Court of Appeal (WA)|2011-07-07|Before: Pullin JA

GRUBISIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 147 (7 July 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GRUBISIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 147

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual offence - Digital penetration - Evidence of the complainant's demeanour after the alleged offence - Police officer gave evidence that the complainant showed signs of 'real, genuine' distress - Whether police officer's evidence was inadmissible opinion - No objection at trial - Whether substantial miscarriage of justice - Directions on distress - Complainant's credibility

Criminal law - Appeal against sentence - Sexual offence - Digital penetration - Whether sentence manifestly excessive - Turns on own facts

Leave to appeal on ground 1 of the appeal against conviction granted

Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

C v The State of Western Australia [2006] WASCA 261

Cavill v The State of Western Australia [2008] WASCA 108

Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23

Cornell v Green 1823 WL 2195 (Pa), 10 Serg & Rawl 14

Coulter v The Queen (Unreported, WASCA, Library No 960507, 4 September 1996)

Deering v The State of Western Australia [2007] WASCA 212

Eades v The Queen [2001] WASCA 329

Miles v The State of Western Australia [2010] WASCA 93

Mountain v The State of Western Australia [2009] WASCA 161

Powell v The Queen (Unreported, WASCA, Library No 8928, 21 June 1991)

Prazmo v The State of Western Australia [2009] WASCA 25

R v Carter; Ex parte Gray [1991] Tas R 174

R v Ireland (No 2) [1971] SASR 6

R v McDougall [1983] 1 Qd R 89

R v Von Einem (1985) 38 SASR 207

Sherrard v Jacob [1965] NI 151

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

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

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

Vo v The State of Western Australia [2010] WASCA 24

Zeiler v The State of Western Australia [2010] WASCA 227

2 BUSS JA: On 20 April 2010, the appellant was convicted, after a trial in the District Court before Staude DCJ and a jury, on one count in an indictment which alleged, relevantly, that on 20 January 2009 the appellant sexually penetrated the complainant, without her consent, by inserting his finger into her vagina, contrary to s 325 of the Criminal Code (WA).

3 The appellant was sentenced to 3 years' immediate imprisonment. A parole eligibility order was made.

4 He appeals to this court against his conviction and sentence.

5 The background facts and circumstances are set out in the reasons of Hall J, with whom Pullin JA has expressed his agreement. I will not repeat them except to the extent necessary to explain my reasons.

(a) On 20 January 2009, the complainant went to a country hotel with her female friend, R. They had a couple of drinks. At the hotel, R saw two men she knew, being the appellant and his friend, L. The appellant and L were drinking and placing bets. Occasionally, they spoke with R.

(b) After some time, the complainant and R decided to return to the home of the complainant's uncle, with whom the complainant was staying. The appellant and L asked R if she would drive them to their camp near the country town. R agreed.

(c) The complainant, R, the appellant and L went to the home of the complainant's uncle. The appellant brought a carton of beer which he had purchased at the hotel.

(d) The appellant, L and R stayed for some time at the home of the complainant's uncle. They had a few drinks. At some point, the complainant went to her bedroom.

(e) At about 8.30 pm, the uncle asked the appellant, L and R to leave. Before they left, the appellant went to the complainant's bedroom

and closed the blinds. He then forced her down, kissed her on the neck and shoved his hand or finger into her vagina.

(f) The appellant heard the uncle walking along the hallway towards the complainant's bedroom. He jumped from the bed and said, 'Don't believe what these young girls say', before leaving the home with L and R.

(g) After the appellant left, the complainant came from her bedroom. She was sobbing and inconsolable.

(h) The police were called and the complainant was taken to a hospital for examination. A scratch was found at the opening of her vagina.

(i) The appellant participated in a video-recorded interview with police. He admitted having gone into the complainant's bedroom on the evening in question. He also admitted that when he left she was crying.

7 The appellant's case at trial was that the report of the sexual assault was false (ts 79). He had not shoved his hand or finger into the complainant's vagina.

8 Defence counsel told the jury in his opening address:

HALL MR: Members of the jury, false reports of rape, or sexual penetration as it's now called, have been made since time immemorial. They continue to be made. They are made every year to the Commissioner of Police. This is another example of them. Such a complaint is very easy to make and very hard to refute ... it's very easy for a woman to pretend, to carry on, to do all sorts of things, and just bear that in mind when you hear the evidence relating to this alleged complaint (ts 79).

9 The appellant said in the video-recorded interview that he had gone to the complainant's bedroom to say 'hello' (ts 20, 24). She gave him a hug. The complainant asked him to lie down, which he did. She asked him for drugs.

10 The appellant gave sworn evidence at the trial. He said that he had gone to the complainant's bedroom and had sat on her bed. The uncle had entered the bedroom and asked him what he was doing there. The appellant said that 'within about 10 to 20 seconds she's just started crying. And I was pretty shocked [because she] was upset and I wanted to know why is she crying' (ts 151).

11 The appellant agreed at the trial that he had told police in the video-recorded interview that he had said to the complainant, 'Bitch, don't cry wolf' (ts 154). He said he had spoken in this manner because he had assumed that, after the complainant had started to cry, she was going to accuse him of something (ts 157).

The complainant's evidence about her distress

12 The complainant said in her evidence-in-chief that when she was talking to her uncle's partner, P, shortly after the commission of the alleged offence, she was 'in hysterics' and 'crying' (ts 32). She added that she could not 'really explain to [P] the full detail of what had happened because [she] was really shaken up' (ts 32).

13 The following exchange occurred during the complainant's cross-examination:

It was when your uncle came into the room that you started to cry

No.

You weren't crying until - - - ?---He got - - -

Sorry?---He got off me, left the room, and my uncle was walking down. They met somewhere in between the hallway and then I started to cry.

So you say [the appellant] left the room before your uncle got to the room?---Yes (ts 37).

14 The only cross-examination of the complainant about the appellant's contention that she had fabricated the alleged sexual assault and that her distress was feigned, was this:

And it wasn't till your uncle came in that you started crying?---Yeah. I said that I started crying - - -

But I'm saying - - - ?--- - - - once he had left the room.

I'm saying when your uncle came in. You say he didn't come in, is that right?---He didn't come in. Because he got off me - - -

Yes?--- - - - and went into the hallway when my uncle was coming down and then I started to cry.

Okay. So you agree - or you say that your uncle did not come in the room?---My uncle did not come in the room.

Yes. Okay. And [the appellant] started shouting at you when your uncle - well, you - you deny that he came into the room. But I'm putting to you that - your uncle did come into the room and [the appellant] started shouting at you?---No.

That you were putting it on?---No.

You sure?---Yes (ts 43 - 44). (emphasis added)

Sergeant Sears' evidence about the complainant's distress

15 Sergeant Michael Sears gave evidence at the trial. He said that he had been a police officer for 23 years (ts 121).

16 On the evening in question, he attended at the uncle's home and spoke to the complainant.

17 Sergeant Sears gave this evidence about the complainant's demeanour in the course of his evidence-in-chief:

Now, you don't have to worry about telling me what she said to you, but can you describe to me her demeanour when you arrived at that house---She seemed genuinely upset. She was crying, distraught, really showing signs of distress, real, genuine distress (ts 122). (emphasis added)

18 Defence counsel did not object to Sergeant Sears' answer, and did not cross-examine him.

Evidence of other witnesses about the complainant's distress

19 At the trial, the complainant's uncle and his partner, P, were called by the State.

20 The uncle, in his evidence-in-chief, gave evidence about the complainant's condition, after the appellant, L and R left his home, as follows:

What happened after they left---After they left, [the complainant] came out of the bedroom and she was very distraught.

Where were you when [the complainant] came out of the bedroom---I was in the dining room.

In the dining room and where was [P]---[P] was on the table, at the dining room as well.

[P] was in the dining room as well, was she? Okay. And what happened---That's when [the complainant] burst into tears and - and explained what had happened.

...

Okay. How was she acting when she was telling [P] what happened---She was crying. She was shaking and she was very shaken.

...

Did the police come that night---Yes, they did.

And how was [the complainant] in between when you called them and when the police arrived---Very upset.

Yes. And how was [the complainant] when the police were there---Still upset. Very upset.

How long did it take for her to calm down---Quite a while. She wasn't - she didn't calm down till the next day. Even the next day she was still upset (ts 93).

21 Defence counsel cross-examined the uncle briefly, but not in relation to his evidence as to the complainant's distress (ts 96- 97).

22 In her evidence-in-chief, P gave this evidence about the complainant's condition after the appellant, L and R had left the house:

What happened while you were outside having a cigarette---[The complainant] came out.

She came outside to you, did she? And what was she like when she came outside---Hysterical, crying, in shock, shaking.

...

And how was she when she was talking - well, telling this to you---Shaky, crying, still hysterical. I mean I was going over and over it with her (ts 108).

23 Defence counsel asked P six questions in cross-examination, but none of them related to her evidence about the complainant's distress (ts 110).

24 The complainant's uncle and P gave evidence before Sergeant Sears.

25 The prosecutor relied on Sergeant Sears' evidence in her closing address. She characterised his evidence about the complainant's distress as evidence to the effect that the complainant's distress was 'real' and 'genuine'; that is, the distress was not feigned or fraudulent. The prosecutor told the jury, relevantly:

The experienced Sergeant Sears told you that she seemed genuinely upset, she was crying. Distraught, really showing signs of distress. Real, genuine distress. Does that sound to you like somebody making a false complaint? Does that sound to you like she's pretending to carry on? ... I suggest to you that if a young lady is sexually assaulted by a stranger against her will and is hysterical and crying after the assault, then the logical inference for you to draw is that ... that distress resulted directly from that incident and is evidence of that. That she is reacting to what just happened to her. What this evidence suggests is that she was distressed because she'd just been assaulted out of the blue by [the appellant] and was confused and was terrified. That's what she told you and that's certainly what her actions are consistent with. There is no other reason consistent with the evidence that she would have to cry, be shaken and be genuinely distraught except that she had been sexually penetrated by this man. The evidence of [the complainant's] genuine distress is entirely consistent with distress following a traumatic episode. What her distress is not consistent with, I suggest to you, is fake tears produced for the purpose of getting someone else in trouble. That remains a matter for you alone. But while I'm on this topic, my learned friend said to you in his opening that false reports of rape had been made since time immemorial. That it is very easy for a woman to pretend to carry on. It is very easy for a woman to pretend to carry on. Really? Let's just look at how easy it's been. She's come outside shaken, distraught, inconsolable. A police sergeant of 23 years' experience said that she was crying, distraught, really showing signs of distress - real, genuine distress (ts 198). (emphasis added)

26 Defence counsel submitted to the jury in his closing address that 'the whole thing's made up' (ts 206). He then elaborated:

And the whole thing's made up because [the] uncle has come in and a situation which he assumes something's gone wrong, and she's reacted. For one reason or other, she's gone berserk; as simple as that. She was hysterical. Everyone says she's hysterical. She wouldn't go back into the bedroom that night. She was hysterical the next day. She was in tears on the video. She's in Melbourne, in her room, in front of a camera, with a support person in front of her. And she cried all the time. Some women, some men can turn the waterworks on out of a moment's notice. And I suggest to you that she's one of them. She had nothing to be frightened of or scared of or anything. It's 12 months after the event, yet she was in tears all the time ... We don't have to prove anything. You've got to be satisfied. And you can't convict somebody, surely, on a half-centimetre abrasion. Not the scratches my friend [would] call it, but an abrasion. And there are explanations for that. The good doctor couldn't rule out any of the propositions I'd put to her. Could have been self inflicted. If [the complainant's] up to making this up, she's quite up to sticking her finger in her vagina if she wanted to. Or she could have been just doing it accidentally, at any time. And it could have been done during the medical examination. We're 10 o'clock at night, we're in a country hospital with a local GP under a lot of pressure, hysterical client. It doesn't take much to injure that sort of situation. And it could have been done inadvertently during the examination, and then noted by the doctor afterwards. You can't really convict a bloke on a half-centimetre abrasion (ts 206 - 207). (emphasis added)

27 The trial judge gave orthodox directions in his summing up about the role of the jury and the standard and burden of proof.

28 His Honour told the jury that they were the judge of the facts of the case (ts 164). What he said and what counsel said about the facts was 'simply comment' (ts 167). The comment was intended to assist the jury in their deliberations, but it did not bind them and it was not evidence (ts 167). The jury were the judge of the facts, and they were bound to decide the facts on the evidence they had heard at the trial (ts 167).

29 The trial judge emphasised that the jury had to be satisfied beyond reasonable doubt of the truth of the complainant's evidence before they could convict the appellant (ts 164). If the jury accepted the appellant's evidence or were unsure whether to accept his evidence, they should acquit (ts 164). And even if the jury did not accept any of his evidence, they must nevertheless be satisfied beyond reasonable doubt as to guilt, independently of his evidence, before they could convict (ts 164 - 165).

30 His Honour referred to the evidence of the complaint made by the complainant, as follows:

Now, the State case has been outlined to you by [the prosecutor] in opening and closing address. It is that you should accept what [the complainant] says about what happened in her room at her uncle's house ... on 20 January last year. Not only because it is believable, having regard to the way in which she gave evidence, but also because it is consistent with other matters which have been evidenced.

And those matter of consistency have been outlined to you. They are the complaint that was made to [P], her uncle's partner, and her uncle, and to the police and to the doctors. Now, obviously, the making of the complaint is not evidence of the matters complained of. It is simply evidence which is consistent, which may be accepted if you see fit, with the matters of which [she] has given evidence. So the mere fact that she complains to someone that something has happened is not evidence that that has happened. You can only use the evidence of complaint by [the complainant] in order to test the consistency of her evidence. And in this case, as you've heard, the complaint was made very soon after the matters complained of (ts 165 - 166). (emphasis added)

31 The trial judge mentioned the appellant's defence:

So the case for [the appellant] is that the events complained of, that is, the penetration of [the complainant's] vagina by him did not occur and that her complaint is completely false. That she, as it were, invited him into her room and that she hugged him and she invited him to lie down with her and at a point following that ... [the complainant's] uncle, interrupted and it was only after that point that, according to [the appellant], [the complainant] started crying and showing signs of distress. But up until that point, nothing untoward had happened between them. That is evidence, of course, which you must consider. The defence has pointed to a number of features of the case which it submits ought to put your mind in doubt as to whether [the complainant's] evidence should be accepted. It's submitted to you on behalf of [the appellant] that the medical evidence of the abrasion is equivocal, that the abrasion could have been otherwise caused. Again, that is a matter of fact (ts 169).

32 The trial judge made this brief reference to the evidence about the complainant's distress:

There's been evidence led about [the complainant's] distress and it's been commented upon by [the prosecutor]. It's put to you that such distress could have been affected, that is, put on, and that is a matter which you must consider, having regard to all of the evidence that you have heard (ts 170).

33 Neither the prosecutor nor defence counsel sought any redirection or additional direction from his Honour (ts 172).

Appeal against conviction: grounds of appeal

34 Originally, the appellant relied on four grounds in his appeal against conviction. However, at the hearing of the appeal his counsel (who was not defence counsel at the trial) abandoned grounds 3 and 4.

35 Ground 1 alleges that the trial judge erred in law in permitting Sergeant Sears to give opinion evidence as to the complainant's distress, namely, that her distress appeared to be 'real' and 'genuine'.

36 Ground 2 alleges that his Honour erred in law by instructing the jury that the complainant's distressed state was a matter which they could take into account in assessing her credibility, without warning the jury that they could use evidence of her distressed state to bolster her credit only if they were satisfied that all other explanations for it were excluded.

37 On 6 September 2010, Mazza J granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

Appeal against conviction: ground 1: the appellant's submissions

38 Counsel for the appellant submitted that Sergeant Sears' evidence to the effect that the complainant's distress appeared to be 'real' and 'genuine' implied that in his opinion her distress was attributable to the alleged sexual assault. This opinion, it was submitted, was inadmissible and prejudicial to the appellant.

39 According to counsel for the appellant, the prejudice to the appellant was compounded by the prosecutor in her closing address. She referred to Sergeant Sears as being 'experienced'. Counsel for the appellant submitted that the prosecutor had sought to convey to the jury that the witness had 'some special ability' in discerning 'whether a complainant's distress was genuine or not'.

40 In these circumstances, it was asserted on the appellant's behalf that the trial judge erred in failing to direct the jury to disregard Sergeant Sears' expression of opinion. According to counsel for the appellant, the jury may well have relied on his opinion in assessing whether or not the complainant was 'a genuine victim of sexual assault'.

Appeal against conviction: ground 1: relevant legal principles

41 In Cornell v Green 1823 WL 2195 (Pa), 10 Serg & Rawl 14, Gibson J said in relation to whether a non-expert witness may give evidence as to an opinion or impression:

It is a good general rule that a witness is not to give his impressions, but to state the facts from which he received them, and thus leave the jury to draw their own conclusions; and wherever the facts can be stated, it is not to be departed from. But every man must judge of external objects according to the impressions they make on his senses; and after all, when we come to speak of the most simple fact which we have witnessed, we are necessarily guided by our impressions. There are cases where a single impression is made by induction from a number of others, as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and a variety of other matters; yet a witness speaking of such a subject of inquiry would be permitted directly to say whether the man was angry or not ... I take it that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separately and distinctly narrated, his impressions from these facts become evidence (16). (original emphasis)

These observations have been cited with approval in Wigmore on Evidence (Chadbourne rev 1978), vol 7 s 1918; R v Von Einem (1985) 38 SASR 207, 210 (King CJ, Jacobs & Olsson JJ agreeing); R v Carter; Ex parte Gray [1991] Tas R 174, 175 - 176 (Cox, Underwood & Slicer JJ).

42 In Von Einem, King CJ said that, on the principle stated in Cornell, namely, that when the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated, witnesses are commonly permitted to give their impressions of 'a person's temperament or personality, whether relations between two persons appear to be friendly or unfriendly, and as to a whole range of attitudes and apparent relations' (210).

43 In Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, the appellant was tried and acquitted of murder. The appellant was the executor and a beneficiary under the deceased's will. After the appellant was acquitted, proceedings were brought by one of the deceased's next of kin for the purpose of establishing that he did in fact unlawfully kill the deceased, and in consequence was disabled from acting as executor or taking under the will. At the trial, witnesses gave evidence about the appellant's emotional outbursts and displays of grief after the deceased's death. Some of them expressed the opinion that his grief was simulated. In the High Court, Dixon, Evatt and McTiernan JJ summarised the evidence in question and expressed their own views as to the explanation for his behaviour:

These witnesses say that he was loudly exhibiting great emotion, 'he was broke down the whole time.' Many witnesses speak of his noisy display of grief on different occasions, particularly at the funeral, and some of them express confident opinions that it was simulated. But it seems more probable that he was under great stress and was in a condition of nervous and emotional instability, a condition which might be accounted for no less plausibly by fear, remorse and excitement, than by natural grief (708).

Their Honours appear to have accepted that the evidence given at the trial was admissible. Certainly, they did not suggest otherwise.

44 In Sherrard v Jacob [1965] NI 151, Lord MacDermott LCJ noted his understanding that, in general, it is for the tribunal of fact and not the witness to draw inferences of fact from the primary, observed facts (156). But his Lordship added that the general rule cannot, in the nature of things, be treated as 'a strict or hard and fast rule without getting in the way of reasonable proof and thus impairing the judicial process' (156). Although the subjects on which a non-expert witness may give inferential evidence cannot be stated exhaustively, in that they are not a closed category, his Lordship referred to the following 'established examples':

(1) the identification of handwriting, persons and things; (2) apparent age; (3) the bodily plight or condition of a person, including death and illness; (4) the emotional state of a person - eg whether distressed, angry, aggressive, affectionate or depressed; (5) the condition of things - eg worn, shabby, used or new; (6) certain questions of value; and (7) estimates of speed and distance. These matters are spoken to regularly by non-expert witnesses despite the fact that all involve inferences in greater or less degree (156).

45 A little later, Lord MacDermott LCJ suggested that the examples he had given included instances in which the primary facts and the inferences to be drawn from them 'are so inherent or closely associated that it may be hard, if not impossible, to separate them' (157). His Lordship expressed the view that a witness may reach a conclusion on observation 'without being able to muster or recall, or it may be even to describe, all the facts which have united to produce that conclusion', and then said:

As respects matters of common experience within the ken of ordinary men it enables evidence to be conveniently summarised or distilled in opinion form which in practice could not reasonably be called for in all its multitudinous detail (157).

46 In R v Ireland (No 2) [1971] SASR 6, the appellant was charged with and convicted of murder. At the trial, a prosecution witness, a taxi driver, gave evidence that he drove the appellant from Adelaide to the appellant's home in Morphett Vale. This journey occurred a short time after the killing. The witness was permitted to say that the appellant appeared to be elated. The evidence was as follows:

Q.---Did the man appear in any way excited when he hailed you that evening? A.---He appeared a little elated, if I could use that word.

Q.---So we know what you mean by that word, can you tell us in other words? A.---Very jovial and happy. He could have been excited, I suppose (16).

47 In the Full Court of the Supreme Court of South Australia, Bray CJ, Hogarth and Wells JJ said that, in any event, the evidence was clearly admissible. Their Honours thought that Phipson on Evidence (11th ed, (1970)) par 1319 contained this correct statement of the law:

Witnesses may, however, describe the apparent condition of people and things for here the phenomena are often too numerous and vague to be otherwise conveyed.

48 In 31A American Jurisprudence 2d, Expert and Opinion Evidence, s 328, at 325 - 326 (2002), the view is expressed that opinion evidence as to the emotions displayed by another person is necessary and valuable in that it is practically impossible to describe, without the use of opinion or conclusions, another person's appearance in a manner that will convey to the tribunal of fact an accurate picture of the emotion manifested by the other person at a particular time. The authors conclude:

The existence or absence of the emotions of fear, anger, joy, excitement, nervousness, earnestness, anxiety, disgust, curiosity, surprise, embarrassment ... and other such emotions and the mental state of a person at a certain time may, by necessity, be proved by the opinions of nonexperts as deduced from the appearances and conduct observed by the witnesses. Witnesses may testify as to emotions, or lack thereof, that are conveyed to the witness by facial expressions, the eyes, and the general manner and bearing of the individual which the witness cannot otherwise communicate except by an opinion which contains the results of the perceived expressions.

Appeal against conviction: ground 1: its merits

49 Sergeant Sears' evidence about the complainant's demeanour was that:

50 The statements that the complainant 'seemed' to be 'genuinely upset' and that she was 'showing signs' of 'real, genuine distress' communicated his impression of the complainant's demeanour. These statements were, in substance, inferential evidence. The impression was a form of non-expert opinion.

51 Sergeant Sears' impression was, no doubt, formed by induction from numerous observations including, for example, the complainant's tone of voice, her facial expressions, the appearance of her eyes, and her general manner and bearing.

52 The essence of Sergeant Sears' evidence was that the complainant appeared to him to be 'genuinely upset' and to be showing signs of 'real, genuine distress'. That was the impression he formed upon observing the complainant's demeanour.

53 The words 'real' and 'genuine' were not used by Sergeant Sears in a descriptive way to refer to the degree of the complainant's distress (for example, she was extremely distressed). Rather, those words described his impression, namely, it appeared to him that the complainant showed signs of distress that was 'real' and 'genuine' as distinct from 'feigned' and 'fraudulent'. The prosecutor understood Sergeant Sears' words to convey that meaning. See [25] above. A reasonable juror would have shared her understanding. It reflects the natural and ordinary meaning of the words.

54 Where a witness gives evidence about the emotional state of a person he or she has observed, for example, that the person 'was distressed', 'was angry', 'was aggressive', 'was affectionate' or 'was depressed', the witness is stating, in substance and partly by implication, his or her impression that the person was in fact or in actual reality 'distressed', 'angry', 'aggressive', 'affectionate' or 'depressed', as the case may be. In the present case, Sergeant Sears' use of the words 'real' and 'genuine' merely stated expressly his impression that the complainant was in fact or in actual reality 'distressed'.

55 It is fanciful to suggest that the jury may have thought, based on his evidence or the prosecutor's closing address, that Sergeant Sears had 'some special ability' in discerning 'whether a complainant's distress was genuine or not'. No reasonable juror would think that a police officer had, by virtue of experience, special skill in assessing a complainant's emotional credibility.

56 I am satisfied that the observations, on the basis of which Sergeant Sears formed the impression he recounted in evidence, were probably too evanescent in their nature to be recollected and, also, probably too complicated to be separately and distinctly narrated. The evidence in question was admissible. Sergeant Sears' impression and its reliability were not explored at the trial because defence counsel did not object to his evidence or cross-examine him.

57 In any event, even if, contrary to my opinion, Sergeant Sears' evidence of his impression was inadmissible, no miscarriage of justice has occurred.

58 Where inadmissible evidence is given at a criminal trial without objection, and the accused is convicted, an appeal based on the receipt of that evidence will not be allowed unless this court is satisfied that the admission of the relevant evidence constituted a 'miscarriage of justice' within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). A trial judge does not make a 'wrong decision on a question of law' within s 30(3)(b) of the Criminal Appeals Act by failing to exclude inadmissible evidence to which no objection is made. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [47] (Buss JA, Steytler P & Pullin JA agreeing).

59 Although ground 1 is misconceived in that it alleges that the trial judge made an error of law in permitting Sergeant Sears to give evidence as to the complainant's distress, this point was not taken by counsel for the State and the ground was argued on the basis that it was necessary for the appellant to demonstrate a miscarriage of justice.

60 The reasons for my opinion that no miscarriage has occurred are as follows.

61 First, it is of some significance that defence counsel, a very experienced criminal lawyer, did not object to Sergeant Sears' evidence as to his impression of the complainant's demeanour, did not cross-examine him, and did not seek a direction or a redirection from the trial judge in relation to his evidence. See R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA).

62 Secondly, the complainant's uncle and P gave evidence about the complainant's distress, but defence counsel did not cross-examine either of them on this evidence.

63 Thirdly, defence counsel's decision not to object to Sergeant Sears' evidence as to his impression of the complainant's demeanour, his decision not to cross-examine Sergeant Sears, his decision not to seek a direction or redirection, and his decision not to cross-examine the complainant's uncle or P on their evidence about the complainant's distress, is capable of explanation on the basis of a tactical decision taken by defence counsel at the trial. See Zeiler v The State of Western Australia [2010] WASCA 227 [76] - [80] (Buss JA, McLure P & Mazza J agreeing) and the cases there cited.

64 It is apparent on a fair reading of the trial record as a whole including, in particular, defence counsel's opening and closing addresses, that defence counsel decided to fight the State's case on the basis that the jury should not, on the whole of the evidence, be satisfied beyond reasonable doubt that the appellant had committed the offence. The strategy appears to have been to rely on the appellant's sworn evidence and the video-recorded interview with the police to create a reasonable doubt about whether the alleged act of sexual penetration had occurred.

65 There is a reasonable explanation for defence counsel's decision not to object, not to seek a direction or redirection, and not to cross-examine on the issue of the complainant's distress, namely, defence counsel's belief that Sergeant Sears' evidence was admissible and a concern that cross-examination about the genuineness of the complainant's distress may have reinforced rather than diminished the strength of the State's case.

66 Fourthly, evidence as to the complainant's distress was given at the trial by the complainant, Sergeant Sears, the complainant's uncle and P. Even the appellant accepted that, at the material time, the complainant was crying. The critical issue at the trial was whether the alleged sexual penetration had occurred or not. The jury would have been in no doubt that this was the critical issue and that a relevant consideration in their assessment of the evidence was whether the complainant's distress was real and genuine or feigned and fraudulent. These were, self-evidently, matters of fact, and the trial judge stressed, on numerous occasions in his summing up, that the jury were the sole judge of the facts, and any observations made by his Honour and any submissions made by counsel were merely comment designed to assist the jury, and were not binding on them.

67 Fifthly, defence counsel barely cross-examined the complainant on whether her distress was real and genuine. See [14] above. He merely put to her that she was 'putting it on' (ts 44).

Appeal against conviction: ground 2: the appellant's submissions

69 Counsel for the appellant submitted that the trial judge erred in failing to warn the jury that they could not use evidence of the complainant's distressed state to bolster her credit unless they were satisfied that all other explanations for it had been excluded.

Appeal against conviction: ground 2: relevant legal principles

70 In a sexual penetration without consent case, the complainant's distressed condition can, depending on the circumstances, constitute corroboration. However, before it can have that effect, the complainant's distressed condition must implicate the accused. It must be reasonably explicable only on the basis of the alleged sexual penetration without consent having occurred. See R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 [151] (Wood CJ at CL, Spigelman CJ relevantly agreeing & Howie J agreeing). As Wood CJ at CL observed:

Matters which can properly be taken into account include the time interval between the alleged assault and the observations of the distressed state, any conduct that may have occurred in the intervening period, and the circumstances in which the observation is made: R v Flannery [1969] VicRp 72; [1969] VR 586 [151].

71 It is well-established that it may be necessary for a trial judge to give a warning to the tribunal of fact about the proper use to be made of evidence as to a complainant's distress. See R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 [42].

72 In Eades v The Queen [2001] WASCA 329, Murray J (Templeman & Roberts-Smith JJ agreeing) said:

In a case of sexual assault, or concerning sexual offences generally, there is no question that the distressed condition of the complainant after the events in question may, if it is independently observed, be capable of being corroborative of the truth of her account, particularly in respect of the issue of non-consent. It is a question for the trial Judge whether the evidence is capable of being used in that way. As to that question, the Full Court of Victoria said in R v Flannery [1969] VicRp 72; [1969] VR 586 at 591:

'In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances ... evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.'

As to the latter aspect, the case of Flannery was referred to by the Queensland Court of Criminal Appeal in R v McDougall [1983] 1 QdR 89 at 91 where, speaking of the warning about the weight of such evidence, D M Campbell J, with whom the other members of the Court agreed, said:

'The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distressed condition is of little weight.'

In my respectful opinion, that is sound in principle. Whether or not a warning of this character is required and if so, in what terms it should be given to assist the jury to a better evaluation of the probative value of evidence, as in the case of warnings to be given to the jury about other evidentiary matters, is to be guided by the principle that what, if anything, a trial Judge is required to do in that regard should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case [32] - [34].

See also Vo v The State of Western Australia [2010] WASCA 24.

Appeal against conviction: ground 2: its merits

73 Ground 2 alleges that the trial judge erred in law by instructing the jury that the complainant's distressed state was a matter which they could take into account in assessing her credibility. This allegation is incorrect.

74 His Honour did not instruct the jury that the complainant's distressed state was a matter which they could take into account in assessing her credibility.

(a) there was evidence about the complainant's distress;

(b) that evidence had been commented upon by the prosecutor; and

(c) the defence case was that the distress 'could have been affected, that is, put on', and this was a matter for the jury to consider (ts 170).

76 Otherwise, I agree generally with Hall J's reasons in relation to ground 2.

78 Subject to the following observations, I agree with Hall J, generally for the reasons he gives, that the appeal against sentence should be dismissed.

79 The maximum penalty for sexual penetration without consent, contrary to s 325 of the Code, is 14 years. Section 325 was inserted by the Acts Amendment (Sexual Offences) Act 1992 (WA) pt 2. It commenced operation on 1 August 1992. Section 325 replaced s 324D which was, relevantly, identical to s 325, and also carried a maximum penalty of 14 years' imprisonment.

80 In Powell v The Queen (Unreported, WASCA, Library No 8928, 21 June 1991), the appellant (who was referred to as the applicant) was convicted, after a trial, on one count of sexual assault contrary to s 324D. The assault involved the appellant penetrating the vagina of a 34-year-old woman with his finger without her consent. The primary judge imposed a sentence of 4 years and 42 weeks' imprisonment. The Court of Criminal Appeal held that this sentence was manifestly excessive and reduced the term of imprisonment to 3 years. The appellant was made eligible for parole. The 3-year term is equivalent to 2 years, after the one-third reduction required by the transitional provisions introduced under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) is taken into account to facilitate comparison. The salient facts of Powell were these:

On the night of 27 April 1990, there were a number of young people, including the applicant, at the complainant's house. A considerable quantity of alcohol had been consumed by the applicant. The complainant arrived at home at 1:00 am on the morning of 28 April 1990. The complainant had also been drinking alcohol. In addition, she had taken 60 mg of Valium or Serapax, which was twice the prescribed dosage. The complainant went to bed and fell asleep. Her 8 year old son was in the same bed. At some stage during the early hours of the morning, the applicant went to the bedroom and got into bed with the complainant.

The complainant woke to find the applicant on top of her.

The complainant tried to call out but no words came out. She described her state in these words: 'Q Was it a situation like, "I'm trying to talk, my mouth's moving but nothing is coming out?"; A It's like when you are in a state of absolute fright and you freeze.

Q Really, the reason for this freezing state was, as far as you can see, the Serapax, wasn't it? A No. The Serapax made me feel like I'd just come out from an operation. The state of that probably because someone was on me.'

The applicant admitted that while he was in bed with the complainant he inserted two of his fingers into her vagina. The incident came to an end when the young child, who was in bed with the complainant, awoke. The complainant went back to sleep and the applicant left the bedroom and did not return.

...

About three days later the applicant was interviewed by the police. At first, he denied any sexual contact with the complainant. However, in a record of interview taken by the investigating police officers, the applicant denied having had sexual intercourse with the complainant but admitted having inserted two of his fingers into her vagina. He said that she consented to the sexual activity. The defence which was put to the jury for consideration was that the complainant had consented to digital penetration, or alternatively that the applicant had an honest and reasonable but mistaken belief that the complainant had consented.

...

[The applicant] was 19 years of age at the time of the offence and 20 years old when sentenced. He had what counsel described as a dysfunctional family background. At the time of sentencing, the applicant had lived in a de facto relationship for 2 years and had a 7 month old son. His de facto wife had expressed pessimism about the future of the relationship.

He left school after Year 10 and held a series of short term employment positions until February 1990 when he began work as a tyre fitter. References supplied by his employer indicate that he was a valued employee.

The applicant is described in the psychological report as an extroverted, impulsive young man lacking in self discipline and self control. He has had a long standing substance abuse problem for which he voluntarily underwent and completed a treatment programme with Holyoake.

The applicant has an extensive record of convictions for a variety of offences including dishonesty. Many of these offences are alcohol related. However, there are no prior offences of a sexual nature. The present offence was committed at a time when he was on probation for previous convictions (1 - 4).

81 In Coulter v The Queen (Unreported, WASCA, Library No 960507, 4 September 1996), the appellant (who was referred to as the applicant), a 40-year-old man, was convicted, on his fast-track plea of guilty, on one count of digital penetration of the vagina of a 16-year-old girl. The appellant had placed an advertisement in a newspaper, offering employment to models with no prior experience being necessary. The complainant and her 23-year-old female friend responded to the advertisement. They travelled to the appellant's home, at his invitation. The appellant told them that he worked for well-known magazines and that he would be conducting six photographic shoots which they would be required to attend. The statement about his work for the magazines was a lie. He also told them that they would be required to pose in lingerie and evening wear. Malcolm CJ recorded in his reasons the manner in which the assault occurred:

[The applicant] obtained some personal details from both the complainant and her friend, including details of their height, colour of eyes, weight, place and date of birth and other information which he noted down. He then requested the complainant to accompany him into a bedroom to enable him to take some photographs of her, which she did. Her friend remained in the lounge room at this time.

Once in the bedroom, the applicant handed the complainant some lingerie and requested that she put it on, which she did. He then took some photographs of her in various poses. He then partly removed her knickers and had taken a further photograph, before asking her to remove all her clothing. She complied with this request, believing that it was necessary for photographs for the Penthouse magazine. The applicant then took a series of photographs of her in various poses, including one where she lay back on the floor. The applicant requested that she part her legs which she partially did. He then manipulated them further apart to take photographs. He then asked her to close her eyes and pretend to play with herself. The complainant complied. The next thing she knew the applicant was inserting his fingers in her vagina for a period of time without her consent. He then stated that he intended to have sexual intercourse with her, whereupon she informed him that she wanted to speak with her friend. The applicant then desisted and the complainant left the room (4).

82 The appellant had a very significant prior criminal record. In particular, he had prior convictions for rape and indecent assault. Also, he had committed a number of other serious offences. It appears that he had spent about 20 of his 40 years in custody. A pre-sentence report assessed that he was at a moderate risk of reoffending. The sentencing judge was of the view that, on the basis of the appellant's prior criminal record, this was an unduly optimistic assessment. The appellant was sentenced, effectively, to 4 years' imprisonment with parole eligibility. His application for leave to appeal against sentence was dismissed. The 4-year term is equivalent to 2 years 8 months, after the one-third reduction required by the transitional provisions is taken into account to facilitate comparison.

83 In Coulter, Malcolm CJ (Pidgeon & Franklyn JJ agreeing) said:

There have been cases where sentences in the vicinity of 4 years or more have been imposed in relation to offences of digital penetration. Examples are Walley v The Queen, unreported; CCA SCt of WA; Library No 8894; 30 May 1991 and Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995. In each of those cases there was a conviction after trial of digital penetration of the vagina.

In the case of Walley a sentence of 4 and a half years' imprisonment with eligibility for parole was reduced to imprisonment for 3 years on appeal. The complainant was a 16 year old schoolgirl who knew Walley as an uncle. Walley had collected the complainant from a bus stop on a school day, taken her down to the river and assaulted her. Walley was a 32 year old man with a difficult background and a history of a very great number of petty and trivial offences but no prior convictions for any sexual offences.

In the case of Nelson, Nelson's victim was a 15 year old virgin. Nelson was nearly 30 years old and the de facto husband of one of the complainant's older sisters. Penetration was effected after Nelson had grabbed her from behind, carried her into a bedroom and threw her onto a bed and then held her around the throat causing difficulty in breathing. Penetration lasted a couple of minutes. Although Nelson had a record of some 20 prior convictions over a period of 10 years, he had no prior convictions for sexual offences. This Court reduced a sentence of 6 years' imprisonment with eligibility for parole to 4 and a half years of imprisonment on appeal.

I mention these cases as illustrations, but not because they illustrate the general range of potential offences. In cases of digital penetration, as with other sex offences, the circumstances may vary greatly (7 - 8). (emphasis added)

84 It has been emphasised repeatedly that there is no tariff for sexual offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. It is, nevertheless, important in deciding whether a

particular sentence is manifestly excessive or not, to appreciate the sentences that are customarily imposed in cases involving similar offending. But comparable cases can provide only general guidance. The limits of the guidance they afford are flexible.

85 Any digital penetration of a female's vagina, without consent, is serious. Digital penetration as an offence should not be underrated in its seriousness. See Cavill v The State of Western Australia [2008] WASCA 108 [265] - [267] (Miller JA, McLure & Buss JJA agreeing).

86 I would grant leave to appeal on ground 1 of the appeal against conviction, but dismiss the appeal.

87 I would refuse leave to appeal against sentence, and dismiss the appeal.

88 HALL J: This matter involves appeals against both conviction and sentence. The appellant was convicted after trial in the District Court of one count of sexual penetration without consent: Criminal Code (WA) s 325. He was sentenced to 3 years' imprisonment.

89 The trial was a short one. There was one central issue and that was whether the alleged act of penetration had occurred.

90 The complainant was a 19-year-old female who had come to Western Australia on a working holiday. She stayed with her uncle and his partner at their house in Boddington. It was in a bedroom of that house that the offence was alleged to have occurred.

91 The complainant's evidence was that on 20 January 2009 she and a friend had gone to the Boddington Hotel and had a few drinks. The friend introduced the complainant to two men, one of whom was the appellant. Later that evening the friend invited the two men to come back with her and the complainant to the complainant's uncle's house.

92 At the house the group sat on the front verandah drinking. The complainant's uncle and his partner were at home and they also joined the group. The complainant went inside the house to make a telephone call to her boyfriend. She used her mobile telephone and when this ran out of battery she went to her bedroom to charge the phone. She was lying on the bed with the door closed when the appellant came into the room.

93 The complainant said the appellant came in and closed the door behind him. She said he then forced himself on top of her and started kissing her neck and rubbing between her legs with his hand. She said that he forced his hand up her shorts and that he also undid the top button of the shorts.

94 The complainant said that she told the appellant to stop what he was doing and that her uncle would come in. He then forced his finger inside her vagina whilst he continued to kiss her neck and shoulder area. The complainant said that she tried to close her legs and that the penetration of her vagina was painful. She said that this continued for a short time during which the appellant closed the blinds.

95 The complainant said that she heard her uncle's footsteps coming down the hallway. At that point the appellant jumped off her and left the bedroom. The complainant said that she then curled up on her bed and cried. She then went out to the front verandah where she told her uncle's partner what had occurred. She said that she was hysterical when recounting this information.

96 The complainant's uncle gave evidence that at some point in the evening the appellant had said that he was going to relieve himself. After a short while the uncle wondered what had happened to the appellant and went looking for him. On not being able to locate him the uncle went into the house and met the appellant walking out of the complainant's bedroom. The uncle asked the appellant what he was doing and the appellant said that he was simply saying goodbye. According to the uncle, the appellant then said 'you don't want to listen to what this young girl was saying. I'm 34 and you just don't listen to young girls.'

97 The uncle said that the appellant then left and the complainant came out of her bedroom and was very distraught. He said that she was shaking and crying and that he then rang the police. He said the police arrived shortly after and that the complainant was still very upset and in fact did not calm down until the next day. The uncle's partner gave evidence to similar effect.

98 The State called Sergeant Michael Sears, one of the police officers who had attended following the incident. Sergeant Sears was asked to describe the complainant's demeanour when he arrived at the house. He said:

She seemed genuinely upset. She was crying, distraught, really showing signs of distress, real, genuine distress (ts 122).

99 The State also called a doctor, Dr Maire Kelly, who had training in obstetrics and gynaecology. Dr Kelly said that she had been working with the Sexual Assault Resource Centre since December 2005. Although she had not examined the complainant, she had been provided with the report of the examining doctor, Dr Maisey, and had based her opinion on it. Dr Kelly was of the opinion that the vaginal introitus, where an 0.5 cm abrasion was located, was quite a protected area and it was rare to see accidental injury there. She said that the injury was indicative that blunt force had been applied. The injury was consistent with penetration by a finger.

100 The appellant was interviewed by the police and his record of interview was tendered as part of the State case. He admitted that he had gone to the bedroom of the complainant but gave a different account of what had occurred. He said that the complainant had leaned back on the mattress of her bed and told him to lie down. He said that he did and then the uncle had suddenly come into the room. He denied any act of penetration. He said the uncle had asked what was going on and that he, the appellant, had stood up and walked out of the room. He said that the uncle had said that he should not be there. The appellant said that:

[W]ithin about probably 10, 20 seconds she started crying you know, and I went back in and said what's (indistinct) I just started saying oi don't cry wolf now because - because (the uncle) was upset that I was in there. You could see he was upset. And I said, hey tell - well I called her a bitch. I said tell that bitch to stop crying wolf right. What a load of shit. I've only been here for a minute, minute and a half and he said right get out, come on, walked outside and that's about it. After we - didn't stay there too long after that. Shook hands with him. Said see you early tomorrow because I work with him (ts 6).

101 The appellant gave evidence at the trial. That evidence was to the same effect as the account he had given to the police in the interview.

102 There were initially four grounds of appeal against conviction. However, at the hearing of the appeal counsel for the appellant abandoned ground 3 and said that ground 4, which relied upon the accumulation of alleged errors, fell away as a result of the abandoning of ground 3.

103 The remaining grounds (1 and 2) read as follows (without the particulars):

Ground 1

The learned Trial Judge erred in law in permitting the police officer Sergeant Michael Sears to give opinion evidence as to the complainant's distress, namely, that her distress appeared to be 'real' [and] 'genuine'.

Ground 2

The Learned Trial Judge erred in law by instructing the jury that the distressed state of the complainant was a matter which they could take into account in assessing her credibility without warning the jury that they could use evidence of her distressed state as bolstering her credibility only if they were satisfied that all other explanations for it were excluded.

104 On 6 September 2010 Mazza J granted leave to appeal in respect of ground 2. The application for leave in respect of the other grounds was referred to the hearing of the appeal.

105 Evidence of recent complaint is admissible as showing consistency. Such evidence is relevant only to the credibility and reliability of the complainant and cannot be relied upon to prove the truth of what was said: Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769.

106 Evidence of distress is potentially relevant for reasons different to those that relate to complaint. Often distress will be displayed in the course of making a complaint and the distinction between the use to which the complaint can be put as distinct from the distress is not appreciated.

GRUBISIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 147 (7 July 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (260 paragraphs)

GRUBISIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 147 (7 July 2011)

Legislation Cited (3)

Cases Cited (6)