R v Lahai[2023] QCA 81

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 23 July 2021 Mr Lahai was convicted after trial in the District Court before a jury of three counts of raping the complainant.  There were five counts on the indictment.  As the complainant did not provide evidence in the trial that supported counts 1 and 3, the prosecution entered a nolle prosequi on the second day of the trial and Mr Lahai was discharged in respect of counts 1 and 3.
2. [2]
   One Mr Johnson was charged jointly with Mr Lahai in respect of the five counts, but his matter was finalised before Mr Lahai’s trial.  It was common ground at the trial that Mr Lahai was a friend of Mr Johnson.
3. [3]
   The prosecution case for count 2 was that it was Mr Johnson who had penile vaginal intercourse with the complainant without her consent and Mr Lahai was liable under either paragraphs (b) or (c) of s 7(1) of the Criminal Code (Qld) on the basis he aided Mr Johnson to commit the offence.  The particulars of count 4 were that Mr Lahai penetrated the anus of the complainant with his penis without her consent.  Count 5 was particularised as Mr Lahai penetrated the complainant’s vagina with his penis without her consent.
4. [4]
   On 5 August 2021 Mr Lahai was sentenced by the learned primary judge to imprisonment for nine years for each of counts 2, 4 and 5 and counts 4 and 5 were declared to be serious violent offences.  A presentence custody declaration was made in respect of the period of 12 days spent in custody between 24 July and 4 August 2021.
5. [5]
   Mr Lahai appeals against his conviction and applies for leave to appeal against his sentence.
6. [6]
   There are two grounds relied on for the appeal against conviction:

   1. (a)
      the verdict of the jury was unsafe and unsatisfactory; and
   2. (b)
      the learned trial judge erred in failing to give a significant forensic disadvantage direction to the jury pursuant s 132BA of the Evidence Act 1977 (Qld) (Act).

Relevant evidence

7. [7]
   Detective Sergeant McGrath was working with Detective Senior Constable MacRae when they were called to a telephone box at Martyn Street, Parramatta Park at about 4.35 am on 6 May 2016.  They spoke to the complainant who was dishevelled and emotional and she appeared intoxicated to some degree.  Detective McGrath’s evidence that the complainant said she had been raped was preliminary complaint evidence.  They transported the complainant to the hospital at Cairns.  They obtained the 000 call record for the call made by the complainant at 4.11 am and that was played for the jury.
8. [8]
   The 000 call was also received as preliminary complaint evidence.  In the call, the complainant said, “I got to lift with a taxi driver and he just pulled up on the side and he’s been raping me”.  The complainant identified the street she was in.  She said that she got raped from two African people who were in the cab “but they want to dump me off, then to drop me off here with the phone booth”.  The complainant also told the operator that they took all her money.  She described the two Africans as “a fat one and one bony one”.  The complainant said “the other one” was already in the cab with the driver when she got in.
9. [9]
   Detective McGrath obtained CCTV footage from the taxi rank for the Gilligan’s nightclub where the complainant got into the taxi (exhibit 3).  The CCTV footage was played for the jury.  A photograph was taken from the CCTV footage of a man wearing a blue black singlet with a gold chain around his neck (exhibit 2) which Mr Lahai in a subsequent interview identified was him.  Detective McGrath was able to identify the complainant on the CCTV footage.  The taxi was identified by Detective McGrath from the CCTV footage as taxi number 99.  There was no dispute at the trial that the taxi driver was Mr Johnson.  The taxi left the rank shortly after 3 am.  Detective McGrath obtained CCTV footage from another angle (exhibit 4) which showed Mr Lahai leaving Gilligan’s and walking out towards Grafton Street and also showed the complainant walking out onto the street.
10. [10]
    During the investigation, Detective McGrath found out that taxi 99 was fitted with a GPS tracking device and he obtained the data collected from taxi 99 for the early hours of 6 May 2016.
11. [11]
    The complainant’s former partner gave preliminary complaint evidence of being telephoned early one morning by the complainant who was screaming and crying and told him that “she was raped by these African guys”.
12. [12]
    Senior Constable Drake had also been sent to the telephone box in response to the complainant’s 000 call.  He activated his body worn camera when he spoke to the complainant and the video of those conversations (exhibit 6) which was also preliminary complaint evidence was played to the jury.
13. [13]
    The complainant told Officer Drake that she had been raped by two African men who picked her up at the nightclub.  She did not know where they took her.  They just dropped her off at the telephone box.  They raped her “there” where that park or something is.  They raped her in the car.  It was a silver car.  The taxi driver raped her.  She was trying to catch a taxi back home when the African men took her “another kind of way back here” and she did not know this place.  She was raped by the two African men.  When she left the club, they dropped her off “here”.  They drove her down the road and then dropped her off “here” and she ran to the phone booth.  In response to a question where she was sexually assaulted, she said “some sort of drain” and they dragged her out of the taxi.
14. [14]
    Detective MacRae activated her digital voice recorder when she arrived with Detective McGrath at the telephone box.  The complainant was visibly distressed and crying and her appearance was dishevelled.  The recording (exhibit 7) also recorded Detective McGrath’s conversation with the complainant at that time and was played for the jury.  It was also preliminary complaint evidence.
15. [15]
    In that interview, the complainant said the following.  She was raped.  The vehicle was grey and they dragged her out of the taxi.  When she jumped into the taxi, another young man jumped in and they just took off.  They ripped her off, taking her ID and money.  They raped her at some sort of drain.  She ran up to the phone booth and called the police.  The driver was “one big African” and there was “a bony one”.  The complainant was sitting behind the passenger seat and they “dragged me out, bend me over, they was raping me”.  The skinny one was in the taxi when the complainant got in the taxi.  The skinny one was “all bony” and was also African.  It was the skinny African who pulled the complainant by the hair out of the car and the taxi driver pulled his shorts down and raped her from behind while the bony one was holding her down.  She had got into the taxi at 1 am.  When the complainant jumped into the taxi, she gave the taxi driver $20 and they raped her and took her $200 off her.  She did not give the taxi driver $200.  She was driven in the taxi from the drain area and dropped off near the phone box.
16. [16]
    The complainant who is an Aboriginal woman gave evidence at the trial which included the following.  She went to a nightclub in Cairns on the evening of 5 May 2016 with others.  She drank a dozen vodka cruisers.  They left the nightclub about 3.00 am and her friends got into a taxi, but there was no room for her, so she ended up catching another taxi.  She saw the taxi parked on the side and saw the other male person standing up waiting for a taxi.  She jumped in the taxi and gave the driver $20 in cash and her address.  The taxi driver was big and fat, had a big round face and bald head and wore a silver watch on his left hand and silver chain around his neck.  He was black.  The other man near the taxi was “a skinny, bony guy”.  He had dreadlocks and a golden chain and some silver thing on his left hand.  He was wearing a singlet and black jeans.  The taxi driver was wearing a taxi shirt and dark blue jeans. The other man’s dreadlocks were short and he had stud earrings on his left ear.  He also had something wrapped around his left arm.  The bony man was talking to the taxi driver in an African accent and the complainant could not understand them properly.  The bony man was black.  The taxi did not take her to the address she had given and drove to a dark alleyway and parked next to a tree.  Both the taxi driver and the bony guy jumped out.  The taxi driver told the complainant to get out.  She stood beside the metal fence and the taxi driver came over and grabbed both arms and picked her up and slammed her on the front bonnet.  He spread her legs apart.  He stripped her off leaving her with her bra on.  The bony guy was standing next to the taxi driver holding both her arms.  Her arms were on top of the bonnet above the windscreen and the bony guy was holding both hands.
17. [17]
    The taxi driver bent over her and the complainant felt his penis go in and out of her vagina.  She told him to stop but he kept on going.  She felt a bit of pain when he took his penis out.  When he finished, the bony guy put his penis in and out of her vagina and she felt pain.  While this was happening, the taxi driver was holding her hands as she was on the bonnet facing the car.  The bony guy then put his penis into her anus.  When he did that, the complainant told him to stop.  He ejaculated in her.  When he had finished, the men got dressed and they drove off and left the complainant on the ground with her bra on.  The complainant ran to the nearest phone booth and called her ex-partner and told him what happened.  He told her to report it to the police which she did.
18. [18]
    After the complainant had got into the taxi at the nightclub, she felt tired and fell asleep or had a blackout.  The taxi did not stop between the nightclub and the place where the men assaulted her.
19. [19]
    The complainant did not agree to those two men having sexual intercourse with her.
20. [20]
    The complainant’s evidence in cross-examination included the following.  When she was walking out of the nightclub, she felt she was staggering.  She was a little bit drunk.  She only had $20 in cash in dollar coins when she left the nightclub.  After looking at the statement that she made to the police on 16 May 2016, she confirmed that she told the taxi driver the address to which she wanted to go, gave him $20 and sat in the back of the passenger side of the taxi.  She had been drinking at a friend’s place before she went to the nightclub.  She probably had two Cruisers at that time.  At the nightclub she bought a six pack of Vodka Cruisers.  There was not an argument between the taxi driver and her about how much she owed for the fare.  It was the bony guy who grabbed her by the ear and pulled her out of the taxi.  After refreshing her memory from the May 2016 statement, the complainant remembered that she got out of the taxi and stood against a metal fence and heard the two men talking in African.  When she got out, the bony African was standing next to her and grabbed her.  When it was put to the complainant that she told the nurse at the hospital that she had sexual intercourse with the men on the back seat of the taxi, the complainant responded that did not happen.  It only happened on the front of the bonnet.  Neither man wore a condom.  She ran from where she was raped to the phone booth.  She was not driven by the taxi driver to the phone booth.
21. [21]
    It was put to the complainant that at some stage during the journey the taxi stopped outside of a house in Creedy Street and the bony man got out of the taxi, so that the complainant only drove to the drain area with the taxi driver.  The complainant disagreed with that proposition.  She remembered both the bony one and the fat one were there (when she was raped) and what they did to her.  She disagreed with the suggestion put to her that the bony man never had sexual intercourse with her on that occasion.  He ejaculated inside her because she felt it and when she got up, it was “all coming out anyway from both sides”.
22. [22]
    The forensic nurse examiner examined the complainant at the hospital commencing at 5.45 am on 6 May 2016.  The complainant was very upset and crying.  During the examination the complainant told her what had happened to her which was also preliminary complaint evidence, including that:

“She said that she’d been at a nightclub in Cairns. I can’t remember. I think the Heritage Nightclub. And she had gone out to get a taxi, and she flagged a taxi down, and she got in and gave the man some money and told him where she wanted to go. Woree somewhere. Sorry, I can’t tell you where. And another man got into the car. They – they went towards Woree, she thinks. They stopped somewhere near a drain. She didn’t know where. And both men attacked her, raped her, in the car and outside the car, and that’s really all I can tell you.”

23. [23]
    The forensic nurse examiner’s evidence continued as follows.  The complainant said they were African men and she said they raped her vaginally and “she thought anally” but the complainant did not really know.  The complainant was painful in an area on her forehead and the back of her head from the noises the complainant made when the nurse felt around her head.  She said that her hair had been pulled at the back of head.  She had areas of soreness on her right breast.  It was painful when the nurse touched the complainant across the shoulders and in the centre of her back.  The complainant was sore at the back of the top of her thighs under her buttocks where there was redness.  The nurse did a genital examination.  The only parts that were painful and a bit red were the inside of her thighs and there were no other injuries.  The nurse took swabs from her mouth, throat and vagina, including a high vaginal swab and vulval swab.
24. [24]
    The rectum was swabbed.  There was no bleeding or injuries seen there by the nurse.
25. [25]
    The complainant told the nurse that ejaculation occurred and did not know whether a condom or any lubricant had been used by either man.
26. [26]
    The forensic nurse examiner’s evidence in cross-examination included the following.  The notes she made of the examination of the complainant were made at the time of the examination.  She prepared a formal statement for the police the next morning.  The complainant said that she had intercourse on the back seat of the taxi with each of the Africans.  It was following the intercourse that the complainant said she was pulled by the hair from the taxi and she was taken to the front of the vehicle.  When the nurse asked the complainant during the examination about whether she had vaginal or anal intercourse, the complainant said she was on her stomach and she was not sure if it was anal or vaginal.  When the nurse asked the complainant later, she said it was vaginal and anal and that was why the nurse did a thorough examination of the complainant’s buttocks region.
27. [27]
    In re-examination the nurse, after referring to her notes, clarified that it was the nurse’s interpretation of what the complainant had said that she gave evidence that the complainant had sexual intercourse with the men on the back seat of the car and the complainant had said, “that the taxi stopped at a drain, pulled her by the hair and … then raped her” and the skinny one held her hands and the fat one raped her and then the fat one held her and the skinny one raped her.
28. [28]
    Forensic medical officer Dr Griffiths gave evidence to the effect that it would not be unusual that a victim of sexual assault would not bear any physical injuries to her genitalia and immediate surrounding areas caused during vaginal or anal intercourse.  Dr Griffiths in cross-examination agreed that the likelihood of physical injuries as a result of anal intercourse would increase if it was a rough or violent episode, there were multiple assailants or in the absence of a lubricant.  In re-examination, Dr Griffiths confirmed that the absence of trauma in the anal region did not exclude the possibility of penile penetration.
29. [29]
    Sergeant Lobegeier of the police scientific section in Cairns gave evidence of examination of the complainant’s bra, leggings and dress and collecting trace DNA tape lifts from areas on those items, including areas of staining observed or located on those items, and marking areas that tested positive to the possible presence of blood or semen.
30. [30]
    Ms Adamson, who is a scientist employed by Queensland Health Forensic and Scientific Services, gave general evidence about DNA and DNA analysis.  She was asked to explain the impact on the transfer of DNA when one person touches another person and the capacity to analyse the DNA.  Ms Adamson explained that it depended on how much DNA was transferred initially from that person to another and then it also depended on how much DNA was transferred onto the swab used to recover the DNA.  Environmental conditions also needed to be considered, such as heat and washing, as they could affect the amount of DNA that is transferred.  It also depended on the sampling efficiency.  In relation to DNA in the vagina, the length of the time that it remains after sexual intercourse is variable and depends on how much is actually there in the first place.  Drainage can affect the persistence of DNA within the vagina as well as other activities such as washing, urination and wiping and the biochemical conditions within the vagina.
31. [31]
    Ms Adamson gave evidence of the results from the DNA analysis undertaken in respect of the swabs in the sexual assault investigation kit relating to the complainant and the samples from the complainant’s clothes.  Her evidence included the following.  The high vaginal swab was stained red-brown and tested positive to the presumptive test for blood.  No semen was detected in the high vaginal swab but that did not mean there was no semen.  The vulval swab also had red-brown staining and tested positive to the presumptive test for blood.  Semen was not detected in the vulval swab which was submitted for DNA analysis.  The DNA profile obtained from that sample indicated the presence of DNA from a single contributor that matched the complainant’s DNA.  The rectal swab was stained dark brown and tested positive for the possible presence of blood.  Semen was not detected on the rectal swab.  A DNA profile was obtained indicating DNA from a single contributor that matched the DNA profile of the complainant.  There was a possible lower-level DNA profile which was below reporting thresholds.  The DNA profile obtained from the mouth swab indicated the presence of DNA from a single contributor that matched the DNA profile of the complainant.  A swab of the right breast was submitted for DNA analysis and DNA was not detected in the sample.
32. [32]
    In relation to one piece of black fabric measuring approximately 120mm x 140mm from the crotch area of the complainant’s leggings, a brown stain tested positive for the possible presence of blood and a sample taken from that area tested positive for the possible presence of seminal fluid.  Spermatozoa were not microscopically detected in the sample.  The sample was submitted for DNA analysis to undergo a differential lysis extraction process.  In terms of the spermatozoa fraction, a mixed DNA profile was obtained indicating the presence of DNA from three contributors.  It was estimated that the mixed DNA profile was greater than 100 billion times more likely to have occurred if Mr Johnson had contributed DNA, rather than if he had not, and Mr Lahai was excluded as a contributor of DNA to this mixed DNA profile.  In terms of the epithelial fraction, a mixed DNA profile was obtained, indicating the presence of DNA from two contributors.  It was assumed that the complainant was one contributor.  Based on statistical analysis, it was estimated that the mixed DNA profile was approximately two times more likely to have occurred if Mr Johnson had contributed DNA rather than if he had not and Mr Lahai could be excluded as a contributor of DNA to this mixed DNA profile.  Ms Adamson explained that two times more likely was “very close to the one, which is the pivot of that seesaw” between contribution and non-contribution of DNA.  (In other words, the result of two times more likely was not compelling at all compared to the result of 100 billion times more likely.)
33. [33]
    A piece of fabric from the rear centre of the complainant’s dress was allocated a side A and a side B.  A marked area on side A measured approximately 135mm x 190mm.  Spermatozoa were microscopically detected in a sample prepared from the marked area and the sample was submitted for DNA analysis to undergo a differential lysis procedure.  A mixed DNA profile was obtained indicating the presence of DNA from two contributors.  It was estimated that the mixed DNA profile obtained was greater than 100 billion times more likely to have occurred if Mr Johnson had contributed DNA, rather than if he had not, and Mr Lahai and the complainant could be excluded as contributors of DNA to this mixed DNA profile.  The mixed DNA profile also indicated the presence of possible low-level DNA which was below the reporting thresholds.  No meaningful interpretation could be obtained about the epithelial fraction from side A.  The marked area of side B measured approximately 40mm x 110mm.  Spermatozoa were microscopically detected in the sample.  The sample was submitted for DNA analysis to undergo the differential lysis extraction process.  In terms of the spermatozoa fraction, DNA was not detected, so no further testing was conducted.  In respect of the epithelial fraction, the mixed DNA profile was complex due to the low-level and uncertainty of the number of contributors and it was unsuitable for meaningful interpretation.
34. [34]
    The next sample from the dress was from the rear wearer’s right side and was allocated side A and side B.  There was a marked area on side A that measured approximately 70mm x 150mm.  Side A was divided into two sections.  Section 1 tested negative for the presence of seminal fluid.  Spermatozoa were microscopically detected in this sample and the sample underwent a differential lysis extraction process.  DNA was not detected in the spermatozoa fraction and there was no further testing.  In respect of the epithelial fraction, the fraction was complex and, due to the uncertainty of the number of contributors, was not suitable for any meaningful interpretation.  Section 2 of side A tested negative for the presence of seminal fluid.  Spermatozoa were microscopically detected in that sample and that sample went through a differential lysis extraction process.  In terms of the spermatozoa fraction, this was a complex DNA profile and, due to the uncertainty of the number of contributors, it was not suitable for meaningful interpretation.  It was the same outcome for the epithelial fraction.  There was no visible staining on side B and it was not analysed further.
35. [35]
    The next sample of fabric was from the front right area of the dress.  It measured approximately 145mm x 155mm and was allocated side A and side B.  On side A was a marked area approximately 70mm x 60mm which tested negative for the presence of seminal fluid.  Spermatozoa were microscopically detected in this sample and it was submitted for DNA analysis to undergo differential lysis extraction.  The spermatozoa fraction was a complex mixed DNA profile, including uncertainty as to the number of contributors and was not suitable for meaningful interpretation.  In terms of the epithelial fraction, a mixed DNA profile was obtained indicating the presence of DNA from three contributors.  The presence of DNA from the complainant was assumed.  The reference DNA profiles of Mr Johnson and Mr Lahai were compared separately to assess whether or not either of them had contributed DNA along with the complainant.  It was estimated that the mixed DNA profile obtained was greater than 100 billion times more likely to have occurred if Mr Johnson had contributed DNA, rather than if he had not, and Mr Lahai could be excluded as a contributor of DNA to this mixed DNA profile.  There was no visible staining observed on side B and that side was not analysed further.
36. [36]
    The tape lift from the complainant’s black bra revealed a complex mixed DNA profile, including uncertainty as to the number of contributors, and was not suitable for meaningful interpretation.
37. [37]
    On the date of the incident taxi number 99 was managed by a company that managed and ran taxis for investors.  The owner of that company gave evidence that the depot for the taxis was Svendsen Street in Bungalow.  That was the address at which the drivers of the taxis started and ended their shifts and they would park their private cars at the back of the depot.  The owner of the management company confirmed that Mr Johnson was the driver of taxi number 99 on 6 May 2016 between 3.00 am and 3.30 am.
38. [38]
    The fleet service manager of Cairns Taxis gave evidence about the data management collected from the two systems that were in use in taxis on 6 May 2016.  The documents produced from the data system that was exhibit 13 showed that the driver was hailed at 3.06 am at the rank at Gilligan’s nightclub and the job was completed at 3.12 am.  The destination was shown as 173 Scott Street, Bungalow which was near the taxi depot.  The manager also produced screen shots created from the tracking data in taxi number 99 on 6 May 2016 for the subject journey that in summary showed that from the Gilligan’s rank, the taxi did a U-turn back onto Grafton Street, turned into Spence Street and travelled the length of Spence Street before turning off into Lyons Street.  From the street map provided to the jury with places of interest highlighted (exhibit 5), Lyons Street was not far from the Bungalow depot.  The manager was unable to provide police with a copy of the CCTV footage for inside the taxi for 6 May 2016 as the camera system is overwritten automatically after 72 hours.
39. [39]
    Detective McGrath interviewed Mr Lahai on 2 May 2019 which was almost three years after the incident.  He identified taxi drivers in the African community whom he knew, including Mr Johnson.  He knew Mr Johnson as a friend from school.  Sometimes Mr Lahai would get a taxi from Gilligan’s.  In response to whether he had ever caught a taxi with any of the taxi drivers he had named, Mr Lahai’s response was to the effect he had not caught a taxi with any of them.  He answered in the negative when he was asked specifically about whether he had caught a taxi with Mr Johnson.  He was shown the photograph that became exhibit 2 and identified himself wearing a blue singlet and gold chain and that it was outside Gilligan’s.  He could not remember about that night.  It sounded from the complainant’s description of the taxi driver that she was describing Mr Johnson.  Mr Lahai jumped in the taxi and Mr Johnson dropped him off “and that was it”.  He jumped in the front of the taxi and the woman jumped in the back seat.  He had remembered he was wrong when he said that he had never been in a taxi with Mr Johnson.  He had previously been in Mr Johnson’s silver Mitsubishi Lancer.  Mr Johnson dropped Mr Lahai off at his home in Creedy Street, Westcourt.  The route taken by the taxi to Creedy Street was onto Grafton Street, left onto Mulgrave Road and then right into Creedy Street.  Mr Lahai was “pretty drunk”.  When he got out of the taxi at Creedy Street, the woman was still in the taxi and then Mr Johnson drove her off.  Mr Lahai had been kicked out of the Woolshed and had been refused entry to Gilligan’s because he was too drunk.  He went outside to smoke, Mr Johnson was there and he jumped into the taxi and asked Mr Johnson to take him home.  Mr Lahai did not remember changing from the taxi to Mr Johnson’s private car.  He was not in Mr Johnson’s private car.  When Mr Johnson dropped him off, Mr Lahai went straight to bed.  Mr Lahai had never been to the taxi depot.
40. [40]
    Mr Lahai did not give or call evidence at the trial.

Significant forensic disadvantage

41. [41]
    Mr Lahai’s counsel applied during the trial for a direction pursuant s 132BA of the Act due to the delay of three years before the police first spoke to him and the significant forensic disadvantage suffered by him as a consequence of that delay.  Mr Lahai claimed that he lost the ability to explore the circumstances of the alleged offending, including obtaining the CCTV footage from inside the taxi, and he lost the opportunity of having his own clothing forensically examined and investigating whether any witnesses were able to support his version that he was dropped off at his home address prior to the offending against the complainant.
42. [42]
    The primary judge was not satisfied that Mr Lahai had suffered a significant forensic disadvantage because of the effects of delay in prosecuting the offences and, even if there were some disadvantage, the primary judge concluded it was not significant forensic disadvantage such as to warrant a direction under s 132BA of the Act.
43. [43]
    On this appeal, Mr Lahai relies neither on the loss of the CCTV footage, because it was automatically overwritten by the taxi company within 72 hours, nor the loss of opportunity to source possible witnesses that could have corroborated his return to his home before the complainant was raped by Mr Johnson, as Mr Lahai concedes that no evidence was adduced before the primary judge on the application under s 132BA to show his living arrangement at the time and that there were such witnesses who would have been available to pursue if timely notice of the complaint had been  given to Mr Lahai.  Mr Lahai submits that the primary judge erred in the ruling, as the loss of opportunity to have his own clothes forensically examined amounted to a significant forensic disadvantage within the meaning of s 132BA(2) of the Act.
44. [44]
    As explained in R v BDJ [2022] QCA 108 at [28]-[32], s 132BA of the Act provides for the limited circumstances when a direction about the effects or consequences of delay in relation to the reporting of an offence or the prosecution of the offence may be given.  Both s 132BA and the similar provision found in s 165B of the Evidence Act 1995 (NSW) apply only where the effect or consequence of the delay is a significant forensic disadvantage to the defendant and not merely a forensic disadvantage.
45. [45]
    It is a fact of life that clothes worn by any person can be expected to be washed at some time after they have been worn.  It is reasonable to assume that Mr Lahai’s clothes which he wore home on 6 May 2016 after an evening out would have been laundered in the normal course.  Mr Lahai was never going to be identified as a possible offender immediately the complainant made her complaint, as inquiries had to be undertaken to ascertain the taxi involved in the incident and to access the CCTV footage from outside Gilligan’s nightclub that linked Mr Lahai to the subject taxi.  Even if the police investigation had proceeded more quickly, it is most unlikely that it would have ever resulted in the clothes that Mr Lahai wore home from the nightclub on 6 May 2016 being available for forensic examination.  There was therefore no forensic disadvantage (significant or otherwise) suffered by Mr Lahai in not being able to have his clothes forensically examined because of the delay in his being informed of the complainant’s allegations, as the clothes would have been laundered and would not have been available in the ordinary course for forensic examination.  The position in relation to the clothes is equivalent to the position in respect of the CCTV footage inside the taxi.
46. [46]
    There was no error in the trial judge’s refusal to give a direction pursuant to s 132BA of the Act.

Unreasonable verdict

47. [47]
    The role of the Court in determining the ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence was settled in M v The Queen (1994) 181 CLR 487, 494-495.  It was stated succinctly again in Pell v The Queen (2020) 268 CLR 123 at [39]:

“The function of the court of criminal 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 doubt as to proof of guilt.” (footnote omitted)

48. [48]
    The prosecution case at trial was as follows.  The complainant got into the taxi being driven by Mr Johnson and Mr Lahai was the other man in that taxi.  Even though the complainant could not recall being taken to the taxi depot, the taxi was driven from Gilligan’s nightclub to the taxi depot where Mr Johnson and Mr Lahai transferred the complainant to Mr Johnson’s silver car which he drove to the area where there was the drain and where the complainant was raped by both men on the bonnet of the car.  The defence case at trial was that Mr Lahai was in the taxi driven by Mr Johnson when it left Gilligan’s nightclub but he was driven home by Mr Johnson before the complainant was raped and was not present at the drain area where that occurred.
49. [49]
    There were inconsistencies in, and discrepancies between, the complainant’s evidence given at the trial and aspects of the preliminary complaint evidence that was also adduced at the trial.  The jury were directed on Aboriginal English which was relevant to their assessment of the complainant’s evidence.  The complainant’s evidence of falling asleep or blacking out in the taxi explained why she was unaware that the taxi stopped at the taxi depot and she was transferred to Mr Johnson’s silver car and believed that she was still in the taxi at the drain area.  Analysis of the preliminary complaint evidence shows that the discrepancies were largely in relation to peripheral details and that the complainant’s evidence of being raped by two African men about whom she gave distinct descriptions of the “fat” taxi driver and the “bony” man that accorded respectively with Mr Johnson and Mr Lahai and the role each played in assisting the other to rape her while she was bent over the bonnet of the car remained consistent.
50. [50]
    Some of the discrepancies were explained by the complainant’s intoxication and her distress after being raped and left by the two men with only her bra on.  This would include the suggestion in the preliminary complaint evidence that the taxi driver took $200 from her, when her evidence otherwise was that she did not have that amount of money when she got into the taxi.  It would also include the discrepancy within her preliminary complaint evidence at one point that she was driven by the two African men from the drain area to the phone booth when her evidence at the trial (consistent with other parts of the preliminary complaint evidence) was that she had been left at the drain area after being raped.  The manner in which the complainant said she was raped by being bent over the bonnet and being held face down by the other man meant that she was not necessarily in a position to see whether Mr Lahai wore a condom or not.  She was not questioned further about what she said in cross-examination after stating that neither man wore a condom.  It was apparent from her re-examination that she inferred that the bony man had ejaculated inside her because when she got up it was “all coming out anyway from both sides”.  She had felt Mr Lahai ejaculating inside her, but what she observed when she got up may have been as a result of the earlier rape by Mr Johnson, if Mr Lahai had worn a condom.  It had been  suggested in argument by the prosecutor at the trial that the jury may not be certain about that part of the complainant’s evidence as to whether Mr Lahai was wearing a condom which was an argument that was open on the state of the evidence on that aspect without undermining the complainant’s credibility and reliability as to the fact that she was raped by Mr Lahai by the penetration of his penis in her vagina and her anus.  The DNA evidence did not support the prosecution case against Mr Lahai but there was also evidence from Ms Adamson put before the jury, as to the possibilities why the DNA evidence may not implicate Mr Lahai, apart from the argument that he may have been wearing a condom.
51. [51]
    The lies told by Mr Lahai in his record of interview about the route the taxi took from Gilligan’s nightclub to his home in Creedy Street that was proved not to be the case by what the tracking data in the taxi revealed about the route it took and about his never having been to the taxi depot were capable of being used as lies told in consciousness of guilt of the offences  and therefore as pointing to his guilt.
52. [52]
    On an assessment of all the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant’s evidence that she was raped at the drain area by both Mr Johnson and Mr Lahai and of Mr Lahai’s guilt of counts 1, 4 and 5.  This is not a case where there is a significant possibility that an innocent person has been convicted.  Mr Lahai cannot succeed on his appeal against conviction on the unreasonable verdict ground.

Sentence

53. [53]
    The one ground relied on for the application for leave to appeal against sentence is that the sentence is manifestly excessive.  The sentence of nine years’ imprisonment for each count is not challenged.  It is the imposition of the serious violent offence declaration in respect of each of counts 4 and 5 that is basis for Mr Lahai’s submission that the sentence imposed on him is manifestly excessive.
54. [54]
    After referring to the relevant matters for the making of a serious violent offence declaration when a sentence of less than 10 years’ imprisonment was imposed set out in R v McDougall and Collas [2007] 2 Qd R 87, the trial judge explained the reasons for making the serious violent offence declaration in respect of the sentences imposed for each of counts 4 and 5:

“It does seem to me that the offending does require a greater protection of the public from you, and does require a long period in custody for these reasons. You and your co-offender targeted a vulnerable complainant, intoxicated, who relied upon a taxi driver, your co‑offender, to take her home safely. Instead, with your intervention, and to the extent to which you did so is unclear, she wasn’t taken home. She was taken to a taxi depot, transferred to the driver’s private car with you, and then taken to a location without her consent, in an unknown place, where she was raped. She was overborn, and despite yelling to stop. Even at the time when your co-offender was offending against her when there was time for you to consider your position, you nevertheless pressed forward and executed your own purpose with determination and similar force.

You used physical violence, together with your co-offender, for that purpose. She was effectively abducted with the change of cars at a time when she was in a state of falling asleep from time to time, despite being in a taxi where she specifically asked to be taken home. There were two men against one complainant at night in an isolated area where she was even more vulnerable. The offending against her was degrading physical, sexual violence. It was gratuitous. It was excessive, in my view, albeit without a weapon. But you both were a formidable force against her. It was opportunistic. It became more sinister with the change of cars at the depot, and the degree of collusion and planning, while unclear, does seem to show some process at that stage. She had paid a fare but it was one which was not met in return.

There was a demand that she get out of the car. It was likely in that process that her hair was grabbed by your co-accused. He ripped off her clothes. She was further grabbed, forced on to the bonnet, and there held with force so as to effect the rape of your co-offender. You held her while she was raped while restrained in that way, roughly and painfully, and then, again, without taking any heed for her distress, you then took your turn, raping her vaginally and anally while your co-offender overbore her with the force of holding her down. She was then left stranded on the side of the road, with only her bra on, no money. You inflicted, both of you, protracted sexual violence in separate and multiple penetrations to her vagina and anus, and took turns holding her down. The attack was unprotected, giving rise to a risk of disease.

There was a disregard for her calling out and yelling and resistance in that way while inflicting force against her. And then she was abandoned, undressed, even more vulnerable with only her bra. Although she did not suffer significant physical injuries, and you were not the main perpetrator at the start, you became so in your own offending. And even though you didn’t use a weapon the force of two men against a vulnerable woman of her age and size and state was enough. There were no grave threats against her, but, she was physically overborn, and the occasion was protracted. I do accept that you do not have a light criminal history but I’ve also taken in your age and your maturity. You are relatively young. You were very young at the time of the offending.

When I weigh up all of those considerations it does seem to me, and it is appropriate I do declare that the offending in counts 4 and 5 are serious violent offences.”

55. [55]
    The focus of the submissions made on behalf of Mr Lahai in relation to the sentence was the serious violent offence declarations but the issue of whether the sentence was manifestly excessive must be determined by considering the whole sentence.
56. [56]
    The sentence was imposed after trial.  Even though counts 1 and 3 were discontinued during the trial, they were counts in which Mr Johnson was alleged to be the rapist and Mr Lahai had been charged with those offences on the basis that he aided Mr Johnson.  Counts 4 and 5 were the most serious charges against Mr Lahai.  The benefit obtained by Mr Lahai from proceeding to trial because of the discontinuance of counts 1 and 3 loses some of its significance viewed in that context.
57. [57]
    The prosecution at the sentencing had relied on comparable decisions, including R v FAI [2016] QCA 150, R v Basic [2000] QCA 155 and R v Kahu [2006] QCA 413.  The respondent on the hearing of this application relied on the same decisions.
58. [58]
    Mr Lahai was 21 years old at the date of the offending.  He had two prior entries in his criminal history for which no convictions were recorded.  The most serious of the prior convictions was for an assault occasioning bodily harm committed on 29 June 2014 when he was drunk and was walking out of premises and reacted to being touched on the arm by a security guard.  A probation order was made for 12 months and he was ordered to pay compensation of $500.  Mr Johnson was older at 26 years and was the taxi driver entrusted by the complainant to drive her home for a fare of no more than $20.  The complainant was intoxicated and therefore vulnerable, particularly as she was asleep or blacking out in the taxi with the two men soon after it left the nightclub.  As the trial judge observed, there was some planning to commit the offence of rape, because the complainant was transferred from the taxi to Mr Johnson’s car.  It was reasonable to infer from the fact that the complainant must not have been awake at the time that Mr Lahai participated in the transfer.  The offences committed by Mr Lahai in the company of Mr Johnson against the complainant were therefore egregious in the circumstances.
59. [59]
    The observations made in McDougall and Collas at [19]-[21] were applied in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [49] to hold that the exercise of the discretion whether to make a serious violent offence declaration involved “considering more broadly whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment required a longer period in actual custody before eligibility for parole than would otherwise be required”.  The above extract from the trial judge’s sentencing remarks shows that this was the approach that was undertaken in this case.  It cannot be said that the overall sentence of nine years’ imprisonment for each count with a serious violent offence declaration in respect of each of counts 4 and 5 is “unreasonable or plainly unjust” for the offences and in all the circumstances applicable to Mr Lahai.

Orders

60. [60]
    The orders which should be made are:

1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.

61. [61]
    MORRISON JA:  I have read the reasons of the President.  I agree with those reasons and the orders her Honour proposes.
62. [62]
    NORTH J:  I agree with the reasons of Mullins P and with the orders proposed by her Honour.