Grubisic v The State of Western Australia - [2011] WASCA 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

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

CORAM: PULLIN JA
BUSS JA
HALL J

HEARD: 23 MARCH 2011

DELIVERED : 7 JULY 2011

FILE NO/S: CACR 78 of 2010
CACR 79 of 2010

BETWEEN: ANTON GRUBISIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
File No  :IND 1331 of 2009

Catchwords:

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

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 325

Result:

Leave to appeal on ground 1 of the appeal against conviction granted
Appeal against conviction dismissed
Leave to appeal against sentence refused
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Mr R G Wilson

Solicitors:

Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)

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

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
Chan (1989) 38 A Crim R 337
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
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
Hili v The Queen [2010] HCA 45; (2010) 78 ATR 11
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 Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366
R v Carter; Ex parte Gray [1991] Tas R 174
R v Flannery [1969] VR 586
R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558
R v Ireland (No 2) [1971] SASR 6
R v McDougall [1983] 1 Qd R 89
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Von Einem (1985) 38 SASR 207
R v Wright [1999] VSCA 145; [1999] 3 VR 355
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
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

PULLIN JA: I agree with Hall J.
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).
The appellant was sentenced to 3 years' immediate imprisonment. A parole eligibility order was made.
He appeals to this court against his conviction and sentence.

The background facts and circumstances

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.

The State's case at trial

The State's case at trial was, relevantly:
(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.

The appellant's case at trial

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.
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).

The appellant's evidence

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.
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).
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

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).
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).
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

Sergeant Michael Sears gave evidence at the trial. He said that he had been a police officer for 23 years (ts 121).
On the evening in question, he attended at the uncle's home and spoke to the complainant.
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)
Defence counsel did not object to Sergeant Sears' answer, and did not cross‑examine him.

Evidence of other witnesses about the complainant's distress

At the trial, the complainant's uncle and his partner, P, were called by the State.
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).
Defence counsel cross‑examined the uncle briefly, but not in relation to his evidence as to the complainant's distress (ts 96‑ 97).
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).
Defence counsel asked P six questions in cross‑examination, but none of them related to her evidence about the complainant's distress (ts 110).
The complainant's uncle and P gave evidence before Sergeant Sears.

The closing addresses of counsel

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)
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)

The trial judge's summing up

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

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

Appeal against conviction: grounds of appeal

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.
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'.
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.
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

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.
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'.
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

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 § 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).
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).
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.
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).
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).
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).
The evidence was not objected to at trial.
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.
In 31A American Jurisprudence 2d, Expert and Opinion Evidence, § 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

Sergeant Sears' evidence about the complainant's demeanour was that:
(a)she was crying and distraught;
(b)she 'seemed' to be 'genuinely upset'; and
(c)she was 'showing signs' of 'real, genuine distress' (ts 122).
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.
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.
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.
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.
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'.
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.
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.
In any event, even if, contrary to my opinion, Sergeant Sears' evidence of his impression was inadmissible, no miscarriage of justice has occurred.
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).
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.
The reasons for my opinion that no miscarriage has occurred are as follows.
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).
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.
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.
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.
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.
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.
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).
Ground 1 fails.

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

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

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] VR 586 [151].
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].
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] 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

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.
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.
The trial judge merely told the jury that:
(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).
Otherwise, I agree generally with Hall J's reasons in relation to ground 2.
Ground 2 fails.

Appeal against sentence

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

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).

Conclusion

I would grant leave to appeal on ground 1 of the appeal against conviction, but dismiss the appeal.
I would refuse leave to appeal against sentence, and dismiss the appeal.
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.
The trial was a short one. There was one central issue and that was whether the alleged act of penetration had occurred.
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.
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.
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.

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.
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.
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.
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.'
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.
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).
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.
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).
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.

Grounds of appeal - conviction

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.
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.
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.

Evidence of Distress

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.
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.
Evidence of distress displayed at the time a complaint was made may also be relevant to credibility because it relates to the manner in which the complaint was made. However, in some circumstances distress is also capable of amounting to corroboration: R v Flannery [1969] VR 586, 591; Eades v The Queen [2001] WASCA 329 [32] ‑ [34] (Murray J). That is to say it is evidence that can be used to support a conclusion that an assault in fact occurred: R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558, 588 (Wood CJ at CL).
The need for a warning as to the proper use that can be made of evidence of distress was referred to in R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366. In that case Nettle JA observed:
Although evidence of distress is capable of corroborating a complainant's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where…the observation of the complainant's distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge [42].

See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19.
It is clear that a warning is not required in every case. In R v McDougall [1983] 1 Qd R 89 [91], Campbell J 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.
R v McDougall was referred to in Eades v The Queen in which Murray J made the following observation:
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, it 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 [34].
That approach has been referred to with approval in Azarian [48] (Pullin JA), [155] Miller JA, Prazmo v The State of Western Australia [2009] WASCA 25 [32] (Miller JA) and Vo v The State of Western Australia [2010] WASCA 24 [40] (Martin CJ).
There can be no doubt that evidence of the complainant's distress was admissible in this case. Indeed, no objection was made to evidence in that regard given by the complainant, her uncle and her uncle's partner. Whilst objection was taken to the evidence of Sergeant Sears, that objection was specifically confined to evidence of the terms of the complaint made to police and not the distress shown by the complainant. The objection was that evidence of a complaint made to Sergeant Sears was not relevant in circumstances where an earlier complaint in similar terms had already been given to the uncle and his partner. The trial judge ruled that evidence of the complaint made to Sergeant Sears could not be given, only his observations as to the complainant's demeanour.

Ground 1 - opinion evidence

This ground asserts that the trial judge erred in law in admitting the evidence of Sergeant Sears in respect of the complainant's distress. However, where evidence is received in a criminal trial without objection and the trial judge makes no ruling on its admission, there is no wrong decision by the judge on a question of law: Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA).
Accordingly, as framed, this ground is misconceived and must fail. The only basis upon which it could be argued that the admission of evidence without objection can justify the setting aside of a conviction is if it results in a miscarriage of justice: Criminal Appeals Act 2004 (WA) s 30. Though the ground does not specifically refer to a miscarriage of justice, I will, nonetheless, consider whether such a miscarriage occurred.
The appellant submits that the evidence of distress given by Sergeant Sears was inadmissible because it contained an expression of his opinion. It is not suggested that evidence of distress from Sergeant Sears was inadmissible as such. Rather it is said that the manner in which that evidence was given included an inadmissible expression of opinion on behalf of the police officer as to the genuineness of the distress.
In her closing address to the jury counsel for the State relied upon the evidence of distress as being supportive of the complainant's evidence that she had been sexually assaulted. The degree and proximity in time of that distress to the alleged assault was said to be significant. Reference was made to Sergeant Sears' experience as a police officer. That was an invitation to the jury to place particular reliance upon that evidence. None of that, however, suggests that it was his opinion that was particularly relied on. Sergeant Sears was, it might be thought, by reason of his position and experience, a witness whose independence and reliability was less likely to be doubted as regards his observations of distress.
The real source of complaint is that Sergeant Sears used the words 'real' and 'genuine' in describing the distress. This, it is said, was an expression of an opinion that should not have been given. The opinion is said to be that, in the view of the witness, the distress was real and not feigned.
As I have noted, no objection to the evidence was made at the trial. Nor was any direction sought in regard to the State prosecutor's reliance upon it.
The reasons for that are plain. When seen in context it is apparent that Sergeant Sears was giving evidence of how the complainant appeared to him. The words 'real' and 'genuine' were being used in a descriptive way to refer to the degree and appearance of the distress. It is not unusual for witnesses, when asked about the emotional state of a person, to describe it in a conclusionary way rather than confining themselves strictly to what was seen or heard. If this is thought to be problematic it is open to defence counsel to object and require the witness to limit themselves to what they observed.
It would have been apparent to the jury that the question of whether the distress was real or fabricated was one for them. Indeed, they were directed to this effect by the trial judge, as I will refer to later.
Furthermore, Sergeant Sears used the words, 'real' and 'genuine' together with the words 'seemed' and 'showing signs of': that is to say his evidence was that the complainant 'seemed genuinely upset' and 'was showing signs of distress, real genuine distress'. This further confirms that what the witness was conveying was the nature of the distress as it appeared to him and not that he was claiming to have some special insight into the mind of the complainant. Accordingly, it would be wrong to characterise the evidence as being the expression of an opinion and it could not reasonably have been so understood.
Even if, contrary to that conclusion, the evidence could be viewed as being opinion in nature, the lack of any objection to it at trial would support a conclusion that it was not viewed as being significant by trial counsel. Whilst a failure to object cannot make inadmissible evidence admissible it may provide grounds for an inference that the reception of that evidence did not give rise to any substantial miscarriage of justice: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365, 381 (Dixon, McTiernan, Webb and Kitto JJ). A failure by experienced counsel to object will almost invariably be taken by an appeal court as an indicator that counsel saw no injustice or error in what was done: R v Wright [1999] VSCA 145; [1999] 3 VR 355, 356 (Phillips CJ and Charles JA), quoted by Miller JA in Alvarez‑Pizalla v The State of Western Australia [No 2] [2008] WASCA 105 [62] ‑ [63].
In the present case the evidence of the complainant's distress did not come solely from Sergeant Sears. Other witnesses, including the complainant, described her distress at the time in terms that were not dissimilar; 'very upset', 'shaking', 'very shaken', 'hysterical' and 'in shock'. It was made clear to the jury that it was for them to decide whether the distress was real. These factors, together with the lack of objection, would lead to a conclusion that there was no substantial miscarriage of justice even if that part of the evidence of Sergeant Sears (or at least the form in which it was given) was inadmissible: Criminal Appeals Act s 30(4).
For these reasons, in my view, whilst I would grant leave to appeal, ground 1 cannot succeed.

Ground 2 - directions on distress

As I have noted, the necessity for the trial judge to give a direction in respect of evidence of distress depends upon the circumstances of the particular case. In this case none of the evidence of distress was contested, nor was any other possible reason for distress put to the complainant in cross‑examination.
The appellant had implied in his interview with the police that the complainant was responding to the anger of her uncle at being found in a compromising position. That suggestion was not, however, put to the complainant in cross‑examination. The relevant cross-examination is as follows:
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 Anton 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 Anton started shouting at you? No.
That you were putting it on? --- No (ts 43 ‑ 44).
The implication behind the questioning as to whether the uncle entered the room may well have been that the distress was a response to the uncle's anger rather than being caused by a sexual assault. That suggestion was, however, never clearly put. All that was suggested was that the complainant was 'putting it on'. This is rather different to suggesting that the distress, though real, had a different cause. No reason for 'putting it on' was suggested to the complainant. Thus, in essence, the defendant's case was not that there were other possible explanations for distress in the circumstances of this case, but that the distress was entirely fabricated.
In circumstances where no alternative reason for real distress was put to the complainant, for the trial judge to suggest that there might be other reasons would have had a speculative quality. It would be to invite consideration of an issue that was not raised on the evidence. This was not a case where there was any lapse of time or the distress was equivocal such that there was some possibility that it had an unrelated cause. The only real issue was whether the distress was genuine.
In summing up the trial judge gave a standard direction in regards to the complaint evidence, that is he told the jury that the making of a complaint is not evidence of the matter complained of, it is simply evidence which, if they accepted it, went to the consistency of the complainant's evidence and therefore to her credibility. His Honour then referred to a number of other issues relating to the credibility of the complainant before stating:
There's been evidence led about [the complainant's] distress and it's been commented upon by [the State 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).
The central issue in this case was whether the jury accepted the evidence of the complainant as to the alleged assault. The jury were directed that in order to find the appellant guilty they had to be satisfied beyond reasonable doubt that what the complainant had said was true. The trial judge's directions did not suggest that the distressed state could be used as corroboration. A direction in that regard was given with respect to the vaginal abrasion.
Given that the State had relied upon distress as being corroborative it was open for a direction in that respect to be given. The trial judge's directions only suggested to the jury that the evidence of distress could be taken into account in assessing the complainant's credibility. To that extent they were perhaps unduly favourable to the complainant. That may explain why there was no complaint about the directions by counsel for the appellant, nor any application made for a redirection.
It was made clear to the jury that the question of whether the distress was genuine was one for them to determine. It was also made clear that the issue of the complainant's credibility was central. It is difficult to see how, in these circumstances, a direction as to the use of the distress evidence could have been of any assistance to the appellant.
Had such a direction been given it would have been in the context that the jury could use the evidence as being supportive of an assault having taken place if they were satisfied that there was no other explanation for the distress. This would necessarily have drawn attention to the fact that no alternative explanation for the distress had been put to the complainant. It would also have drawn attention to the fact that the distress had been manifest immediately following the incident in the bedroom and had been attested to by several witnesses.
The contention that the distress was fabricated by the complainant in order to deflect the anger of her uncle was only supported by the appellant in his interview and evidence. That contention was a mere assertion by the appellant. In any event it only served to draw attention to the central issue of the complainant's credibility.
In the particular circumstances of this case a direction that the jury could not use the evidence of distress unless satisfied that the only reasonable explanation for it was that the complainant had suffered a sexual assault was not required. That is because the issue in regards to distress was not whether it had some other explanation but whether it was real or feigned. This was identical to the critical issue in the trial.
If the jury rejected the suggestion that the distress was feigned there was no explanation available other than that it was a response to the alleged assault. An acceptance that the distress was real would, in the circumstances of this case, necessarily mean that there was also an acceptance of the complainant's evidence that she was assaulted by the appellant.
A direction of the type referred to would only be needed if there was a risk that the jury might fail to appreciate the possibility of other inferences that could be drawn from the complainant's distress. However, in this case, if the jury found that the distress was genuine there was no other inference available on the evidence than that it was a result of the alleged assault.
Accordingly, in my view, this ground cannot succeed.

Appeal against sentence

The appeal against sentence is based upon a single ground. That ground is that the sentence of 3 years imprisonment with eligibility for parole exceeded the range of sentences properly applicable in the circumstances of the case. No express error on the part of the trial judge is identified. This ground in substance alleges that there was an implied error because the sentence imposed was manifestly excessive.
In determining whether a sentence is manifestly excessive an appeal court should have regard to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the appellant: Chan (1989) 38 A Crim R 337, 342.
The maximum penalty for the offence of sexual penetration without consent is 14 years' imprisonment: Criminal Code (WA) s 325.
In sentencing, the trial judge found that the appellant had forced himself upon the complainant and that it was a frightening assault on a young woman in the privacy of her own room which she could do nothing to repel. He found that the appellant had held the complainant down, kissed her on the neck, rubbed his hand between her legs, run his hand up her shorts and tried to pull down her underwear. He found that the appellant had forcefully inserted his finger into the complainant's vagina causing the abrasion referred to in the medical evidence.
His Honour said that the appellant's behaviour was unexplainably violent and abusive. His Honour noted that the appellant was a large and powerful man and that he only stopped his conduct when the complainant's uncle approached her room. His Honour found that the appellant spoke rudely and cruelly to the complainant by accusing her of 'crying wolf'.
His Honour said that the appellant was very likely to have been affected by alcohol at the time of the offence. He said that this might have contributed to a lack of self control and general disinhibition, but it did not in anyway lessen his personal responsibility or the seriousness of the offence.
His Honour noted that the appellant had a criminal record, which whilst not resulting in any previous sentences of imprisonment, disclosed 'a tendency towards violent behaviour'. His Honour referred to the main considerations as being punishment and deterrence.
His Honour took into account the personal circumstances of the appellant. These were that he was 34, married and had one child. He was a scaffolder by trade but was unemployed at the time of the trial. He normally resided with his family in Victoria and had incurred the cost of airfares in attending court proceedings. No pre‑sentence reports or psychologist reports were sought or provided.
As regards the standards of sentencing for this type of offence it should be acknowledged that the different circumstances in which such offences can be committed make it difficult to discern a defined range. Nevertheless it is desirable to consider other cases in order to ensure that there is as much consistency in sentencing as possible: The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 and Hili v The Queen [2010] HCA 45; (2010) 78 ATR 11.
There is no basis for categorising one form of sexual penetration as more or less serious than another: C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA). Although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably the case: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P). The seriousness of every offence of unlawful penetration must be determined by its own individual circumstances: C [35] (Wheeler JA).
In C, Wheeler JA noted that penile penetration is often more serious because of the actual or potential harm to the victim, including the risk of pregnancy or a sexually transmitted disease. Penile penetration will also often be perceived by the victim as a more serious affront to personal dignity and bodily integrity. However, there can be very serious cases involving digital penetration, particularly where it is forceful, serious in its consequences or intended to be degrading or humiliating for the victim.
In Miles v The State of Western Australia [2010] WASCA 93 a number of cases involving digital penetration without consent were considered: see Jenkins J [43] ‑ [49]. The four cases referred to included Mountain v The State of Western Australia [2009] WASCA 161. In that case the offences were committed in the toilet of a nightclub. The complainant said that she blacked out and that her next recollection was of being on the floor and the offender digitally penetrating her vagina. The offender was found guilty after trial of four counts of sexual penetration and one count of attempted sexual penetration. The four counts of sexual penetration related to four instances of digital penetration of the complainant's vagina and anus. On each count the offender was sentenced, on appeal, to 2 years 4 months' imprisonment. Two of the sentences were to be served cumulatively making a total sentence of 4 years 8 months' imprisonment.
In Cavill v The State of Western Australia [2008] WASCA 108 the offender was convicted following trial of one count of digital penetration. He was acquitted of a number of other offences. He was sentenced to 15 months' imprisonment and his appeal against that sentence was dismissed. Miller JA said that 'the sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence'. The offender in that case had no prior record of convictions apart from a traffic related matter and was categorised as being a low risk of re‑offending.

In Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23 the offender pleaded guilty to one count of digital penetration and two counts of indecent dealing with a 16‑year‑old employee. A sentence of 2 years' imprisonment for the offence of digital penetration was imposed. Sentences of 12 months' imprisonment, concurrent, were imposed in relation to each of the indecent dealing offences. An appeal against the sentences was dismissed. The offender in that case was 48 years of age at the time of the offence, had no previous criminal history and had favourable antecedents. The offender had admitted his conduct when interviewed by the police and pleaded guilty.
In Deering v The State of Western Australia [2007] WASCA 212 the offender pleaded guilty to one count of digital penetration of a child aged between 13 and 16 and four counts of penile penetration. The offence of digital penetration was the first to occur and involved penetration of the complainant's vagina by the offender's finger. On appeal the offender's total sentence was reduced to 2 years 6 months' imprisonment. A sentence of 8 months' imprisonment was imposed on the count of digital penetration. The offender was 23 years of age and a lack of consent was not an element of the offences in that case. The offender pleaded guilty on the fast track system and had not been previously imprisoned. In re‑sentencing the offender Wheeler JA said that a sentence of 18 months' imprisonment was appropriate for the digital penetration but this was reduced to 8 months' taking into account the plea of guilty and adjustments for the transitional provisions.
In Miles the offender was convicted of one offence involving digital penetration of a 17‑year‑old female. The complainant had been intoxicated and fell asleep at a friend's house. She was woken by the appellant, who was lying beside her and two of his fingers were inside her vagina. No force was involved in the offence. The offender was convicted following a trial and sentenced to 2 years' imprisonment. That sentence was held to be within the appropriate range.
In Miles Jenkins J noted that the four earlier cases referred to indicated that the sentences in those cases for offences of digital penetration ranged from 8 months' to 2 years 4 months' immediate imprisonment. It was not suggested that those cases represented the appropriate limits of the range for the exercise of discretion in all such cases. Clearly a sample of four cases was insufficient to reach such a conclusion. In any event, the range of sentences customarily imposed for a particular offence does not establish the range within which sound sentencing discretion may operate; The State of Western Australia v Akizuki [71] (McLure JA).
The appellant submitted that his case is comparable with that of Cavill which resulted in a sentence of 15 months' imprisonment. However, as I noted earlier, the conclusion in Cavill was that the sentence in that case was well within range. Accordingly, it cannot of itself be indicative that the sentence imposed in this case is in error.
Unlike a number of the other cases referred to, there was little if anything which mitigated the appellant's offending. On the other hand there were a number of aggravating features. These included the differences in age and strength between the complainant and the appellant, the use of force by the appellant, that the offending occurred in what should have been the safety of the complainant's own bedroom, that the appellant immediately sought to compound the offence by telling the complainant's uncle that she would bring a false complaint and the evident and significant distress that was caused. These factors were properly taken into account by the sentencing judge.
There was nothing in the personal circumstances of the appellant that could justify a reduction in the sentence. There was no evidence of remorse, the matter having gone to trial. There was no reduction available for a plea of guilty, as was the case in Deering and Miles. The sentence was a severe one but it was one that can be justified in the circumstances of this case.
I am unable to conclude that the sentence imposed by the sentencing judge was so clearly excessive as to manifest error. Accordingly, the sentencing discretion has not miscarried. I would refuse leave to appeal against the sentence and dismiss that appeal.

Conclusion

I would make the following orders:
(1)leave to appeal in respect of ground 1 in respect of conviction be granted;
(2)appeal against conviction be dismissed;
(3)leave to appeal against sentence be refused;
(4)appeal against sentence be dismissed.