R v Alexander and McKenzie [2002] VSCA 183

R v Alexander and McKenzie [2002] VSCA 183 - VSCA 2002 case summary — Zoe

[22]

It should be noted at this point in the narrative that both applicants gave evidence at the trial in the course of which they denied the complainant's allegations. Indeed McKenzie called "alibi evidence" in relation to her whereabouts and activities on 19 and 20 December 1996. In that regard, it should be said that the complainant's evidence was that she "barely knew" McKenzie on 20 December but, as she said, she felt that she knew "a lot about her" through her discussions with Alexander in which she had been told that McKenzie had "fantasies" about participating in "sexual threesomes". The case which McKenzie made at trial was supported, not only by strong character evidence as to her integrity, honesty and truthfulness, but by the alibi evidence which, having regard to the lapse of time because of delay in complaint, could only be described as persuasive. By reference to her diary she was able to testify that, on the 19th and 20th December 1996, she was living with her parents and grandparents in the outer eastern town of Berwick, many miles from Alexander's Brighton house. On the night of 19 December she was performing as a soloist at "Carols by Candlelight" in Dandenong. It was an occasion which meant something to her because her mother had been responsible for arranging her appearance; and the occasion was to be "hosted" by the well known "musical talent host" Johnny Young. The night had turned out to be a "disaster" for her. Rain had caused the re-arrangement of the venue; she had arrived late; Young had "walked out" on the performance; and she felt that she had performed badly. She had arrived home, in Berwick, late in the evening, without having a chance to talk to her mother who was asleep; having herself arrived home from Sydney that morning. McKenzie said that on the day of the 20th December, she awoke at about 10 a.m. Her mother - a school principal - had left for work. She nevertheless remained around the house with her grandmother, assisting her in arranging Christmas decorations. She had also engaged in sewing a dress which she wanted to wear to a friend's wedding. Her mother had arrived home from school at about 3 p.m. They had much to discuss, including the events which had occurred at "Carols" the preceding night; and her mother's trip to Sydney during the week where she had been watching her son (McKenzie's brother) performing as the principal dancer in a ballet organized by the National Ballet Company. Alexander, who was then her boy-friend, had arrived in the evening at about 5.30 p.m. They had had an early dinner and gone shopping in Dandenong; before he dropped her off again at her Berwick home. Both McKenzie's mother and grandmother gave evidence supporting this alibi. Each was a person of good character. Despite lengthy cross-examination, neither "flinched" in their recall of events.

[54]

"The ordering of separate trials ... is a matter within the discretion of the trial judge . Usually, although not necessarily, ... the application is made before the trial itself has started ... .At this point in the trial, the knowledge available to the judge of the course which the trial is likely to take is based upon the depositions ... . It will appear from the depositions whether the accused have made statements to the police, and whether those statements involve a denial or admission of guilt. The judge is aware that it is possible that all the accused, or some or none of them, may give evidence. In the case of accused persons who are alleged to have made statements, the judge does not know whether the statements will be acknowledged or repudiated, adhered to or departed from. He does not know whether accused persons who appear from their statements to be giving the same account of events will, in the result, be in difference between themselves. The possibilities of the outcome of which the judge is necessarily ignorant can be multiplied indefinitely. Nevertheless a decision must be made. [I interpolate that these statements were made before the practice and procedure in criminal trials was changed by the Crimes (Criminal Trials) Act 1993.] When the judge's exercise of discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how, in the end, it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's discretion aside, and substitute a different view of its own, unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that, because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage."

[62]

I agree with Mr. Priest that, in the context of this trial, those directions, general as they were, were not capable of overcoming the prejudice which, irredeemably, flowed to McKenzie. The Crown case against her was that, on 20 December 1996, she had committed sexual offences against the complainant in the course of a "threesomes sexual orgy" with Alexander and the complainant, a girl with whom McKenzie had had no prior connection. That Crown case was given impermissible substance by the hearsay material, irrelevant and inadmissible against her, which was contained in the conversations between Alexander, on the one hand, and the complainant, LSM and SMT on the other; evidence to which I have previously referred, and which was calculated to show that McKenzie had a predilection to the very sort of sexual behaviour which the complainant described. It is difficult to resist the conclusion - notwithstanding the general directions (which came early in the judge's charge) to which I have referred in the preceding paragraph - that the jury would, or might, have discounted her alibi evidence as a consequence of a belief, engendered by the inadmissible evidence, that she had a predilection for the very type of sexual encounter which the Crown was alleging. That potential prejudice in the case of McKenzie was heightened by the judge's direction that her alibi evidence would have "general application". This was a comment made in the course of the judge's directions to the jury that, unless they could exclude McKenzie's alibi beyond reasonable doubt, they could not be satisfied that the events of 20 December occurred. No doubt his Honour's directions were given because Alexander's counsel relied heavily upon McKenzie's alibi evidence to absolve his client from those events, and no doubt his Honour was referring to the consequence that that evidence, given on oath during the trial, was available to be used generally. Nevertheless, unexplained, the direction impinged upon the "separate trial" direction and the "linking" of McKenzie's case with that of Alexander was capable of producing unfortunate consequences for McKenzie.

[102]

Having regard to the extremely restricted use for which the judge admitted the evidence and required it to be confined, I think Mr. Tehan is correct in his submission that it was not only erroneous to admit it for that purpose, but also that the trial of the applicant became unfair because it permitted the Crown to lead in evidence a number of conversations between the applicant and the five students which were highly prejudicial but unrelated to the issues which the jury had to determine. In my opinion, the evidence of similar facts which the Crown was seeking to derive from the conversations between the five students and the applicant was not admissible simply to prove the "collateral issue" that it made it more likely that he had spoken to the complainant in similar fashion and, thus, proved the nature of the relationship which existed between them. If this was the only basis upon which the evidence could be admitted and used, then, in my view, it was not just to admit it because its probative value could not possibly exceed the prejudice which it created. But, even more importantly, his Honour's permitted use of the evidence led to the introduction of a number of sexually explicit conversations between Alexander and the students which were highly prejudicial to the applicant but were not probative of the offences alleged against him. Thus, as it seems to me, the trial lacked the procedural rigour which one would expect where similar fact evidence is relied upon by the Crown. It may well be - although the matter was not extensively debated in this Court - that there could have been distilled from the evidence to be given by the five students a distinctive "system" or modus operandi employed by the applicant of seducing his students; of a kind which was strongly probative (in the sense to which I have previously referred) of the issue in dispute in the proceedings - namely that Alexander had seduced the complainant in the manner which she asserted. I refer, in particular, to the evidence of LSM, SMT and, perhaps, TFL and AKH, that the applicant told them that they were "old and evolved souls" where discrepancy in ages did not matter for the purposes of sexual contact; that they should explore themselves sexually; or masturbate; and that their first sexual experience should be with a person like himself who was more experienced than boys of their own age. Whether that evidence established a pattern of conduct on the part of the applicant to give it the required probative value in relation to the issue in dispute will be a matter for the judge at a new trial which, in my view, there will have to be. For my own part, I do not see anything in the evidence of AHH which could be used to establish the pattern of behaviour or conduct to which I have referred. I should say that it is not necessary, in my opinion, that similar fact evidence must establish that a strikingly similar pattern of seduction has led to the commission of similar offences as those charged in order to give it the probative quality required. The real issue is, as Mr. McArdle submitted, whether the evidence is capable of establishing such a strikingly similar means of seducing students that it would be an affront to common sense not to lead it in proof of the fact that the complainant was seduced; in other words, that it has positive probative value as distinct from merely displaying an inappropriate tendency on the part of the applicant to converse with his students in an improper and familiar manner. In determining whether the evidence has such probative value, the judge is not required to isolate similarities of offending from similarities of circumstances surrounding or preparatory to offending[27].

[103]

I am, accordingly, of the view that ground (i) is made out and that Mr. Tehan is correct in his submission that the purpose for which his Honour admitted this evidence led to the admission of conversations between the applicant and the five students which were very prejudicial to Alexander but had no logical probative value to the offences charged. For example the evidence of AHH that the applicant had asked her on one or more occasions whether she had "started to explore herself" was not logically probative of a "method of seduction". Indeed, as I have said, her evidence should not have been admitted at all. Furthermore the evidence of SMT that the applicant had told her that he had seduced a girl from another school was simply evidence of prior criminal behaviour which had no logical probative value towards establishing a method of seduction of the type to which I have referred. The admission of this evidence provides the basis of ground (ii) of the applicant's grounds of appeal. It led to an application for discharge which his Honour declined on the basis that it was one of a "regime of similar conversations, ... that he was in the habit of making ... so that [it] could corroborate in the general sense ... that small aspect of the complainant's evidence." The evidence was, of course, highly prejudicial and the judge's ruling seems to confirm that he regarded the evidence as relevant, wrongly as I have said, because it confirmed the complainant's evidence that Alexander spoke to her in a similar fashion. Again, in my view, this ground is made out. Likewise, it seems to me that SMT's evidence that Alexander had told her in a telephone conversation that "Beth was having an orgasm" and had later told her that "Beth would love to meet her in `a threesome' " was not probative of a means of seduction employed by Alexander of the type to which I have referred. It was simply further evidence of Alexander's tendency to talk to his students in an inappropriate manner.

[123]

There were two other matters argued by Mr. Tehan, under cover of grounds (xi) and (xii) in respect of which I should make some comment for the benefit of the judge who conducts the re-trial. Ground (xi) asserts that the judge was in error in not balancing his directions, given in accordance with s.61 of the Crimes Act in respect of reasons for the delay in complaint, by giving to the jury a direction that they could take that delay into account in assessing the credibility of the complainant[40]. This was a case in which, I think, such a direction should have been given having regard to the age of the complainant and the undisputed fact that she had previously stated to the authorities that no improper conduct had occurred between her and Alexander. However the failure to give such a direction, by itself, did not cause any substantial miscarriage in the trial, particularly having regard to the fact that no exception to the charge was taken on that account. Ground (xii) asserts that the judge erred in not giving a direction that, before the jury could act on the admission alleged to have been made by Alexander to LSM - namely that Alexander had admitted that he and McKenzie had had "a sexual experience" with the complainant - they should be satisfied that the admission was made and that it was true. Again, no exception was taken to the judge's charge in this respect. In fact, the judge did tell the jury that they must be satisfied that such a conversation between Alexander and LSM did take place. He did not tell them, however, that if they were so satisfied, they should also be satisfied that it was true. Mr. Tehan submitted that this was a case where it was essential for the judge to have given this direction because the accused had given evidence denying LSM's allegation, but had agreed that he had had a conversation with LSM about the complainant in the course of which LSM had told him that the complainant had suggested to her that he had engaged in sexual activity with the complainant. Alexander said that he had responded, flippantly, "sure, I have sexual relationships with all my students". In this state of the evidence, I think it would have been desirable for the judge to have instructed the jury that, before they could act on LSM's evidence of the alleged admission, they should also be satisfied that the admission said to have been made was a true confession of a sexual engagement between Alexander and the complainant. Whether such a direction should be given must depend on the circumstances of the case[41]. However, as Barwick, C.J., Gibbs and Mason, JJ. said in Burn's case[42]:

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