REGINA v. TO [2002] NSWCCA 252

WEDNESDAY 26 JUNE 2002 REGINA v. QUOC VINH TO Judgment 1 SHELLER, JA: I agree with Greg James, J. 2 BARR, J: I agree with Greg James, J. 3 GREG JAMES, J: The appellant appeals from his convictions on a number of counts of sexual intercourse without consent and aggravated sexual intercourse without consent. The appellant also seeks leave to appeal against sentence. 4 He was convicted on all charges contained in an indictment on which he went to trial in the District Court of New South Wales before a jury. The indictment contained one count of sexual intercourse without consent, an offence under s.61D(1) of the Crimes Act 1900, for which a maximum penalty of penal servitude for eight years is provided. Counts two to five charged sexual intercourse without consent of a person under the age of 16. These were offences under s.61J(1) of the Crimes Act 1900, the maximum penalty for which is penal servitude for 10 years. Counts six to 10 were charges of aggravated sexual intercourse, also offences under s.61J(1) of the Crimes Act 1900. 5 The 10 counts reflect crimes committed upon four complainants, count one relating to one adult complainant; counts two to five, a 12 year old complainant; counts six and seven, an adult complainant in circumstances involving the threat of actual bodily harm with an offensive weapon, namely a knife; and counts eight to 10, another adult complainant, again with the threat of the infliction of actual bodily harm by means of an offensive weapon, namely a knife. 6 The appellant was sentenced as follows: on counts one to three, he was sentenced to a fixed term of four years imprisonment to commence on 23 May 1997 and to expire on 22 May 2001. On count four, he was sentenced to a fixed term of four years to commence on 23 May 2001 and to expire on 22 May 2005. On count five, he was sentenced to a fixed term of four years to commence on 23 May 2005 and to expire on 22 May 2009. On count six, he was sentenced to a fixed term of six years to commence on 23 May 2009 and to expire on 22 May 2015. On count seven, he was sentenced to a fixed term of seven years and six months to commence on 23 May 2015 and to expire on 22 November 2016. On counts nine and 10, he was sentenced to imprisonment for seven years and six months to commence on 23 November 2016 and to expire on 22 May 2024. A non-parole period of six months to expire on 22 May 2017 was imposed commencing on 23 November 2016. 7 It is thus apparent that there were three accumulations of penalty for offences dealt with at the one time by the sentencing judge. The total sentence is a sentence of 27 years with a non-parole period of 20 years. 8 In this regard it was not submitted that the individual sentences exceeded the permissible exercise of sentencing discretion but it is submitted that the cumulation of these sentences and particularly the cumulation of the individual sentences for individual counts asserted to be a part of the one transaction in respect of the 12 year old victim on counts two, three, four and five, results in a manifestly excessive sentence. It was submitted that overall, whether because of the particular accumulation in respect of the offences against that victim or the overall accumulation, the total sentence is manifestly excessive. 9 It is in this regard, however, to be noted that these sentences were wholly concurrent with those imposed by her Honour Judge Payne in respect of the earlier series of offences by the appellant dealt with in the earlier judgment of this court. I shall return to the application for leave to appeal against sentence after examining the one ground of appeal in respect of the conviction. 10 That ground was:- "Ground 1 - The directions given by the trial judge on coincidence evidence were inadequate." 11 The circumstances asserted by the Crown to have accompanied the offence against each complainant bore features of similarity. In each case there were certain other similarities in the evidence concerning the attack upon each of the women: the offence took place in a ground floor or first floor unit in Campsie; the attacks occurred upon each complainant in circumstances where either she lived only with other women or where her husband was not at home; a description was given by each complainant of the attacker as an Asian person with black or dark hair, armed with a knife who engaged the complainant in personal conversation about her sexual relationships and experience. 12 There was by way of express evidence of identification, only evidence from the complainant to whom counts eight to 10 refer. About one year and three months after the events she picked out a photograph of the man who had assaulted her during a police photographic identification exercise. She had, a month previously, made a computer image for the police of that person. The photograph she picked out was that of the accused. 13 In addition to the other evidence of similarity, however, there was evidence that in each case the assailant's semen had an identical DNA profile and that that was the same profile as that of the accused. There was expert evidence of the DNA profile that using a Queensland database for Asian people, "the chance of a person other than the accused Mr. To with the same DNA is round about one in 8.6 billion" (if one disregarded the chance of a full sibling being involved). The likelihood ratio was also expressed as referring to the chance of that profile being found in someone else and that chance was expressed by Mr. Goetz as "one in 8.6 billion", or "the profile is only found in one in 8.6 billion people". Mr. Goetz gave evidence that that ratio should be regarded as conservative and favourable to the accused. 14 Prior to his summing up, the learned trial judge sought assistance from defence counsel and from the Crown Prosecutor in respect of any relevant matter that might have to be dealt with in his directions. He noted that the defence was an assertion that whatever had happened in each case, it was not the appellant who was the assailant. His Honour drew counsel's attention to draft directions concerning identification which were accepted by both counsel as being appropriate. Written submissions concerning appropriate matters of evidence going to the application of s.165(1)(b) of the Evidence Act 1995 concerning aspects of reliability of identification were drawn to his Honour's attention. There was some discussion of those matters. 15 During that discussion, the following passage occurred;- "CROWN PROSECUTOR: That [complainant in counts eight to 10's] identification of the accused is admissible against him in relation to the sexual assaults of the other women as well - and the references that may assist your Honour are -- HIS HONOUR: [The complainant in counts eight to 10's] identification of the accused, if you accept it, is admissible as evidence -- CROWN PROSECUTOR: Evidence against the accused in relation to all of the counts in the indictment. I suppose Milat again springs to mind, your Honour. I haven't got Hunt, J.'s directions to the jury but at p.9 in his judgment, he said that that was in irresistible conclusion that there was absolutely no doubt that the same person or persons was or were involved in all offences, therefore the evidence of Onions, that is the man who wasn't murdered, was admissible in support of the Crown case on the murder charges so it is a similar principle. HIS HONOUR: Mr. King, I think that is probably an appropriate directions. KING: I think the Crown is right. HIS HONOUR: Thank you Mr. King. I will give that direction in that form. Any others? CROWN PROSECUTOR: No, I don't think so, your Honour. HIS HONOUR: Any others, Mr. King? KING: No, your Honour." 16 On the following morning, in discussion concerning asserted weaknesses in the identification evidence, the Crown Prosecutor relied upon a submission that the other evidence in the case amply and abundantly supported the identification. This was apparently an oblique reference both to the DNA evidence and the likelihood ratio and to features of the assailant's relations with the women which were said to show some similarity. Attempts at identification by the other complainants were unsuccessful. 17 Both counsel accepted that it was an appropriate case for his Honour to give a circumstantial evidence direction. The evidence relating to counts eight to 10 was plainly direct and the DNA evidence, supportive of the identification by that complainant. The circumstantial evidence direction could only have related to inferences that the assailant, in respect of the other counts, was the same person as had been identified by the complainant in counts eight to 10. 18 His Honour directed the jury appropriately concerning the onus and standard of proof. He directed the jury as to the elements of the various counts. He then further directed the jury as follows:- "If you have a reasonable doubt as to any one of the counts, and I am addressing you in relation to all 10 of them at present, that there was sexual intercourse as I have defined it, the accused must be found not guilty. If you are satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainants, as defined, then you must consider the second allegation, that is whether it has been proved that the complainant, as to each count, did not consent. This issue of consent applies to all counts. It is provided in the Crimes Act that a person who submits to sexual intercourse with another person as a result of threats or terror is to be regarded as not consenting to the sexual intercourse. Here, of course, the accused does not claim that the complainants consented to sexual intercourse. He says simply that it did not happen. He was not there. He was not the person involved. Nevertheless, the Crown does have the obligation of proving not only that he did what is alleged, but also that the complainants did not consent to those action. If you are satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainants, or any of them, and also that they did not consent then you must go on to consider the third fact alleged, namely whether the accused knew that they were not consenting. The Crown, as I say, must prove the third element, that the accused knew the complainants, and each of them, were not consenting. This is the case, even though the accused is not alleging that he believed that they were consenting, his case being here, as I have said, that he was not there. He did not commit these crimes. If you accept the complainants on the other disputed issues of fact it may be that you would also accept them on the issue as to knowledge on the part of the accused, if you are satisfied that he was there and that he committed these offences. You may ask how, in the absence of an admission by the accused, the Crown can prove that he was aware that the complainants did not consent. The Crown asks you to infer, from other facts which it set out to prove, that he did indeed know, that is that he must have known. If you find beyond reasonable doubt that the complainants screamed, struggled or made remarks which indicated they did not consent you would be entitled to conclude that this was such an obvious sign of the absence of consent that he could not have helped but know it. To reach such a conclusion you must be satisfied beyond reasonable doubt of the facts relied upon, that is the screaming, et cetera, to which I referred and also be satisfied beyond reasonable doubt that in those circumstances the accused must have known that the complainants, and each of them, in relation to each charge, were not consenting." 19 Shortly prior to adjourning, his Honour gave the jury directions concerning complaints and gave this further direction:- "There is a further of direction (sic), on what we describe as being coincidence evidence, and that is this, [the complainant in counts eight to 10] evidence of identification of the accused, if you accept it, is admissible as evidence against the accused in relation to all of the counts in the indictment." 20 His Honour went on to say:- "I am not presently dealing with the DNA evidence at this point, but her evidence of identification. I will go into that evidence of identification in further directions which I will give you tomorrow morning." 21 The following morning, his Honour gave directions to the jury concerning expert witnesses and then circumstantial evidence. That direction was as follows:- "The next direction on law relates to circumstantial evidence. The DNA evidence has been described as circumstantial evidence. It is not direct evidence. Instead, the Crown sets out to prove certain circumstances, that is facts and events which the Crown says prove beyond reasonable doubt that the accused is guilty because there is no other reasonable explanation in this case for the DNA results. Circumstantial evidence is not necessarily any less reliable than direct evidence such as the evidence of an eye witness, indeed in some cases it can be more convincing. However, before you can find an accused person guilty of a crime on the basis of circumstantial evidence you must be satisfied that such a finding is not only reasonable but that it is the only reasonable finding to make." 22 Having directed the jury concerning the accused's evidence and that no onus lay upon him, his Honour then gave directions concerning those matters which might tend to undermine the reliability of the identification evidence and as to the special caution to be used in approaching that evidence. Those directions were lengthy and detailed. They concentrated on those matters which, it had been submitted to his Honour by the appellant's counsel, might tend to undermine the reliability of the evidence. 23 His Honour directed the jury that the complainants other than that in counts eight to 10 had made unsuccessful attempts at identification. He then shortly summarised the evidence relevant to each count from each complainant and the evidence from police officers relevant to the appearance of the appellant at the time of his arrest. He then turned to the evidence of Mr. Goetz and the denials in evidence of the appellant. 24 When his Honour summarised for the jury the arguments of counsel, he referred to the submissions by the Crown Prosecutor that "there was a general similarity between the crimes" and made other references to matters to which the Crown Prosecutor referred. She referred to the identification evidence of the complainant in counts eight to 10 and then she referred to the overwhelming strength, as she described it, of the DNA evidence. She said:- "The Crown submits the DNA is enough by itself, but further, that the identification of [the complainant in counts eight to 10] would be strong enough to prove the Crown case beyond reasonable doubt by itself." 25 She submitted, "this is a very strong case". She said, "the judge has to direct you that identification can be notoriously unreliable", but, she submitted, that "[the complainant in counts eight to 10] saw her attacker almost throughout and the light in her flat and was galvanised in her fear to remember him". She quoted from pp.22 and 28 of the transcript of evidence as to that observation. 26 His Honour went on to refer to the Crown's argument as to the vivid recollection of that complainant when identifying the photograph:- "She said that evidence, in her submission, would prove the case beyond reasonable doubt, but then on top of that we have the DNA evidence and she reminds you that Mr. Goetz gave his most conservative estimate of one in 8.6 million people having a similar DNA to those in this case. Here she said the complainant in counts eight to 10 also says the accused was the man who raped her."

27 His Honour referred to the Crown's submissions on the various features in common to the various attacks and that the jury could take into account that there was evidence that the accused was arrested in Campsie where his mother lived and that in 1988 he had also lived in Campsie. 28 His Honour referred to the submissions made on behalf of the appellant and, in particular as to the DNA evidence, that the appellant had four brothers and that the jury should have been concerned with the dissimilarities between the various cases rather than the similarities. 29 His Honour referred to defence counsel taking the jury through numbered submissions as to the inconsistencies in the evidence including the inconsistencies of description between the accounts given by the various complainant and directed their attention to the content of those submissions. No further applications for directions or making any complaint were made. 30 It is in that context that it is contended that the trial judge fell into error in failing to give a more extensive direction on coincidence evidence. It was submitted that there having been reference to the similarity between the crimes and consistency between features of the crimes, directions should have been given to the jury as to how to use what was described as the coincidence evidence. In that regard, our attention was drawn to The Queen v. G [2000] NSWCCA 198. It was also submitted that no specific direction was given that the jury must be satisfied beyond reasonable doubt on the identification evidence (and by this I understand that reference was being made to the identification of the photograph by the complainant in counts eight to 10) before it could be used as evidence against the accused in relation to all the counts on the indictment. 31 These submissions entirely ignore the circumstantial evidence nature of the Crown's case on the counts other than counts eight to 10 in establishing the appellant was the assailant. Not only was there evidence of the visual identification, but in addition, there was the DNA evidence and the general similarities of occasion, behaviour and appearance of the attacker. 32 Any more explicit direction as to coincidence or similarity evidence would have been bound to bring out in greater detail matters to the disadvantage of the appellant. It was for the jury to consider all of the circumstances and what they accepted of the evidence including the acceptability of the identification evidence in the light of all of the proved facts, see Shepherd v. The Queen (1990) 170 CLR 573. It was open to the jury to conclude the identification evidence taken in conjunction with the DNA evidence and the evidence of similar behaviour and appearance established the appellant was the attacker beyond reasonable doubt. The jury did not have to be satisfied the identification evidence established that matter only if they were satisfied of that fact considering the identification in isolation. There was no application for re-direction because, as far as I can see, no further direction as to coincidence or similarity evidence could be seen to be to the advantage of the appellant. The assent given by the defence counsel to the use of the identification evidence in proof of all counts reflects a realisation at trial of the circumstantial nature of the case in relation to the counts other than counts eight to 10. The directions were thought to be adequate by all involved in the trial. I do not see that they did not suit the case. In my view, there is no basis upon which Rule 4 would not apply to the submission now made. Further, as to the asserted deficiency in the directions, no such deficiency is suggested such that there is any possibility of any substantial miscarriage of justice (Festa v. The Queen (2001) 75 ALJR 291. 33 I consider that leave should be refused and the ground of appeal rejected. 34 I turn now to the application for leave to appeal against sentence. True it is that the sentences imposed on counts two to five resulted in a heavy overall sentence. However, notwithstanding that the offences arose from the same incident, there is no binding rule requiring the trial judge to impose a concurrent sentence for the various offences. It is only necessary that the trial judge have regard to the offences being committed in the one incident when exercising the discretion as to whether the sentences should be made wholly or partially cumulative. Usually, and as here, the best guide to whether that exercise of discretion may have miscarried is whether in the upshot the sentences so imposed in their totality are manifestly excessive. 35 In my view, these sentences in respect to the crimes against the 12 year old complainant, having regard to what was done to her and her circumstances and age, are such I cannot conclude that the trial judge erred in the exercise of his discretion either to impose sentences as he did or to make them wholly cumulative. They are not manifestly excessive. Further, I do not see that the total effect of the sentences, having regard to the trial judge's cumulation of those sentences and the others, when I have regard to the extent of the criminality involved, is such that I could conclude that the trial judge failed in his discretion in some way such that some other sentence is warranted in law and should have been passed (Criminal Appeal Act 1912, s.6(3)). Indeed, to my mind, the trial judge's making these sentences totally concurrent with those imposed in the earlier trial indicated a degree of leniency. If there was an error in this approach it was to the appellant's advantage. 36 In my view, the application for leave to appeal against sentence should be granted since the matter has been fully argued, but dismissed. 37 I would propose that the appeal against conviction be dismissed. Leave to appeal against sentence be granted and the appeal against sentence dismissed.

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