Thong v The State of Western Australia

[2020] WASCA 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THONG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 182

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   15 JANUARY 2020

DELIVERED          :   30 OCTOBER 2020

FILE NO/S:   CACR 41 of 2019

BETWEEN:   KHANG WEI THONG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 42 of 2019

BETWEEN:   KHANG WEI THONG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PETRUSA DCJ

File Number            :   IND 247 of 2018

Catchwords:

Criminal Law - Appeal against conviction - Appellant convicted after trial of one count of sexual penetration without consent and one count of aggravated sexual penetration without consent - Circumstantial evidence - Whether verdict unreasonable or cannot be supported by the evidence - Whether it was necessary for the trial judge to direct the jury that it must be satisfied beyond reasonable doubt that the DNA on the complainant's clothes was directly transferred from the appellant - Whether the DNA evidence was an indispensable link in the chain of reasoning towards an ultimate inference of guilt

Criminal Law - Appeal against sentence - Whether sentence of 8 years 6 months' imprisonment is manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 325(1), s 326(1)

Result:

CACR 41 of 2019:
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

CACR 42 of 2019:
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category:    B

Representation:

CACR 41 of 2019

Counsel:

Appellant	:	S W O'Sullivan
Respondent	:	J A Scholz

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions (WA)

CACR 42 of 2019

Counsel:

Appellant	:	S W O'Sullivan
Respondent	:	J A Scholz

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions (WA)

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

Atkinson v The State of Western Australia [2017] WASCA 154

Austic v The State of Western Australia [2010] WASCA 110

Davidson v The Queen [2009] NSWCCA 150; (2009) 75 NSWLR 150

DKA v The State of Western Australia [2019] WASCA 123

Eravelly v The State of Western Australia [2018] WASCA 139

FWB v The State of Western Australia [2016] WASCA 118

Kabambi v The State of Western Australia [2019] WASCA 44

KNY v The State of Western Australia [2019] WASCA 89

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MEN v The State of Western Australia [2020] WASCA 118

NPA v The State of Western Australia [2018] WASCA 131

Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

The State of Western Australia v TLP [2019] WASCA 66

THG v The State of Western Australia [2012] WASCA 139

Thomas v The State of Western Australia [2019] WASCA 4

Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361

Wells v The State of Western Australia [2017] WASCA 27

Williams v The State of Western Australia [2015] WASCA 110

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

TABLE OF CONTENTS

Contents

The prosecution and defence cases in a nutshell

The State's case

The defence case

Summary of the evidence adduced by the State

Summary of the evidence adduced by the defence

The State prosecutor's closing address

Defence counsel's closing address

The trial judge's summing up

The appeal against conviction

Ground 2 - did the State need to prove beyond reasonable doubt that the DNA on L's clothes was directly transferred?

Ground 2 - the legal principles

Ground 2 - disposition

Ground 1 - were the verdicts unreasonable?

Ground 1 - the legal principles

Ground 1 - the appellant's submissions

Ground 1 - disposition

L's description of the offender

The evidence of Mr Kong, Mr Lim and Mr Chong

The appellant's possession of L's mobile telephone

The DNA evidence

The appellant's evidence

Ground 1 - conclusion

Appeal against conviction - orders

The appeal against sentence

The grounds of appeal

The facts as found by the sentencing judge

The appellant's personal circumstances

The victim impact statement

The sentencing judge's approach

The legal principles applicable to the grounds of appeal

The appellant's submissions

Ground 1 - disposition

Appeal against sentence - orders

JUDGMENT OF THE COURT:

1. Before the court are the appellant's appeals against conviction and sentence. 

2. The appellant was charged on indictment in the District Court with two offences, each of which was alleged to have occurred on 7 May 2006 at Willetton. Count 1 alleged that the appellant sexually penetrated the complainant, whom we will call L, without her consent by introducing his penis into her mouth, contrary to s 325(1) of the Criminal Code (WA) (the Code). This offence carries a maximum penalty of 14 years' imprisonment. Count 2 alleged that the appellant sexually penetrated L without her consent by penetrating her vagina with an unknown object and that he was armed with an offensive instrument, namely a knife, and that he threatened to kill L, contrary to s 326(1) of the Code. This offence carries a maximum penalty of 20 years' imprisonment.

3. Between 21 January 2019 and 6 February 2019, the appellant was tried on the two charges before Petrusa DCJ and a jury.  On 6 February 2019, the appellant was found guilty of both counts and was duly convicted of them.  On 22 March 2019, the appellant was sentenced to 2 years 6 months' imprisonment on count 1 and 8 years 6 months' imprisonment on count 2.  Her Honour ordered that these sentences be served concurrently.  Thus, the total effective sentence was 8 years 6 months' imprisonment.  The sentence was backdated to commence on 6 February 2019 and the appellant was made eligible for parole.[1]

   [1] ts 1340.

4. The appeal against conviction relies on two grounds.  Ground 1 alleges that the verdicts of guilty are unreasonable and cannot be supported by the evidence.  Ground 2 alleges that the learned trial judge erred by failing to direct the jury that before they could use DNA evidence as part of the circumstantial case against the appellant, they must be satisfied beyond reasonable doubt that the DNA detected upon L's clothing was deposited by direct transfer from the appellant.  The question of leave to appeal with respect to these grounds was referred to the hearing of the appeal.[2]

   [2] Order 12 July 2019, Mazza JA.

5. The appeal against sentence also relies on two grounds.  Ground 1 alleges that the sentence imposed on count 2 was manifestly excessive.  Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.  The question of leave to appeal with respect to these grounds was referred to the hearing of the appeal.[3]

   [3] Order 12 July 2019, Mazza JA.

6. For the reasons set out below, we would dismiss both appeals. 

The prosecution and defence cases in a nutshell

1. The appellant did not dispute at trial that L had been sexually penetrated as alleged in the two counts on the indictment.  The critical factual issue for the jury to decide in each charge was whether the State had proved beyond reasonable doubt that the appellant was the offender.

2. In a nutshell the cases presented to the jury were as follows.

The State's case

1. On the evening of 6 May 2006 L went to a 21^st birthday party in Perth.  At about 11.00 pm she and two of her friends went to Northbridge where she consumed a large quantity of alcohol, first at the Mustang Bar and later at the Geisha Bar.  After leaving the Mustang Bar L's memory was patchy due to her intoxication.  One of L's friends took her from the Geisha Bar to a taxi rank near Rosie O'Grady's pub at the corner of James and Milligan Streets in Northbridge so that she could catch a cab home.  The State's case was that while in the vicinity of Rosie O'Grady's and the taxi rank the appellant, who was in Northbridge together with Michael Kong, Aaron Lim and Timmy Chong, approached L and took her to his vehicle which was parked at the Perth Entertainment Centre carpark.

2. On the State's case, from there L was driven to a shop complex in Collins Street, Willetton, where there were a number of restaurants, including one called the Curry Kitchen.  In the vicinity of that restaurant, the appellant sexually penetrated L, as alleged in the counts on the indictment.

3. The appellant then telephoned Mr Lim who drove from his home in Canning Vale to the vicinity of the Curry Kitchen.  Mr Lim saw L, who was naked from the waist down and clearly distressed, with the appellant.  Mr Lim then gave L a lift in his car to her home.  Soon after L's arrival home she complained to her housemates that she had been sexually assaulted.  The matter was reported to the police, the clothing that she had worn that night was seized for forensic examination and L was medically examined.

4. At some point, in the early hours of 7 May 2006 L lost the mobile telephone which she was carrying.  There was no dispute at trial that the appellant took possession of her mobile telephone.  In the afternoon of 7 May 2006, a friend of L's rang the phone.  The appellant answered the call and arranged to meet with L's friend at the Reading Cinemas in Belmont.

5. The appellant went to the Reading cinemas where he met L's friend, who was accompanied by two police officers.

6. On the evening of 7 May 2006 the appellant was interviewed under caution by Senior Constable Vesperman and Constable Forrest.  He told police that he had driven to Northbridge with his friends and after going to the Mustang Bar they went to the DV8 nightclub.  On their way back to his car which he had parked near the Perth Entertainment Centre he came across a group of 'punks' who were hitting a crying girl.  He saw the girl throw various items to the ground, including her mobile telephone.  The appellant said that while he did not intervene in the attack, he picked up the mobile telephone.  He said that he had nothing to do with the 'punks' or the girl that had been set upon.

7. At the conclusion of the interview the appellant was released without charge.  After that, the investigation did not progress in any substantial way and was, in effect, written off.

8. In 2015 L's clothing was re-examined by PathWest.  By this time, DNA technology had significantly advanced.  A DNA examination of two items of clothing which L had worn on the night in question resulted in a match to a DNA profile the appellant had voluntarily provided to the police.

9. On 24 November 2016 the appellant was interviewed under caution by Detective Senior Constable Cecchele and Detective First Class Constable Latonia.  The appellant essentially told police that he had little or no recollection of the night in question or had no comment to make with respect to the allegations.  However, he told police that, contrary to what he had said in 2006, he had not driven a motor vehicle to and from Northbridge on 6 and 7 May 2006.  Indeed, he said that he did not have a driver's licence at that time.  He remembered that he had found a mobile telephone and had attempted to return it to its owner.  When the allegations that he sexually assaulted L were put to him, he essentially said that he had no knowledge of them.

10. The State's case as to the element of identification was circumstantial and relied on the combined effect of four categories of evidence being:

    (1)L's general description of the offender;

    (2)the evidence of the appellant's companions that night, particularly Mr Lim and Mr Chong;

    (3)the appellant's possession of L's mobile telephone; and

    (4)the DNA evidence.

The defence case

1. The appellant elected to testify in his defence at trial.  He called one other witness, namely his wife, Swee Qing (Natalie) Thor.  In the course of the trial, on 25 January 2019, he filed and served an alibi notice.  His sworn evidence at trial was to the following effect.

2. In May 2006 he was attending Bentley TAFE.  Mr Chong and Mr Kong were classmates.  On the evening of 6 May 2006 Mr Kong was celebrating his wedding anniversary and invited those in his class at Bentley TAFE to celebrate with him in Northbridge.

3. The appellant testified that he took public transport to Mr Kong's house in Leeming.  There, in addition to Mr Kong, was Mr Chong and he met, for the first time, Mr Lim.

4. The appellant said that Mr Kong drove his vehicle into Northbridge and parked his car near the Perth Entertainment Centre.  After going to the Mustang Bar and to the Brass Monkey hotel, they went to the DV8 Nightclub where they had some drinks.

5. The appellant said that on the way back to Mr Kong's car, he saw a girl being assaulted by a group of 'punks' and that her belongings were being thrown from her handbag.  He said that two other men came along and 'helped' the woman by collecting her belongings and taking off with them.  The appellant subsequently found the mobile telephone that had been discarded and showed it to Mr Kong, Mr Lim and Mr Chong.  He said that he kept the phone with the intention of returning it to the owner.

6. The appellant testified that, after he had found the phone, he and his group continued towards Mr Kong's car but Mr Kong said that he was too tired to drive the appellant home.  As a result the appellant walked off and flagged a taxi near Fast Eddy's and he went alone to his home in Cloverdale.  The appellant said that the last time he saw his companions, they were standing on a footbridge over the railway line in Northbridge and that he did not see any girl with them.  The appellant testified that he did not have any contact with, let alone sexually assault, a girl.

7. In relation to the police interview on the evening of 7 May 2006, the appellant said that at the time, he did not have a good command of English and that, in effect, he confused personal pronouns such as 'I', 'we', 'my', 'our' and 'his'.  He said that at the time he was interviewed he did not have a driver's licence and did not have access to a motor vehicle, and that his statements to the effect that he drove that night were as a result of his poor English.

8. In relation to the interview in 2016, he said that he was confused and frightened when he spoke to the police.  Prior to the interview he had received advice from two sources, a former detective and a lawyer, to deny everything and say that he did not remember.

9. The defence case was conducted on the basis that the evidence of Mr Chong and, particularly, Mr Lim was untruthful.  The defence alleged that both witnesses gave deliberately false accounts, to protect themselves or members of their group.

10. We will now summarise the evidence adduced at the trial in some detail.

Summary of the evidence adduced by the State

1. On the night of 6 May 2006, L, who was then 19 years old, was living in a share house in Mount Hawthorn.[4]  That night, she went to a friend's 21st birthday at a venue near the Barrack Street jetty.  She wore a grey‑coloured strapless top, underneath which was a black boob tube, as well as jeans and underwear.[5]  In the pocket of her jeans was her mobile telephone, personal identification and a bankcard.[6]  She did not carry a handbag.

   [4] ts 305.

   [5] ts 306.

   [6] ts 310.

2. At the 21st birthday party L consumed, she said, a couple of glasses of wine and beer.  At about 11.00 pm, L and two of her friends, J and M, went to the Mustang Bar in Northbridge.  There, L consumed more alcohol.[7]  L left the Mustang Bar after about an hour.  At this point, she was feeling 'a bit piecey, it's like blacking out and waking up and not really knowing.  You're kind of piecing it together'.[8] 

   [7] ts 310.

   [8] ts 312.

3. She said she had a feeling that she waited in line somewhere, perhaps the Geisha bar.[9]

   [9] ts 312.

4. From this point until the sexual assaults, L's memory of her movements was unclear. 

5. The State adduced evidence from a number of witnesses, including those who had been in the company of L and the appellant, as to what happened to L.

6. Her friend, J, testified that, after she and L left the Mustang Bar, they went to the Geisha Bar, which was 150 m away, on James Street in Northbridge.[10]  There, J saw L sitting on the toilet floor, apparently drunk.  J said L was laughing and did not appear to be in distress.[11]  J said she helped L to her feet and took her outside.[12]

   [10] ts 397.

   [11] ts 398.

   [12] ts 398.

7. J testified that she unsuccessfully attempted to put L in a taxi to take her home.[13]  Eventually, J took L to a taxi rank, gave her money and a note with L's address written on it, and left her in the care of a couple who were waiting in a lengthy queue.[14]  There was no dispute at the trial that the taxi rank was near Rosie O'Grady's pub at the corner of James Street and Milligan Street in Northbridge.  As will be seen, L did not catch a taxi home that night.

   [13] ts 399.

   [14] ts 401 - 402.

8. The appellant was also in Northbridge on the night of 6 May 2006, and into the early hours of 7 May 2006.  He was there along with three other men, all of whom testified for the State: Michael Kong, Aaron Lim and Timmy Chong.  According to Mr Lim and Mr Chong, the appellant drove them in his car into Perth and parked in a carpark near the Perth Entertainment Centre.[15]  The four men used a footbridge to cross the railway line into Northbridge.  Initially, they went to the Mustang Bar, but one of the appellant's party was refused entry.  They then went to the Brass Monkey and ended up at the DV8 Nightclub situated at the corner of James and Lake Streets in Northbridge.[16]  The appellant was captured on CCTV entering the premises in the early hours of 7 May 2006.[17]   The appellant and his friends had some beers before leaving the nightclub at about 2.30 am to go home.  From the DV8 Nightclub, the appellant and his friends walked towards the Perth Entertainment Centre carpark apparently to go home.

   [15] ts 390 - 391, 510 - 512.

   [16] ts 513 - 515; see also exhibit 12, BGAB 60.

   [17] Exhibits 6.1 and 6.2, BGAB 51 - 52.

9. According to Mr Lim and Mr Chong, on the walk back to the car, the appellant encountered an intoxicated woman in the vicinity of a carpark opposite the taxi rank near Rosie O'Grady's.  Mr Lim testified that, on his way back to the car, he lost contact with the appellant for several minutes.[18]  Mr Lim testified that when he saw the appellant, he (the appellant) was lying on top of a woman in what he described as the 'missionary position' behind a red brick wall in the carpark opposite Rosie O'Grady's.[19]  Despite both persons being clothed, Mr Lim testified that it appeared to him that the appellant and the woman were having sex.[20]  In this respect he said as follows:[21]

   [Y]ou've mentioned her clothes.  Did you see what Henry was doing?---It appeared that he was having sex.

   And when you mean 'appears that he was having sex', did you actually see sex?---Yes, you know it when you see it.

   Sure.  But did you see Henry's penis?---No close-ups, no.

   No.  What distance were you away?---Four or five feet away, or six, seven.  Like you and me are now.

   All right.  So would you say that would be about four or five metres away?---Yes.

   And did you see any private parts of her?---No.

   So it appeared to you like he was having sex?---Yes.

   [18] ts 516.

   [19] ts 518 - 520; exhibit 7.1, BGAB 54.

   [20] ts 519.

   [21] ts 519.

10. Mr Chong testified that he saw the appellant approach a young female next to a large tree which was next to a carpark across the road from Rosie O'Grady's.[22]  Mr Chong described the girl as 'intoxicated', saying that she was sitting down with her head tilted downwards.[23]  Mr Chong testified that he did not see the appellant apparently having sex with the woman on the ground of the carpark.[24]

    [22] ts 410.

    [23] ts 411.

    [24] ts 488.

1. Mr Kong, who was 40 years of age in May 2006,[25] testified that he had no memory at all of the night of 6 May 2006.  Mr Kong explained that his memory was 'not very good'.[26]  He said that he had an alcohol problem between 2006 and 2013, or thereabouts, which had affected his memory.  He testified that he attended Bentley TAFE in 2006 and that two of his classmates were the appellant and Mr Chong.  He recalled socialising with the appellant on occasions.  Mr Kong also said he worked at the Curry Kitchen.[27]

   [25] ts 679.

   [26] ts 677.

   [27] ts 668 - 677.

2. Both Mr Lim and Mr Chong testified that, ultimately, they, Mr Kong, the appellant and the intoxicated woman walked to and got into the appellant's car.[28]  Both Mr Lim and Mr Chong said that the appellant and the girl walked together to the car.[29]  From the carpark near the Perth Entertainment Centre, the appellant drove off.[30] 

   [28] ts 413, 520.

   [29] ts 413 - 414, 520 - 521.

   [30] ts 414, 522.

3. Mr Chong and Mr Lim gave differing accounts of where they went next.  Mr Lim said that the appellant drove them (including L) to Mr Kong's house in Leeming.  Mr Lim said he had left his car there earlier.  Mr Lim testified that he then gave Mr Chong a lift home.[31]  When he left, the woman was still in the appellant's car.[32]

   [31] ts 522 - 523.

   [32] ts 524.

4. Mr Chong said that all five of them (including the woman) were driven by the appellant from Northbridge to the Curry Kitchen in Willetton, where Mr Kong had been employed.  From there, Mr Lim gave him a lift back to his house in Como.[33] 

   [33] ts 414 - 416.

5. Mr Chong testified that, when he left the Curry Kitchen with Mr Lim, the appellant, Mr Kong and L were all still there. 

6. Both Mr Lim and Mr Chong testified that they did not sexually assault L.  So, too, did Mr Kong.

7. On the State's case, the appellant took L to an area behind the shop complex situated on Collins Road, Willetton, that included the Curry Kitchen.  There, L was sexually assaulted. 

8. L testified that she recalled waking up in a dark alleyway with some industrial bins in front of her and some chicken wire behind her.  The alleyway looked like it was near a carpark.  She said that someone was telling her to take her pants off.  L said that she was leaning against the fence and, at the same time, she was holding onto it to keep herself up.[34]  L was unable to describe, other than in general terms, the person who was telling her to take her pants off.  She said that he had dark hair and was roughly medium in build.  She said that by his accent he seemed Asian.[35]  L said that she pulled her pants down to her thighs because the man was yelling at her.  She thought she heard four or five other male Asian voices around her.[36]  L said that she did not want to take her pants down.[37]  She said that the man's voice got louder.  At this point she blacked out.[38]

   [34] ts 314 - 315.

   [35] ts 315.

   [36] ts 316.

   [37] ts 316.

   [38] ts 317.

9. When she regained consciousness, L said that she was on her back in a different location, but in the same place.[39]  She said that there was more lighting than where she had been before.  She said that there was a man squatting next to her.[40]  She observed that he had black hair, lightish skin and was not 'a very big man', but could not make out any distinguishing features of his face.[41]  L said that his accent made her think he was Asian.  The man screamed at her to take her pants off.  She estimated that he was aged between 20 and 30.  L described her state as 'still pretty hazy'.[42]  L testified that the man tried to pull her pants off.  She said that she kept her legs clenched together to keep her pants up.[43]

   [39] ts 366.

   [40] ts 317.

   [41] ts 318.

   [42] ts 323.

   [43] ts 324.

10. L described how the man then sat over her shoulders, placing his knees either side of her head.  He then put his penis near her mouth.  She moved her head from side to side to resist his actions.[44]  L testified that the man managed to put his penis into her mouth.  She said that he did not appear to have much pubic hair.  She said that she could see the end of his penis as the skin had been pulled back.  L testified that the man put his penis into her mouth without her consent (count 1).[45]

    [44] ts 324.

    [45] ts 325.

11. L said that she tried to push the man off her, but he pushed her down again and pulled her jeans off.  At this time, L was naked from the waist down.  By then, L said she was lying on the broken bitumen surface.  She still had her grey top and black boob tube on.[46]  According to L, the man pulled her legs apart with his hands, laying on top of her.  He told her to shut up.  He then brought a small pocket knife up to her neck in the region of her collarbone.  The man told her to shut up and asked her if she wanted to die.  He also said that he would kill her.[47]  At this point, L said that she gave up and stopped fighting him.  The man then inserted his penis into her vagina (count 2).[48]  As he did so, he held her down by placing his hands onto her chest. 

    [46] ts 326.

    [47] ts 328.

    [48] ts 328.

12. L said that before this occasion she had never had penile/vaginal sex[49] and that she identified as a lesbian.[50]

    [49] ts 348.

    [50] ts 305.

13. L said that she was in and out of consciousness throughout the period that she was assaulted by the man.[51]

    [51] ts 337 - 338.

14. L repeated that she heard male voices nearby, speaking a language similar to that of her attacker.[52]  L said that the act of sexual penetration finished when she pushed him off her.[53]

    [52] ts 338.

    [53] ts 339.

15. L said that she ran towards a shop with a light on.  She banged on the shop window, but the person inside ran away.[54]  She was still naked from the waist down.  She did not know what had happened to her mobile telephone, identification and bankcard.[55]

    [54] ts 340.

    [55] ts 341.

16. L testified that as she was banging on the shop window, a car pulled up.[56]  It was not disputed that the driver of the vehicle was Mr Lim. 

    [56] ts 341.

17. Mr Lim testified that after he returned to his house in Canning Vale he went to bed.  Later, he said that he received a telephone call from the appellant, asking him to meet the appellant at the Curry Kitchen.[57]  Mr Lim drove to the Curry Kitchen where he saw the appellant and the woman (L).[58]

    [57] ts 525.

    [58] ts 527.

18. Mr Lim testified that the woman appeared distressed.  He described her as wearing a 'corselette', observing that she was no longer wearing the clothes she had been previously wearing.[59]

    [59] ts 528 - 529.

19. According to Mr Lim, the appellant told him that he (the appellant) had dropped the woman off at a nearby BP service station, but he returned to pick her up.  The appellant said that he found her in her current state of undress.[60]  The appellant told Mr Lim that he was leaving.  Mr Lim offered to drive the woman home, which he did.[61]

    [60] ts 528 - 529.

    [61] ts 530.

20. L gave evidence that an Asian man who was not the man who attacked her drove her home.[62]  She said that by this time she was 'pretty aware of everything going on'.[63]  When she got into Mr Lim's car, she was still naked from the waist down so she pulled her black boob tube down so that it covered her thighs.[64]  L said that while she was being driven home, Mr Lim asked her if she was okay. 

    [62] ts 342, 383.

    [63] ts 342.

    [64] ts 343.

21. Both Mr Lim and Mr Chong were cross-examined at length by defence counsel.  It was repeatedly put to Mr Lim that his evidence that the appellant called him to the vicinity of the Curry Kitchen and that he saw the appellant and L at that location was, as he knew, untrue.[65]  Mr Lim consistently denied these allegations.  Defence counsel put to Mr Lim, and he denied, that (i) he, Mr Kong and Mr Chong, without the appellant, had taken the woman from Northbridge back to the Curry Kitchen and (ii) that his evidence was setting up a story to blame the appellant for what happened to the woman while she was with the other three men.[66]  Mr Lim denied defence counsel's suggestion that his evidence as to events from the time he left Northbridge to the time he took the woman home was a 'pack of lies' and a 'total fabrication'.[67]  It was put to Mr Lim and denied by him that for 10 years he was waiting for the police to come knocking on his door about this incident.[68]  It was also put to Mr Lim and denied by him that he had 'prepared a story' in 2006 to give to the police and that he 'revive[d]' the story when the police came in 2016.[69]  Mr Lim also denied that he had spoken to Mr Chong to make sure that their accounts of the events were consistent.[70]  It was suggested to Mr Lim and denied by him that he had pressured Mr Chong to change his story about how Mr Chong got home on the evening of 7 May 2006.[71] 

    [65] See, for example, ts 572, 574, 579, 587, 594.

    [66] ts 574, 594 - 595, see also 566, 586 - 587.

    [67] ts 594.

    [68] ts 541.

    [69] ts 547 ‑ 548.

    [70] ts 548, 553 - 555.

    [71] See, for example, ts 555, 560.

22. In essence, defence counsel suggested to Mr Lim, and he denied, that Mr Lim's evidence had been concocted to cover up what had occurred while the woman was with Mr Lim, Mr Chong and Mr Kong (in the absence of the appellant), and that his evidence had been the subject of collusion with Mr Chong. 

23. It was put to Mr Chong in cross-examination and denied by him that:

    (a)his (exculpatory) account of events was given to protect himself, Mr Lim and Mr Kong;

    (b)Mr Lim had asked him to give an account of events which falsely implicated the appellant; and

    (c)he had discussed his account of events with Mr Kong and Mr Lim.[72]

    [72] ts 429, 467 ‑ 468.

24. Mr Chong denied the suggestion put to him by defence counsel that 'someone in your group' (either Mr Chong, Mr Kong or Mr Lim) had sexually assaulted L.[73]

    [73] ts 488.

25. It was not disputed at trial that after L got home she took off the clothes she was wearing, including the grey top and black boob tube, and showered twice.[74]  L said that she left the clothes in a heap either in the bathroom or her bedroom.[75]  As will be seen, the grey top and black boob tube were later forensically examined for DNA.  L's housemate and his partner, Scott Bradley Taylor and Jamie Louise Chapman, observed L to be crying and heard her say that she had been 'raped'.[76]  On the morning of 7 May 2006, the matter was reported to the police.[77]

    [74] See the the evidence of Jamie Louise Chapman, ts 447, 449, and Scott Bradley Taylor, ts 442 ‑ 443.

    [75] ts 379.

    [76] ts 444, 449.

    [77] ts 344 - 345.

26. Later on 7 May 2006, L was medically examined by Dr Jenny Vance at the Sexual Assault Referral Centre (SARC) and intimate forensic samples were obtained.[78]

    [78] ts 345.

27. Dr Vance noted the following injuries:

    (a)bruises to L's right knee and shin;

    (b)two areas of bruising and an abrasion on her back;

    (c)bruises on her left arm and right elbow crease;

    (d)an abrasion on the palm of L's left hand;

    (e)an abrasion and redness in the area of the posterior fourchette; and

    (f)three small abrasions on the right side of the lower vagina.[79]

    [79] Exhibit 15, BGAB 64 - 71.

28. Blood and urine samples taken from L at 1.30 pm on 7 May 2006 revealed the presence of alcohol.  L's blood alcohol level at this time was 0.082%.[80]

    [80] ts 619.

29. At the trial, in the absence of Dr Vance, another doctor, Dr Maire Kelly, from SARC, testified for the State.  She said, having reviewed Dr Vance's notes, that the abrasions in the posterior fourchette and in the lower vagina indicated recent vaginal penetration, but she was unable to say if the penetration was by a penis, a finger or an object or whether such penetration was consensual or non‑consensual.[81]

    [81] ts 632 - 633.

30. The initial investigation into L's complaint was conducted by Senior Constable Vesperman (at the time of trial, Detective Sergeant Vesperman) and Constable Forrest.  Detective Vesperman said that after a brief discussion with L, she was taken to SARC.[82]  At about 5.30 pm on 7 May 2006, Detective Vesperman received a telephone call from L's former partner, A.  As a result of this telephone call, Detective Vesperman and Constable Forrest attended at the Reading Cinemas at the Belmont Shopping Centre.  There, they met A and the appellant.  The police officers seized L's mobile telephone from the appellant.[83]  The appellant was conveyed to the Perth police station where he agreed to participate in a video recorded interview (the 2006 VROI).  The DVD containing the interview was played to the jury and tendered as an exhibit.[84]

    [82] ts 701.

    [83] ts 703.

    [84] Exhibit 17.  Prior to the trial, the appellant applied to exclude this interview from the evidence.  On 22 November 2018, Goetze DCJ dismissed the application.  There is no challenge to that decision.

31. In the 2006 VROI, the appellant told the police that:

    (a)Prior to going to Northbridge, he left his house in Cloverdale and picked up Mr Kong and Mr Lim from Mr Kong's house in Leeming.[85]

    [85] BGAB 113 ‑ 114.

    (b)After leaving Mr Kong's house, he went to Mr Chong's house and picked him up.[86]

    [86] BGAB 114.

    (c)From Mr Chong's house, he drove to the city and parked his car near the Perth Entertainment Centre.[87]

    [87] BGAB 115.

    (d)He, Mr Lim, Mr Chong and Mr Kong first went to the Mustang Bar, but they were refused entry.[88]

    [88] BGAB 116 - 117.

    (e)From the Mustang Bar, he and the others went to the Brass Monkey and then to the DV8 nightclub.[89]

    [89] BGAB 117.

    (f)At DV8, he drank 'just one bottle of Corona, about two or three cups'.[90]

    (g)He and the others left DV8 at about 2.00 am on 7 May 2006.[91]

    (h)He and the others walked in the direction of where he had parked his car.  In doing so, he walked past Paramount on James Street.[92]

    (i)He reached the corner of James Street and Milligan Street where he saw about 20 people lining up at a taxi rank near a pub (Rosie O'Grady's).[93]

    (j)He saw a group of people at the taxi rank that he described as 'wearing like punk and a lot of piercings' who were hitting a crying girl.[94]  The appellant said that he saw the girl throw her mobile telephone, wallet 'and everything' on the 'floor'.[95]  The appellant said he saw 'two guys' pick the girl up and walk her away.

    (k)He did not say anything to the group of 'punks' or the girl,[96] but he saw two police officers and told them 'something that happened just now'.[97]

    (l)He picked up the mobile telephone the girl had thrown away from the 'front of the carpark'.[98]

    (m)He took the mobile telephone home.  Later, on the afternoon of 7 May 2006, he received a telephone call from a girl (A).  The appellant said that he told the girl that he wanted to return the mobile telephone.

    (n)He arranged with the girl to meet at the Belmont cinema.  It was at the Belmont cinema the appellant said that he met Detective Vesperman and Constable Forrest.[99]

    (o)On the night in question he wore a blue and yellow reversible jacket, blue denim jeans and orange sports shoes.[100]

    [90] BGAB 118.

    [91] BGAB 119.

    [92] BGAB 120.

    [93] BGAB 121.

    [94] BGAB 121 - 123.

    [95] BGAB 121.

    [96] BGAB 122.

    [97] BGAB 121.

    [98] BGAB 123 - 124.

    [99] BGAB 125 - 126.

    [100] BGAB 136 - 137.

32. Towards the end of the interview, the appellant reiterated that he saw the girl being accosted by a group of 'punks'.[101]  At the conclusion of the interview, Detective Vesperman told the appellant that he and his colleague needed to conduct further inquiries.  The appellant was released without charge.

    [101] ts 141 - 142.

33. At about the time L was being medically examined, Detective Vesperman and Constable Forrest conducted a patrol of the Northbridge area to try to locate the scene of the incident. They were unable to do so.[102]

    [102] ts 702.

34. On 8 May 2006, Detective Vesperman and Constable Forrest, along with L, conducted a patrol of the Northbridge area to try to locate the scene of the incident.  L was unable to do so.  Later in the day, Detective Vesperman seized CCTV footage from the DV8 nightclub taken in the early hours of 7 May 2006.[103]

    [103] ts 708.

35. On 9 May 2006, a full statement was taken from L by Constable Forrest.[104]

    [104] ts 708, 759.

36. On 9 May 2006, Detective Vesperman concluded his involvement in the case.  The investigation was reallocated to the Perth Detectives' Office.[105]  Formal statements were not taken from witnesses other than L.[106]  As we have mentioned, in 2006 the appellant was not charged, indeed, at the time, no one was charged, with any offence arising out of L's complaint. 

    [105] ts 725.

    [106] ts 729.

37. The investigation into the offences allegedly committed on L was 'written off' by police in September 2006.[107]

    [107] ts 771.

38. On 11 May 2007, a cold case review of the matter commenced.  It appears that the grey top and black boob tube were sent for forensic analysis at around this time.  In September 2007, the police received the results of the forensic analysis to the effect that the forensic material was of 'insufficient quality for further analysis'.[108]

    [108] ts 773.

39. On 3 November 2014, the investigation was allocated to the State Crime Project Team.  In early 2015, L's clothing was re‑examined by PathWest.[109]

    [109] ts 773.

40. On 29 April 2015, in response to a request from police, the appellant voluntarily provided a DNA sample to police.[110]

    [110] ts 773 - 774.

41. In September 2016, Mr Kong, Mr Lim and Mr Chong were arrested and interviewed by police.[111]  They were not charged with any offence concerning L.  However, in November 2016, each gave a witness statement to police.[112]

    [111] ts 775.

    [112] ts 776.

42. The appellant's telephone was lawfully intercepted by police.  On 2 November 2016, a telephone conversation between the appellant and a female was recorded in which the appellant said that he had been advised by a retired police officer that if he was interviewed by police, to 'just say that this is something that happened 10 years ago and you cannot remember anything'.[113]

    [113] Exhibit 23.1, 23.2, BGAB 78 - 81.

43. On 24 November 2016, the appellant was interviewed under caution by Detective Senior Constable Cecchele and Detective First Class Constable Latonia.  The appellant attended the State Crime Operations Squad building in Perth with his lawyer.  Although the lawyer remained outside of the interview room, at some points in the interview, the appellant was permitted to speak to the lawyer in the absence of the investigating officers.  An edited version of the interview was tendered at the appellant's trial and played to the jury (the 2016 VROI).[114]  By the time the appellant was interviewed, the police had been informed that a DNA analysis of the grey top and the black boob tube had revealed the presence of DNA which matched the DNA profile of the appellant.  The findings of the forensic scientist who undertook the analysis will be referred to below.

    [114] Exhibit 27; ts 798.

44. In the 2016 VROI, the appellant told the police that:

    (a)He had a good understanding of English.[115]

    [115] BGAB 151.

    (b)He understood that he was under no obligation to speak to the police and that what he said could be used against him in court.[116]

    [116] BGAB 157.

    (c)He did not need an interpreter.[117]

    [117] BGAB 160.

    (d)In answer to many questions concerning the alleged offences, he had no comment, or he could not remember.

    (e)In 2006:[118]

    [118] BGAB 175 - 178.

    (i)he did not have a motor vehicle;

    (ii)he did not drive a motor vehicle;

    (iii)although he had a Malaysian driver's licence, it was not valid in Western Australia;

    (iv)he had no Western Australian driver's licence; and

    (v)he did not drive and he just took public transport.

    (f)When he was reminded of what he had said in the 2006 interview, he claimed either that he could not remember or he had no comment.[119]

    [119] See, for example, BGAB 184 - 185.

    (g)On the night in question he found a mobile telephone which he later returned 'to the person'.[120]

    [120] BGAB 189 - 190.

    (h)The names Michael Kong, Aaron Lim and Timmy Chong did not mean anything to him.[121] 

    [121] ts 198.

    (i)He did not recall going to Bentley TAFE, but he may have done so.[122]

    [122] ts 201.

    (j)When shown a photograph taken from CCTV footage outside DV8 nightclub at 12.56 am on 7 May 2006, he denied that he was the person shown in the photograph.[123]

    [123] Exhibit 6.1, 6.2; BGAB 210 - 212.

    (k)He did not go to nightclubs in 2006.[124]

    [124] BGAB 221.

    (l)He had no recollection of telling the police in the 2006 interview that he had seen an altercation involving 'punks' in the vicinity of Rosie O'Grady's.[125]

    [125] BGAB 229 - 230.

    (m)He could not recall being at DV8 nightclub, nor indeed attending Northbridge, although he could remember finding and returning a mobile telephone.[126]

    [126] BGAB 235 - 236.

    (n)When it was put to the appellant that he carried L and helped her to his car, he stated, 'No comment.  I, as far as I know, I didn't do it'.[127]

    [127] BGAB 243.

    (o)His family did not own a small two-door car in 2006.[128]

    [128] BGAB 246.

    (p)He had no comment about and no recollection of premises in Willetton known as the Curry Kitchen.[129]

    [129] BGAB 260.

    (q)He denied working in 2006 at a restaurant in the vicinity of the Curry Kitchen, known as the Singapore Hawker Chinese Restaurant.[130]  The appellant said that he never worked in any Asian restaurant in Perth 'because the pay is really less'.[131]

    [130] BGAB 274 - 275.

    [131] BGAB 276.

    (r)He denied driving L from the city to 'the Curry Kitchen', saying, 'No, never happened in my life to, I think'.[132]

    [132] BGAB 383 - 385.

    (s)When it was put to him that he had taken L from Northbridge to a laneway near the Curry Kitchen in Willetton and assaulted her, the appellant responded:[133]

    [133] BGAB 290.

    Whatever story you tell me, I don't know, to be honest with you.  I didn't do it, and it's not that, ah, the story you tell me, like, as I said, again, which is, I just know right now.  I know nothing.

    (t)When it was put to the appellant that he placed his penis into L's mouth, the appellant said:[134]

    [134] BGAB 306.

    Probably someone else, not me, Carlo.  Yeh, because I don't know anything about this story, whatever you tell me, the whole thing, you see.

    (u)When it was put to the appellant that he put his penis into L's vagina, held a knife to her throat and threatened to kill her, the appellant said:[135]

    I don't know about all this story, Carlo.  Sorry.  I can't comment on anything.

    (v)There was 'no way' Mr Lim saw L with the appellant without her pants on, when he drove back from the Curry Kitchen.[136]

    (w)He never came into contact with L.[137]

    (x)When he was told of the DNA match on L's grey top and black boob tube, he responded, 'That's a bit strange, Carlo.';[138] he continued, 'because I didn't do anything.  I just returned the phone'.[139]

    (y)Not only did he not sexually assault a female in May 2006, he 'wouldn't do this kind of thing'.[140]

    [135] BGAB 309.

    [136] BGAB 310.

    [137] BGAB 313.

    [138] BGAB 322.

    [139] BGAB 323.

    [140] BGAB 326.

1. Detective Vesperman conducted further investigations after the appellant was charged in 2016.  He obtained a Department of Transport certificate of evidence with respect to the appellant, dated 15 January 2019,[141] which showed that the appellant was issued with a Western Australian driver's licence on 31 December 2004.  Detective Vesperman also obtained from the Department Transport a certificate of evidence regarding car ownership for the appellant.[142]  This document revealed that the appellant did not purchase a motor vehicle in his name until 21 May 2007.  On 20 December 2018, Detective Vesperman conducted an incident search in respect of all incidents reported to police in the Northbridge area on 6 May 2006 and 7 May 2006, using the Western Australia Police Incident Management System.  He identified and reviewed 35 such reports.  None of them related to 'punks' or a group of 'punks'.[143]  Detective Vesperman also conducted a search for all incidents reported to police for the Perth area on 6 May 2006 and 7 May 2006.  He identified and reviewed 28 such reports, none of which related to 'punks' or a group of 'punks' in the Perth area.

   [141] Exhibit 19, BGAB 73; ts 712 - 713.

   [142] Exhibit 20, BGAB 74 - 75; ts 713 - 715.

   [143] ts 715.

2. Ms Joyce Kwee Lian Kong testified that, in late 2005, she and her husband bought the Curry Kitchen.  They did so to help her brother‑in‑law, Michael Kong.[144]  She said that Michael Kong lived with her and her family in Leeming for 12 months from about late 2005.  She said that Michael Kong helped run the Curry Kitchen throughout 2006.[145]  Ms Kong said that, in about 2006, she came to know the appellant because he worked in the Singapore Hawker, which was two doors from the Curry Kitchen.[146]  Ms Kong recalled seeing Mr Kong and the appellant chatting together at the Curry Kitchen.[147]

   [144] ts 653.

   [145] ts 654.

   [146] ts 655.

   [147] ts 657.

3. Ms Wei Ping Wang testified that until 2015, she was the proprietor of a restaurant called 'Singapore Hawker's Food' situated in Collins Road, Willetton.[148]  She testified that sometime between 2004 and 2006, she employed a person named Henry at her restaurant on a part‑time basis for a period of between six and eight weeks.[149]  It was not disputed at trial that the appellant goes by the name 'Henry' and that the person she was referring to was the appellant.  She described Henry as having dark skin, big eyes and glasses.  Ms Wang said that Henry was around 1.6 m tall, and was around 20 ‑ 25 years of age.[150]  In cross‑examination, she agreed with defence counsel that Henry could have worked at the Singapore Hawker in 2006 and, at the same time he worked there, so did a girl named Natalie.  Ms Wang became aware later that Henry married someone called Natalie, but she was unaware whether the Natalie he married was the same person that she had employed at 'the Singapore Hawker'.[151]

   [148] ts 456, 458.

   [149] ts 458 - 459.

   [150] ts 458.

   [151] ts 463.

4. A duly qualified forensic scientist employed at PathWest, Ms Penny Cooper, testified about the DNA analysis of various items taken from L.  No DNA was recovered from L's intimate swabs.  The focus of her testimony was on her DNA analysis of the grey top and black boob tube allegedly worn by L on the night of 6 and 7 May 2006.  She testified as follows:

   (a)DNA is not necessarily recovered upon contact between two individuals.[152]  It may depend upon the surface of the item examined, or whether the area containing the DNA was missed in sampling, or the item was touched or handled by a person but a barrier such as a glove prevented the transfer of any cellular material.  Ms Cooper explained that some people may shed more cellular material than others, and that the transfer of cellular material may depend upon a person's level of personal hygiene.[153]

   (b)Using the PowerPlex 21 DNA kit,[154] which enabled the recovery of DNA from lower amounts of cellular material, than the previously used test kit, Profiler Plus, L's grey top and black boob tube were examined.  Cellular material was recovered from both items, and a DNA examination was conducted of that material using reference DNA profiles obtained from the appellant, Mr Kong, Mr Lim, Mr Chong and L.

   (c)With respect to the grey top, Ms Cooper recovered a mixed DNA profile.  On the assumption that L was a contributor to that mixed DNA profile, Ms Cooper compared the DNA profiles of the appellant, Mr Kong, Mr Lim and Mr Chong to the mixed DNA profile.  Mr Lim and Mr Chong were both excluded as possible contributors.  The appellant and Mr Kong could not be excluded as possible contributors to the mixed DNA profile.  In order to determine the significance of this non‑exclusion, Ms Cooper performed a statistical analysis of two separate hypotheses.  The first hypothesis is that the DNA profile originated from L, the appellant and an unknown individual.  The second hypothesis is that the DNA profile originated from L and two unknown individuals.  This analysis revealed that the DNA profile is greater than 100 billion times more likely if it originated from L, the appellant and an unknown individual than if it originated from L and two unknown individuals.[155]  The same statistical analysis was performed using Mr Kong's reference DNA sample.  This demonstrated that the DNA profile was more likely if Mr Kong was not a contributor and the profile originated from L and two unknown individuals.[156] 

   (d)With respect to the black boob tube, Ms Cooper recovered a mixed DNA profile consistent with having come from four individuals.  Once again, she assumed that L was a contributor to that mixture.  Ms Cooper testified that the appellant, Mr Lim, Mr Chong and Mr Kong could not be excluded as possible contributors to the mixture.  After performing a statistical analysis, Ms Cooper said that it was more likely that Mr Kong, Mr Chong and Mr Lim were not contributors.  However, it was 6.7 billion times more likely that L, the appellant and two unknown individuals were contributors.[157]

   (e)Ms Cooper said that evidence supporting inclusion can range from two to greater than 100 billion, where two is the weakest support for the explanation, and greater than 100 billion is the strongest support for the explanation.  She said that 6.7 billion fits in between these two.[158]

   (f)Ms Cooper also explained that DNA could be transferred to an item, or a surface, or a person via either direct or indirect transfer.  Ms Cooper said that indirect transfer involved the transfer of DNA from a person to a surface via another person or a surface.[159]

   (g)If the only direct touching of the two tops worn by L was to the outside top, Ms Cooper said that it was possible that DNA could have been recovered from the inside top, depending on how the tops were worn.[160]  Ms Cooper said that it was possible that DNA could have been transferred from one top to the other when L removed her clothing and placed it on the floor.[161]

   (h)Indirect transfer of DNA could occur via the use of a seatbelt, or from one person's clothing to another person, or by incidental contact between a group of people doing the same thing in the same place.[162]

   (i)In re‑examination, Ms Cooper said that the various types of indirect transfer which had been suggested to her in cross‑examination were possible, but she was unable to comment on the likelihood of any such indirect transfer.[163]

   [152] ts 876.

   [153] ts 877.

   [154] ts 876.

   [155] ts 884 - 885.

   [156] ts 885.

   [157] ts 890.

   [158] ts 890.

   [159] ts 894.

   [160] ts 903.

   [161] ts 903.

   [162] ts 904.

   [163] ts 905.

Summary of the evidence adduced by the defence

1. Prior to the trial and pursuant to s 96(3) of the Criminal Procedure Act 2004 (WA), the appellant's solicitors served upon the prosecutor an alibi notice dated 25 January 2019. The alibi notice was tendered at trial.[164]  The alibi notice stated that if the appellant gave evidence he would say that on 7 May 2006:

   1.he did not travel in a vehicle with the complainant [L] and Messrs Kong, Chong and Lim to Leeming or Willetton.

   2.he did not travel in a vehicle with the complainant [L] to Willetton; [and]

   3.he left Messrs Kong, Chong and Lim on the overhead bridge in Northbridge and made his own way home by taxi to Cloverdale.

   [164] Exhibit 28, BGAB 89 - 90.

2. The alibi notice further stated:

   1.that when he [the appellant] went over the footbridge, he went in the direction of Fast Eddy's in Milligan Street and left in a taxi;

   2.that he arrived home at [an address in Cloverdale] in a taxi and that his mother, father and sister were home asleep at this residence; and

   3.the father's name is Kheng Seng Thong, the mother's name is Seew Eng Ong and his sister's name is Khang Mee Thong.

3. The appellant elected to give evidence at his trial and he adduced evidence from his wife, Ms Thor.

4. The appellant testified as follows:

   (i)He was born in April 1985 in Langkawi Island, Malaysia.[165]

   [165] ts 912.

   (ii)He arrived in Australia with his parents in early December 2004 and took up residence with them at an address in Cloverdale.[166] 

   [166] ts 913.

   (iii)At the time of the 2016 interview with police, he did not recall that he had obtained a Western Australian driver's licence in December 2004.  In any event, he did not drive, and had no access to, a motor vehicle in May 2006.[167] 

   [167] ts 913.

   (iv)In February 2006, he began a retail baking course at Bentley TAFE.[168]

   [168] ts 915.

   (v)Mr Kong and Mr Chong were classmates.[169]

   [169] ts 917.

   (vi)In May 2006, the appellant was aware of two restaurants in a complex at Collins Road, Willetton, called the Singapore Hawker restaurant and the Curry Kitchen.  The appellant worked for a short period around Easter 2006 at the Singapore Hawker restaurant.  He knew Mr Kong worked at the Curry Kitchen.[170]

   [170] ts 918.

   (vii)He said that in May 2006, Mr Kong invited him and others to Northbridge to celebrate Mr Kong's wedding anniversary.[171]

   [171] ts 919.

   (viii)He took public transport from Cloverdale to Mr Kong's house in Leeming.  There he met Mr Lim for the first time.  Mr Kong drove the appellant and Mr Lim towards Northbridge in his (Kong's) Kia Carnival seven‑seater vehicle.[172]  On the way to Northbridge, they picked up Mr Chong in Karawara.[173]

   [172] ts 921.

   [173] ts 922.

   (ix)Mr Kong parked his vehicle at the carpark near the Perth Entertainment Centre, after which he, the appellant, Mr Lim and Mr Chong walked across a bridge.[174]

   [174] ts 922.

   (x)He and his companions went to the Mustang Bar and then to the Brass Monkey and from there to the DV8 nightclub.[175]

   [175] ts 922 - 923.

   (xi)He was wearing a long‑sleeved coat, long trousers and a black shirt.[176]

   [176] ts 923.

   (xii)After being at the DV8 nightclub for approximately an hour, he and the others all decided to go home.  They left the nightclub and, as a group, walked towards the carpark.  The group remained together at all times.[177]

   [177] ts 923 - 924.

   (xiii)The group proceeded along James Street to Milligan Street.  On Milligan Street, the appellant saw a group of about 15 to 20 people whom he described as 'punks' beating up a girl.  The girl was struggling and throwing her things away.[178]

   [178] ts 924.

   (xiv)Two of the group of 'punks' took the girl to Roe Street.[179]

   [179] ts 924.

   (xv)He did not touch the woman, take her anywhere or do anything sexual with her.[180]

   [180] ts 926.

   (xvi)He saw two police officers and pointed his finger in the direction where the group of 'punks' and the girl had been and said, 'Something happened.  Something happened'.[181]

   [181] ts 926.

   (xvii)When he reached Roe Street, he picked up a mobile telephone and showed it to Mr Kong, Mr Lim and Mr Chong.[182]

   [182] ts 926 - 927.  See also exhibit 16, BGAB 72.

   (xviii)As he, Mr Kong, Mr Lim and Mr Chong were crossing the bridge to return to Mr Kong's car, Mr Kong told the appellant that he would not give him a lift to his home in Cloverdale.  At this point, the appellant said goodbye to his companions and walked to a taxi rank near Fast Eddy's.[183]  From there he caught a taxi home.[184]

   [183] ts 928.

   [184] ts 928.

   (xix)He said that he got home around 3.00 am to 3.15 am and slept.[185]

   [185] ts 929.

   (xx)Later on 7 May 2006, he went to work.  When he returned from work at about 4.00 pm he noticed a missed call on the mobile telephone he had picked up on Roe Street.  At around 6.00 pm, a female called the mobile telephone.  The appellant and the female arranged to meet at the Reading Cinemas in Belmont.[186]

   [186] ts 929 - 930.

   (xxi)He said he had never been given Mr Lim's telephone number and did not ring him.[187]

   [187] ts 933.

   (xxii)He said that he met two police officers at the Reading Cinemas.  He handed to the police officers the mobile telephone he found on Roe Street.[188]

   [188] ts 931.

   (xxiii)He agreed that he was interviewed by the police on 7 May 2006.  He said that he did not understand the caution and that his English was 'really poor'.[189]

   [189] ts 934.

   (xxiv)He said that when he told the police that he picked up Mr Kong, what he meant was that he had met Mr Kong.[190]  He said that, at that time, he did not know how to use the words 'I' and 'we'.  What he meant to convey to the police was that Mr Kong drove on the night in question.[191]

   [190] ts 935.

   [191] ts 935.

   (xxv)When he told the police in the 2006 VROI, 'I picked Michael and Aaron is the same place', he meant that he met Mr Kong at the same place.[192]

   [192] ts 935.

   (xxvi)When he told the police in the 2006 VROI, 'I parked my car in front of Metro, across the bridge, in the big carpark down there', he meant that Mr Kong had parked the car.[193]

   [193] ts 937.

   (xxvii)When he told the police in the 2006 VROI, 'Across the Paramount Club and then you turn left, yeah, because I want to cross the bridge and go to my car', he meant that he wanted to go to Mr Kong's car.[194]

   [194] ts 937.

   (xxviii)When he told the police in the 2006 VROI that he saw the girl 'just leave her mobile on the floor', he meant that he saw the girl 'actually [throw] everything out from her bag, like even the mobile telephone …'.[195]

   [195] ts 938.

   (xxix)When he told the police in the 2006 VROI that he was wearing blue jeans, he did so because at that time he described all long pants as jeans.  In fact, he was wearing suit pants and not denim.[196]

   [196] ts 941 - 942.

   (xxx)The next contact he had with police after the 2006 VROI was in 2015 when he was asked by police to provide a DNA sample, which he did.[197]

   [197] ts 943 - 944.

   (xxxi)At the end of 2015, he started his own deli and lunchbar business.  One of his regular customers was a retired detective.  The appellant became aware that he was a person of interest to police.  The retired detective advised him not to comment or say anything to the police and to get legal advice.[198]  The appellant obtained legal advice to the effect that he should not participate in an interview.[199]

   [198] ts 945 - 946.

   [199] ts 947.

   (xxxii)His lawyers advised him 'to deny, deny everything during the interview.  Not to say anything, not to comment anything and let him [the lawyer] deal with the issue afterward'.[200]

   (xxxiii)He was interviewed by police on 24 November 2016.  He was accompanied by a lawyer.[201]  The appellant said that in the interview he 'just denied everything and no comment to anything'.[202]

   (xxxiv)In the interview, he acknowledged that he was shown two photographs (exhibits 6.1 and 6.2).  He agreed that he told the police that he said that he was not shown in those photographs, but this was not the truth.[203]  He said that he denied that he was in the photographs as a result of the legal advice he had been given.[204]

   (xxxv)He acknowledged that in the 2016 VROI, he told the police that he did not place a woman in the back of the car in which he was travelling.  He confirmed that this was the truth.[205]

   (xxxvi)He accepted that, contrary to what he had said in the 2016 VROI, he did have a driver's licence in 2006, but he did not remember this at the time of the interview.[206]

   (xxxvii)The appellant said that in the 2016 VROI, every time he said that he did not remember something, that was the truth.[207]

   (xxxviii) The appellant denied that he had committed the offences charged in the indictment.[208]  He also denied being in the vicinity of the Curry Kitchen on the evening of 6 May 2006 or the early morning of 7 May 2006.[209]  The appellant said that at no time in the early hours of 7 May 2006 was he in the company of a girl in Collins Road, Willetton, nor did he drop L at the BP service station in that vicinity.  Furthermore, he did not telephone Mr Lim early on 7 May 2006 because he did not have Mr Lim's telephone number.[210]

   (xxxix)He did not see Mr Lim take L from the vicinity of the carpark at the Curry Kitchen.[211]

   (xl)The appellant denied having any sexual contact with any female in the vicinity of the taxi stand on Milligan Street in the early hours of 7 May 2006 or with any female on 6 or 7 May 2006.[212]

   (xli)The appellant denied that he was circumcised.[213]

   [200] ts 946.

   [201] ts 947.

   [202] ts 948.

   [203] ts 949 - 950.

   [204] ts 950.

   [205] ts 950.

   [206] ts 950.

   [207] ts 951.

   [208] ts 952 - 953.

   [209] ts 953.

   [210] ts 953.

   [211] ts 953 - 954.

   [212] ts 954.

   [213] ts 954.

5. Ms Thor testified that, in 2006, she began a relationship with the appellant and they later married.[214]  Ms Thor testified that the appellant was uncircumcised.[215]

   [214] ts 1084.

   [215] ts 1085.

The State prosecutor's closing address

1. In his closing address, the State prosecutor acknowledged that its case on the question of identity was circumstantial.[216]  He submitted that there were 10 reasons why the jury should conclude that the appellant was the offender,[217] being:[218]

   (1)L's description of the offender was generally consistent with the appellant.

   (2)The appellant admitted that he was in Northbridge on the night in question and that the appellant's path crossed with L in the area of the taxi rank near Rosie O'Grady's.

   (3)Mr Chong testified that the appellant met a woman on Milligan Street, got her to the car at the Perth Entertainment Centre carpark and that she was with them when Mr Chong was driven home.

   (4)Mr Lim testified that he saw the appellant with a woman, apparently having sex outside Rosie O'Grady's; that the appellant took her to the car at the Perth Entertainment Centre carpark, from where she was driven to Willetton.  Mr Lim later saw the appellant with the girl in the vicinity of the Curry Kitchen and noticed she was upset and naked from the waist down.

   (5, 6 & 7)The appellant knew the location in Willetton where Mr Lim said he saw the appellant and L together.  The appellant had been employed at the Singapore Hawker in or around April 2006 and Mr Kong worked at the Curry Kitchen.  Although L was unfamiliar with the area in which she said she had been assaulted and did not recognise it, it is clear that it was some distance from Perth.  Because of reasons 5, 6 and 7, the jury could be satisfied that the offences in fact occurred in the vicinity of the Curry Kitchen. 

   (8)The DNA analysis of L's grey top and black boob tube implicated the appellant and not Mr Kong, Mr Lim or Mr Chong.

   (9)The appellant was found in possession of L's mobile telephone and that when he arranged the meeting at the Reading Cinemas in Belmont he hoped that he would see the complainant 'to see how this woman had reacted and whether she was going to be [in] an okay state'.[219]

   (10)The appellant told multiple lies in the course of his interviews with the police and his testimony.  As a result of these lies, the jury should reject his evidence. 

   [216] ts 1170.

   [217] ts 1170.

   [218] ts 1171 - 1177.

   [219] ts 1177.

1. The prosecutor made submissions critical of the defence case.  He submitted that any suggestion that the offender was Mr Lim, Mr Kong or Mr Chong should be rejected.[220]  The prosecutor further submitted that despite the differences in their evidence, the jury should accept the evidence of Mr Lim and Mr Chong.  The prosecutor submitted that the differences were understandable, given the period of time which had elapsed since the occurrence of the events and that they were not, in any event, matters of substance.[221] 

   [220] ts 1165.

   [221] ts 1169.

2. The prosecutor submitted that the appellant had given shifting versions of events in his two police interviews and his sworn evidence.[222]   It was submitted that his evidence was 'untrustworthy, insincere and nonsensical'.[223]

   [222] ts 1188 - 1190.

   [223] ts 1190.

Defence counsel's closing address

1. At the outset of his closing address, defence counsel made it clear that there was no suggestion that L had not been sexually assaulted and that the crucial issue for the jury to decide was whether the State could prove beyond reasonable doubt that the appellant was the perpetrator.  He submitted that the State had not proved beyond reasonable doubt that the appellant was the offender.[224] 

   [224] ts 1194 ‑ 1195.

2. Defence counsel was critical of the credibility of Mr Kong, Mr Chong and Mr Lim.

3. Defence counsel sought to cast doubt on Mr Kong's evidence that he had no recollection of the events of 6 and 7 May 2006, submitting 'how could he not remember?' and 'is he covering up something that would cause him a problem?'.[225]

   [225] ts 1200.

4. Defence counsel was particularly critical of the evidence given by Mr Lim and Mr Chong.  Defence counsel suggested that both of these men attempted to distance themselves from the alleged offences.[226]  He highlighted some of the differences in the evidence given by Mr Lim and Mr Chong.  For example, Mr Lim said that on the night in question the appellant drove a Holden Barina while Mr Chong said it was a Suzuki.[227]  He noted that Mr Lim was the only person who purportedly saw the appellant apparently having sex with the girl in the carpark opposite the taxi rank at Rosie O'Grady's.[228]  Defence counsel invited the jury to conclude that Mr Lim's evidence about this incident did not have the 'ring of truth' and that Mr Lim's evidence on the matter was a lie.[229] 

   [226] ts 1202 ‑ 1203.

   [227] ts 1202.

   [228] ts 1204.

   [229] ts 1204.

5. Defence counsel suggested that Mr Lim wanted the jury to believe that the appellant 'picked up' a female in Northbridge with an interest in having sex with her.  It was suggested that in giving this testimony Mr Lim was 'laying the ground work for a story that it must have been (the appellant) who sexually assaulted L because he was the one who picked her up for sex'.[230]  Defence counsel observed that, bearing in mind L's evidence that when she was sexually assaulted she heard more than one Asian voice, there was an interest in Mr Lim distancing himself from 'the action'.[231]  Indeed, it was suggested that there was 'a real incentive' for Mr Kong, Mr Chong and Mr Lim to distance themselves from the action and to make the appellant carry the blame for someone else.[232]

   [230] ts 1205.

   [231] ts 1205.

   [232] ts 1205.

6. Defence counsel urged the jury to reject Mr Lim's evidence that he was called to the vicinity of the Curry Kitchen by the appellant.  Defence counsel pointed to the fact that there was no record of any phone call between the appellant and Mr Lim and that in any event the appellant testified that he did not make such a phone call.  Further, if the appellant had been concerned to bring someone else to the scene it would have been easier to telephone Mr Kong, whom he knew better and who lived closer to the Curry Kitchen.[233]

   [233] ts 1207.

7. Defence counsel submitted that Mr Lim's version of events of what happened at the Curry Kitchen was fatally flawed because it was contradicted by the evidence of L.  L testified that immediately after she pushed her attacker off and went to the shop front and sought help, a car pulled up, apparently being driven by Mr Lim.  Mr Lim, on the other hand, testified that when he arrived at the vicinity of the Curry Kitchen, L and the appellant were together, apparently waiting for Mr Lim to arrive from his house at Canning Vale.[234] 

   [234] ts 1208.

8. Further, according to Mr Lim, at no time while L was in his company did L tell him that she had been 'raped, sexually assaulted'.[235]  Defence counsel submitted that 'human beings don't behave in the way that (Mr Lim) is describing'.[236]

   [235] ts 1208.

   [236] ts 1209.

9. Defence counsel submitted to the jury that if they reached the conclusion that Mr Lim was not telling the truth 'the State has virtually nothing' because Mr Lim is the only witness 'who says it happened at the back of the … Curry Kitchen'.[237]

   [237] ts 1214.

10. Defence counsel then turned his attention to the DNA evidence led from Ms Cooper.

11. Defence counsel pointed out that the intimate samples taken from L revealed no DNA result.  While he accepted that this did not mean that there was no sexual penetration of L, he observed that there was no DNA evidence capable of connecting the appellant to the acts of penetration alleged by the State.  Defence counsel also submitted that the DNA matches to L's clothing only meant that something with the appellant's DNA on it came into contact with L's clothing.  Defence counsel suggested that the contact could have happened in two ways.  First, by the appellant directly touching the garment.  Second, by indirect contact, that is, that the appellant touched something else that touched the garment.[238]  Defence counsel then gave examples of how the appellant's DNA may have been indirectly transferred to the items of clothing worn by L.

    [238] ts 1215.

12. Defence counsel submitted:[239]

    So to use the presence of (the appellant's) DNA on (L's) clothing as part of the proof that he sexually assaulted her,  you would have to be absolutely certain, I suggest to you, that the only way that DNA got on those tops was by personal contact by (the appellant) with those tops.

    [239] ts 1216.

13. Defence counsel submitted that the DNA evidence 'isn't the answer in this case' and that the jury could not reason that because the appellant's DNA was on L's clothing he must be guilty.[240]

    [240] ts 1217.

14. Defence counsel concluded his submissions with respect to the DNA evidence with this statement:[241]

    [B]ecause the DNA evidence is relied upon by the State to - as part of the identification of (the appellant) as the person who sexually assaulted [L], I suggest that you can't safely rely upon it to conclude that (the appellant) had physical contact with [L], unless you can exclude those other possibilities.

    [241] ts 1217.

15. Defence counsel submitted that the general description by L was not consistent with her attacker being the appellant.  In particular, L said that her attacker was circumcised whereas the evidence of the appellant and his wife was that he was uncircumcised.[242]

    [242] ts 1218.

16. Defence counsel reminded the jury that under oath the appellant testified that he did not commit the offences.[243]  Defence counsel submitted that it would be unfair for the jury to hold the 2006 VROI against the appellant having regard to his poor English and his alleged lack of understanding of the caution.[244]

    [243] ts 1219 - 1220.

    [244] ts 1220 - 1222.

17. With respect to the 2016 VROI, defence counsel submitted that Detective Senior Constable Cecchele 'simply trampled all over (the appellant's) right of silence'.[245]  Defence counsel suggested that the appellant was treated unfairly and that he acted on 'bad advice' which had been given to him by the ex-police officer and former lawyer to deny the allegations.[246]

    [245] ts 1223.

    [246] ts 1224.

The trial judge's summing up

1. Her Honour's summing up was detailed and comprehensive.  It is unnecessary to summarise all of it.  Apart from the allegation made in ground 2, the appellant takes no issue with the summing up.

2. Her Honour correctly identified that the key factual issue for the jury to determine was whether they were satisfied beyond reasonable doubt that the appellant had performed the two sexual acts on L which were the subject of the charges in the indictment.[247]

   [247] ts 1257, 1263 - 1264.

3. Her Honour accurately summarised the evidence that had been adduced at trial and the State and defence cases. 

4. Her Honour highlighted the importance of the evidence of Mr Lim and Mr Chong, noting that they were the only witnesses who put the appellant in L's company in the early hours of 7 May 2006.[248]  She gave a clear and unmistakeable direction to the jury that, as a result of the approximately 10 1/2 year delay between the commission of the alleged offences and the appellant being charged with them, he had lost the ability to test the evidence of Mr Lim and Mr Chong and to adequately marshal a defence.[249]  Her Honour pointed out that the delay had affected the ability of the appellant to recollect details of the relevant events surrounding the commission of the offences.[250]

   [248] ts 1242.

   [249] ts 1243.

   [250] ts 1243.

5. Her Honour directed the jury that because of the long delay it was particularly important that they scrutinise the evidence of Mr Lim and Mr Chong with special care.[251]

   [251] ts 1245.

6. Her Honour directed the jury that while they were at liberty to act on the evidence of either or both Mr Lim and Mr Chong, they could only do so if they were satisfied of the truth, accuracy and reliability of the testimony, having regard to the long delay and the disadvantages caused to the defence by the delay.[252]

   [252] ts 1245.

7. Her Honour instructed the jury that the State's case on the question of identity was circumstantial and relied 'on the combined strength of four bodies of evidence', being:[253]

   (1)L's description of the offender.

   (2)The evidence of Mr Lim and Mr Chong.

   (3)The appellant's possession of L's mobile telephone.

   (4)The DNA evidence.

   [253] ts 1267.

8. Her Honour summarised the first three categories of evidence in terms that are not challenged on appeal.[254]  After dealing with the first three categories of the circumstantial evidence relied upon by the State, her Honour directed the jury in respect of the DNA evidence.[255]

   [254] Appeal ts 5.

   [255] ts 1272 - 1275.

9. Her Honour first outlined the evidence concerning DNA and then said:[256]

   [256] ts 1274.

   And again, as with Ms Kelly, Ms Cooper's expert evidence wasn't challenged so you might think it can be accepted and that the real issue is what you make of it in the context of the other evidence in this trial.

   Now, the State submits to you that in combination with Aaron Lim and Timmy Chong's evidence and the phone evidence, it is strong evidence of the accused's involvement in the offending.

   After all, the offender, in this case, straddled [L], put his penis in her mouth and then lay on top of her with his hands on her chest, one of which was holding a knife at her throat, and whilst he penetrated her.

   The contact with [L's] clothing therefore included multiple direct contacts with the offender's skin for a sustained period in an abrasive way.  It also included, of course, indirect contact with the offender's clothing which was also sustained and abrasive given the nature of the activity taking place.

   Now, ladies and gentlemen, I want to make a point very clearly to you.  That DNA evidence is not by itself evidence that Mr Thong has sexual contact with [L] because the DNA was on her clothing not on any intimate samples.

   That's not the State's case though.  All right?  The State's case is that it is one piece of evidence, albeit an important piece in a circumstantial case, in which they say the only reasonable inference you would draw is that the accused is the person who did these things.

   Ladies and gentlemen, it is an equally, if not more important piece of evidence, in the State's circumstantial case and that is the evidence of Aaron Lim and that's because it is his evidence that puts Mr Thong with [L] in circumstances where he had the opportunity to commit the offence because he takes her from Northbridge and is left with her in Leeming.

   And his account, of course, is supported in some respects by Timmy Chong.  And further, it is Aaron Lim's evidence of what he saw at the back of The Curry Kitchen that puts Mr Thong alone with [L] when she's naked from the waist down in an area consistent with the description of the scene of the crime and very shortly after she had been sexually penetrated.

   Without Mr Lim's evidence, the DNA evidence would be ambiguous.  And it's because of the importance of Aaron Lim's evidence and that of Timmy Chong, given it supports it in part, that I gave you that warning or direction yesterday about the need to scrutinise his evidence with special care paying heed to the issues caused by the delay, the effects of memory and the disadvantages this has caused to Mr Thong in the loss of the means of testing the evidence and marshalling his defence.

   The defence submit to you that the DNA evidence does nothing more than tell you that at some point, [L's] clothing came into contact with something that had Mr Thong's DNA on it.

   Given that [L] had to travel in a car that Mr Thong had also been in at some point and that the other three men had also been in contact with Mr Thong, most notably Timmy Chong who had held his jacket at the DV8 Nightclub, there were other reasonable explanations for the presence of Mr Thong's DNA on [L's] clothing.

10. Her Honour directed the jury as to lies allegedly told by the appellant to police, particularly in his 2016 interview.  The State alleged that the appellant falsely told the police in that interview:[257]

    [257] ts 1281 - 1282.

    (1)In 2006 he did not have a driver's licence.

    (2)On the night of the alleged offence he did not drive to and from Northbridge.

    (3)He could not remember attending Bentley TAFE.

    (4)He did not know Mr Kong and Mr Chong.

    (5)He had no contact with L on the night of the alleged offences.

    (6)He did not go to the Curry Kitchen on the morning of 7 May 2006.

    (7)He was not familiar with the Curry Kitchen or the Singapore Hawker in 2006.

    (8)He was not the person shown in the stills taken from the CCTV footage at DV8 nightclub in the early hours of 7 May 2006 (exhibit 6.1 and 6.2).

    (9)He did not make a telephone call to Mr Lim on the morning of 7 May 2006 and he did not have Mr Lim's number.

11. In respect of these alleged lies, her Honour gave a Zoneff direction[258] to the effect that a lie may be a factor in the jury's assessment of the credibility of the person who told the lie, but the jury could not follow a process of reasoning to the effect that just because the person has lied, that is evidence of guilt.  Her Honour directed the jury that the fact that a person has told a lie is not evidence that a person is guilty of a crime.[259]

The appeal against conviction

[258] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.

[259] ts 1283 - 1284.

1. We will deal with ground 2 first.

Ground 2 - did the State need to prove beyond reasonable doubt that the DNA on L's clothes was directly transferred?

1. Ground 2 is in these terms:[260]

   The learned trial judge erred in fact and in law in failing to direct the jury that before they could use the DNA evidence as part of the circumstantial evidence against the appellant they must be satisfied beyond reasonable doubt that the DNA detected upon [L's] clothing was deposited by direct transfer from the appellant, because the DNA evidence was the only objective evidence of physical contact between [L] and the appellant without which there was no evidence capable of proving beyond reasonable doubt the appellant's guilt.

   [260] WAB 6.

2. At trial, prior to the closing addresses of counsel, defence counsel submitted to her Honour that she should direct the jury that before it could use the evidence given by Ms Cooper that DNA matching the appellant's sample profile was found on L's grey top and black boob tube as part of the State's circumstantial case, it had to be satisfied beyond reasonable doubt that the DNA had been deposited on the clothing by direct and not indirect transfer from the appellant.  Defence counsel submitted that a direction to this effect was required because proof of direct transfer was an indispensable link in the chain of reasoning towards guilt.  Her Honour declined to give the direction sought by defence counsel.[261] 

   [261] ts 1152 - 1156.

3. It is clear from her discussion with both counsel that her Honour did not regard the DNA evidence led by the State as being an indispensable link in the State's circumstantial case.[262]

   [262] ts 1156.

4. Although her Honour did not give the direction sought by the appellant, she gave the direction set out at [120] above.

5. In oral submissions, the appellant's counsel explained that 'what the ground … is trying to address is a situation where the jury discounts the evidence of Mr Lim but is persuaded by the DNA evidence that that's sufficient to convict, on its own'.[263]

Ground 2 - the legal principles

[263] Appeal ts 21.

1. Ordinarily, in a circumstantial evidence case, the cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.[264]  However, there are cases where an inference of guilt beyond reasonable doubt cannot be drawn unless a fact or facts relied on to found the inference is established beyond reasonable doubt.[265]  The appellant submits that the present case falls into this category. 

   [264] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 592 - 593 (McHugh J).

   [265] Shepherd v The Queen (593).

2. It appears that counsel for the appellant, both at first instance and before this court, is seeking to invoke statements made by Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed), in Shepherd v The Queen, where his Honour said:[266]

   [I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

   [266] Shepherd v The Queen (579).

3. And later:[267]

   And, of course, it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis.  To take the same example I gave previously, the presence of the accused when the crime was committed is in many cases an intermediate fact which is essential before an ultimate inference of guilt can be drawn. Often it may be unnecessary to identify it as an intermediate fact, but if it is necessary to do so then it is clearly correct to say that it must be proved beyond reasonable doubt before an inference of guilt can be drawn consistently with the criminal standard of proof.

   [267] Shepherd v The Queen (581).

1. Her Honour said that she took into account that the appellant was, and is, 'a loving and caring friend and father and a good provider'.[305]  Her Honour was provided with a number of character references which spoke well of the appellant. 

The victim impact statement

[305] ts 1338.

1. Her Honour had before her L's victim impact statement, which we have read.  The sentencing judge observed that it 'very articulately describes the pervasive and invasive effects' that the appellant's offending has had on her.[306]  In the victim impact statement, L described the effects of the offending as still having a devastating effect on her life.  L said that she was terrified by what occurred and thought that she was going to die.  L stated that the offending took away, amongst other things, her freedom, self‑worth, privacy, safety, intimacy and confidence.  L said that the effects of the offending have forever changed her life.  The trial brought back for L the rawness of her emotions, such that she quit her job as she was unable to cope.[307]

The sentencing judge's approach

[306] ts 1335.

[307] ts 1336.

1. Her Honour characterised the offending as 'extremely serious' and fell 'at the very high end of offending for offences of [this] kind'.[308]  Her Honour said that L was 'extremely vulnerable as a result of her intoxication'.[309]  The sentencing judge observed that the appellant took advantage of L's vulnerable state and that she was, at the time he first encountered her in Northbridge, alone.  She found that the appellant took L to Willetton with 'nefarious intentions' and, there, carried out those intentions without regard to her.[310] 

   [308] ts 1334.

   [309] ts 1335.

   [310] ts 1335.

2. Her Honour found that the appellant overcame L's resistance, forcibly removed her clothing, forced his penis into her mouth and then, using a knife with threats to kill, sexually penetrated her.[311]

   [311] ts 1335.

3. Her Honour found that the appellant acted out of self‑preservation in arranging for Mr Lim to drive L home, in the sense that the appellant did not want L to be found in a place that he had a connection with.  Her Honour was unable to find a reason for the appellant's return of L's mobile telephone later on 7 May 2006, but she did not regard this as showing concern for L or remorse for what he had done to her.[312]

   [312] ts 1335.

4. On the basis of the evidence the appellant gave at trial, her Honour found that he accepted no responsibility for his actions or its consequences and was without remorse.[313] 

   [313] ts 1338.

5. It is clear from the sentencing remarks that her Honour took into account as mitigating factors the appellant's youth at the time he committed the offences, his previous good character and his favourable prospects for rehabilitation.  As we have already observed, she did not consider that specific deterrence was a relevant sentencing consideration.  Her Honour gave the appellant some credit for running the trial in such a way that L was never challenged about the fact that she was the victim of a sexual assault.[314]  She accepted that the appellant expressed some empathy and sympathy for L's plight.[315]  She said that his risk of reoffending was low.[316]

   [314] ts 1338.

   [315] ts 1338.

   [316] ts 1340.

6. Her Honour specifically identified as aggravating circumstances that L was extremely vulnerable, that the appellant exploited this vulnerability by taking her to an isolated place, thus placing her at an even greater disadvantage, and that his actions were deliberate.  Moreover, the appellant was not deterred by L's resistance and 'used force to ensure you got what you wanted'.[317]  Her Honour noted the appellant's use of a knife which, together with the threats he made, were designed to subdue L.  She noted that L suffered significant injuries as a result of the offences and that the appellant showed 'scant regard' for L after the commission of the offences.[318]

   [317] ts 1340.

   [318] ts 1340.

7. The sentencing judge said that general deterrence was an important consideration.  She elaborated:[319]

   The community needs to know that women are entitled to enjoy themselves, to go out and be confident that they will not be preyed upon.  They should be able to socialise and to even drink too much and know that they can get home safely.

   [319] ts 1340.

8. Her Honour rejected suggestions that mercy could be extended to the appellant.  Her Honour referred to 'the egregious nature of this offending'.[320]

   [320] ts 1340.

9. Her Honour imposed the individual sentences referred to at [3] above and ordered that they be served concurrently, presumably to give effect to the totality principle.

The legal principles applicable to the grounds of appeal

1. The legal principles applicable to the grounds of appeal are well‑established.  They have been stated in many cases including, for example, Kabambi v The State of Western Australia, where it was said:[321]

   [321] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

   The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:

   (1)Sentencing is a discretionary exercise.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.  Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.  Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

   (2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

   (3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. 

   (4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

   (5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

   (6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  The real question is whether the total effective sentence is unreasonable or plainly unjust.

The appellant's submissions

1. The appellant's submissions in support of ground 1 essentially reflect the pleaded particulars to that ground. 

2. In his oral submissions, counsel for the appellant did not shy away from the seriousness of the appellant's offending, but submitted that, having regard to the mitigating factors identified by her Honour, the sentence of 8 years 6 months' imprisonment imposed on count 2 was manifestly excessive.  Counsel for the appellant emphasised the appellant's youth at the time of the commission of the offences and her Honour's finding that personal deterrence was not a relevant sentencing consideration, having regard to his rehabilitation in the 12 or so years between the commission of the offences and his convictions.[322]

   [322] Appeal ts 25.

3. Counsel for the appellant submitted, in effect, that this court would not be greatly assisted by an analysis of the comparable cases having regard to the widely variable circumstances of sexual offending and of sexual offenders.[323]

Ground 1 - disposition

[323] Appeal ts 25.

1. The maximum sentence for count 2 is 20 years' imprisonment. 

2. Having regard to the circumstances of the offence as described by her Honour, none of which are challenged by the appellant, count 2 was a very serious offence that falls towards the high end of offending for offences of this kind.  When the appellant came across L in the vicinity of Rosie O'Grady's pub, he took advantage of the fact that L was alone and highly vulnerable because of her intoxicated state.  It cannot be doubted that he took her to the car in which he had travelled with, as her Honour put it, 'nefarious intentions'.  The appellant took L to an isolated location, unfamiliar to her, and subjected her to a terrifying ordeal. 

3. After subjecting L to the acts which constituted count 1, he proceeded to engage in a further act of sexual penetration, this time inserting his penis into her vagina.  The appellant did so in circumstances where L was verbally and physically resisting.  In order to overcome L's resistance, the appellant not only produced a knife, but held it to her throat and threatened to kill her.  Based on the medical evidence, the appellant's penetration of L's vagina was clearly forceful and resulted in injury. 

4. What the appellant did to L was cruel and callous.  While the physical injuries L sustained were not permanent, the psychological effects upon L have been devastating and profound, if not permanent, as L's victim impact statement shows. 

5. There were mitigating factors, the most significant of which were the appellant's youth at the time he committed the offences and that he has led a good and productive life in the 12 or so years which elapsed between the commission of the offences and his convictions.  Personal deterrence is not a sentencing consideration in this circumstance and the appellant poses a low risk of reoffending. 

6. While personal deterrence had no role to play in the appellant's sentencing, general deterrence was an important factor, as her Honour recognised.  Persons who are vulnerable because they are intoxicated are not to be preyed upon, as L was, for an offender's sexual gratification.  In order to deter this kind of behaviour and protect vulnerable victims, violent sexual offences of the type perpetrated by the appellant will ordinarily be met with a substantial custodial penalty.  Because of the need to provide a strong measure of general deterrence, the mitigating factors identified in this case had to be accorded less weight.

7. We now turn to the comparable cases.

8. There is no tariff for offences of the kind committed by the appellant.  The conclusions drawn by Steytler P in The State of Western Australia v Akizuki[324] remain apt.  His Honour said:

   As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable.  That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case.  However, some conclusions can be drawn, as follows:

   (1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime.  That starting point takes no account of any factors in mitigation.

   (2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed.  The range of potential mitigating factors is at least equally extensive.  They might result in a very large reduction in sentence or little or no reduction.

   (3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent.  It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another.  As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] ‑ [267] (Miller JA). 

   That seems to me to be about as much guidance as can be obtained from the cases.  I appreciate that it is less than sentencing judges might wish.  However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.

   [324] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69].

9. In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual.[325]  It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate).  The circumstances of offending vary widely.  The available maximum sentence must not be overlooked.  Sentences well beyond that range may be justified by the circumstances of the case.[326] 

   [325] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].

   [326] See, for example, Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [21]; NPA v The State of Western Australia [2018] WASCA 131 [51].

10. In addition to Akizuki, we have had regard to the comparable cases referred to by the parties in their written submissions, including Warburton v The State of Western Australia;[327] The State of Western Australia v TLP;[328] Thomas v The State of Western Australia[329] and the cases cited therein.  We have also had regard to other cases involving serious violent sexual offending such as THG v The State of Western Australia;[330] Atkinson v The State of Western Australia;[331] FWB v The State of Western Australia;[332] NPA v The State of Western Australia; Eravelly v The State of Western Australia;[333] KNY v The State of Western Australia;[334] and Williams v The State of Western Australia.[335]

    [327] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361.

    [328] The State of Western Australia v TLP [2019] WASCA 66.

    [329] Thomas v The State of Western Australia [2019] WASCA 4.

    [330] THG v The State of Western Australia [2012] WASCA 139.

    [331] Atkinson v The State of Western Australia [2017] WASCA 154.

    [332] FWB v The State of Western Australia [2016] WASCA 118.

    [333] Eravelly v The State of Western Australia [2018] WASCA 139.

    [334] KNY v The State of Western Australia [2019] WASCA 89.

    [335] Williams v The State of Western Australia [2015] WASCA 110.

11. It is unnecessary to set out the facts and circumstances of the cases referred to above.  Insofar as they are able to provide any real guidance, in our view, they indicate that the sentence imposed on count 2 is high. 

12. We have had regard to the submissions put on behalf of the appellant.  The propositions embodied in particulars (a) to (c) of the ground amount to no more than observations that the offending behaviour could have been worse.  Particular (g), namely the alleged failure of the police to properly investigate the offence, was not the subject of a finding before the primary judge and is an irrelevant sentencing consideration.  Particulars (d), (e), (f), (h) and (i) were all matters taken into account by the sentencing judge and are matters which we have had regard to in our judgement as to whether the sentence imposed on count 2 was manifestly excessive. 

13. Having evaluated all of the relevant circumstances, including the mitigating factors, we have concluded that the sentence imposed on count 2, albeit at the higher end of the discretionary range, was not unreasonable or plainly unjust. The offence committed by the appellant was, as we have said, a very serious example of its kind. We repeat what we have said at [214] - [218] above. The need to provide appropriate punishment, denunciation and general deterrence justifies the sentence imposed by her Honour. While we would grant leave to appeal on ground 1, the ground has not been made out.

14. As ground 1 has not been made out, ground 2 must be dismissed.  In dismissing ground 2, we observe that had ground 1 been made out and the appellant been sentenced to a lower sentence on count 2, we would have ordered the sentence on count 1 to be served either wholly or partially concurrently with the new sentence on count 2, so that the total effective sentence imposed upon the appellant would have remained at 8 years and 6 months' imprisonment.  In our view, the appellant was fortunate that her Honour ordered the sentences she imposed on the two counts to be served concurrently.  Count 1 itself constituted a serious offence.  In our opinion, the total effective sentence of 8 years and 6 months was an appropriate reflection of the appellant's overall criminality having regard to all of the relevant circumstances and sentencing factors.

Appeal against sentence - orders

1. The orders we would made in relation to the appeal against sentence are:

   (1)Leave to appeal is granted on ground 1.

   (2)Leave to appeal is refused on ground 2.

   (3)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

30 OCTOBER 2020