross-examination Mr Munmurrie offered considerable extra detail. He said that when he first saw her Ms S was pulling out but saw him smoking and stopped to ask for a draw of his smoke, then if they had seen her dog. He gave her the smoke and went off to the loo. He had gotten the cigarette from his aunty some 5 or 10 minutes earlier. He said he saw his aunty walking along.
When asked why he had originally told the police that he did not see anyone at the service station he said that it was because he had not slept for a week. He did not know what he was talking about.[102]
[102] ts 484.
He was coming off drugs. He just wanted to agree with what the police were saying so that he could have some sleep.
At the Caltex Service Station he was wearing a T‑shirt and shorts and it was cold. He was the one who started speaking to the woman first. His evidence in cross-examination was largely consistent with his evidence‑in‑chief.
He said that any differences between his evidence and what he told the police were because he was coming off drugs. He did not tell the police that he had gone back to T's house because he did not remember a lot of things then and he did now. He did not remember talking to the lady when he first spoke to the police. He just wanted to go to sleep.
He said that it was his sister‑in‑law who had driven past him in the car and then said it was his sister‑in‑law and 'his missus'. They were driving past in the car. He could not remember which way they were driving but they never pulled up. He did not know what kind of car they were in. It was dark at the station but he had a clear view and he recognised the car even though he did not know what type of car it was. It was a little white car.
They were not going over the speed limit. He could not remember how far away the car was. He denied making that evidence up.
He thought he saw his sister‑in‑law's car at his aunt’s house which was only 5 m or 10 m from where he got out of the car. That was the reason why he got out of Ms S's car. He had been going to go home to Pegs Creek and then thought he saw his partner's car parked up at his aunt’s house and so got out of Ms S's car.
He denied going back to T's house with the lady and Mr Mills. He did not know that there was a window on the left of the door. He did not go into the house through a window. He did not let the woman and Mr Mills into the house. He did not hit the woman or drag her into the other room or sexually assault her.
Mr Bonney was mistaken in what he saw and what they spoke about.
In re-examination Mr Munmurrie said that Mr Bonney had asked him to shut everything up when they were leaving T's house earlier in the day although Mr Bonney had the key.
A police interview with Mr Munmurrie was played in evidence (the EROI). In the EROI Mr Munmurrie told the police different things to what he said in his evidence. The salient point from that interview were:
(a)He said he remembered nothing about it and all he remembered being at Caltex Service Station and going to buy smokes;
(b)He met Casey at the Caltex Service Station. Just bought smokes at the Caltex Service Station and walked off. His drink was spiked. He could not remember what happened;
(c)He thought he had money to buy the smokes. He had $20;
(d)He did not recall meeting anyone else at the Caltex Service Station. He did not go to the toilet there and he was only there for about 15 or 20 minutes;
(e)After he spent the 15 or 20 minutes at the Caltex Service Station he left and walked to his sister's house. She lives in Baynton. He sat out the front for a bit and chopped up. He had a couple of cones and then went to 'my woman' who lives on Gunsberg;
(f)He did not know what happened to Mr Mills after he left the Caltex Service Station until he later met him at the park;
(g)He met Casey at a house earlier in the day and they had drinks. Casey's uncle was there and another man who he did not know. He did not go into the house and entered from the back fence and stayed in the back of the house;
(h)He did not talk to a lady at the Caltex Service Station who was in a white 4WD. He denied using her pink keycard to buy cigarettes. At first he did not remember talking to the lady. Later he was not sure if he shared a few smokes and vodka but then accepted he may have spoken to a lady;
(i)He then took off for his sister's house and Casey stayed and he was sitting around for a bit. Mr Munmurrie went to his sister's house, had a couple of cones and then came back because he wanted to see Casey. Casey left but would not tell him where he was going so Mr Munmurrie walked back to his mother‑in‑law's (on Gunsberg);
(j)He initially said that did not go back to the house where they started drinking but later said he went there looking for Casey Mills because Casey was missing. He knocked at the door and Mr Bonney answered it. He said he asked Mr Bonney where is Casey and Mr Bonney said he did not know. He told Mr Bonney to tell Casey to come over and see him and took off. He ended up at his sister's;
(k)He then agreed that the lady had a white 4WD and that he had bought smokes for her at the garage. He denied that she gave them a lift and said that they, meaning he and Mr Mills, walked off from there;
(l)He denied going in the lady's car. He said that he sat in the lady's car and once he had jumped out of the woman's car Casey jumped back in. That's when either he talked to his woman or his phone rang and it was his woman and that is when he saw his sister‑in‑law's car drive past;
(m)He maintained that he would not have done what he was accused of because he had a pregnant woman at home; and
(n)He agreed that he had sat in Ms S's car but not that he had drunk vodka with her. He denied going to T's house with her.
As will be clear from that account what Mr Munmurrie told the police in the EROI was significantly different to what he said in his evidence. In the EROI Mr Munmurrie told the police he spoke to his partner on his phone while at the Caltex Service Station. He mentioned seeing his sister‑in‑law's car drive past but did not say that his partner was in the car. He maintained that his pregnant partner was at home. He did not tell the police that he had left in the lady's car but got out a short distance later to go to his aunt's house where he thought he saw his sister‑in‑law's car. He said he had been to his sister's house for a couple of cones and then returned to the Caltex Service Station. He said when he left the Caltex Service Station he left on foot and he went to his mother‑in‑law's house and only later went back to T's house looking for Mr Mills. He said that Mr Bonney was already home and answered the door. They both went inside together. He made no mention of seeing the lady in the car leaving the house.
It was put by defence counsel that exhibit 45 which is CCTV footage from the service station supported Mr Munmurrie's evidence that immediately after leaving the service station in the car that Ms S slowed down and Mr Munmurrie jumped out to go to his aunt's house. The CCTV footage shows Ms S's car backing out of the parking spot and later, in the far background, a car driving down the road behind the station. Even if I were to accept that the car which can be seen driving behind the service station is Ms S's car, all I can see is that it slows down and turns a corner. If Mr Munmurrie got out of the car he did so while it was moving.
The differences between what Mr Munmurrie said in the EROI and his evidence are stark. While I accept Mr Munmurrie was tired in his interview and had been drinking alcohol and using drugs in the days prior those offences the differences cause me to question his credibility. I do not accept that Mr Munmurrie was telling the truth in his evidence when he said that he had seen his sister‑in‑law and partner going past in his sister‑in‑law's car or that after getting into the lady's car that he got out a short while later to go to his aunt's house or that when he returned to the house he saw the lady leaving and found Mr Bonney inside.
Mr Munmurrie's evidence was given after he had heard Mr Bonney's evidence. He heard Mr Bonney say the lady having blonde hair and in my view adopted that. He heard Mr Bonney say he saw Mr Munmurrie outside the house when he returned there. Both were mistaken about Ms S's hair colour and Mr Munmurrie had previously said in the EROI said that Mr Bonney was at home and inside.
In addition to the prior inconsistent statements causing me to doubt Mr Munmurrie's truthfulness, his story of having seen his sister‑in‑law and partner driving past in a car which he could not identify only to see one just like it at his aunt’s house but then finding his aunty was not home and returning to T's house rather than going home is inherently unlikely and appeared to be made up as he went along. This causes me to be unable to accept his evidence and to put it completely to one side. I did not think that it might be true.
Having put that evidence to one side I ask myself if I can be satisfied beyond a reasonable doubt that Mr Munmurrie was the man who committed the acts which constitute counts 1 and 2 on the indictment.
I can be so satisfied because:
(a)I accept Ms S's evidence for the reasons already outlined: that the man who did the things to her was the man she had been talking to at the Caltex Service Station with the rat's tail who was standing right in front of her when the lights were turned off;
(b)There were only two men there at the house. One with a rat's tail and one in a jacket;
(c)Ms S identified each of them off the Digiboard on 1 June 2017 but I have given this only a little weight;
(d)Exhibits 16 and 36 are photographs of Mr Mills and Mr Munmurrie taken on 31 May and 1 June 2017. Exhibit 16 shows Mr Mills with short hair and a very small rat's tail. Exhibit 36 shows Mr Munmurrie with predominantly short hair but a prominent rat's tail which appears to be braided but on closer examination of the photograph and with the benefit of his evidence, shows his hair curled around itself. Those photographs are consistent with the descriptions of Mr Mills and Mr Munmurrie given by Ms S. Mr Munmurrie's rat's tail is substantial and readily evident. Mr Mills' rat's tail could easily be overlooked especially when he was wearing a cap;
(e)Mr Munmurrie confirmed in his evidence and his EROI that he was wearing a T‑shirt. He could not be described as wearing a jacket whereas Mr Mills could be. This is consistent with the CCTV and the still photographs taken at the Caltex Service Station;
(f)As I have already set out, Mr Mill's evidence was substantially consistent with that of Ms S in ways that are inherently unlikely unless they were both telling the truth. One example, when Mr Bonney said that he had checked the window he was wrong as it is unlikely that both Ms S and Mr Mills could have come up with the detail that Mr Munmurrie went into the house without collusion unless they were telling the truth; I find that when Mr Bonney said he checked the window he was mistaken. It is of note that Mr Munmurrie said he had closed up the house; and
(g)Mr Bonney's evidence was that he could see Mr Munmurrie coming out of the house. Mr Munmurrie was known to him, Mr Bonney was able to identify him on the Digiboard and Mr Munmurrie accepted that he was at T's house at the front door and then spoke with Mr Bonney. If Mr Bonney's evidence was the only evidence which put Mr Munmurrie coming out of the house I might not have been so persuaded but I must take the evidence as a whole including the evidence of Ms S and Mr Mills that Mr Munmurrie was there and inside the house.
I find that I am satisfied beyond a reasonable doubt that it was Mr Munmurrie who was the man with the rat's tail who did the act constituting counts 1 and 2. I am satisfied beyond a reasonable doubt as to Mr Munmurrie’s guilt and find him guilty of both counts on the indictment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan
15 JUNE 2020