R v K [1998] QCA 161

". . . admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed 'unreal and unintelligible'. Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described". (72)

Here, the complainant said that apart from the occasions charged there were other occasions, when she was required to perform oral sex on the appellant; she could not recall how many times that occurred. She also implied, plainly enough, that there had been times when the appellant had sexual intercourse with her. She said that she had asked the appellant to "[s]top doing dirties to me" and said that by "doing dirties" she meant sexual intercourse. Particular complaint was made, on the appeal, about the prejudicial effect of evidence of a specific act of oral sex, referred to in the reasons of Lee J.

It appears to me that the High Court's decision in Gipp does not alter what was previously understood to be the law, that evidence of uncharged instances of sexual abuse may be let in as showing evidence of a sexual passion or relationship. In the present case the evidence of the uncharged incidents was, in the main, vague and unspecific and it appears to me unlikely that its admission could have had any great impact on the jury's deliberations; but it might have been thought by them to have some relevance as indicating persistent sexual interest in the complainant, on the part of the appellant.

I entirely agree with the view expressed by Lee J. that, in the circumstances of this case, the absence of directions as to the use to be made of the evidence just discussed did not vitiate the verdicts; it is improbable that the judge's failure to attach to that evidence one or more of the descriptions I have quoted from Gipp could have affected the outcome.

I agree with the reasons for judgment of Lee J. and with the orders he proposes.

This is an appeal against convictions by a jury in the District Court at Townsville on 19 February 1998 of two counts of indecently dealing with a girl under 14, committed on dates unknown between 1 January 1978 and 28 August 1984. The complainant, the appellant's daughter, was born on 29 January 1971 and was aged between 6 and 13 years when the alleged offences were committed. She was 27 at trial. The trial judge imposed sentences of three years imprisonment on each count, to be served concurrently. The appellant also seeks leave to appeal against the sentences on the ground that they are manifestly excessive.

A sixteen count indictment was originally presented charging the appellant with a mixture of sexual and violent offences including assaults against three complainants, all of whom were his children. Counsel for the appellant at trial objected to the joinder and sought severance. The trial judge ruled that the assault charges were insufficiently similar to permit joinder with the sexual charges. As a result, the Crown presented a new four count indictment alleging only sexual offences by the appellant against the complainant. The appellant was convicted only on counts one and four, both counts of indecently dealing with a girl under fourteen. Counts two and three were rape, or in the alternative, incest. He was acquitted of these alternative counts.

The Crown case consisted principally of evidence from three persons; the complainant, her brother J and her sister O. O was the eldest child born on 25 February 1967 and was some four years older than the complainant. J's actual date of birth is not entirely clear. Some parts of the evidence suggests he was younger than the complainant but elsewhere there is a suggestion that he was born on 19 August 1969 which means he is approximately 18 months older than the complainant.

The complainant gave evidence that the act of indecent dealing, the subject of count one, was the first sexual act by the appellant, consisting of the appellant forcing the complainant to perform oral sex on him in a shed on the property where they were living at the time. She said she was 10 at the time but could not remember it completely. She said that this occurred a few weeks after her mother left the property which appears to have been in late 1977 or 1978. She said that the appellant took her into the shed and asked her to suck his penis like a lolly pop which she said she did. The complainant gave further evidence of an occasion where sexual intercourse occurred between her and the appellant on a metal bed in the same shed. This was the subject of counts 2 and 3 of which he was acquitted. Her evidence in relation to the particular shed was somewhat confused but it appears that it was the shed near the cattle yards called the "saddle shed", rather than the shed near the house in which the children used to sleep. The complainant gave no evidence of any incident which would sustain count 4.

O gave evidence that on one occasion when she walking back towards the house with others including her mother and her mother's sister, Aunt Josephine, who was staying with them at the time, she walked ahead into the house and witnessed the complainant, in the bedroom shared by her with the complainant, kneeling between the appellant's legs with her mouth over his penis. This evidence was the subject of count four, the second charge of indecent dealing. The trial judge directed the jury that this evidence was capable of corroborating count 1. The complainant for her part said in evidence that no oral sex ever occurred in any place other than in the saddle shed and on drives in the car. O also described an occasion when the appellant closed the windows and doors of a shed beside the family house followed by the sounds of P's screams and a banging sound of metal against metal, the evidence otherwise showing that there was a metal bed in the particular shed which may have struck the galvanised iron wall. This shed was virtually attached to, and only some two or three metres away from the main house whereas the saddle shed was situated further away from the house; the evidence consisted of varying estimates from 20 to 50 metres. The trial judge described this latter evidence to the jury as potentially corroborative of counts two (or three).

J gave evidence that on one occasion the appellant called the complainant over to the saddle shed situated some 50 metres away from the house and led her to the back of the shed. In cross-examination he conceded that he could not see precisely where the appellant led her. Nevertheless he said he heard a banging sound and heard the complainant screaming "no, no". He said she came out some 15 to 30 minutes later (although he was not sure of the actual duration), clutching her dress between her legs in a visibly distressed and shaken state. The trial judge also described this evidence to the jury, along with evidence of O about hearing P's screams and a banging sound of metal against metal in the shed near the house, as potentially corroborative of counts two or three, but not of counts one and four.

The complainant gave other evidence, now argued as a basis for one of the grounds of appeal against conviction, of a number of occasions of the appellant taking her on drives in his car. She said that he would pull over by the side of the road and request her to perform oral sex on him. She could not say whether this occurred more or less than five times. She did say that she could only remember one such occasion when this occurred. This evidence did not form the basis of any of the counts presented in the indictment. She was unsure when any of these incidents occurred.

The appellant gave evidence at the trial and called evidence of his general good character. He simply denied the occurrence of any sexual acts between him and the complainant. He also rejected the suggestion that he and the complainant went on drives together. He was born on 24 June 1945 and was between 32 and 39 at the time of the alleged offences. He was 52 at trial. He has no previous convictions.

The alleged offences therefore occurred between 15 and 20 years before trial. Apparently the children left the home in 1984 at which time the complainant was 13. Shortly thereafter, it appears that Sergeant Maff told the appellant of some allegations of sexual impropriety which he denied. Charges against the appellant were not laid until 1997.

The notice of appeal presents a substantial number of grounds, some of which overlap. In addition, Mr Hamlyn-Harris, counsel for the appellant, sought and was granted leave to add an additional ground of appeal against conviction. This is ground 2A marked with the letter "A" and placed with the record. Leave was also granted to add an additional ground of appeal against sentence; namely that the trial Judge took into account evidence of uncharged offences when passing sentence. Due to the complexity of the issues raised, and the degree of overlap between grounds, the full grounds of appeal are set out below:

1. The conviction on count one is unsafe and unsatisfactory.
2. The conviction on count four is unsafe and unsatisfactory.

(a) The lack of particularity in the evidence of counts one and four;

(b) The inconsistency between the evidence of O of count four (being the only evidence of that count) and the express evidence of the complainant to the effect that there was no such incident;

(c) The prejudicial effect of the evidence of the complainant of other sexual incidents with which the appellant was not charged;

(d) The prejudicial effect of statements in the Crown Prosecutor's opening as to persistent and lengthy sexual misconduct and assaults by the appellant against the complainant over the years;

(e) The absence of any directions at all on the use the jury could make of evidence of the sexual offences not charged;

(f) The inconsistency between the convictions on counts one and four and the acquittal on counts two and three (which is the subject of grounds three and four);

(g) The prejudicial effect of the Crown Prosecutor's remarks in her closing address which are the subject of ground 5.

1. The conviction on count one is inconsistent with the verdicts of acquittal on count two and three.
2. The conviction on count four is inconsistent with the verdicts of acquittal on counts two and three
3. His Honour, the learned trial Judge, erred in failing to discharge the jury after the Crown Prosecutor, in her closing address, told the jury that:

(a) If there is a doubt but it is not reasonable then the verdict is guilty,

(d) The accused's daughter was entitled to look to the accused for protection from this kind of thing;

(e) The accused not only failed to protect his daughter but committed these offences.

1. His Honour, the learned trial judge, erred in directing the jury that beyond a reasonable doubt refers to a doubt based on reason.
2. In all the circumstances the sentences imposed are manifestly excessive.
3. The sentencing discretion miscarried because the learned trial Judge took into account a course of conduct of acts of oral sex by the appellant of which he had not been convicted.

Some argument hinged around whether various grounds relied upon by the appellant went to the question of whether the verdicts were unsafe and unsatisfactory, or whether they related to the question of a fair trial. In the result, the difference, if any, is of little consequence: Jones v. R. [1997] HCA 56; (1997) 72 A.L.J.R. 78 at 80, 85. As there is an overlap between the various grounds, the following appear to be the issues relating to all grounds.

1. The lack of particulars for counts one and four;
2. The inconsistency in the evidence given by the complainant and O in relation to count four;
3. The inconsistency of the not guilty verdict on counts two and three, and the guilty verdicts on counts one and four;
4. The prejudicial effect of the complainant's evidence of other uncharged sexual incidents;
5. The absence of any direction by the judge on the use that the jury could make of the evidence of uncharged sexual offences;
6. The directions of the trial judge as to the meaning of beyond reasonable doubt;
7. The failure to discharge the jury after the comments made in the Crown Prosecutor's closing address;
8. The prejudicial effect of the statements in the Crown Prosecutor's opening; and
9. The correctness of the sentences imposed.

Grounds 1, 2 and 2A (a) of the amended notice of appeal raise this issue. In summary the appellant alleges that the Crown faced considerable difficulty in particularising counts one and four on the evidence of the complainant and her sister O. The lack of specificity of their evidence is said to have prevented the appellant making an adequate response to the allegations in his defence.

To determine if this complaint has any substance it is necessary to examine the way the counts were particularised in a little more detail. Counts one and four were undoubtedly imprecisely particularized on the indictment. They were identical in terms and simply alleged that the appellant unlawfully and indecently dealt with the complainant, at that time under the age of 14 years, on a date unknown between the 1st day of January 1978 and the 28th day of August 1984 at Charters Towers.

In respect of count one, the Crown Prosecutor opened the Crown's case (R55) to the jury in the following manner:-

"When she was about 10 years of age and that was when she was in grade 5 at school, in fact really only a few weeks after her mother had left the family home, P recalls her father was in the shed on the property. He called her into the shed, it was at that - it was at that time daylight and obediently she went into the shed where her father directed her into a room in the shed.

She'll describe the shed as being very dark. When in the room, the accused man pulled his penis out of his jeans and told her to suck on his penis like a - a lollipop. He told her that if she did that he would buy her lollies. The accused man then grabbed her head, pulled it over to him and stuck his penis into her mouth."

The complainant gave evidence at trial which essentially matched the Crown's opening. She was asked, in evidence-in-chief, how long after her mother had left did the first oral sex take place. Her answer (R99 at l.19) was:

In cross-examination, Mr Bassett, counsel for the accused at trial, elicited the following evidence (R113 l.29):

"Now when Aunt Josephine arrived, your sister O was not there was she?--No.

I think you told us that this first incident of oral sex in this shed at that stage Aunt Josephine was living on the property?--Yes, she was.

And at the time of the sexual intercourse taking place of course, Aunt Josephine was still living on the property?--Yes, she was.

And on both those occasions your sister O wasn't there?--No.

I want to now ask you about this - the occasion of when you say oral sex took place in the shed. Do you say that you don't know where your father was when he called you into the shed?--No.

Do you recall what he said to you when he called you into the shed?--No, I don't."

At this point Mr Bassett continued with a series of questions that established that the complainant couldn't really recall the day in question, or what she was wearing, or the location of the appellant when he called out to her. There is little doubt that the complainant's memory of the surrounding circumstances is quite poor, which is perfectly understandable after such a lengthy delay in the matter coming to trial.

Count four was based on the evidence of the complainant's sister O. Mr Chowdhury, who appeared for the Crown on the appeal, conceded that the particulars of this count were more problematic as there was nothing in the particulars given, or the evidence of O, that would allow the incident to be fixed within a particular time frame or associated with a particular memorable event. However, he submitted that the particulars were "reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence", relying on the judgment of the Victorian Court of Appeal in DPP v. His Honour Judge Lewis [1997] 1 V.R. 391 in preference to comments made by this court in R (C.A.445 of 1997, 6 May 1998, unreported) and F (C.A. 439 of 1994, 12 December 1994 unreported). He also relied on the fact that no complaint was made by counsel at the trial as to the inadequacy of the particulars. The Crown Prosecutor opened the evidence as follows (R58 at l.18):

"When O - she will tell you that she was about 12 or 13 years of age and she's I think about 4 years older than P, she recalls one day running back to the house after being with some family members on the property. So she was with some family members, ran back to the house.

When she entered the house she saw the accused man sitting on her bed with his penis hanging out of his jeans and she saw her sister P kneeling between the accused man's legs with her mouth over the accused man's penis. When O saw this she ran out of the house and ran back to the other family members who were in the yard at the time or in the area outside the house. At this time P would have been only 8 or 9 years of age. That, members of the jury, is a summary of facts in respect of count four in the indictment, that is the unlawful and indecent dealing."

At trial O gave evidence in support of count four as follows (R161 at l.50):-

"Now if I can just turn your attention to P. Do you recall ever seeing any kind of sexual inappropriate conduct between the accused man and P?--Yep. There was only one occasion that I can remember seeing.

And when was that as best you can in terms of time?--It was I think around the age of 12 to 13. I know that our mother was still living there with us and - so that was around 1979.

And when you say around the age of 12 or 13, whose age were you referring to?--My age.

And whereabouts did you observe this conduct? Whereabouts were you living at that time?--It was in the-in the bedroom of the house that P and I shared at that time.

All right. So who was living in the house at that time?--My mother, her sister, Josephine but there was also her sister Caroline who was visiting at the time. She wasn't-she wasn't staying there but she was visiting. It was a very brief time and all the children which was the six of us and Josephine's two children and I can remember Caroline had one baby with her there of her own.

All right. Well, can you tell us what you saw that day?--What I can remember in the beginning was that we were walking along the dirt road, that was myself and I can remember definitely my mother, Caroline and the other children were there. I have no idea where-if Josephine was there or where she was. My memory is not clear about that. And we were walking from the gates down the dirt road and its sort of a slope and I decided to run ahead and I ran ahead to the house and then I walked in from the front door into the house and then I saw - then I came to the bedroom which is - I turned right and then the bedroom is on the left and I could see into the bedroom that - K was sitting on my bed and P was between his legs - well, she was down on her knees or down between his legs and his head was looking down at P and P was performing oral sex on him.

Alright. Now can you recall - well, what do you mean by oral sex?--She-she was sucking his penis.

Alright. At that time-can you recall what your father was wearing on that occasion?--Well, he wore the-the same type of clothing every-all the time which is jeans to white sort of-I can't think of the name of the type of jeans but-and shirts, long sleeve shirts."

In cross-examination O essentially confirmed the version of the evidence she had given in chief. At R169 she responded to a query about the date of the incident as follows:-

"The - I take it that you say that it would have been around 1979 because you say your mum was still living there with you?--Yes. Yeah, 'cause it was-she was still there I think when I was around 12, but-and she left sometime during my 12th year, early 13th year, so '79."

Fitzgerald P. in R. v. R (C.A. No 445 of 1997, 6 May 1998, unreported) expressed the requirement that the Crown fully particularised each count at p.2:-

"Particulars must allow an accused, who is presumed to be innocent, to identify the occasion to which a count relates. Details which assume guilt do not perform that function. It does not assist an accused person who denies guilt to be informed that a count relates to the first occasion when he or she allegedly committed an offence of the nature stated in account; he or she denies that such an offence ever occurred. The position is unchanged by adding contentious circumstances, such as the room in which the alleged offence occurred and/or that it occurred during the day or at night when the accused cannot identify the occasion because the circumstances again assume the guilt which he or she denies. Further, circumstances might be so common place as to fail entirely to provide any useful, distinguishing information."

Dowsett J. expressed the test in somewhat wider terms. He noted that in general, as a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence.

At trial the complainant gave evidence, in respect of count one, that this was the first occasion that oral sex occurred. It is clear that a designation as "the first occasion" is not sufficient particularisation because it does not enable the incident to be identified by referring to any objective external fact or event. However in this case there is a greater degree of temporal specificity than was present in the case of R (supra) and in the case of S v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266 referred to by counsel for the appellant. In S v. The Queen the accused had been charged and convicted in Western Australia of three counts of unlawful carnal knowledge of his teenage daughter on dates unknown; the first count charging an act of carnal knowledge committed during 1980; the second during 1981; the third at some point in a 12 month period from 8 November 1981 to 8 November 1982. In that case, at the trial the complainant gave evidence of the first occasion of sexual intercourse, and also said that further such acts had taken place "every couple of months" in each year for 2 years until she left home in November 1982. The High Court there set aside the convictions on the basis that the prosecution ought to have been required to identify the occasion on which each of the offences charged was alleged to have taken place.

Both the Crown Prosecutor's opening in this case and the evidence of the complainant fixed the dates of the oral sex, the subject of count one, as two to three weeks after the appellant's wife left the property. The Crown alleged that the incident occurred in daylight hours and the complainant gave evidence that her Aunt Josephine was present at the property at the time. One would expect that the departure of the appellant's wife might have been of some moment. The appellant's wife gave evidence herself of when she left. Given the relatively small window of time in which it is alleged that the offence occurred, the Crown has identified the occasion in a way that ought to have enabled the appellant to defend himself at the trial against that charge. All that was required of the Crown was to give reasonable particulars and it seems to me that these particulars were reasonable in the circumstances.

In respect of count four, the particulars included:-

• The year - 1979;
• The fact that there were two sisters of the appellant's wife present; Aunt Josephine who was living with the children, and her Aunt Caroline was also visiting; and
• The family were out on a walk; and
• The complainant was at home with her father.

Whilst the incident should ideally be fixed more precisely in time, the accused had the opportunity to test the credit of the witness O by reference to the surrounding circumstances. Furthermore, this is not a case where the appellant was required to defend himself in respect of an occasion when an offence might have been committed. The surrounding circumstances, whilst not fixed accurately in time, are precisely detailed. In the result, I am inclined to the view that the Crown has identified the occasion the subject of count four with reasonable and sufficient particularity. Therefore grounds 1, 2 and 2A(a) fail.

Before moving to the next issue, it should be noted that a very large percentage of these types of cases i.e. where a complainant alleges unlawful sexual acts many years after the acts in question occur, are stamped with the problem of lack of particularity. It is very common for the complainant's evidence to be quite vague, and given the passage of time in some cases, memory loss is hardly surprising. To require precise particulars of specific dates or occasions would often result in offences of this type going unprosecuted.

This particular case does not appear to be remarkable in terms of the quality of the recollection of the complainant. I respectfully adopt the comments of Fitzgerald P. in R v. R (supra) at p.4 where it is suggested that if the rules relating to particularity are to be modified, that step should be taken only by the Parliament and then only after proper enquiry and consideration of all factors, including safeguarding the rights of the accused. The reason for this is that complainants' evidence in many of these cases will inevitably be vague as to temporal identification. These offences are so often committed against young children who often undergo a program of suppression by the offender, and who understandably try to forget their occurrence. There is obviously a very fine line between ensuring that the older offences are capable of resulting in a conviction and the need to protect the right of the accused to know sufficient particulars of the allegations.

1. THE INCONSISTENCY IN THE EVIDENCE GIVEN BY THE COMPLAINANT AND O IN RELATION TO COUNT FOUR

This argument relates to grounds 2 and 2A (b) of the amended notice of appeal. The complainant gave evidence that oral sex only occurred in the saddle shed and on a number of occasions in the appellant's car. (R98 at ll.50-60, R105 at l.20 and R123 at ll.10-20) Her sister O, however, gave evidence that she observed the complainant giving oral sex to the appellant in the girl's bedroom in the house (R162 ll.20-30). She also said that this incident happened at a time when their mother was still living with them. The complainant, however, gave evidence that sexual abuse started after their mother left the appellant and that no other oral sex took place other than in the shed and in the car.

This evidence reveals two inconsistencies which the Crown concedes shows there is some strength in the appellant's contentions. Nevertheless, Mr Chowdhury submitted there was no miscarriage of justice. If O's evidence is correct, and the jury must have accepted it to be so to found the conviction on count four, then the complainant's evidence must be incorrect in two respects; firstly, that the sexual abuse commenced after the departure of their mother, and secondly, the occasion of oral sex in the saddle shed was the first incident of sexual abuse by the appellant. To found a conviction on count four the jury must necessarily have preferred O's evidence to those aspects of the complainant's evidence referred to above.

In M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 493, the High Court, by majority, established that the test for an unsafe and unsatisfactory verdict is whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused person was guilty; and:

"In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with a primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

The question therefore is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The evidence of O, if accepted, was clearly sufficient to found a conviction on count four. O gave clear evidence of her age, and the persons living in the house at the time, including a visit by her Aunt Caroline. She recalled walking down a dirt road towards the house and was clear as to the identity of all of the members of the group approaching the house. She was quite particular about those aspects of her memory that were clear and those that weren't. Her evidence described the position of both the appellant and the complainant in the room, and went as far as describing the appellant's clothing. (R161,162). In short her evidence was very specific and suffered none of the doubts as to the strength of recollection exhibited by the complainant in aspects of her evidence.

The jury had the opportunity to see each witness give evidence, including the appellant, and they were undoubtedly in the best position to judge the reliability of each witnesses' narrative. No doubt the jury were aware that both witnesses were recounting events that happened a considerable time ago; in light of the passage of time, discrepancies in the evidence of the sisters may well not have overly concerned the jury. Whilst the reasoning process of this particular jury will never be known, it is quite conceivable that O's advantage in years, she being some four years older than the complainant, may have influenced the jury's decision to prefer the evidence of O in relation to count four, and to regard the complainant's evidence that oral sex only occurred in the shed and in the vehicle, as a failed memory after the lengthy delay. In this regard, the learned trial Judge, at several points in his summing up, warned the jury to take care in assessing the evidence, having regard to the long delay involved (R249, 256, 258).

There is accordingly no basis for a conclusion that the verdict on count four is unreasonable or not supported on the evidence. Grounds 2 and 2A(b) must, therefore, fail.

1. INCONSISTENCY OF THE NOT GUILTY VERDICTS ON COUNTS TWO AND THREE AND THE GUILTY VERDICTS ON COUNTS ON ONE AND FOUR

This argument is the subject of grounds 2A(f), 3 and 4. It was argued that the jury's acquittal on counts two and three mean that the jury rejected the complainant's evidence on those counts. The argument was that as the jury had a reasonable doubt about a significant part of the complainant's evidence, it is difficult to see how they could not have had a reasonable doubt about her evidence on count one.

The majority judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v. The Queen (1996) 71 A.L.J.R. 91 at pp. 100-102 provides the test for inconsistent verdicts. Their Honours said that where the inconsistency arises in jury verdicts on different counts in a criminal trial, "the test is one of logic and reasonableness". The judgment continued:-

"... a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise in the performance of the jury's duty.

More commonly it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside."

Counts one and four in this case are founded on acts of oral sex. Counts two and three, in the alternative, must be based on an act of sexual intercourse, either with or without the consent of the complainant. The evidence given by the complainant of sexual intercourse was in a compartment of its own. The complainant confirmed that to the best of her memory it was the only instance of sexual intercourse between her and the appellant (R104 at l.49). She gave evidence that after the appellant unzipped his jeans, she closed her eyes. Her recollections of sexual intercourse consisted of a painful sharp feeling in her vagina, akin to the pain from a knife. She did not describe the appellant's movements during the period of pain, nor any visual recollection of what occurred.

The fact that the jury acquitted the appellant on counts two and three indicate that the jury either did not accept that penetration of the vagina occurred, or at the very least had a reasonable doubt as to its occurrence. Such a doubt may have arisen from factors other than her description of the event. The jury may also have been affected in part by the differences between the evidence of her sister O and her brother J about what each said they had heard of screams and banging noises and the words, "no, no", in what appears to be different sheds. They also had the benefit of observing the demeanour of the complainant during the course of evidence and making judgments based upon the language and tone of what she said.

In the context of this case it is perhaps not surprising that the jury entertained no reasonable doubt as to the occurrence of oral sex yet maintained a reasonable doubt with regard to count two, or the alternative count three. The jury obviously accepted the evidence of O that she witnessed the complainant performing oral sex on the appellant. The trial judge correctly stated that if the jury accepted O's evidence as to count four beyond reasonable doubt, the jury was entitled to take it into account as corroborative of the complainant's evidence in relation to count one. Further evidence was also given by the complainant of a number of occasions where she performed oral sex on the appellant in the complainant's car. This evidence in itself is the subject of one of the grounds of appeal, addressed below, but, subject to its admissibility, the jury may well have been properly influenced by the oral nature of the sexual conduct between the appellant and his daughter. The fact that the jury accepted evidence of oral sex and rejected that of sexual intercourse does not amount to an affront to logic and common sense. It shows discrimination by the jury between the various charges. Accordingly grounds 2A(f), 3 and 4 fail.

1. THE PREJUDICIAL EFFECT OF THE EVIDENCE OF THE COMPLAINANT OF OTHER UNCHARGED SEXUAL INCIDENTS.

The complainant gave quite specific evidence of an act of oral sex that occurred by the side of the road in the course of the journey between the complainant's house and the house where the appellant's mother lived, although she could not remember the date. She could remember only one specific occasion and was unable to say if it occurred more or less than five times. The appellant, in the outline of submissions, concedes that this evidence appears to be admissible, though its prejudicial effect, when considered in conjunction with the inconsistencies and lack of particularity in the complainant's evidence, is said to make the convictions unsafe. The issue of inconsistencies and a lack of particularity are dealt with above; the prejudicial nature of this evidence remains to be considered in the light of a number of recent decisions of this court which conclude that this type of evidence may be admitted as evidence of a sexual relationship between the parties: R v. W (C.A. No. 349 of 1997, 21 November 1997 unreported); R. v. W, (C.A .No. 476 of 1997, 12 May 1998 unreported).

The evidence given by the complainant in this case requires close scrutiny. At R96 l.28 the following appears:-

"Do you know on how many other occasions it took place?--There were times when we used to go for drives out to his-on the way to his mother's place.

Well, where-where did his mum live?--She lived in X Street.

X Street. Is that in Charters Towers itself?--Yes."

"And on these drives that you say that oral sex took place, who would be in the vehicle with you?--Just me and my father. No one else.

Do you remember what kind of car it was?--It was a Toyota.

Toyota, as in like a Landcruiser, or---?--A Landcruiser.

Now, when you go for these drives, what would happen on-on these occasions?--He'd stop the car and-and oral sex would occur.

Now, between the property where you lived and his mother's place, where would he-where would he pull the-the vehicle over?--On the dirt road.

P, what-what road is that?--I don't know. In the middle of no where.

The place where you lived, how do you get into that property? Say, from Charters Towers, for example?--There is a dirt road- oh, come off from the bitumen from Charters Towers, you had to go up a dirt road to get to our place."

"Now, the-when you say oral sex took place, what do you mean by that?--He asked me to suck his penis---

And when he would ask you to do that what-what would happen?--I said I wouldn't do it and- and he'd force me.

Can you explain how he forced you to do that?--Had me by the head."

"And when he pushed your head down like that to his penis, what would you do-what happened then?--I-I sucked penis.

And how long would that go on for?--About 2 minutes that I can remember.

Can you recall P on approximately how many occasions that occurred on these drives?--No, I can't recall how many times it happened.

Are you able to say whether it was less than 5 times or more than that?--No."

In cross-examination the complainant again could not confirm whether or not these occasions were more or less than five times in number. The complainant's evidence is of one specific incident. She did not specify a date nor was she able to confirm that it occurred any more than once.

In R. v. W (supra) the appellant was convicted of three charges of unlawful and indecent dealing. The complainant's evidence suggested that there was substantially more than three instances of unlawful and indecent dealing. There the court considered the two inter- related questions; firstly, whether evidence of uncharged offences may be let in and, secondly, to what use such evidence may be put when let in. Their Honours referred to a line of authority justifying the admission of evidence of uncharged sexual acts engaged in with the complainant by a person charged with sexual offences: O'Leary [1946] HCA 44; (1946) 73 C.L.R. 566 at 575, 577, 582; Witham [1962] Qd.R. 49; R v. T.J.W, ex parte The Attorney-General [1988] 2 Qd.R. 456 at 457; Perry (1982) 150 C.L.R. 580 at 586 and B [1992] HCA 68; (1992) 175 C.L.R. 599; Beserick (1993) 30 N.S.W.L.R. 510 and Pfennig [1995] HCA 7; (1995) 182 C.L.R. 461.

In R. v. W Pincus J.A., de Jersey J. (as the Chief Justice then was) and Muir J. decided that evidence of this nature may still be admitted, whether or not it passes the test for admissibility of circumstantial evidence, and that it may be admitted as evidence of the existence of a sexual relationship between the parties. Their Honours did note, however, the discretion to reject this type of evidence when its prejudicial effect exceeds its probative worth. In a separate concurring judgment to that of Pincus J.A., de Jersey J. and Muir J. said at page 1:-

"It appears to me that notwithstanding Pfennig [1995] HCA 7; (1995) 182 C.L.R. 461, evidence of past sexual impropriety between the appellant and his stepdaughter, which if accepted would amount to criminal conduct, was admissible as showing 'the relationship between the two persons involved in the commission of the offence, or the guilty passion between them' ... ., provided it had a 'sufficiently high degree of relevance...to justify its admission', or its probative value raised 'the objective improbability of some event having occurred other than as alleged by the prosecution' ".

It is worth noting the statement of law in relation to this issue by Fitzgerald P. in the case of R v. K [1997] 1 Qd.R.383 at 398, particularly His Honour's warning for the need for a careful assessment of the probative effect of evidence that is simply a contest of "word for word".

"The orthodox view here in Queensland is that evidence of "guilty passion" is admissible in prosecutions for sexual offences, subject to the court's discretion to exclude "unnecessary" evidence in fairness to the accused: See Bradley and Beserick. The admissibility of guilty passion evidence has been based on various grounds, and in particular circumstances it might be probative of specific matters which bear a logical relationship with guilt or innocence; for example, motive. However, the general basis for admissibility of guilty passion is that it is evidence of the relationship between the complainant and the accused and part of the background against which evidence of their conduct, or the accused's conduct, falls to be evaluated; this "true and realistic" context is seen to assist the jury to decide whether a complainant's evidence in support of the charges against the accused is true.

While that might well be true in some circumstances even when the only evidence of her relationship with the accused comes from the complainant herself, in other circumstances relationship evidence from the complainant will have little or no legitimate probative value; for example, if the relationship evidence does not logically add to or detract from the probability that disputed critical matters occurred.

In this case, for example, effectively referred to by the trial judge as primarily a contest of 'word for word' the complainant's generalised evidence had no more than minimal, if any, probative value in relation to her specific allegations against the appellant. The credibility and reliability of the complainant's testimony that she had impermissible (even if consensual) sexual contact with the appellant on a number of specific occasions could not rationally be bolstered - or for that matter undermined - to any significant extent merely by her evidence that sexual activity also occurred on a number of other, unspecified occasions; there is nothing in the complainant's wider account of her relationship with the appellant which throws any light - or shadow - on the truth or accuracy of her evidence overall or in relation to particular matters."

His Honour went on to note the obvious problems associated with "relationship" evidence which indicates a propensity to offend, leading in turn to an inference that the accused committed the offence or offences charged. His Honour felt that as a matter of principle, it is difficult to perceive why the admissibility of such evidence should not be subject to the test for propensity evidence established in Pfennig v. R. (supra).

The distinction in cases such as this is usually between evidence which shows that the accused used to do the sort of thing with which he is charged either with the complainant or others; thus enhancing the probability that he committed the offences the subject of the indictment, as opposed to evidence of conduct of the same sort showing the existence of a sexual relationship between the parties. Evidence of the latter sort may properly be taken into account by a jury to enhance the probability that the accused is guilty of the specific offence. Evidence of the former type may not.

In this case the evidence of the complainant is of such a nature that it can be said to fall within the second category; namely, evidence which establishes a sexual relationship. The complainant gave evidence of one single occasion. It was described with some specificity, and the sexual act described was identical to the sexual acts the subject of counts one and four. Together with the evidence supporting counts one and four, it shows a series of identical sexual acts that suggest that the accused viewed his daughter in a sexual context; as a means of gratification through oral sex. There can be little doubt that the evidence of the oral sex can support an inference of a sexual relationship between the accused and the complainant.

It should be observed that the distinction between the two types of evidence is becoming increasingly artificial. Evidence which shows the existence of a sexual relationship must surely tend to show that the accused used to do the sort of things the subject of the charge. That is obviously the nature of sexual relationships; they are characterised by sexual acts driven by sexual desire. A desire to do something would seem to found a strong inference that the person who desires is likely to have a propensity. It is not far fetched to suggest that a jury might reason along these lines. If evidence tends to show that an accused used to behave in this fashion then it must surely be encroaching the boarders of propensity evidence which is not admissible according to current authority. For present purposes, there is no need to consider a justification for maintaining the distinction because, quite properly in my opinion, there is a strong line of authority which suggests that the type of evidence given by the complainant in this case is admissible.

Furthermore, I am inclined to the view that the testimony of the complainant of the uncharged offence, the oral sex in the car (on the one occasion), is productive of little or no prejudice to the accused. In the circumstances of this case it is likely that the verdicts depended on the jury's assessment of the credibility, overall, of the testimony of the complainant and O whom they had the advantage of seeing and hearing. I respectfully suggest that this matter falls within one of the categories identified by Macrossan C.J. in R v. W (C.A. No. 62 of 1996, 20 August 1996, unreported); that is, a category of case where there is no particular danger of a jury returning verdicts which are anything other than essentially related to the acceptability of the complainant's testimony. Accordingly this ground of appeal must fail.

1. THE ABSENCE OF ANY DIRECTION BY THE TRIAL JUDGE ON THE USE THE JURY COULD MAKE OF THE EVIDENCE OF UNCHARGED SEXUAL OFFENCES

The issues raised under this ground, 2A(e) in the notice of appeal, are related to those discussed in the preceding section. The uncharged sexual offence in question is the occasion of oral sex in the car. The learned trial judge made no mention of this incident in his summing up to the jury. The Crown concedes that a direction should have been given but again submits that no miscarriage of justice occurred.

In this case no direction was requested by counsel but that, of course, does not absolve the trial judge from his responsibility to provide appropriate directions where the law requires. As McHugh J. remarked in BRS v. R. (1997) 148 C.L.R. 101:-

"Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice".

This case, however, does not appear to be a case where a failure to provide a direction was a fatal error. Ideally in a case such as this a warning should not only deter jurors from conscious prejudice and "propensity reasoning" but might also alert them to the need to guard against the subconscious effect of such evidence. Having said this, it is difficult to avoid the conclusion that had the trial judge attempted to direct the jury on the distinction, a distinction which appears to be somewhat artificial in a case such as this, it would have had little impact on the outcome of the trial. Had the trial judge attempted to make the distinction, I doubt that this would have helped the appellant. The absence of such a direction was not something that might have caused this appellant to lose a real chance of being acquitted. In a case such as this, where the evidence about which it is said there should have been a direction, consists of a description of a single uncharged event, it is difficult to see that a direction to the jury on the distinction could have any impact. If the jury were told that the evidence of the oral sex in the car went simply to establishing that there was a sexual relationship between the appellant and the complainant, but did not go to show that the appellant had any propensity towards this sort of behaviour, I think it likely that most jurors would realise that the sexual relationship was comprised of individual acts of oral sex. When this inference is combined with the evidence of O of the oral sex in the bedroom I fail to see how it could be argued that the failure to direct the jury as to the use they could make of the evidence of oral sex in the car, might have made any difference to the end result. His Honour also specifically directed the jury to consider only the specific offences charged and to consider each count separately. This ground of appeal must also fail.

1. THE DIRECTION AS TO THE MEANING OF BEYOND REASONABLE DOUBT

This ground, number 6 in the notice of appeal, is based on the fact that the learned trial judge directed the jury that "beyond reasonable doubt" referred to "a doubt based on reason on the evidence..." This explanation occurred in the course of a re-direction to the jury after a request from counsel for the trial judge to re-direct. The request was in response to a reference by the Crown Prosecutor in her closing address to the fact that "if there is a doubt, but it is not reasonable, then the verdict is guilty".

During the initial summing up, His Honour did not specifically direct as to the meaning of "beyond reasonable doubt", although His Honour on several occasions throughout simply required the jury to be satisfied "beyond reasonable doubt" on the various issues. In parts His Honour told the jury that it was a matter for them "whether the accused's evidence can be rejected and the complainant's evidence accepted with or without the further evidence of J or O beyond reasonable doubt"(R259); and " ... the issue really is ... whether you are prepared to reject ... the accused's evidence that no such thing happened and you would need to reject his evidence in that regard beyond reasonable doubt"; and referring to defence counsel's submissions - "the lack of recollection of the complainant in relation to this count and all counts should be something taken into account by you in rejecting the Crown case and accepting the evidence of the accused, or perhaps, putting it in a better way, that you should not be prepared to reject beyond reasonable doubt, the accused's account."

It is of course essential that the jury be directed that they must consider the whole body of the evidence in deciding whether or not there is a reasonable doubt, and that it is not necessary for them to approach the case on the basis of whether they accept one body of evidence as opposed to another. However, no specific complaint was made about that aspect of the summing up with regard to the onus of proof and this may have been due to the fact that His Honour said subsequently in his summing up (R269):-

"What you accept and reject being important, and I remind you before convicting of any count you must go further than preferring the evidence of the Crown witnesses. You must be satisfied beyond reasonable doubt of the accused's guilt."

On appeal, Mr Chowdhury on behalf of the Crown, conceded that it was unfortunate that the learned trial Judge used the words "a doubt based on reason". It was submitted that in the light of the complete redirection and in the light of the whole summing up the jury would not have been under any misapprehension about the proper standard and onus of proof. Ideally, the learned trial Judge should have directed in accordance with guidelines laid down by the High Court in Green v. The Queen [1971] HCA 55; (1971) 126 C.L.R. 28. The court, in that case, urged that a reasonable doubt which a jury may entertain is not to be confined to a "rational doubt", or a "doubt founded on reason". In Green, the direction of the actual trial Judge was extremely convoluted and nothing like the directions given to the jury on the question in the present case. It would have been preferable, as Mr Chowdhury conceded, if the learned trial judge had avoided the use of the term "on reason". However, when the phrase "on reason on the evidence" is viewed as a whole, it amounts to little more than a direction that any doubts be based on a clear application of the jury's mind to the evidence which they heard. Whilst the explanation of beyond reasonable doubt was not a model one, it cannot be said in the whole of the circumstances that a miscarriage of justice has occurred in respect thereof. Therefore ground 6 fails.

1. THE FAILURE TO DISCHARGE THE JURY AFTER COMMENTS MADE IN THE CROWN PROSECUTOR'S CLOSING ADDRESS

There are two aspects to this ground of appeal (2A(g) and 5), both of which arose from comments made by the Crown Prosecutor in her closing address to the jury. Unfortunately there is no transcript of the addresses, as is often the case. See the comments made in this regard by White J. in R v. Chevathen (C.A. No.222 of 1997, 3 October 1997, unreported); and by Lee J. in R v. Coupe (C.A. No. 277 of 1997 , 9 December 1997 unreported); R v. Robinson (C.A. No. 314 of 1997, 20 March 1998, unreported). It is a very useful practice to have counsels' addresses transcribed for future reference. The potential for prejudicial comments in addresses is always present, and if severe enough, may be the basis for a retrial on appeal. It is obviously preferable to consider the exact comments, as reported by the transcript, rather than secondary sources for this information. In the present circumstances, the court can rely only on the transcript of the argument that occurred at the end of the closing address.

The first matter raised by the counsel for the appellant, already referred to above, is the assertion that the Crown prosecutor said to the jury "if there is a doubt, but it is not reasonable, then the verdict is guilty". By itself this is a clearly misleading statement of the law and Mr Chowdhury conceded that it would have been preferable for the Crown Prosecutor to leave the topic alone. In the context of this case, however, it cannot be said to have deprived the accused of the chance of an acquittal. The trial Judge went to great pains to direct as to the appropriate standard of proof at a number of points throughout his summing up. It should also be remembered that his summing up followed immediately after the address of the Crown Prosecutor. Towards the end of his summing up at R269 he said:

"What you accept and reject being important, and I remind you before convicting of any count you must go further than preferring the evidence of the Crown witnesses. You must be satisfied beyond reasonable doubt of the accused's guilt. If you are not so satisfied, it is your duty to return a verdict of not guilty. If, on the other hand, you are satisfied of the guilt, it is your duty to convict."

Whilst it is clear that both trial judges and counsel should leave well alone the meaning of the word reasonable, in the context of "beyond reasonable doubt", I am satisfied that the Judge's reference to the appropriate standard of proof has effectively nullified any prejudice that may have resulted from the Crown prosecutor's explanation of a doubt that does not amount to being "reasonable".

At the end of the summing up, counsel for the defendant requested that the jury be discharged. The trial judge declined but agreed, after being requested by counsel for the defendant, to redirect the jury on the issue of the standard of proof. The redirection that followed did not quite measure up to the requirements laid down in Green's Case (supra). However, for the reasons outlined above the explanation the jury ultimately received as to the appropriate proof ensured that the jury were properly directed in that regard.

The other aspect of the Crown prosecutor's closing address about which the appellant complains concerns the use of emotive language allegedly used to prejudice the minds of the jury. Again I rely on discussion between the trial Judge and counsel as to what was said. Counsel for the accused at trial, at R272, said to the trial Judge:-

"But then again, near the end of her address today, she said this to the jury. The accused acted in a cowardly way. He preyed upon the girl. He failed to protect her as she was entitled to expect from her father and not only did he fail to protect her but he committed these offences."

The Crown is entitled to, and should, prosecute firmly but fairly. There is obviously no place for language which is inflammatory, invective or emotive in the presentation of the Crown case. The reason for this is that there must be no appeal to the emotion of the jury in such a manner as to invoke their prejudice, sympathy of fear. In the case of R. v. M (1991) 2 Qd.R. 68 Cooper J. noted that in sex offence cases prosecuting counsel are required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury in cases where such emotions are so easily aroused. He also noted the obligation on the court to intervene as quickly as possible in the interests of a fair trial whenever such conduct occurs or where the trial judge perceives that it will occur. Whilst in this case the Crown prosecutor's use of language could certainly have been improved upon, the reference to the accused's conduct, and the accused's duty in relation to his daughter, needs to be seen in the context of the Crown's case that he did commit the acts with which he was charged. The Crown is obviously entitled to assert that the acts were committed by the accused. The reprehensible conduct alleged by the Crown would obviously be correct if the accused committed those offences. The jury would no doubt agree that a person guilty of these sorts of offences has preyed upon the victim. I think that there is little risk that the jury might have seen the Crown's emotive allegation as anything other than part and parcel of the Crown's allegation that he committed the charged offences. This is not a case where it is simply the word of the appellant against the word of the complainant. There is some corroboration from O and as such, it cannot be said to have been as finally balanced a case as R. v. M which consisted of a straight denial by the accused of the acts alleged by the complainant with no corroboration from any other source. The test laid down in the judgment of Cooper J. in that case was:

"Might the words complained of, having regard to the conduct of the case and the issues before the jury, may as a serious possibly, have influenced a jury to return a verdict of guilty?"

In this case the trial Judge specifically directed the jury to decide the case without sympathy or prejudice to the appellant or to any witness. The fact that the jury acquitted on counts two and three also suggests that the jury have distinguished the counts on the strength of the evidence. This militates against a conclusion that the minds of the jurors may have been irreparably prejudiced by the Crown Prosecutor's unfortunate remarks. Therefore the answer to the question posed in R. v. M. (supra), as it applies to this case, is no. In the result grounds 2A(g) and 5 fail.

1. THE PREJUDICIAL EFFECT OF THE STATEMENTS IN THE CROWN PROSECUTOR'S OPENING

In her opening address to the jury, the Crown Prosecutor made the following comments:

"It was after P's mother had left the family, the family home, that the accused man commenced what you might describe as a persistent and lengthy period of sexual misconduct against his daughter, P. P was subjected to an assortment of sexual dealings by her father over the years."

"However, she will tell you in general the kind of sexual assaults her father committed upon her over the years as well as tell you of two specific events that she can still recall with some particularity. During the period from when P was 10 years of age until she left the family home at 13½, the accused man had on many occasions forced P to perform oral sex on him. She is not able to say how many times he made her do this. She tells - she'll tell you that it was far too many to really recall."

"In addition - in addition - the oral - in addition to the oral sex, the accused man had sex with P on many occasions. Again, she is unable to say on how many occasions this occurred. After all these years and after all these incidents, she'll tell you of two incidents that she recalls with particularity. The first of those appear in count 1 on the indictment."

The appellant argues that the complainant did give some evidence of other sexual acts, but that evidence fell far short of proving the conduct described in the opening. In the result it is submitted that this opening had the effect of prejudicing the minds of the jurors so as to preclude a fair trial. No oral argument was addressed to the point during the course of the appeal. The Crown concedes that the complainant's evidence did not go to the extent, nor the detail, of the Crown Prosecutor's opening. I do not accept the Crown's assertion of a number of intimations throughout the complainant's evidence that sexual intercourse took place on more than one occasion. The complainant was asked in examination-in-chief if the alleged sexual intercourse, the subject of counts 2 and 3, was the only occasion that sex took place. She replied, "that I can recall. The only time that I can ...".

There seems to be three separate statements in the opening which cause some concern. The first is the description of a "persistent and lengthy period of sexual misconduct". The second is the assertion by the Crown that the complainant would tell the jury, "that it was just far too many to really recall". The final statement of some concern is the assertion that "in addition to the oral sex, the accused man had sex with P on many occasions."

Whether or not statements made by the Crown in the opening will prejudice the jury to the extent that a re-trial is necessary, will always depend on the particular facts of the case. The overriding principle is that "every litigant has a right to have his case tried fairly, free from bias and prejudice and free from the introduction of any extraneous matters calculated to influence the jury improperly in arriving at a determination": Croll v. McRae [1930] NSWStRp 14; (1930) 30 S.R.(N.S.W.) 137 at 143. Kirby J.A. (as His Honour then was), noted in Varga v. Matri (N.S.W. C.A. 264 of 1985, 28 August 1987, unreported), that a more robust view is nowadays adopted to what a jury, properly instructed, can reject and ignore in the course of a trial. His Honour went on to say that a realistic view must be adopted where highly prejudicial matter is introduced which is difficult to eradicate from the minds of the jurors.

The jury ultimately accepted the evidence relating to the two counts of indecent dealing. They also heard evidence of one act of sexual intercourse and an indeterminate number of occasions when oral sex was performed in the appellant's car. In light of this evidence the Crown's allegation of a persistent and lengthy period of sexual misconduct, whilst suffering from a lack of a desirable degree of precision, does not overstate the case to any significant extent. Unfortunately the same cannot be said for the comment that there were too many occasions of oral sex for the complainant to recall. Ultimately she was unable to confirm whether it was more or less than five times. The inference was certainly open that it occurred on more than one occasion but not that it occurred on too many occasions to recall. The same criticism applies to the allegation that the accused had sex with the complainant on many occasions. Evidence was given of only occasion.

A number of factors should be borne in mind. The first is that these assertions by the Crown were made after the Crown opened the case by specifically outlining the charges on the indictment. Ideally an objection to the opening would have been taken immediately and the learned trial Judge would have given an appropriate direction at a later point. The trial Judge in summing up warned the jury that the charges being joined together on the indictment should not cause any prejudice to the accused. He further warned them to be cautious not to allow the nature of the charges in themselves to prejudice their views against the accused. (R247, 248). He also directed them to consider only the evidence given before them. Unfortunately he did not give the direction in the usual form that the opening by counsel is not evidence.

It is trite to say that the jury heard the evidence and were in the best position to determine the extent of the alleged misconduct. No doubt if they recalled specific allegations made in the opening, they were able to compare what was said with what followed in evidence. It is also reasonable to assume that jurors realised that what the Crown says at the opening stage of a case is an allegation, and no more. The addresses from counsel and the Judge's summing up, including references to the required standard of proof, usually ensure that the jury are in a position to make the distinction between mere allegations, and conduct proved to their satisfaction beyond reasonable doubt. I am of the opinion that this is not case where the prejudicial matter was likely to have remained permanently in the minds of the jury. The initial statements by the Crown Prosecutor must necessarily have been tempered to some extent by the evidence which followed. This situation here is quite different to that in Varga v. Matri (supra) where counsel for the defendant, in an action for damages for assault, said to the jury in his opening that his client had nothing to hide and that he proposed to tender the depositions of the criminal proceedings in the Magistrates Court below and the Magistrate's adjudication thereon; the inference being that his client had already been absolved of any blame by the judicial system. Due to the inadmissibility of this evidence there was nothing which either counsel for the plaintiff nor the trial Judge could do to rectify the statement made by counsel. Ultimately in that case the appeal was dismissed by a majority on the basis that the trial Judge was in a better position than the appeal court to gauge the effect on the jury of the matters complained of.

A successful argument on this ground of appeal is made more difficult for the appellant due to the fact that the evidence showed a strong case against him. As I have previously mentioned this was not a finely balanced case of the word of the appellant against the word of the complainant. The jury have obviously applied their minds to an analysis of the evidence, in the context of each of the elements of the offence; demonstrated by their acquittal of the appellant on counts two and three. There is no doubt that the assertions by the Crown were inaccurate, however this is a case where, in essence, the Crown has opened its case too high. There may well have been instructions from the complainant to the effect that sexual abuse did occur on many occasions. Ultimately the question is one of assessing the strength of evidence that was led and the directions given to the jury to determine if any prejudice flowed from the inaccurate description of the case against the accused. I am not satisfied that any prejudice has been caused to the accused and I would accordingly dismiss this ground of appeal.

The appellant sought, and was granted, leave to add an additional ground of appeal against sentence in the following terms:-

"The sentencing discretion miscarried as the learned trial judge took into account a course of conduct of oral sex by the appellant of which he had not been convicted."

The appellant was sentenced on 20 February 1998 to two sentences of three years imprisonment on counts 1 and 4 to be served concurrently. The final ground of appeal is that the sentences were manifestly excessive in the circumstances.

There is little doubt that the judge took into account on sentence a previous course of abuse by the appellant towards the complaint. At R323 l.10 of the record his Honour referred to the complainant being "the subject of this abuse from you at a very young age". At R324 ll. 10-15, His Honour went onto say that:

"I think that this case, which includes the lack of remorse on your part, the breach of trust at a tender age to your daughter, the insertion of your penis in her mouth on occasions which went beyond the two counts which you were convicted, and shows clearly a course of conduct, makes this offence serious indeed."

The Crown, in fact, conceded that the learned trial judge may have been in error in adopting this position. Counsel for the appellant referred us to the case of R. v. D. [1996] 1 Qd.R. 63 at p. 404 where the Court of Appeal noted that:-

"A person who has only been convicted of an isolated offence is entitled to be punished as for an isolated offence, not on the basis that the only offence of which he or she has been convicted was not isolated but part of a pattern of conduct with which he or she has not been charged and of which he or she has not been convicted."

The court cannot sentence on the basis of a different or more serious offence which, on the evidence might have been charged but was not: R. v. P (C.A. 330 of 1997, 19 December 1997 unreported) per Lee J. at p.24, referring to R. v. De Simone (1981) 147 C.L.R. 383 per Gibbs J. at 389, Savvas v. R. [1995] HCA 29; (1995) 183 C.L.R. 1 at 5, R. v. Boney; ex parte the Attorney-General [1986] 1 Qd.R. 190, R. v. D [1995] QCA 329; (1995) 80 A.Crim.R. 50 and R. v. W (supra). The case of R. v. D. referred to above is of some assistance for comparative purposes. There the offender was 66 years old with no previous criminal history (the appellant here has no criminal history). The offence occurred against his granddaughter when she was 15 years old. The offender was convicted of one count of indecent dealing which consisted of rubbing his penis against the lips of her vagina until some level of ejaculation occurred. On appeal the court set aside a sentence of two and one-half years imprisonment and substituted a sentence of 18 months imprisonment.

Counsel for the appellant referred to R. v. Pham (C.A. No. 435 of 1995, 6 February 1996 unreported). In that case the appellant was convicted after a trial of one count of indecent dealing of a girl under the age of 12 years and was sentenced to imprisonment for two years. On appeal the sentence was reduced to one year. That case is distinguishable from the present case on the grounds of the youthfulness of the appellant; he was aged 24 at the time of the offence and the fact that he did not know the complainant before the offence occurred.

The case of R v. Solway (C.A. No. 164 of 1995, 22 August 1995 unreported) is also relevant for present purposes. The appellant in that case was convicted of four counts of indecently dealing with a girl under the age of 14 years. He was imprisoned for a period of two years and six months on each count, the whole being suspended with an operational period of five years. In that case Pincus J.A., with whom the other Judges agreed, refused to interfere with the sentence but he noted it was not a sentence that he would impose.

At the higher end of the range is the case of R v. Williams (C.A. No. 238 of 1990, 26 April 1991 unreported). There the appellant was convicted of indecently dealing with his niece, then under the age of 12 years. He was sentenced to three years imprisonment and the Court of Appeal refused to interfere with the sentence.

In argument before us the Crown conceded that 18 months imprisonment was appropriate for one offence, but submitted that because of the conviction on two counts, a cumulative sentence totalling three years was justified. It was submitted that on this basis the sentence imposed below should not be interfered with. Such a course is rarely taken in cases of this type where there are two similar offences committed on the same complainant.

Here the appellant was convicted of offences which exhibit a gross breach of trust of the relationship between him and his daughter. The offences occurred at a time when one can only imagine that the complainant was particularly vulnerable after the departure of her mother. He put the complainant through the ordeal of giving evidence at trial and has shown no remorse. The factors in his favour are that he has no previous convictions and he has been hard working all of his life in support of his family.

It is clear that the learned trial Judge erred in improperly taking into account the evidence of the oral sex in the car (and possibly also the complainant's general evidence that sexual conduct had occurred on other occasions). The Crown conceded as much. Accordingly the sentencing discretion has miscarried thus justifying a review of the sentence by this court.

I am unable to agree with the submission that the sentences should remain unchanged on the basis of two convictions. If 18 months imprisonment is the appropriate penalty for one offence, this being conceded by the Crown, a sentence of two years imprisonment would give recognition to the totality principle and his degree of criminality. I would therefore dismiss the appeal against conviction and grant leave to appeal against sentence. The appeal against sentence should be allowed, the sentence below set aside, and in lieu thereof a sentence of two years imprisonment be imposed on each count to be served concurrently.