R v Kemp (No 2)

[1996] QCA 514

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 82 of 1996

Brisbane

BeforeMacrossan CJ

Pincus JA

Mackenzie J

[R v. Kemp (No. 2)]

THE QUEEN

v.

BARRIE LEONARD KEMP
  Appellant

Judgment delivered   13 December 1996.

Separate reasons for judgment of each member of the Court, all concurring as to the order.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:     CRIMINAL LAW - sexual offences - maintaining an unlawful sexual relationship - whether generalised evidence of touching the complainant was admissible - whether the trial judge should have excluded the evidence in the exercise of discretion - whether trial judge's directions to the jury were adequate - R v. Kemp [No. 1] (C.A. No. 82 of 1995) - Hoch v. R (1988) 165 CLR 292 - R v. Pfennig (1995) 182 CLR 461 - S 229B Criminal Code.

CRIMINAL LAW - sexual offences - whether medical evidence of complainant's previous sexual experience was admissible - examination 8 months after last alleged act of intercourse with appellant - complainant had admitted intercourse with others - R v. Morris (1995) 78 A Crim. R 465 - R v. Kerim [1988] 1 Qd R 426.

CRIMINAL LAW - conviction - whether trial judge misdirected jury on assessing complainant's credibility - whether trial judge failed adequately to direct the jury as to the complainant's possible motive for making a false complaint - whether Crown Prosecutor's address to the jury exceeded proper bounds - whether it was otherwise dangerous to convict the appellant.

Counsel:  Mr F. Connolly for the appellant.
  Mr P. Ridgway for the respondent.

Solicitors:                   Legal Aid Office (Qld) for the appellant.
  Director of Public Prosecutions (Qld) for the respondent.

Hearing Date:  9 August 1996.     

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 13 December 1996.

In his reasons Mackenzie J has dealt with the circumstances involved in this appeal and concluded, after due consideration of all of the grounds raised, that none of them is entitled to succeed.  The trial judge's summing up was full and careful and free of what I would regard as material error.   The evidence provided a satisfactory basis for the verdicts.   I agree with Mackenzie J's conclusions and generally with his reasons and only wish to add to them by making the observations which follow.
The offence of maintaining a sexual relationship under s.229B of the Criminal Code was a charge of a more general nature joined in this case with charges of a number of specific offences of a sexual nature. The general charge could not, under the section, be proved without proof of at least three specific sexual offences within the category referred to: see subsection (1A). The trial judge directed the jury that only the offences charged could be considered for the purpose of providing proof of the required three or more offences which were a necessary ingredient in proof of the general charge. There was, therefore, no unfairness in the way the trial was conducted stemming from any lack of particularity. In other circumstances in which the general offence under s.229B is charged, adequate particulars of the Crown case appearing from the course of proceedings on committal together with a sufficient intimation whether by formal particular or otherwise will need to be given if fair trials are to be had and injustice is to be avoided.
           Dealing with the matter more broadly, the central element of the general offence is the proof of the existence of an unlawful relationship of a sexual nature during the period alleged.  The relationship does not have to be proved exclusively by independent proof of three or more specific sexual offences of the requisite kind.  That last requirement is, in effect, made an additional element of the offence.
           In the general aspect of its case, the Crown will have to prove that between the complainant and the accused there existed a relationship which had an unlawful sexual nature.  Use of the term "relationship" implies a continuity of contact in which both parties are involved; the sexual element will be the particular character of the relationship which will appear.  Evidence of conduct occurring between the two parties, if it pointed to the existence of a sexual character in their relationship during the specified period, would be direct evidence of an aspect of this offence.  Of course, in the end, it has to be an unlawful relationship which is shown and that must be a relationship which incudes unlawful sexual acts.  But the conduct to be relevant and admissible does not have to be restricted to specific sexual offences.  Proof of conduct going to show in a more general way the sexual nature of the relationship or the continuity of such a relationship will be a step along the path of proof by the Crown.  Such evidence is not propensity evidence or similar fact evidence subject to the particular rules of exclusion which apply to evidence of that kind, although it could be fair to describe it as context evidence which assists in proof of the necessary sexual element.
           Conduct that is direct evidence of part of the pattern which has to be shown namely a prevailing relationship of a sexual nature is admissible and if it goes so far as to reveal a sexual offence it will be direct evidence of a further part of what has to be shown, namely an unlawful relationship.  In either case, with other similar evidence, it will go in proof of the element of continuity which is involved in maintaining a relationship.
           The trial judge was not in error in admitting the evidence of further conduct referred to by Mackenzie J although it was not part of the specific offences charged.
           The appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

I have read the reasons of Mackenzie J. and gratefully adopt his Honour’s explanation of the issues arising. Subject to what follows, I am in agreement with those reasons. The principal charge was one under s. 229B of the Code, that of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years. There was some discussion before us of s. 229B(1A), the effect of which is to require that a person charged with an offence under the section be acquitted unless there is proof of certain acts. The subsection does not say, nor imply, that the offence of maintaining an unlawful relationship must necessarily be held proved if the three acts mentioned in subs. (1A) are proved; it is easy to imagine circumstances in which those three acts could be proved without necessitating the conclusion that there was such a relationship as the section contemplates. It is equally clear that the Crown is not confined, in attempting to prove the relationship, to adducing evidence of acts such as are mentioned in subs.(1A); evidence of various kinds may go towards the requisite proof. A simple example is evidence of a statement by the accused tending to show a sexual passion for the child.

As to the latter point, I note that in Kemp (No. 1) (C.A. No. 82 of 1995, 29 August 1995) the President accepts the relevance of evidence of sexual contacts between the accused and the complainant other than evidence of acts under (1A):  see p. 23 of his Honour’s reasons.  A question arises, however, as to the use which may be made of such evidence.  Where, as here, there is evidence from the complainant and others of acts of sexual familiarity, they go directly to proof of the relationship alleged.  As is pointed out by the President in Kemp (No. 1) the orthodox view in Queensland is that evidence of guilty passion is generally admissible in prosecutions for sexual offences. Where what has to be proved is not just a single incident, or three incidents, but a s. 229B relationship - a situation subsisting over a period of time - acts of the accused tending to show a "guilty passion" at relevant times are directly relevant; in Court as in ordinary life, one deduces that two people have a sexual relationship with one another, wholly or in part from evidence that they engage in acts characteristic of such a relationship.

A question was raised before us as to the relevance of the notion of propensity evidence to charges under s. 229B. If a man is charged with having the relationship prohibited by s. 229B, then evidence that, for example, he used from time to time touch the complainant in a sexual way does not get in as propensity evidence; it is simply evidence going to prove the case sought to be made - that there was a sexual relationship. Such evidence is relevant whether or not, were an offence other than one under s. 229B in issue, the evidence would pass the tests for admission of propensity evidence, now authoritatively laid down in Pfennig (1995) 182 C.L.R. 461. I have set out views about the effect of that decision in Wackerow (C.A. No. 62 of 1996, 28 August 1996).  In essence, what Pfennig decides is that propensity evidence may be admitted if " . . . the objective improbability of [the evidence] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty . . . ". The test for admission of propensity evidence (including what is usually called similar fact evidence) is the same as that for admission of circumstantial evidence. These tests are inapplicable where the Crown proffers evidence of the prohibited relationship, in a s. 229B case, other than evidence of the acts alleged under subs. (1A); it is repetitive to say so, but evidence of such other sexual acts may be admitted in direct proof of the relationship alleged.

As Mackenzie J. explains, complaint was made before us of admission of what were claimed to be touchings having sexual implications, at unspecified times.  In my opinion none of the grounds of objection to the evidence had any substance.  It was said that this was propensity evidence;  for the reasons I have given, it was not.  It was said that there was a "reasonable possibility" of concoction by the three girls;  assuming that doctrine, underlying Hoch (1988) 165 C.L.R. 292, has survived the restatement of the relevant principles in Pfennig, it has nothing to do with the evidence in question, which was not tendered as or admissible as similar fact evidence.

Complaint was also made, with respect to the evidence just mentioned, of the judge’s directions.  To some extent what his Honour told the jury appears to me to be erroneous, in the light of Pfennig;  the jury was simply told, as Mackenzie J. has pointed out, that propensity reasoning is wrong, whereas Pfennig explains the circumstances in which propensity reasoning is permissible.  But apart from that point, of which no complaint is, or could sensibly be, made on behalf of the appellant, I can see no ground on which the judge’s directions with respect to the evidence under consideration could be criticised.

Complaint was made of the judge not having drawn to the jury’s attention factual considerations favourable to the defence. With all due respect to those who hold a contrary view, I have seen little, in the cases which have come before this Court, to suggest that s. 229B has produced unfairness; it appears to me that this legislative innovation has worked reasonably well. Nor do I hold the opinion that in cases under the section the judge has a special responsibility to draw to the jury’s attention any factual considerations which could weaken the Crown case. My impression is that directions given in s. 229B trials, as in other District Court criminal matters, are generally fair and balanced. A trial judge’s responsibility, in commenting objectively on the facts, is a heavy one and it is important that the judge not seem to the jury to be merely an additional advocate for either side. The judge will be careful to draw the jury’s attention to any particular weaknesses in the Crown case which might otherwise be overlooked, whatever the charge may be, but I am far from convinced that the law requires the judge, in s. 229B cases, to give special directions on the facts in favour of the accused; such directions may or may not be necessary, or appropriate, in particular cases.

An example of the criticisms with which we were confronted, at great length, in the present case had to do with ground 6, as to a possible motive suggested by the defence which might have induced the complainant to make false allegations.  It is not the law that every submission on the facts, emanating from counsel for the Crown or counsel for the defence, must be reiterated in the summing‑up.  Indeed, factual directions which consist largely of comprehensive summaries of counsel’s addresses will not always help or indeed interest the jury much.  I agree with Mackenzie J., as to ground 6, that the essential point made by the defence was put to the jury;  but in so saying, I do not by any means imply that a failure to do so, or indeed a failure to mention the point at all, would have vitiated the trial.

The only other aspect of the case which I propose to deal with specifically is the admission of the medical evidence;  this is complained of in ground 1.  It is difficult to see how the admission of that evidence could have helped the Crown case.  The medical examination showed that the complainant’s condition was consistent with her having had sexual intercourse on a few occasions.  The reason why this did not help is that the complainant swore that she had had sexual intercourse with persons other than the appellant, on a few occasions.  In Kerim [1988] 1 Qd.R. 426, it appears that there was no evidence of any other sexual activity on the part of the complainant, likely to have broken her hymen; that distinguishes Kerim from this case.  It is difficult to generalise, because circumstances can be imagined in which, despite there being evidence suggesting sexual activity (other than with the accused) likely to have ruptured the hymen, medical evidence of a ruptured hymen might be material.  But I can see no basis on which, in the present case, it could have influenced a rational jury for or against the Crown case.  It appears to me to have been merely irrelevant.

It was argued for the appellant that the medical evidence might have influenced the jury against the appellant, but I do not understand how that could be.  In determining whether by a wrong admission of evidence a chance of acquittal might have been lost, one does not proceed from the assumption that totally innocuous evidence will move a jury towards conviction.  It is my opinion that the medical evidence should not have been admitted, but it seems to me plain that it could have made no difference to the verdict.

I would dismiss the appeal.

REASONS FOR JUDGMENT - MACKENZIE J.

The appellant was convicted of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years between 1 November 1990 and 7 February 1993 (count 1), two offences of  indecently dealing with a child under 12 with the circumstance of aggravation that the child was in his care (on unknown dates between 1 November 1990 and 1 February 1991) (counts 2 and 3) and three counts of unlawful carnal knowledge with the circumstance of aggravation that the child was in his care (counts 5, 6 and 7).  Counts 5 and 6 were alleged to have occurred on an unknown date between 31 May 1992 and 1 July 1992 and count 7 on an unknown date between 7 and 29 January 1993.  The specific offences were therefore committed within the period during which the maintenance of the unlawful sexual relationship was alleged, satisfying the requirement that three or more acts defined to constitute an offence of a sexual nature were done in relation to the child during the period alleged.  The jury was unable to reach a verdict on count 4, an alleged offence of aggravated unlawful carnal knowledge at Murphy's Creek between 31 January and 31 March 1992.
          The indecently dealing counts related to digital penetrations while the complainant and the appellant were members of a household at Helidon.  The appellant was at that time living with the complainant's sister Pam who was 4 years older than she was.  The complainant who was born on 14 March 1979 and had been a difficult child had been sent by her father to live in the appellant's household when she was about 12 years of age.  The first incident of indecently dealing was alleged to have occurred on the first night the complainant spent in the household and the second a few nights later.  The complainant had also given evidence of  "a few more" unparticularized occasions of digital penetration at Helidon.  The first conviction of unlawful carnal knowledge related to an occasion when the appellant and the complainant stayed at a motel in Rockhampton while travelling to Mt Morgan where the appellant was buying a house.  The second conviction of unlawful carnal knowledge related to the night the appellant and the complainant arrived in Mt Morgan, a few days in advance of the rest of the household.  The remaining conviction of unlawful carnal knowledge related to an incident when the complainant had returned to the appellant's household for a period of about a month on holidays.  It was alleged to have occurred when she accompanied the appellant to check the house of an absent friend of the appellant.  She also gave evidence of 4 or 5 other incidents of sexual intercourse at Mt Morgan between herself and the appellant without being able to better particularize the occasions.  She also gave evidence, without being able to better particularize the occasions, that the appellant frequently touched and grabbed her breasts and touched her buttocks.  There was no evidence of fresh complaint and indeed the complainant had denied, on three occasions when she was interviewed by the police, that there had been any impropriety between herself and the appellant.  There was no corroboration of any of the offences and the jury was so directed in strong and appropriate terms. 
          The first ground of appeal relates to admission of medical evidence tending to prove that the complainant had had previous sexual experience.  The examination occurred about 8 months after the date of the last act of sexual intercourse alleged.  The complainant had given evidence that she had had sexual intercourse with her elder brother when she was 7 and he 13 on one or two occasions and twice with a boyfriend after she had left Mt Morgan.  The effect of the medical evidence was that the girl's condition was consistent with having had intercourse probably on more than one occasion but only a small number of times.  It was submitted that this evidence should not have been given because it had no probative value.  While it did not establish the precise extent of the interference it was consistent with the three or four occasions to which the girl admitted.  It was submitted that the leading of the evidence invited the jury to speculate that there might have been other occasions which included those involving the appellant.  It was submitted that being expert evidence without probative value the evidence was dangerous and highly prejudicial.  The learned trial judge told the jury that the evidence did not implicate the appellant and that they "must not take too much from it".  He told them, in effect, that at the highest it showed only that the complainant was sexually experienced at 14 years of age.  He said that if the jury accepted that interpretation of the medical examination the evidence removed the possibility that the jury might have thought that examination of the girl showed nothing relevant to the case and might have speculated that she had no sexual experience.  The Crown relied on R. v. Morris (1995) 78A Crim.R. 465, 468 and R. v. Kerim (1988) 1QdR 426, 431, 449 in support of the admission of the evidence. As the appellant's counsel pointed out those cases involved examinations at closer points in time to the alleged offences. He also submitted that in Morris the purpose of admission of the evidence was different because, as well as eliminating the risk that the jury might have speculated upon the reason for the absence of the results of an examination of the condition of the girl's sexual organ, it established that the age of the  rupture of the 7 year old complaint's hymen was consistent with the alleged time of the offence.   It was further submitted that because the complainant in the present case had admitted sexual intercourse with other persons, evidence of the medical examination was unnecessary for the purpose of removing the risk of speculation.  It was submitted that the risk was that because the evidence was before them the jury may speculate in an unauthorized way as to the purpose the evidence served and that they might use it in some way to make up for the absence of corroboration. 

          In my opinion the learned trial judge did not err in exercising his discretion in favour of admitting the evidence.  He dealt with the evidence appropriately in his summing-up.  He told the jury that it was not corroboration.  He warned the jury of the limited purpose for which the evidence was admitted.  He told the jury of the reason for its admission.  In my view this ground is not made out.  Even if the evidence was wrongly admitted, the direction given was such as to limit the use of the evidence in a way which could not have led to a miscarriage of justice.
          Grounds two and three are concerned with wrongful admission of evidence that the appellant had touched the complainant in inappropriate ways at unspecified times.  This category of evidence came from the complainant, her sister Faylene, and Kristy Ranita Campeanu who was living with the appellant's son Shane in the household at Murphy's Creek and Mount Morgan.  By the time of the trial, her relationship with Shane had come to an end. 
It is important in considering these grounds to keep in mind that the evidence of other acts of a sexual nature was admitted only in respect of the offence of maintaining a sexual relationship under s.229B(1). The jury was told that the evidence was not admissible on the other counts which related to specific identified acts. Section 229B(1A) provides that for a conviction of the offence under s.229B(1) there must be evidence of the commission of an offence of a sexual nature on three or more occasions. The jury was told that proof of those acts must be found in the specific offences charged in counts 2 to 7 and could not be found in the generalized evidence of other acts.
          The accused's case, which he gave evidence to support, included denials that any of the specific acts charged had occurred and that any other physical contacts were non-sexual in character and occurred as part of ordinary family life.  He gave evidence that on occasions he gave the complainant and his other children "a peck on the cheek" and "patted (the complainant) on the backside" when saying goodnight and that on occasions he could have touched her breasts in a non-sexual way while "brushing past her, fitting clothes to her, adjusting her clothes near her breast, giving her a hug".  He agreed that he made remarks about her breasts but said that in doing so he was only teasing her in the same way that he teased his other daughters.  The commission of the specifically charged acts, the existence of a sexual relationship and whether any generalised physical contact which was found by the jury to have occurred was of a sexual or an innocent nature were in issue.  The last category became an issue because of the learned trial judge's decision to admit the evidence of the complainant and two other girls about acts of sexual familiarity other than those specifically charged.
          The present appeal is from a retrial following the decision of this court in R. v. Kemp (CA 82/95) (Kemp (No 1)).  In that decision the judgments emphasised the heightened risk that a trial may prove to be unfair because of the "inherently broad and imprecise concept" (Fitzgerald P.) of maintaining a relationship, the difficulty of meeting generalised evidence and the failure to give precise and careful directions as to the use that can be made of the evidence.  However while emphasising those matters and the need to limit evidence of generalised sexual conduct to that which is necessary to provide the background within which the charge is to be considered it was not suggested that evidence of unparticularized sexual conduct was inadmissible merely because it is unparticularised in a case where the evidence is merely part of the context of adequately particularised specific offences.
          In arguing grounds two and three Mr Connolly developed four specific areas of complaint.  The first was that generalised evidence amounted to evidence of propensity and was highly prejudicial and that the evidence led exceeded what was necessary to provide sufficient context for the jury to consider count 1.  If it was admissible the learned trial judge should have excluded it in the exercise of his discretion. 
          The second was that the admission of the evidence was calculated to erode the direction that there was no corroboration of the complainant's evidence of the specific acts charged in counts 2 to 7.  The third was that the evidence was inadmissible because there was a "reasonable possibility" that it was the product of concoction by the three girls acting in collusion.  The fourth was that the learned trial judge had wrongly directed the jury as to the use they could make of the evidence. 
          The jury was warned in respect of the charges relating to individual acts (counts 2 to 7) of the risk of a jury reasoning that the accused person has a propensity or inclination to offend and using that process of reasoning more easily to reach a verdict of guilty on a specific charge more easily.  The jury was told firmly and unequivocally that "propensity reasoning is totally wrong" and that they could not be assisted towards reaching a verdict of guilty on counts 2 to 7 by using evidence about incidents other than the alleged facts of the particular charge under consideration to conclude that the accused was prone to or likely to act in a certain way. 
Section 229B, to which count 1 relates, recognises that where repetitive acts of a sexual nature are committed upon children, it will often be difficult to give the degree of particularity usually demanded when a charge is brought. Section 229B has as one of its purposes attempting to ensure that, in an area where repetitive conduct of a similar kind is not infrequent in respect of a vulnerable segment of society and where, because of the repetitive and secretive nature of the conduct, precise particularity of the occasion is often lacking, offenders do not escape punishment merely because the degree of particularity that would ordinarily be required cannot be given. Section 229B is an attempt to create a legislative compromise which strikes at the element of repetitious conduct (by employing the concept of maintaining a sexual relationship) while requiring the jury to be unanimously satisfied beyond reasonable doubt that three or more acts of a sexual nature occurred in the period alleged.
The offence created by s.229B is unusual in that it combines the requirements of proving at least some degree of habituality (maintaining a sexual relationship) and of proving at least three acts constituting an offence of a sexual nature, committed during the period over which it is alleged that the sexual relationship was maintained. Both these elements must be proved beyond reasonable doubt. The offence is neither an offence completed upon the commission of three discrete acts of a sexual nature, nor an offence defined solely in terms of a course of conduct or state of affairs. It combines elements of both.
The evidentiary provision in s.229B(1A) provides that notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions the evidence is, firstly, admissible in evidence and, secondly, probative of the maintenance of the relationship. The first assistance given by the evidentiary provision is to declare that evidence of an act constituting an offence of a sexual nature is admissible notwithstanding the absence of evidence of the date of the occasion or the "exact circumstances" of the occasion. The second is that such evidence is probative of the maintenance of the relationship notwithstanding the absence of evidence of the date of the occasion or "exact circumstances" of the occasion.
Section 229B(1A) does not do more than make the evidence probative. It does not ascribe any particular weight to the evidence. In that respect it may be contrasted with provisions which make a particular form of evidence prima facie evidence and conclusive in the absence of evidence to the contrary. Nor does the section deem proof of an offence of a sexual nature on three occasions to be sufficient evidence of the maintenance of a relationship.
Although the exceptions will be factually uncommon, there seems to be no reason to suppose that s.229B(1A) was intended to have the effect that proof of three acts of a sexual nature over a period alleged in the indictment would be automatically sufficient to establish the element of maintenance of a relationship. Circumstances where proof of only three acts might be sufficient can be suggested. For example, if an adult and a child were proved by clear evidence to have arranged to meet for the purpose of having sexual intercourse on each occasion when she was allowed out on leave from boarding school, but their arrangement and evidence of their intention to continue with it was discovered after only three such occasions, such evidence may be sufficient to satisfy a jury beyond reasonable doubt that the adult was maintaining a sexual relationship with the child. On the other hand there is no reason to think that the section was intended to apply if what is proved are three random or opportunistic incidents such as a case where, over a period of time, an adult and a child meet unexpectedly and without arrangement at a place of entertainment and on each occasion decide to have sexual intercourse during the course of the evening.
While both of these examples relate to mutually agreed relationships, a sexual relationship, for the purpose of the section does not need to have that characteristic. The "relationship" with which the section is concerned is some kind of connection with the child, having sufficient habituality and having a sexual content, whether or not the complainant's attitude towards the relationship is favourable or not. Section 229B (1A) is negative in form in the sense that it does not say what is sufficient to prove the offence but says that a conviction cannot occur without proof of a minimum of three occasions. The words following "and" are not a statement that proof of three occasions is sufficient to establish the offence. The words are an evidentiary provision directed to the problem of sufficiency of particularisation, the effect of which is to make evidence admissible and to give probative effect to evidence of doing an act of a sexual nature notwithstanding that the evidence does not disclose dates or exact circumstances of those occasions. What it achieves is to allow the threshold issue of three occasions to be proved by evidence which does not particularise the date or exact circumstances of the incident. The principles relating to the sufficiency of particularisation in light of this provision are discussed at length in R. v. Thompson (C.A. No. 116 of 1996, unreported, 22 November 1996) and do not require further elaboration in this case.
Because of the structure of s.229B sufficient evidence must be led to prove the maintenance of a relationship. Often, of necessity, it will include evidence of a particular kind or particular kinds of conduct occurring on multiple occasions without the complainant being able to specify the precise occasion and without the complainant being able to be precise about the details of individual occurrences other than to say that particular kinds of conduct occurred on frequent occasions. This lack of detail creates some potential for unfairness to the accused, as was pointed out by Fitzgerald P. in Kemp (No 1).  As Kemp (No. 1) also indicates, in such cases it is important that the trial judge's summing-up include whatever directions are necessary to ensure that the accused's trial is fair.  In particular it must address the special risk of unfairness arising from the generalised nature of the allegations. 
          The kinds of considerations to be taken into account in determining the limits of "context" evidence where specific offences alleging single acts are charged are succinctly set out in R. v. Beserick (1993) 30 NSWLR 510, 522-3 in the judgment of Hunt C.J. at C.L. The passage is as follows: -

"So far as concerns the second of the balancing operations (the discretion to reject the evidence upon the basis that its probative weight is outweighed by its prejudicial effect), the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature.  When that stage has been reached, trial judges should be firm in excluding the evidence tendered.

...........

Obviously enough, no hard and fast rules could be laid down as to how this difficult discretion should be exercised.  To some extent, it may depend upon the nature of the issues raised by the accused.  Usually, however, it will depend to a very large extent upon how the Crown has framed its case.

Where the sexual activity between the complainant and the accused has taken place over a long period, it is the usual practice of the Crown to charge the accused in relation to a number of "representative incidents which sufficiently reflect the total criminality involved, spread over the whole of that period.  Provided that each such incident is sufficiently specified (S v. The Queen (1989) 168 CLR 266), there could be little doubt that in most cases the whole of the sexual activity between them over that period would quite properly be admitted in order both to establish the desire or feelings of the accused for the complainant at the time of each incident giving rise to an offence charged and to place such incident into its true and realistic context. Once evidence is given that the accused has committed a number of the offences charged, the additional prejudice created by evidence showing that he has committed other offences as well will be much the same whether those other offences be few or many in number. But, even in such a situation, there will be cases where the jury may be distracted by the multiplicity of such other offences from impartially considering the evidence related to the offences charged, and there will be other cases where the offences charged are so far separated in time that evidence of all other sexual activity between the complainant and the accused is no longer reasonably required for either of the two purposes for which it is ordinarily admitted."

Where acts described in general terms are said to be direct evidence of the existence of and nature of a relationship as in a charge under s.229B it is difficult to see why such evidence would ordinarily be excluded in the exercise of discretion. Hunt C.J. at C.L.'s observation that once evidence is given that the accused has committed a number of the offences charged, the additional prejudice created by evidence showing that he has committed other offences as well will be much the same whether those other offences are few or many in number has particular force in this context as well. If the Crown were to attempt to lead evidence of acts outside the period alleged as the period of the relationship the question of exclusion in the discretion of the trial judge would plainly be enlivened. It may be unlikely that the Crown would seek to lead evidence of events of that kind. However if it were to attempt to do so not only the question of discretionary factors but also the question of relevance would need to be addressed in deciding whether the evidence should be admitted. In the first instance the question is whether it is reasonably necessary to call it. If not the evidence ought to be excluded. In the second instance the question is whether it is admissible at all.
Mr Connolly submitted that generalised evidence of touching should not have been admitted on count 1 as it was "evidence of propensity" and was seriously prejudicial and unnecessary. He submitted that the substance of the relationship alleged was to be found in the acts charged in counts 2 to 7. He submitted that those acts provided ample evidence of the relationship without the need to introduce "minor acts". The Crown's leading of the generalised evidence undermined the accused's fair trial. This argument was linked with the submission that the admission of the evidence was calculated to erode the direction that there was no corroboration of the complainant's evidence with respect to counts 2 to 7. In considering this argument it is necessary to deal first with what is in my view a misapprehension in the appellant's submissions of the operation of s.229B.
Mr Connolly submitted that s.229B defined a "statutory relationship" constituted by three acts of the kind defined. He submitted that the requirements of the section were fulfilled by proof of three such acts. He submitted that the section should be read as providing that "an act ... on three or more occasions ... shall be ... probative of ... the relationship." I have explained earlier in these reasons my view of the proper construction of s.229B. Mr Connelly's submission was that the learned trial judge had erred in concluding that while proof of three acts of a sexual nature was a minimum requirement the jury may look at other acts not specifically charged. Mr Connelly's submission was essentially that evidence of the acts of touching was unnecessary because the requirement of the section had already been satisfied and that, being propensity evidence, it was dangerous to admit it. He further submitted that the jury would have been confused by the learned trial judge's references to the generalised evidence of the other women of touching as being supportive of the complainant's evidence of touching while saying there was no corroboration of counts 2 to 7. He submitted that the direction relating to support for the allegations of touching detracted from the force of the direction about the lack of corroboration in respect of the individual offences in counts 2 to 7.
          In my view it was not correct that proof of count 1 was necessarily achieved by proof only of three of the specific acts charged in counts 2 to 7.  It was in my view open to the Crown to lead evidence of other acts of sexual familiarity  which the accused denied or explained as innocent contacts in the ordinary course of family life.  I should mention the argument put by Mr Connolly to the effect that the learned trial judge misstated in his summing-up that it was common ground that there were touchings.  This turned on an analysis of the evidence in which it was submitted there were two separate categories.  The first included accidental touchings, horseplay and legitimate manifestations of affection, as to which there was a measure of agreement.  The second was a range of illicit touchings, varying descriptions of which were given by Crown witnesses, which were denied by the accused.  In directing the jury on this matter the learned trial judge told the jury the evidence of Kristy Campeanu went beyond that of the others.  He told them to consider any conflicts detected between the complainant's evidence and that of the other women, reminding them that if they did that might lead to doubting the complainant's evidence on the points of conflict or generally.  He told them that if they accepted the evidence of one or both the other women it may allow them to be more comfortably satisfied that the complainant was right in claiming that the appellant had touched her sexually.  He reminded the jury that there was no corroboration on counts 2 to 7 and that only the complainant gave evidence about them.  He told them that the evidence of touchings was limited to count 1 and that they were not to use in determining guilt on counts 2 to 7.  In my view the direction is adequate.  It follows from what has been said that in my opinion the learned trial judge did not err in admitting the generalised evidence of touchings on count 1.  The direction given on corroboration and the use that could be made of the evidence of the touchings were, in combination, adequate to ensure that the jury understood that the evidence on counts 2 to 7 was uncorroborated and that any support found in the evidence of the other women for the complainant was only related to count 1.  The direction as to the use that the jury could make of the evidence of the other girls was in my view adequate.       The remaining question is the submission that the evidence of the touchings was inadmissible because there was a "reasonable possibility" that it was the product of concoction by the three girls acting in collusion.

          Reliance was placed on the discussion of similar fact evidence and propensity evidence in Hoch v. The Queen (1988) 165 CLR 292 and R. v. Pfennig (1995) 182 CLR 461 and on dicta in the judgment of Fitzgerald P. in Kemp (No. 1) to the following effect:-

"... there are obvious problems associated with evidence of the relationship between a complainant and an accused which alleges the commission of other offences by the accused and hence, because of his criminal conduct or character, his propensity to offend, leading in turn to an inference that he committed the offence or offences with which he is charged.  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 Hoch v. R. (1988) 165 CLR 292 and Pfennig v. R. (1995) 127 ALR 99; however, that need not be decided in this case, which is primarily, at least, concerned with the adequacy of the trial judge's summing-up."

Section 229B is an unusual offence in that it requires proof of at least an habitual course of conduct of a sexual nature in respect of a person under 16. It is an element of an offence that the conduct is of a sexual nature. In the present case that element was disputed by the appellant. When such an element is in dispute it is incumbent upon the Crown to lead evidence from which the jury may conclude that the relationship had a sexual character. In the present case the evidence included evidence of the complainant as to generalized acts of sexual familiarity and evidence of two other girls that they had seen acts fitting that description done by the appellant to the complainant even though they were not identifiable as relating to the same instances described by the complainant. In my view the evidence of each of the girls was of primary facts from which the jury was asked to find that the relationship between the appellant and the complainant alleged in the count 1 had a sexual character. The evidence was in my view admissible as being directly relevant to that issue or to that element of the offence. It was not admitted as evidence of similar facts, or of propensity or relationship in the sense that those words were used in Hoch and Pfennig.    The following passage from Hamzy (1994) 74 A. Crim R 341, 347, a drug case, makes this point succinctly.
          Speaking of the principle relied on by the Crown that individual acts of supply which could be properly identified as part of the same enterprise could be charged in one count, Hunt C.J. at C.L., with whom Abadee and Simpson JJ. agreed, said:-

"Next, it is said that proof of an activity or enterprise in accordance with this principle permits the Crown to call what is in effect propensity evidence without the protection of proper directions as to the use which may legitimately be made of that evidence. But the evidence is not of mere propensity to commit this particular crime. Each individual act of supply is directly relevant to the issue which the Crown seeks to prove - namely, in the present case, that the appellant was engaged in the criminal enterprise of dealing in heroin. There is nothing said in either Hoch (1988) 165 CLR 292; 35 A Crim R 47 or Harriman (1989) 167 CLR 590; 43 A Crim R 221 which would prevent such a course being followed. If it is thought that a direction is needed in the particular case in order to avoid any misuse by the jury of such evidence, such a direction should be given: cf. Marley (1932) 47 CLR 618 at 621; Harriman (at 609; 235); Martin (1990) 48 A Crim R 208 at 212."

The fact that the possibility of collusion exists does not affect the basis of admissibility in the same way that evidence of similar facts or propensity is affected by the possibility of collusion.  In the case of similar fact or propensity evidence, the basis of its admission is that it can be used to prove the charge under consideration by revealing that it is an instance of a pattern of activity proved by witnesses who were unlikely to give similar accounts unless the happenings sworn to occurred.  Once the factor of unlikeliness is removed from that kind of case because of the possibility of collaboration or collusion, the capacity to infer to the requisite standard that the only reasonable explanation of the evidence that similar events occurred is that the witnesses have independently observed them occurring is destroyed.  The basis of admissibility of similar fact or propensity evidence to prove a count relating to a specific event on a specific occasion is different from that of evidence tending to prove the nature of a relationship between two people where the relationship is alleged on one hand to be innocent and on the other, illicit.  That result follows from the unusual nature of the offence which requires proof of at least a sufficient degree of habituality to be properly described as a relationship, (as opposed to several isolated acts) and that it is sexual in character.  The possibility of collusion goes only to credibility, not admissibility. 
          It may be accepted, as Fitzgerald P. and Shepherdson J. said in Kemp (No. 1), that the nature of the offence in s.229B imposes a heavy responsibility on the trial judge to ensure that the inherent disadvantages in the conduct of the defence case in a charge of that kind are neutralised by careful consideration of the extent of the evidence that should be admitted and by directions that explain properly the use to which evidence of generalized acts can be put. However because the legislature has created an offence of this kind with its inherent difficulties for an accused person the scope of the evidence which may be led to prove its elements cannot be restricted by considerations which might apply to similar fact or propensity evidence in cases of offences constituted by single individual identifiable acts. In my view the appellant cannot succeed on the argument made.
          Ground four alleges that the learned trial judge failed to properly direct concerning the importance of evidence corroborating the appellant in testing the complainant's allegations.  The complaint is that in the case of the specific incidents charged in counts 6 and 7 there was other evidence which may have had a bearing on the acceptability of the complainant's evidence.  It was submitted that it was therefore necessary to explain to the jury that this evidence was important, firstly, in deciding the issue of guilt on counts 6 and 7 and secondly, as a test of the complainant's credit in relation to the other counts. 
          With respect to count 6 the complainant's evidence was that an act of sexual intercourse occurred in front of a heater in the living room on an occasion before the other members of the household arrived at Mt Morgan.  She also gave evidence that after the other members of the household had arrived another four or five acts of sexual intercourse occurred in the living room late at night at times when Kristy Campeanu and Shane were not present.  The complainant was at Mt Morgan for about 1 month.  Kristy Campeanu gave evidence that in the period after she arrived at Mt Morgan and while the complainant and Faylene were living there, she and Shane slept in front of the heater.  The complainant agreed that Kristy and Shane slept in front of the heater after they arrived but she did not recall that they slept there all the time.  There was some uncertainty whether Kristy and Shane had departed from the premises before the complainant left.  She agreed that she had said on a previous occasion that they had, but she was cross-examined on the basis which was supported by other evidence that Kristy and Shane had moved into the bedroom vacated by the complainant and Faylene when they departed. 
          There was a lack of precision in Kristy's evidence about the date of her arrival.  She and Shane had travelled independently of the balance of the household.  The evidence ranged between "about 2 weeks" after the complainant and the appellant to "shortly after the family".   There was other evidence suggesting that they had arrived 4 or 5 days after the complainant and the appellant.  Kristy said that she and Shane had spent every night at home except one when they arrived home at about 11pm.  She agreed there may have been other occasions when they went to the local hotel but said that all members of the household went together. 
          Mr Connolly's address, which was recorded, occupies about 6 pages of transcript on this question.  It includes verbatim quotations of relevant parts of the evidence and its effect was similar to what he says the learned trial judge should have said to the jury.  Mr Connolly's submission in this Court is that the learned trial judge should have told the jury that the credit worthiness of the complainant's evidence on the specific counts may be diminished by a doubt about her evidence of generalised acts and, in that regard, the evidence of Kristy Campeanu may have that effect because of the inconsistencies between her evidence and the complainant's as to the opportunity for the unparticularized offences at Mt Morgan to be committed.  A trial judge must be given some latitude in constructing his summing-up.  In particular he is not obliged to repeat in full detail the submissions of counsel.  However any individual factors relating to a particular count must be adequately put in respect of that count even if directions generally applicable to all counts have been put in a more general or global way.  The summing-up shows that the learned trial judge substantially reproduced a passage from Fitzgerald P.'s judgment in  Kemp (No. 1) in his general directions.  He said that if the jury disbelieved the complainant's general evidence and if they thought that damaged her credit they could take that into account in considering specific allegations on counts 2 to 7.  The fact that the complainant's credit was impaired might disincline them to accept the specific allegations.  He also told them that if they disbelieved or doubted what the complainant said about specific allegations, that may tend to weaken or destroy her generalised evidence or her evidence about the other specific acts. 
          In discussing propensity evidence he invited the jury to consider any conflicts detected between the complainant's evidence and the evidence of Faylene and Kristy.  He told them that if they found any discrepancies, that might lead them to doubt the complainant on the points of conflict or generally.  In respect of count 6, he told the jury that defence counsel had invited them to doubt the complainant's evidence of similar performances happening a number of times in front of the heater after the family members had arrived.  He reminded them of Mr Connolly's submission that nothing had happened because Kristy would have seen it.
          With respect to count 7, the conflict in the evidence was concerned with the time the appellant's vehicle spent at Whybrow's house where the offence was alleged to have occurred.  The complainant said that there was only one occasion when they went to the house.  She said that she was sitting in the car when the neighbour, Mrs Hanson, came over and after Mrs Hanson left she and the appellant went into the house.  She said that there was sexual activity in the house for about 25 minutes after that.  The evidence of Mrs Hanson was that she heard a car pull up at the Whybrow house from which she had just come after watering the garden.  She went over and spoke to the appellant who told her he was checking the answering machine.  She then went home.  She said it was about 3 minutes from when she heard the car arrive until she heard it leave.  The appellant gave evidence that the complainant sat in the car while he spoke to Mrs Hanson, following which he went into the house to check the answering machine.  He said they left after about 5 minutes.
          In relation to count 7 the learned trial judge reminded the jury that the effect of the defence evidence was that the whole visit took only 5 minutes or so.  He reminded the jury of  Mr Connolly's submission that the whole incident was not believable especially because the complainant described a far longer sexual encounter than Mrs Hanson's estimate of the time allowed for.  He then said "they are obviously questions for you as to the reliability of Mrs Hanson's estimate.  You heard evidence about when she first made it".  The last comment is a reference to Mrs Hanson's evidence that she was first asked to recall the incident about 2 years after it happened.  There was an application for redirection but it appears to have been on the basis of a misapprehension that the learned trial judge had said "if it is the same incident" during the course of the summing-up, whereas the transcript of the summing-up actually records that the learned trial judge said that Mr Connolly's submission was that "it is the same visit being talked about".   Mr Connolly submitted that a request by the jury for redirection in respect of count 7, in which the jury asked for a reading of the evidence about what happened at the Whybrow house indicated they had problems with count 7 and submitted that a proper direction of the importance of the contradictory accounts would have been most important to their deliberations. 
          The issue of the conflicting evidence as to the time spent at the house was the paramount issue in respect of count 7.  The learned trial judge in his summing-up focused upon it and the reading of the relevant evidence at the request of the jury would have again brought it clearly to the jury's minds. 
          In my view the learned trial judge followed the statement of principle in the judgment of Fitzgerald P. in Kemp (No 1).  The jury was told of the way in which they should use any discrepancies they found in considering the complainant's creditworthiness.  The learned trial judge also drew the jury's attention to the particular factors affecting the credibility of the complaints in respect of counts 6 and 7.  In my view the directions, in the context of the summing-up, were adequate to focus the jury's minds upon how they should approach the question of credibility.  This ground is not made out. 
          Ground 5 alleges that the learned trial judge failed to direct the jury properly about the lack of specificity in the complainant's generalised accounts of the sexual acts alleged.  Essentially the complaint is that while the learned trial judge explained the relevant principle developed in Kemp (No 1) in general terms it was necessary also to give the jury guidance as to how they were to apply it to the facts in issue in the case.  The submission is really that the conflicts in the evidence relied on by the defence in relation to ground 4 should have been used to give examples of the operation of the principle at the time when the general direction was given.  The learned trial judge's statement of general principle must be read in the context of the summing-up as a whole.  The general statement is not the only reference to the application of the principle.  Once it is found that the defence has been sufficiently put (as it has been in respect of ground 4) the ground cannot succeed.  
          Ground 6 alleges a failure to properly direct the jury as to the importance of possible motive in assessing the complainant's allegations.  In his address defence counsel had developed an argument that the complainant had been sent by her father to live with the appellant and her sister because of the complainant's uncontrollable behaviour while living with her father.  The complainant had returned to her father on a few occasions and had expressed a wish to resume living with him but he had said she would be better off living in the appellant's household.  The defence submitted that this rejection by her father may have triggered a false complaint against the appellant because of other circumstances operating on her mind at that time.  There was evidence that she had told a friend, Ms Barnes, who was said to have formed an instant dislike of the appellant, that she had been sexually molested by her mother's de facto husband.  It was submitted that when Ms Barnes was pressing her to make a complaint against that person, the complainant in her overwrought state suddenly made allegations against the appellant.  The defence argument was that she may not have consciously realised the emotional reason for the outburst, which was directed against a person she had professed to like and in regard to whom she had denied on  three occasions that there had been any impropriety.  The complaint is the the learned trial judge put this aspect of the defence case to the jury in a disjointed and inadequate fashion.  While there was evidence that she was overwrought, that she had ambivalent feelings towards her father and was under pressure to make the complaint of molestation by the other man there was nothing in the evidence suggesting that the explanation offered by defence counsel was any more than speculation.  In dealing with the defence submissions about the complainant, the learned trial judge referred to an allegation that the complaint was fomented by Ms Barnes who knew of the allegations of molestation by the other man and who had a "child molesting mania". He referred to evidence that the complainant had been in touch regularly with her father and that he had noticed nothing strange or troubled about her.  He also referred to a submission that the complainant was happy living with the appellant but unhappy and unruly when she returned to her father.  Reference was also made to the complainant's denials of impropriety on the part of the appellant.  The learned trial judge directed the jury in relation to the suggested explanation in the following terms:-

"I do not think I need go into it in detail, it would be fresh in your minds, but as I understood it it centred on the repeated rejection of Estelle by her own father and a curious way of dealing with that by making and persisting in serious complaints against Mr Kemp.  Perhaps the reasoning is that if this complaint appeared to have anything in it Mr Ivins would simply be forced to take the daughter back.  Mr Connolly was quite correct in saying to you it is not his responsibility to prove to you exactly why false complaints might be made and persisted in.  He has offered that suggestion to you as one which might be of assistance."

It was apparent from the transcript that the learned trial judge had a problem with his notes at one point in this part of his summing-up.  A redirection was sought and given.  After referring to the problem with his notes the learned trial judge reminded the jury of Ms Barnes' concern and the question of the other molestation.  He then told the jury that the complainant was a "very upset" girl.  He then referred, in terms which at least on paper do not appear all that clear, to a passage of evidence illustrating this.  He then said:-

"That evidence which bears on Estelle's state at the time she made the complaint you may take into account in considering Mr Connolly's suggestion to you as to what the processes might have been whereby she made a complaint against his client which the defence say is completely baseless."

The complaint really is that because most of the direction was contained in the summing-up itself but one accidentally omitted factor from the applicant's submission was contained in a redirection, the learned trial judge's duty to explain an important part of the defence coherently had not been discharged adequately. In my view the directions together dealt with the essential elements of the explanation offered for the making of the complaint which the defence said was false.  Therefore the ground is not made out.
          Ground 7 is concerned with the way in which the learned trial judge dealt with submissions made by the Crown Prosecutor that certain of defence counsel's submissions were improper.  To put the argument in context, defence counsel addressed first, followed by the Crown Prosecutor.  At the conclusion of the Crown Prosecutor's address Mr Connolly complained to the learned trial judge in the absence of the jury about the content of the Crown Prosecutor's address.  The trial judge indicated that he would not be endorsing any charge of impropriety.  The summing-up commenced but on the resumption of proceedings the following morning, prior to the summing-up being resumed and again in the absence of the jury, Mr Connolly again raised the issue.  The learned trial judge indicated that he proposed to direct the jury that Mr Connolly had not done anything improper, unethical or beyond what was done by counsel in criminal trials.  The second last topic dealt with in the summing-up was this matter.  The learned trial judge told the jury that the Crown Prosecutor had prosecuted the case fairly and that defence counsel had "put up a proper and vigorous defence of the kind which any accused person would expect".  He then faced the question of impropriety squarely and told the jury that defence counsel's conduct of the case did not go beyond the bounds of what is properly or usually encountered in the court and that he had not done anything outlandish or unethical.  He warned the jury in visiting any annoyance they might have with counsel upon the accused or the Crown.  The thrust of the submission in support of this ground was that the fact that those directions had not been given at an early stage of the summing-up would have conditioned the jury to assume that there was some substance in the allegations and to discount the defence arguments.  It was submitted that by the time the trial judge dealt with the matter the jury would have little memory of the defence arguments because the Crown Prosecutor's comments would have diverted their attention from those arguments and devalued them.  It was submitted that it was incumbent on the learned trial judge to redress the effect of the remarks at the beginning of his summing-up and that he had failed to do so.             The first of the specific matters of complaint is that the prosecutor told the jury that the defence was asking them to believe that the complainant was telling "a pack of lies".   Mr Connolly said that he had been careful to avoid any allegation of lying.  The defence hypothesis was that she, for deep seated psychological reasons, may have convinced herself that the complaint was true.  The second was that the Crown Prosecutor had alleged that the defence was using "tactics of rumour, suspicion and smear" in suggesting to the jury that they might attribute to the girl greater sexual experience with persons other than the accused person than she had admitted to.  Defence counsel had invited the jury to infer that because of her uncontrollable behaviour at times including an occasion where she had gone travelling with some youths without parental consent she may have had sexual intercourse on more occasions with persons other than the accused.  It was also submitted that because the appellant had had a vasectomy and it was unnecessary for him to use contraception, the jury might infer that she had acquired knowledge of the withdrawal method of contraception from someone else.  The complainant was not cross-examined on any of these matters notwithstanding that she was under cross-examination for the equivalent of a whole sitting day.

          The failure to cross-examine the girl on these issues was explained in the appellant's submissions before this Court as a tactical approach to avoid alienating the jury by attacking the girl.  It was submitted that the defence had chosen to rely on what it said were legitimate inferences from the evidence of unruliness and the girl's knowledge of the withdrawal method that she must have wider sexual experience than she was prepared to admit in evidence-in-chief.  The defence submitted that this was a matter that went to the issue of her credit, which was paramount in the case.   At the end of the evidence, there was neither evidence of other sexual conduct nor evidence that she had learnt the withdrawal method in any other way than she had said.  In my opinion, in the circumstances, the comments are robust but do not exceed proper limits.
          It was also submitted that the Crown Prosecutor's reference to certain defence submissions as being improper went beyond proper bounds.  The Crown Prosecutor focused on comments made by defence counsel to the effect that the jurors would have seen in the press that accusations of child molestation were often made and were sometimes true and sometimes not.  Defence counsel had asked the jury not to be brain washed into equating suspicion with proof.   In the context of criminal advocacy, I do not think that the defence submission went beyond what was legitimate.
          The third aspect of the matter is concerned with a comment that improper submissions had been made from the bar table in connection with the evidence of Mrs Hanson.  This arose from a submission by defence counsel that, being a resident in a small country town, Mrs Hanson would have begun to fix relevant events in her memory as soon as a person was charged with an offence, if she knew anything concerning the offence.  In connection with this aspect, it is to be inferred from defence counsel's address that counsel and the instructing solicitor had conferred with the witness prior to the trial.  The opportunity existed at the trial to ask the witness at what point of time she first became aware that the applicant had been charged in respect of the act of sexual intercourse alleged to have been committed at Whybrow's house (count 7).  This was not done.  The only evidence given or sought on the issue of lapse of time between the incident and recall was that Mrs Hanson had first been asked to recall the incident about 2 years after it happened.  It was amply established that Mt Morgan is a small country town.  However the difficulty from the defence's point of view in complaining about a vigorous comment by the Crown Prosecutor is that the inference that the defence asked the jury to draw was inconsistent with the evidence.  If, for tactical reasons, the defence chooses not to confront the issue directly there can hardly be a legitimate complaint if it is pointed out vigorously that the evidence does not support the inference.
          Mr Connolly's submissions reflected a concern that certain aspects of his address to the jury had been described as improper.  The learned trial judge's direction, which expressly denied any impropriety by either counsel, have been referred to above.  Because of the ambiguity of the word "improper", some care must be taken in its use in addresses to the jury.  At the top end of the scale, it may convey that what was done was unethical, reprehensible and deserving of censure.  At the low end of the scale, it may mean no more than that conduct has transgressed limits that are ordinarily observed without any implication of lack of morality.  It is therefore better, if it is felt by opposing counsel that a submission has gone beyond what is justifiable, to choose a more precise expression to convey that notion to the jury.
          Having said that, intemperate use of language in an address by a Crown Prosecutor can result in a miscarriage of justice and lead to the setting aside of the conviction.  It is also important that the Crown Prosecutor address in such a way that the jury is not distracted from the true issues.  Where other words can be used to express a submission which may be properly made it is better if potentially inflammatory words are avoided.  In a case where complaint is made about the content or tenor of the Crown Prosecutor's address the issue is whether there has been a real risk that the remarks wrongly influenced the verdict, thus resulting in an unfair trial.  (R. v. Ciseau, CA No. 470 of 1993, unreported 8 November 1994.)   In my view the learned trial judge adopted a course which meant that almost the last thing that they heard from him in his summing-up was a refutation of the suggestion that defence counsel had acted improperly and that the conduct of the defence had not gone beyond the bounds of what was properly or usually encountered in the court.  The approach adopted by the learned trial judge of ensuring that it was uppermost in the minds of the jury as they retired that the conduct of the defence was not open to question in any way was calculated to ensure that any of the concerns which Mr Connolly expressed were dissipated.  In my view it is not established that there was a real risk that the remarks of the Crown Prosecutor wrongly influenced the verdict or resulted in an unfair trial.
          The final ground, ground 8, was that it was dangerous to convict the appellant and that the conviction should be set aside.  Mr Connolly adopted the categories referred to in M v. The Queen (1994) 181 CLR 487, 493 to the effect that this ground could be availed of where there was some feature of the case raising a substantial possibility that the conclusion itself was wrong or that the jury may have been mistaken or misled in the manner in which it reached the conclusion. To the extent that the ground relies upon wrongful admission of "propensity evidence" and the medical evidence, for the reasons that have been given in connection with those specific grounds there is no sustainable basis for complaint.
          The other aspect of the submission was that the jury failed to give proper weight to defects in the uncorroborated evidence of the complainant which should have raised a reasonable doubt in their minds.  In this connection it was submitted that the complainant's account of the acts in counts 2 and 3 was unlikely because the specific acts alleged and other similar unspecified acts were alleged to have occurred in a place in the family dwelling where others may well have been in a position to observe them.  With respect to counts 4 and 5 it was submitted that while there was opportunity for the acts to be committed without observation by others there was no evidence other than that of the complainant.  Further in respect of counts 6 and 7 it was submitted that they were improbable in view of the evidence of Kristy Campeanu and Mrs Hanson.  It was submitted that these defects were compounded by the lack of any indication by the complainant at the time that such acts were occurring and her three denials to the police of any misconduct by the appellant.  It was further submitted that it was unlikely that the appellant, knowing that the police had suspicions, would persist in a course of conduct of the kind alleged.  It was submitted that because of these matters the verdicts must be set aside.  The jury was directed in terms which I consider adequate about the issue of discrepancies and what use could be made of them.  It had the advantage of seeing the complainant and the appellant giving evidence in respect of counts 2 to 7 and, on count 1, the other girls as well.  Reading the transcript does not create the impression that the verdict reached was not reasonably open to the jury and in my opinion the verdict should not be set aside on this ground.
          The ground, to the extent that it relies on misdirections alleged under grounds 5, 6 and 7 cannot succeed because for reasons developed in respect of each of those grounds the directions were adequate and it cannot be therefore established that the jury were misled as to the process by which they could reach their decision. 

None of the grounds of appeal are therefore made out.  The appeal is dismissed.