THONG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 182 (30 October 2020)

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.

1. On the evening of 6 May 2006 L went to a 21st 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:

(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

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.

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

1. 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]
2. 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]
3. 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]
4. 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]
5. 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]
6. Mr Chong testified that, when he left the Curry Kitchen with Mr Lim, the appellant, Mr Kong and L were all still there.
7. Both Mr Lim and Mr Chong testified that they did not sexually assault L. So, too, did Mr Kong.
8. 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.
9. 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]
10. 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]
11. 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]
12. 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.
13. L said that before this occasion she had never had penile/vaginal sex[49] and that she identified as a lesbian.[50]
14. L said that she was in and out of consciousness throughout the period that she was assaulted by the man.[51]
15. 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]
16. 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]
17. 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.
18. 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]
19. 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]
20. 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]
21. 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.
22. 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]
23. 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.
24. 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]

1. 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]
2. 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]
3. 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]
4. Dr Vance noted the following injuries:

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

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

(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]

1. 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]
2. 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]
3. 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]
4. 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]

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

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

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

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

(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]

1. 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.
2. 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]
3. 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]
4. On 9 May 2006, a full statement was taken from L by Constable Forrest.[104]
5. 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.
6. The investigation into the offences allegedly committed on L was 'written off' by police in September 2006.[107]
7. 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]
8. 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]
9. On 29 April 2015, in response to a request from police, the appellant voluntarily provided a DNA sample to police.[110]
10. 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]
11. 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]
12. 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.
13. In the 2016 VROI, the appellant told the police that:

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

(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]

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

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

(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]

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

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

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

(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]

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

(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]

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

(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]

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

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

(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]

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

(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]

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]

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]

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.
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]
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]
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]

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.
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]

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

(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]

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

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

(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]

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

(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]

(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]

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

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

(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]

(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]

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

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

(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]

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

(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]

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

(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]

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

(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]

(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]

(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]

(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]

(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]

(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]

(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]

(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]

(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]

(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]

(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]

1. 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]

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.

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]
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]

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]
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]
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]
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]
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]
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]
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]
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]
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.
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.

1. 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]
2. 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.

1. 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]
2. 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]
3. 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]

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]
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]
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]
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]
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]

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

1. 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]
2. Her Honour first outlined the evidence concerning DNA and then said:[256]

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.

1. 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]

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

(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.

1. 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]

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

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.

1. 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]
2. 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]
3. Although her Honour did not give the direction sought by the appellant, she gave the direction set out at [120] above.
4. 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]

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.
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.

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.

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.

1. As McLure P explained in Austic v The State of Western Australia,[269] whether or not an intermediate fact is an indispensable link in a chain of reasoning towards guilt depends upon the issues and evidence in a particular case. A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process before the ultimate inference of guilt.
2. Where an intermediate fact constitutes an indispensable link in the chain of reasoning towards the ultimate inference of guilt, the jury may need to be instructed that it must be satisfied of that intermediate fact beyond reasonable doubt before the ultimate inference can be drawn.[270]
3. In Davidson v The Queen, Simpson J (with whom Spigelman CJ and James J agreed) said that the proposition that a fact is an indispensable fact may be tested in this way: [271]

Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened even considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly.

1. In our opinion, ground 2 has not been made out. Our reasons for this conclusion are as follows.
2. While ground 2 and the written submissions in support of it claim that her Honour erred by failing to direct the jury that it had to be satisfied beyond reasonable doubt that the appellant's DNA found on L's clothing had been deposited by direct and not indirect transfer from the appellant, it is apparent from the appellant's oral submissions in this court that the appellant's real complaint was that her Honour did not direct the jury that, in the absence of acceptance of Mr Lim's testimony, they could not use the DNA evidence unless they were satisfied beyond reasonable doubt as to direct transfer.
3. In our opinion, having regard to her Honour's direction as set out in [120] above, and having regard to the manner in which the State case was put, there was no need for such a direction.
4. The direction her Honour gave could hardly have been clearer. Her Honour instructed the jury that they could not convict the appellant based only on the DNA evidence. She also instructed the jury that, without an acceptance of Mr Lim's evidence, the DNA evidence was 'ambiguous'.
5. Her Honour's direction correctly, in our view, drew the jury's attention to the importance of Mr Lim's evidence to the State's circumstantial case. Mr Lim, supported by the testimony of Mr Chong, said that it was the appellant who encountered L in Northbridge; took her to the car and drove her away from Perth. Crucially, Mr Lim said he saw the appellant and L together in the vicinity of the Curry Kitchen, after he had been telephoned by the appellant. Mr Lim's observations as to L's emotional state and attire were clearly consistent with someone who had just been sexually assaulted. The defence case theory that the appellant's DNA had been left on L's clothing by indirect transfer was seriously weakened if the jury were satisfied that Mr Lim's evidence was honest and reliable. Her Honour's direction appropriately addressed any risk that the jury would adopt the problematic chain of reasoning which the appellant argues is at the heart of ground 2.
6. Further, and in any event, the DNA evidence was not an indispensable link in the State's circumstantial case. We accept the respondent's submission that, without the DNA evidence, it would have been open to the jury to convict the appellant having regard to the combined force of L's general description of her assailant, Mr Lim's and Mr Chong's evidence and the appellant's possession of the complainant's mobile telephone after the alleged sexual assaults. The combined effect of this evidence was capable of establishing that the only reasonable inference to be drawn was that the appellant was L's attacker.
7. Without doubt, the DNA evidence substantially strengthened the State's circumstantial case. It tended to show that the appellant had been in close physical proximity to L. The presence of it on the garments worn on L's upper body was consistent with her account that her attacker straddled her in order to commit the act of sexual penetration the subject of count 1. It also negated the appellant's evidence that he had no contact with L at any time on 7 May 2006. Nevertheless, for the reasons set out in the previous paragraph, it was not an indispensable component of the State's case.
8. In light of the direction given, there was no perceptible risk that, in the event the jury did not accept Mr Lim's evidence in material respects, the jury might reason that the DNA evidence, of itself, nevertheless established the appellant's guilt beyond reasonable doubt. Thus, no direction of the kind referred to at [137] above was required.
9. Leave to appeal on ground 2 should be refused.

1. Ground 1 alleges that the verdicts of guilty on which the convictions were based should be set aside because, having regard to the evidence, they are unreasonable and cannot be supported.[272] The ground of appeal contains eight particulars. It is unnecessary to set them out at this point in the reasons because, in his oral submissions in this court, counsel for the appellant narrowed the scope of the ground. He submitted that the 'focus of the appeal and the fulcrum of the appeal' was the evidence of Mr Lim.[273] The effect of counsel's submissions was that Mr Lim's evidence was crucial to the State's case, but it was so flawed as to be incapable of belief by a jury, acting reasonably. Accordingly, it was not open to the jury to convict the appellant. Counsel accepted that if this court concluded that it was open to the jury to accept Mr Lim's evidence, it would then be open to the jury to convict the appellant of the offences.[274]

1. Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction if in its opinion the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
2. The legal principles applicable to a ground relying upon s 30(3)(a) of the Criminal Appeals Act in the context of a circumstantial case are well established and were stated by this court in Wells v The State of Western Australia, as follows:[275]

The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.

(1) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;

(2) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;

(3) that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;

(4) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;

(5) a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(6) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;

(7) the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.

The principles relating to criminal cases that turn upon circumstantial evidence were recently restated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay as follows:

(1) When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

(2) The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.

(3) For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.

(4) In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. (citations omitted)

1. In the recent case of Pell v The Queen[276], the High Court described the function of this court in determining an appeal on the ground that the verdict was unreasonable or cannot be supported having regard to the evidence, as follows:

The function of the Court of Appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury acting rationally ought nonetheless to have entertained a reasonable verdict as to proof of guilt. (citations omitted)

See, also, the recent outline of the principles in MEN v The State of Western Australia.[277]

1. In his oral submissions, counsel for the appellant accepted that it was open to the jury having regard to the appellant's 'unfortunate'[278] police interviews in its analysis of ground 1 to reject the appellant's evidence at trial.[279] Counsel accepted that, in its analysis of ground 1, this court was required to decide the ground having regard to the evidence relied upon by the State.[280] Counsel for the appellant submitted that the jury were, in effect, bound to reject Mr Lim's evidence having regard to his 'lies',[281] inconsistencies with other evidence adduced by the State and that his evidence was in some respects inherently implausible.

1. Mr Lim's evidence was significant to the State case in many respects. It undermined the appellant's evidence that he had no contact with L on 7 May 2006. Along with Mr Chong, Mr Lim testified that it was the appellant who encountered the complainant in Northbridge and that it was the appellant who helped her to his vehicle and then drove her from Northbridge. Further, Mr Lim testified that he was called to the vicinity of the Curry Kitchen by the appellant and that when he arrived he saw the appellant in the company of the complainant. The complainant was naked from the waist down and visibly distressed. These aspects of Mr Lim's evidence, if accepted, provided very powerful support for the State's circumstantial case that the person who attacked the complainant was the appellant.
2. Counsel for the appellant accepted, correctly in our opinion, that if it was open to the jury, acting reasonably, to accept Mr Lim's evidence, it was open to reach a verdict of guilty, so that ground 1 must fail.[282]
3. While not a complete answer to ground 1, it is to be acknowledged at the outset that in assessing Mr Lim's credibility the jury had the very considerable advantage over this court of having seen and heard him give evidence at trial. Mr Lim testified at some length before the jury, commencing on the afternoon of 23 January 2019 and concluding in the afternoon of the following day. Thus the jury had ample opportunity to see and hear his testimony. As referred to earlier in these reasons, Mr Lim was extensively cross-examined by defence counsel. Moreover, all the arguments which the appellant made in this court in respect of Mr Lim's credibility were put to the jury for its consideration in defence counsel's closing address. Having regard to the importance of Mr Lim's evidence to the State's case and given their verdicts, it may be inferred that the jury found Mr Lim to be a generally credible and reliable witness. The appellant faces a considerable hurdle to persuade this court that it was not open to the jury to regard Mr Lim as a generally credible and reliable witness.
4. In the course of oral submissions, it was suggested that, in order to protect one or other of Mr Chong and Mr Kong, Mr Lim concocted an account of events designed to falsely incriminate the appellant.[283] In making this submission, counsel for the appellant acknowledged that L testified that the person who drove her home, who it is accepted was Mr Lim, was not the offender.[284] Nevertheless, the appellant's counsel suggested that a reasonable jury must have concluded that Mr Lim falsely implicated the appellant, because he (Mr Lim) was present when one or other of Mr Chong and Mr Kong sexually assaulted the complainant.[285]
5. In support of these contentions, counsel for the appellant pointed to inconsistencies between Mr Lim's evidence and that of other prosecution witnesses. The two most significant inconsistencies pointed to by the appellant are those set out in [37] ‑ [38] - Mr Lim describing having seen the appellant lying on top of a woman, appearing to have sex, in a carpark in Northbridge - and [41] ‑ [43] above - as to where they went from the carpark near the Perth Entertainment Centre.
6. In our opinion these inconsistencies do not demand the conclusion that Mr Lim's evidence was so flawed as to be incapable of belief. By the time Mr Lim and Mr Chong gave evidence at the appellant's trial more than 12 1/2 years had passed since the occurrence of the events each was being required to recollect. It was open to the jury to conclude that Mr Chong had not seen the appellant lying on top of L in the car park opposite the taxi rank near Rosie O'Grady's, or if he had seen it he no longer had a recollection of doing so. It was open to the jury to regard Mr Chong's testimony that he saw the appellant with the complainant across the road from the taxi rank as being, to this extent, consistent with that of Mr Lim.
7. It was also open to the jury to conclude that the complainant's very drunken state on the night, combined with the passage of time, explained why she did not recall the incident in the carpark near Rosie O'Grady's and so gave no evidence about it.
8. Alternatively, the jury were entitled to not accept Mr Lim's evidence as to what he saw in the carpark while being satisfied as to the critical respects, as summarised in [150] above. The jury were entitled to accept parts of Mr Lim's evidence while not accepting the part relating to the carpark near Rosie O'Grady's. The non‑acceptance of that latter aspect of Mr Lim's evidence by no means required the jury, acting reasonably, to conclude that Mr Lim's evidence was, in substance, lies to protect Mr Chong or Mr Kong.
9. With respect to the differing accounts of Mr Lim and Mr Chong as to where the appellant drove after they left Northbridge, it was open to the jury to conclude that the differences were a consequence of the effluxion of time and, in any event, were of no real importance. It was open to the jury to conclude that what was of greater significance was that both Mr Lim and Mr Chong testified that the appellant drove from Northbridge with the complainant in the vehicle.
10. Counsel for the appellant submitted that L's evidence as to what happened to her after the sexual assaults was 'completely inconsistent' with Mr Lim's testimony as to the events leading up to his arrival at the vicinity of the Curry Kitchen.[286]
11. Counsel for the appellant observed that L testified to the effect that immediately after she had pushed away her attacker after the act of sexual penetration which constituted count 2, she ran away, naked from the waist down, and banged on a shop window. L said that as she did so, a car pulled up. It is not disputed that the driver of the car was Mr Lim.
12. Mr Lim testified that the appellant telephoned him and asked him to meet him (the appellant) at the Curry Kitchen. Mr Lim said that he drove from his home in Canning Vale to the Curry Kitchen, where he saw both the appellant and L together. The appellant submitted, in effect, that if L's evidence is correct, and the car being driven by Mr Lim arrived in the vicinity of the Curry Kitchen a very short time after the commission of count 2, Mr Lim could not have driven from Canning Vale to Willetton.[287]
13. In our opinion, it would have been open to the jury to conclude that L, who was both intoxicated and traumatised by what had occurred to her, and who was giving evidence about events that had occurred many years earlier, was inaccurate as to the timing of the events she described. In particular, it was open to the jury to conclude that a longer period of time elapsed between the commission of the second act of sexual penetration and Mr Lim's arrival at the scene near the Curry Kitchen. The apparent differences in the evidence between L and Mr Lim that we have described, would not, in our view, require the jury to find that Mr Lim was not a truthful witness.
14. Counsel for the appellant also submitted to this court that Mr Lim's credibility was adversely affected because Mr Lim gave no evidence to the effect that L made a complaint to him that she had been sexually assaulted. Counsel for the appellant submitted that 'it just doesn't fit human experience' that L would not have complained to Mr Lim.[288]
15. There is no merit in this submission. L did not testify that she complained to the person who drove her home from the vicinity of the Curry Kitchen. Human experience does not expect, much less demand, that a person who has been sexually assaulted will complain to the first person he or she comes into contact with after the alleged assault, particularly when, as in this case, that person is a stranger.
16. The appellant's counsel also referred to L's evidence that she heard other voices while she was being sexually assaulted.
17. Under cross‑examination, Mr Lim denied that he falsely implicated the appellant to protect himself. Mr Lim denied that he had concocted his evidence or that he had engaged in collusion with Mr Chong. Mr Chong was cross‑examined to the same effect. Both of them denied the allegations of concoction and collusion.
18. In our opinion, having seen Mr Lim and Mr Chong, it was open to the jury to reject any suggestion of concoction or collusion on the part of Mr Lim to falsely implicate the appellant.
19. While, as we have already observed, there were differences in the testimony of Mr Lim and Mr Chong, there were the consistencies in their testimony we have pointed to. We have not been persuaded that it was not open to the jury to accept Mr Lim's evidence as being generally honest and reliable, particularly bearing in mind the distinct advantage that the jury has over this court in having seen and heard Mr Lim give his evidence. We have not been persuaded that Mr Lim must have deliberately lied or that his evidence was in some other way so unreliable as to be incapable of acceptance by the jury. In our opinion, the appellant's submission that the convictions must be set aside because Mr Lim's evidence was incapable of belief by the jury has not been made out. Thus, ground 1, as argued at the hearing of the appeal, must fail.
20. The outcome in respect of ground 1 would not have been any different had the appellant put his case to this court as he particularised it in his written submissions. Those particulars were as follows:[289]

1.1 The State case on both charges relied upon circumstantial evidence in four groups alleged to provide identification of the appellant, which was the sole issue at trial. Her Honour, the trial judge identified the groups as:

1.2 [L] description of the offender.

1.3 The evidence of the Appellant's companions that night, Aaron Lim, Timmy Chong and Michael Kong.

1.4 The appellant's possession of [L's] phone.

1.5 The DNA evidence.

1. To that evidence was added the State's invitation to the jury to reject the evidence of the appellant.
2. As to 1.2, the evidence did not support or go to support the identification of the appellant as the offender.
3. As to 1.3, the evidence was inconsistent internally, and with the evidence of [L], to the extent that it could not support or go to support the identification of the appellant as the offender.
4. As to 1.4, the possession of the phone can at worst be neutral in the case against the appellant and does not support or go to support the identification of the appellant as the offender.
5. As to 1.5, the DNA evidence could only support the State case if the appellant's DNA was proved to have been directly deposited upon [L's] clothing, and that is not supported by evidence. (See also Ground 2)
6. As to Paragraph 2 above, if it is assumed that the jury rejected the evidence of the appellant and abided by her Honour's direction on that point, that evidence would have been put to one side and could not have contributed to the State's circumstantial case.
7. The verdicts based upon the circumstantial evidence in this case as unsafe and unsatisfactory.
8. These particulars may be dealt with briefly. In doing so, we do not overlook that circumstantial evidence is not to be assessed in a piecemeal way and that it is the combined effect of the evidence which is critical.

1. The appellant submitted that L's evidence did not support the identification of the appellant as the offender. In considering this argument, it must be borne in mind that L never purported to identify the appellant as the offender and that the State only relied on L's description of the offender to the limited extent that it was generally consistent with the appellant. Given L's high level of intoxication, the fact that she had been traumatised by the sexual assault and the poor lighting in the area in which she was assaulted, it is hardly surprising that L could not positively identify her attacker. L testified that he was of Asian ethnicity, short with dark or black straight hair, lightish skin and aged between 20 and 30 years. L's evidence concerning the ethnicity, hair colour, height and age were broadly consistent with the evidence of Wei Ping Wang as to the appellant's appearance in about 2006, save that Ms Wang said the appellant had dark skin. We note that the appellant in his testimony said that he was not wearing jeans on the night in question (although he was wearing dark‑coloured trousers) and that he was dark‑skinned. He also said, as did his wife, that he was uncircumcised.
2. None of the differences referred to by the appellant substantially detract from L's general description. The difference in skin colour may be a matter of subjective impression or, from L's perspective, a consequence of the lighting conditions at the time. L's evidence that her attacker was circumcised is explicable on the basis that, at the time, L had not previously been sexually penetrated by a man and that her observation that her attacker had been circumcised may have been consistent with her description of her attacker pulling back the skin of his penis.

1. The appellant submitted that the evidence of Mr Kong, Mr Chong and Mr Lim was so unreliable as to render the verdict unreasonable. We do not accept this submission.
2. The evidence of Mr Kong did not materially assist the State's case. He testified that he had no memory of what occurred on 6 and 7 May 2006. This would appear to be primarily because of his alcoholism. Of course, Mr Kong was, in May 2006, working at the Curry Kitchen and thus had a connection with the location at which the assaults against L occurred. The appellant, too, who was friends with Mr Kong and aware of Mr Kong's connection to the Curry Kitchen, worked in the nearby Singapore Hawker restaurant. There is no evidence that Mr Kong was the person who attacked L. We observe that Mr Kong was 40 years of age in May 2006 and was thus considerably older than the person L described as her attacker. Moreover, the DNA evidence did not implicate him.
3. We have already dealt with the evidence of Mr Lim and Mr Chong. In our opinion, for the reasons we have given, it was open to the jury to regard them as truthful and reliable witnesses in relation to the critical aspects of their evidence.

1. In our opinion, the appellant's possession of L's mobile telephone was a significantly incriminating piece of circumstantial evidence. It was open to the jury to reject the appellant's testimony that he picked up L's mobile telephone on the street in Northbridge after L had thrown it away in the course of being set upon by a group of 'punks'. The inquiries made by Detective Vesperman revealed that no incident involving a group of 'punks' attacking a woman was reported in Northbridge on the night of 6 May 2006 or in the early hours of 7 May 2006. Further and significantly, neither Mr Lim nor Mr Chong gave evidence of seeing such a confrontation.
2. As counsel for the appellant accepted, it was open to the jury to reject this aspect of the appellant's evidence. Having done so, the jury were entitled to find that the appellant's possession of the complainant's telephone provided significant support for the State's circumstantial case. That is particularly so in light of the complainant's evidence that she kept her telephone in her pocket. On the whole of the evidence, the jury could reasonably have found the likely explanation for the appellant's possession of the mobile telephone was that L lost the mobile telephone in the process of being sexually assaulted by the appellant and that he picked it up afterwards.

1. It is unnecessary to say anything more about the DNA evidence in light of our analysis of this in dealing with ground 2. It is enough to say that it was open to the jury to accept that the DNA which matched the appellant's profile that was found on L's clothing was a consequence of direct contact between the appellant and L. The DNA evidence tended to confirm, contrary to the appellant's evidence, that not only had he been in close physical contact with her, but he had straddled L as she alleged in order to commit count 1. It provided further support for the State's circumstantial case.

1. As the appellant's counsel accepted at the hearing of the appeal, it was well open to the jury to reject and put to one side the appellant's sworn testimony at trial.[290] It was open to the jury to conclude that the appellant had lied to the police in his 2016 VROI and that the lies were such as to render his sworn evidence incapable of belief, in accordance with the Zoneff direction given by the trial judge. It was open to the jury to reject as implausible his explanations for telling lies in the interview, namely that he was, in effect, advised to do so by a former detective and his lawyer at the time.

1. On the evidence adduced by the State, it was open to the jury to find:

(1) Late on 6 May 2006, the appellant, along with Mr Lim, Mr Chong and Mr Kong, drove to Perth, where the appellant parked the vehicle at the carpark near the Perth Entertainment Centre.

(2) The appellant and his companions walked from the carpark into Northbridge and, ultimately, to the DV8 nightclub, arriving there in the early hours of 7 May 2006.

(3) After spending some time at the DV8 nightclub, the appellant and his companions left there and walked towards the carpark at the Perth Entertainment Centre. While on this journey, the appellant encountered L in the vicinity of the taxi rank near Rosie O'Grady's pub.

(4) By reason of her intoxication, L was in a highly vulnerable state.

(5) The appellant took L to the car with the intention to take sexual advantage of her.

(6) The appellant ultimately took L to the vicinity of the Curry Kitchen, a location with which he was familiar.

(7) There was no evidence which indicated that Mr Lim, Mr Chong or Mr Kong had a sexual interest in L.

(8) L was sexually assaulted in the vicinity of the Curry Kitchen as she alleged.

(9) The appellant's DNA was found on L's clothing at a location consistent with the commission of count 1 as described by L.

(10) L's description of her attacker was generally consistent with that of the appellant.

(11) L and the appellant were seen together by Mr Lim at a time when L was naked from the waist down and distraught.

(12) The appellant was in possession of L's mobile telephone after the commission of count 1 and count 2.

1. While there were some inconsistencies in the evidence of the prosecution witnesses and some gaps in the evidence (for example, whose car the appellant drove on the night in question) and, bearing in mind the long delay between the commission of the offences which may have affected the recollection of the State's witnesses and the forensic disadvantages that this delay caused to the appellant, in our opinion, it was open to the jury to be satisfied that the only reasonable or rational inference that was open on all of the evidence adduced at trial was that the appellant was L's attacker. An alternative inference to the effect that L was attacked by an unknown person or one or a combination of Mr Lim, Mr Chong or Mr Wong was excluded, because no evidence supported such an inference.
2. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. Having considered all of the evidence that formed the State's circumstantial case against the appellant, there is no inference consistent with the appellant's innocence which was reasonably open. The verdicts of guilty were supported by evidence that the jury was entitled to accept and inferences that the jury was entitled to draw. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the counts in the indictment or as to the correctness of his conviction on those counts. We do not think that there is a significant possibility that an innocent person has been convicted. We have not been persuaded that the jury's verdicts of guilty were unreasonable or cannot be supported. While we would grant leave to appeal on ground 1, the ground has not been made out.

1. In relation to the appeal against conviction we would make the following orders:

The appeal against sentence The grounds of appeal

1. As set out in the appellant's case, the grounds of appeal read:
   1. The learned sentencing judge erred in law by imposing a sentence in relation to the offence the subject of Count 2, an offence of sexual penetration without consent in circumstances of aggravation, of 8 years and 6 months imprisonment that was so excessive as to manifest error having regard to:

(a) There was no more physical injury caused than that involved in the penetration.

(b) The penetration was of short duration.

(c) When the victim pushed the offender off her there was no attempt to pursue her.

(d) The offender's relative youth at the time of the offence. (26 years) [sic]

(e) The offender had no criminal history.

(f) The time that had expired between the offending and prosecution (over 10 years) during which the offender committed no offences and may be regarded as completely rehabilitated.

(g) The failure of the police properly to investigate the offence at the time.

(h) The absence of any need for personal deterrence.

(i) The empathy with the victim demonstrated by the decision not to contest the fact of sexual penetrations at trial.

(j) The range of sentences for similar offences.

1. The learned sentencing judge erred in law by imposing a total effective sentence of 8 years and 6 months imprisonment that infringed the first limb of the totality principle.

1. As the sentence on count 1 was ordered to be served concurrently with the sentence on count 2, counsel for the appellant was correct to accept, as he did at the hearing of the appeal, that unless ground 1 was made out, ground 2 failed.[291]

1. Her Honour's findings of fact as to the circumstances of the offences were not challenged in this court. They may be summarised as follows.
2. Her Honour found that L became intoxicated after attending a 21st birthday party in Perth and then drinking with friends at the Mustang Bar and Geisha Bar in Northbridge.[292] Eventually, L was escorted to a taxi rank near Rosie O'Grady's pub on Milligan Street. In the vicinity of the taxi rank L encountered the appellant. Her Honour found that, at around 2.30 am on 7 May 2006, the appellant, Mr Chong, Mr Lim and Mr Kong were walking back to the appellant's car after drinking some beers at the DV8 nightclub.[293]
3. Her Honour was not satisfied that any sexual activity took place between the appellant and L in the vicinity of Rosie O'Grady's. She remarked that whatever Mr Lim saw, it was not an act of sexual penetration.[294] She found that the appellant brought L to the car and that ultimately she was driven to the shops situated at Collins Road, Willetton. Her Honour said it was not necessary to decide where the appellant drove other than to the shops.
4. Her Honour observed that, after leaving the Mustang Bar, L's next memory was being in an alley with some industrial bins in front of her and chicken wire fencing behind her, with a man yelling at her to take her pants off. L then recalled being on her back in a different place. Her Honour said that the appellant was at this point squatting next to her and was trying to pull her pants off. L begged him to stop and clenched her legs together in an effort to prevent him from doing so. Her Honour found that the appellant, frustrated by L's resistance, sat on top of her and attempted to put his penis into her mouth. L resisted by moving her head from side to side, but eventually the appellant succeeded in inserting his penis, or at least part of it, into her mouth. Her Honour found that the penetration 'did not last for very long' because L gagged and continued to move her head.[295]
5. Despite L's continued resistance, the appellant managed to remove her jeans and tried to force her legs apart. L begged him to stop, but the appellant told her to 'shut up' and pulled out a knife. Her Honour said that the blade of the knife appeared to be less than 10 cm long. The appellant held the knife in the area of L's collarbone while pointing the tip of it at her neck. Again, the appellant told L to 'shut up'. He threatened to kill her.[296]
6. The sentencing judge found that the threats, together with the knife, stopped L's resistance. The appellant then forced his penis into L's vagina and, as he did so, held the knife to her throat with one hand and held her down with the other. Eventually, L pushed the appellant off her, got to her feet and tried to run away. At this point, L was naked from the waist down.[297]
7. Eventually, L was taken home by Mr Lim. After L got home she showered. On 7 May 2006, she complained to her housemates that she had been raped and was taken to the police, and later to SARC, where she was medically examined.[298]
8. Her Honour found that L had suffered physical injuries as a result of the offences. Her Honour's description of those injuries accords with the observations of Dr Vance, described at [65] of these reasons. Her Honour found that the genital injuries were consistent with the effect of blunt force, combined with movement and recent vaginal [299]etration.299
9. Her Honour outlined the lengthy course of the police investigation into these offences. It is unnecessary to say anything more about this.
10. After summarising the evidence the appellant gave at trial, her Honour said that the jury 'obviously did not accept your evidence or explanations and neither do I'.[300]

1. The appellant was 21 years old at the time of the offending and 34 years old when he was sentenced. Her Honour noted that the appellant has no criminal record and was, at the time of the offending, a person of prior good character.[301] The sentencing judge also noted that the appellant had not committed any other offences and found that specific deterrence was not a consideration to which she needed to give weight.[302]
2. Her Honour said that the appellant came to Australia from Malaysia in 2003 or 2004. She said that there was 'no material before me to suggest that your childhood was anything but unremarkable'.[303] The appellant had a consistent work record in Australia and, in 2015, started his own snack bar and deli business in a Perth suburb. The appellant is married and has a young child.[304]
3. 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.

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]

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]
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]
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]
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]
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]
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]
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.

1. Her Honour rejected suggestions that mercy could be extended to the appellant. Her Honour referred to 'the egregious nature of this offending'.[320]
2. 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]

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.

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]
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]

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.

1. 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]
2. 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]
3. 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.
4. 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.
5. 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.
6. 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.

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

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

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

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

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

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

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

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

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

[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.

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

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

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

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

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

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

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

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

[269] Austic v The State of Western Australia [2010] WASCA 110 [2] - [3].

[270] DKA v The State of Western Australia [2019] WASCA 123 [171]. See also Shepherd v The Queen (579, 592 - 593).

[271] Davidson v The Queen [2009] NSWCCA 150; (2009) 75 NSWLR 150 [74].

[275] Wells v The State of Western Australia [2017] WASCA 27 [13] - [14].

[276] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [39]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494 ‑ 495.

[277] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410].

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

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

[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].

[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.