R v Alexander and McKenzie [2002] VSCA 183

Criminal law - Use of excluded record of interview in cross-examination of accused - Whether such use compromised fair trial.

Criminal law - Directions of trial judge - "Jones v. Dunkel" direction; "Kilby" direction, and directions as to use of "admission" - Principles discussed.

Criminal law - Re-trials or verdicts of acquittal - Whether verdicts "unsafe or unsatisfactory" - Principles discussed - Re-trials ordered.

2. The applicants Trevor Alexander and Elspeth McKenzie were tried in the County Court at Melbourne in March 2002, upon 10 counts of sexually interfering with a female Wesley College school student ("the complainant") in late 1996 and early 1997. At all relevant times, Alexander - then aged 35 - was the music teacher at the Glen Waverley campus of the college; and McKenzie - then aged 22 years and a talented student of music at the Melbourne University - was his girl friend. By the time of the trial they had married.

5. At the time when the offences were alleged to have occurred, the complainant was aged 14 years and was one of a number of students who were taught music by Alexander. In addition to the complainant, the Crown called five of those students as witnesses at the trial. (I will refer to those five students as "LSM", "SMT", "AHH", "AKH" and "TFL".) The evidence given by those five students comprised a substantial portion of the evidence given at the trial. It was the subject of objection. The fact that it was called, and the use made of it, is now at the forefront of Alexander's application for leave to appeal; as well as being at the heart of McKenzie's claim that she has been denied justice as a consequence of being jointly tried with Alexander.

8. The 10 counts on the presentment alleged offences of "taking part in an act of sexual penetration with a child under the age of 16 years" contrary to s.45 of the Crimes Act 1958 (counts 3, 4 and 6); and 7 counts of "wilfully committing an indecent act with or in the presence of a child under the age of 16 years" contrary to s.47 of the Crimes Act (counts 1, 2, 5, 7, 8, 9 and 10). Counts 1, 9 and 10 were alleged against Alexander alone. They were offences alleged to have occurred between 2 and 3 December 1996 (count 1), between 1 December 1996 and 31 May 1997 (count 9) and 20 January 1997 (count 10). All the other counts on the presentment alleged offences which occurred on 20 December 1996 at Alexander's premises in Brighton. (It was not in issue at the trial that this was the date upon which the alleged offences were claimed to have occurred.) They were offences said by the Crown to have been initiated by Alexander, but to which McKenzie was a party either acting in concert or aiding and abetting. It was accepted that, at the time when the offences charged under s.45 of the Crimes Act were alleged to have occurred, the complainant, as Alexander's pupil, was under his "care, supervision and authority"; a fact which - upon conviction - constituted an aggravating circumstance of the offence rendering the maximum penalty one of 15 years instead of the 10 years which was the maximum penalty otherwise provided. The offence described by s.47 of the Crimes Act attracted a maximum penalty of 10 years. The offence alleged in count 9 described conduct said to constitute an "indecent act with a child" contrary to s.47. It comprised a telephone conversation between the complainant and Alexander in 1997 during which, according to the complainant, Alexander was instructing her to masturbate. It was contended that this conduct could not constitute "an indecent act with a child". The trial judge ruled to the contrary and, as hereafter noted, Alexander was convicted.

11. After a trial which lasted for some 16 days, the jury convicted Alexander and McKenzie of all the counts preferred against them. Following pleas in mitigation, his Honour - on 19 April 2002 - sentenced the applicants as follows:

His Honour ordered that 6 months of the sentences imposed upon counts 1, 2, 3, 5 and 6 be served cumulatively upon each other and upon the sentence imposed on count 4. The total effective sentence was therefore one of 4 years and 6 months' imprisonment. His Honour ordered that Alexander serve 2 years and 6 months of that term before becoming eligible for parole.

Counts 2, 3, 4, 5, 7 and 8 - 10 months' imprisonment

His Honour ordered that 6 months of the sentence imposed on count 7 be served cumulatively on the sentence imposed on count 6. The total sentence was, therefore, one of 18 months. His Honour directed that McKenzie serve a minimum period of 9 months before becoming eligible for parole.

24. Each of Alexander and McKenzie has applied for leave to appeal against the convictions recorded. Before turning to the grounds of those applications it is necessary to refer, in a summary fashion, to the relevant facts established by the evidence at the trial.

27. The complainant, who was born on 26 March 1982, and, at the time of trial, was 19 years of age, gave evidence of events which had occurred several years earlier. This was largely due to the fact that she had made no formal complaint to the police or anybody in authority until the end of 1999 when she was studying for her V.C.E. exam and sought "special consideration" in respect of her final examination on the basis that she had become emotionally disturbed as a consequence of what had happened to her in 1996. Yet, although rumours had apparently circulated within the school for some time, the complainant had asserted between 1996 and 1999 to the school authorities, to her parents and to the police that no sexual misconduct had taken place between her and Alexander. Her first formal complaint to police was made in July 2000. The delay in the complaint meant that witnesses were giving evidence of events which were said to have happened some years before and, not surprisingly, that evidence was characterized - in some instances - by poverty of recollection.

30. The complainant said that she had continued to receive singing lessons from Alexander from 1993 until 1997. Although she had left the college at the end of the 1996 year, she sought and received tuition at his premises in Ashwood in 1997. By 1995, she said she began to repose personal confidences in Alexander. She claimed that he was a very "spiritual person" and would discuss matters of a spiritual nature with her; he would talk to her of "past lives" and tell her that she and he were "very old souls" who had "met up again in this life". Age gaps did not matter because they were "like spiritually enlightened people". He gave her books to read such as the "Prophet". In 1996, she said, the relationship became closer and, by November of that year, they were discussing matters of a sexual nature. Alexander, she said, encouraged her "to write down her thoughts" and "to write poems". He gave her a book which he had written containing his thoughts and poems. She said that she knew from Alexander that McKenzie was his "girl friend" and was known as "Beth". It was in late 1996, she said, that Alexander told her that he thought it would be "a good idea if he was involved in her first sexual experience" rather than she having the experience with a 14 year old boy "who did not know what he was doing". She said that he encouraged her "to touch herself" - that is, to masturbate. According to the complainant, Alexander talked to her about McKenzie; and said that she (that is, McKenzie) had a "fantasy to have a sexual experience with two men". By the end of 1996, she said, there were "long wanting stares" between them; that there was "a sort of agreeance" between them that something sexual was about to happen. This, she said, in fact occurred.

33. The complainant then gave evidence of events she claimed to have occurred on either the 2nd or 3rd December 1996 at about 4 p.m. in the music room at the college. She went there after school; she and Alexander were alone; he put his hand on her thigh and commenced to rub it until his hand was in her underpants and his fingers around her vagina. She was unable to say whether he digitally penetrated her vagina. She said she was excited and knew that they "would be together in a physical sense again". These were the events which constituted the alternative of count 1 on the presentment (indecent act with a child).

36. The next events described by the complainant all occurred on 20 December 1996 and constituted counts 2 to 8 inclusive on the presentment. The circumstances which she described were all said to have occurred at the premises of Alexander in Howells Street, Brighton where he was then living. Her evidence described a series of sexual acts, all consensual, between her, Alexander and McKenzie. She said the meeting had been arranged at an earlier time between herself and Alexander. She had been told by Alexander, at the school, that he had "discussed with Beth" (that is, McKenzie) the fact that he and the complainant had been "physical together" and that McKenzie had told him that "she did not want him to have sex with a girl under 16 years". She had told Alexander that she would "not report him" to police. She said that she had thereafter received a telephone call from Alexander who invited her to come to his Brighton house on 20 December. Her father had driven her to Brighton and dropped her off near Alexander's house. He had collected her and driven her to his house in Howells Street. She said that McKenzie was there when she arrived. They sat in the lounge room, consumed a bottle of champagne and some lunch. Alexander then asked them what they wanted to do and McKenzie said "Why don't we walk to the beach?" Alexander had then said to McKenzie: "I'd like to make love to you."

39. According to the complainant, this remark triggered a "sexual orgy" in which all three participated. It is unnecessary to describe it in detail. The complainant described Alexander and McKenzie making love to each other in her presence; that she, too, was undressed. There were acts of oral sex between herself and Alexander. The three of them then moved from the lounge-room to the bedroom where they were lying on the bed naked and, so the complainant said, engaging in sexual acts with one another of a variety of kinds, at least one of which involved the use of a vibrator.

42. The complainant said that this sexual activity, the individual acts of which constituted counts 2 to 8 (inclusive) on the presentment, concluded when Alexander said that he had "a hair appointment" at 4.30 p.m. She said that McKenzie drove her home. It was some time later, the complainant said, that she had a telephone conversation with Alexander in the course of which he "instructed" her to masturbate whilst he was talking to her. She said that she was not, in fact, doing what he was telling her to do, but she "led him on". This was the "indecent act with a child" charged as count 9.

45. The complainant further testified that, on 20 January 1997, she had been with her friend, LSM, to a play - "Hansel & Gretel" - produced and directed by Alexander. It was performed in an outdoor garden in Brighton. She and LSM were taken by LSM's mother and, following the play, they were taken back to Alexander's house for lunch. Again, she said, McKenzie was there. She said that, at one point, she was alone in the lounge-room with Alexander whilst LSM and McKenzie were talking in the kitchen. Alexander kissed her and thrust his tongue into her mouth. At this point she said that she realized she was not physically attracted to Alexander. This episode was count 10 on the presentment ("indecent act").

48. 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.

52. The case which the Crown made against McKenzie at the trial was, in the events that happened, over-shadowed by the case which it made against Alexander. As I have already noted, the Crown led evidence of a "similar fact" nature from five other students at the school which was calculated to demonstrate that Alexander employed a distinctive pattern of conduct, or modus operandi, as a prelude to seduction. The introduction of this evidence was strongly objected to by counsel for both applicants at the outset of what, in this application, has been called "the first trial". That trial had ended with the discharge of the jury as the result of something which the prosecutor had said in opening the case to the jury. The second trial had commenced immediately after that discharge; and his Honour's ruling that the five girls could give evidence as to the conversations which they had had with Alexander continued to govern the evidence led at the second trial.

55. The evidence to which trial counsel for the applicants had objected related to conversations which the five girls had had with Alexander which were, in many respects, similar to the conversations which the complainant testified that she had had with him. Thus, it was proposed that the witnesses would testify (inter alia) that:

Her relationship with Alexander became "closer" towards the end of 1996. He would talk to her about "personal matters". He said they were "old souls", and had lived in previous lives; that age did not matter, nor age differences. He told her that sexual experiences were "quite different for people like us" and that there were "other girls like her". He named the complainant, SMT and one "PR". She said that Alexander asked her if she would like to "touch him" and that it would be better for her to have a sexual experience with him than someone of her own age. He encouraged her to masturbate and to tell him what she was "fantasizing about". She said that he told her that her "first sexual experience should be with him"; and encouraged her to "write her feelings down".

In addition LSM said that Alexander had talked to her "about Beth" (meaning McKenzie). He said that she was "an old soul". LSM further said that, in 1997, Alexander told her that there had been a "sexual experience" between him, Beth and the complainant; that the complainant "had come to he and Beth" and told them that she was "ready"; and that the experience had "overwhelmed" the complainant. (my emphasis).

SMT's evidence was that, in 1996, Alexander had discussed "past lives" and "re-incarnation"; that he told her that she was an "evolved soul" on a "superior spiritual plane". He gave her a book of poems which he had written. Alexander told her about an experience which he had had with a girl at another school, and that it had been "a fantastic experience for her" because "teenage boys could not satisfy her". She said that, in "late 1996" she had had "phone sex" with him. He encouraged her to masturbate. On one occasion, she had rung him; she had heard "background noises". On her enquiry, he said "that is Beth having an orgasm". Later still, Alexander had told her that "Beth would love to meet her in `a threesome' " and was "looking forward to having sex with her". (my emphasis).

Her evidence was that she had, in 1996, gone to a play with Alexander. He had later asked her whether she "had started to explore herself".

She said that she had spoken to Alexander about "personal problems". He spoke to her about "past lives". He told her about his "book of poems". He spoke to her about "masturbation" and that it was better to "lose her virginity to someone who is older" and that he would be willing to help her.

Her evidence was that, in 1994, Alexander started to speak with her about "sexual matters"; that she should be "careful with boys of [her] own age" and that her "first sexual experience should be with older men" such as himself. He said "I'd like to be your first when you turn 16."

69. Trial counsel for Alexander had submitted to the judge that this evidence should not be led against Alexander because it had "no specific connection with the offences charged", and that the fact that he had spoken to other girls in this fashion did not have a "sufficient degree of cogency" to warrant it being led in support of the offences charged. Additionally it was put that the Crown should not be permitted to lead the evidence of SMT because there had already been charges laid against Alexander involving SMT which had led to a "direction of acquittal" and that to lead such evidence would be to deprive Alexander of the benefits of that acquittal. Counsel submitted that, in the circumstances, the judge should conclude that there was no such "probative force" in the evidence to "outweigh its prejudicial effect"[1]; and that that was particularly so because the complainant had subsequently denied to the police and to school authorities that there had been any sexual impropriety in her relationship with Alexander. The first time upon which she had made any complaint to police of such sexual impropriety had been 13 July 2000.

72. Trial counsel for McKenzie had submitted that the proposed "similar fact" evidence was not admissible against McKenzie; that it could only be relevant in the case of Alexander; and that - if the judge was to rule that it was admissible - he should order that McKenzie have a separate trial.

75. His Honour ultimately determined that the "similar fact" evidence of the five witnesses was admissible only against, it would seem, Alexander. He said that Alexander was entitled to "the full benefit" of acquittals which had been entered in previous trials involving allegations of sexual abuse by SMT and AAH, but that it was not intended by the prosecution "to lead evidence of facts that were said to constitute the commission of [those] alleged offences". His Honour said:

"In my view the evidence of [the five girls] is capable of providing relevant evidence that supports the account given by [the complainant] in that it demonstrates that the accused spoke to the other girls in a similar fashion as he did to [the complainant]. It is evidence from which a jury may properly find a pattern of behaviour, or conduct, that is similar to support the inference that each of the witnesses gives a truthful account, and thereby making it likely that the account given by [the complainant] was also a truthful account. ... Clearly, admitting the evidence would be prejudicial to the accused. However, at the same time, it provides strong probative corroboration of aspects of the relationship the victim had with the accused. Those aspects being references made by the accused to encourage the victim to explore her own sexuality as well as suggesting a possible future sexual relationship between the accused and the victim. The essence of the corroboration being that he, on other occasions, made similar suggestions to four, maybe five, of the other girls making it probable that the same or similar behaviour occurred in his approaches to [the complainant] as it did with the other school girls. In my view it is just to admit the evidence of the witnesses [SMT, LSM, AHH, AKH and TFL]; the prejudicial nature of the evidence being outweighed by the strength of the probative evidence. For similar reasons I would not, or could not exclude the evidence in the exercise of the Christie discretion."

79. In the course of his ruling the judge said that he would be telling the jury of the limited use which they could make of this evidence in the case against Alexander, confining that use - so it would seem - to the issue whether Alexander "had conversations with [the complainant] and the content of those conversations"; but that they could not use the evidence for the purpose of demonstrating a "likelihood of having offended as described by [the complainant] by indulging in sexual acts by her". Furthermore his Honour ruled that the jury would have to be told that "if they found that the [applicant] had spoken to ... the girls as alleged they could not conclude that he was the type of man who had similar conversations with the others or ... was the kind of man that would engage in ... sexual acts with [the complainant]". It will be necessary when I come to deal with the application of Alexander to refer more fully to his Honour's directions given to the jury.

82. Notwithstanding his Honour's reference to the exercise of a "Christie discretion", it is tolerably clear from the tenor of his ruling that he was considering the admissibility of the evidence of the other girls as "propensity evidence" pursuant to the provisions of s.398A of the Crimes Act which provides, in sub-s.(2) that:

"Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."

In determining to admit the "similar fact" evidence of the five girls (other than the complainant), his Honour concluded that it was "just" to admit it despite its "prejudicial effect". That was a ruling of law, not the exercise of a Christie discretion[2], although this Court in T.J.B. (supra) left open the question whether s.398A leaves any room for the exercise of such a discretion.

87. It is also clear from his Honour's ruling that he was admitting the "similar fact" evidence only in the case against Alexander. It was not admissible in the case which the Crown was making against McKenzie. Indeed, at the conclusion of his ruling, his Honour said:

"Mr. Mason, who appeared on behalf of ... McKenzie submitted if the similar fact evidence was admitted the prejudice of the trial of ... McKenzie [sic], and that the jury may well be distracted and overwhelmed by the detail of that evidence and, accordingly, he applied for a separate trial. In my view, if the jury were properly instructed as to the need to use the evidence in the way about [sic] there was little risk that ... McKenzie's trial would be unfairly prejudiced, and it is my view that it is proper that she be tried with the co-accused in the same trial."

As this passage indicates, and as I have already noted, counsel for McKenzie had made an application, at the outset, that the trial against McKenzie should be separate from the trial against Alexander. Because the discretionary ruling of his Honour in this regard, and the alleged prejudice to her trial, are critical to McKenzie's application to this Court, it is again a matter to which I will need to hereafter return.

93. Upon the hearing of these applications, Mr. Priest - who appeared with Mr. Croucher for McKenzie - addressed argument in support of his client's application in advance of the arguments addressed by counsel for Alexander. I will accordingly deal with the applications in the same order.

96. The primary grounds of McKenzie's application for leave to appeal against conviction were:

"1A: The trial judge erred in failing to order that the applicant be tried separately from the co-accused Trevor John Alexander.

1B: A miscarriage of justice resulted from the applicant being tried jointly with the co-accused ... , and in particular, evidence which was inadmissible in the applicant's case, but which was prejudicial to her, was led against the co-accused (such prejudice being incapable of remedy by judicial direction)."

Because, in my view, this ground must succeed, I will defer consideration of grounds 2A ("unsafe and unsatisfactory") and 2B ("aggregate of errors").

102. To my mind, this was one of those rare cases where - once the judge had decided to admit the evidence of similar facts to be given by the five girls other than the complainant - it should have been obvious that the trial of McKenzie would be prejudiced in a manner which could not be cured by judicial direction. That evidence, which was admitted only against Alexander, was - both as to volume and content - clearly going to "swamp" any case which McKenzie was going to make, and was so laden with hearsay and irrelevant material (to the case against McKenzie), suggesting that McKenzie had a predilection to "threesomes sex", that any case which she was intending to make would be irrevocably compromised. It is not entirely clear why the judge exercised his discretion against separate trials because the reasons which he gave were peremptory. When the application was made on the basis that admission of the "similar fact evidence" would make an "overwhelmingly different trial for ... McKenzie than in circumstances where she's simply tried on ... evidence that ... is admissible and relevant against her", his Honour said:

"Yes, but that evidence doesn't impinge on her trial, does it?"

When counsel responded "That's my point ... if that evidence is admissible, it raises the issue of a separate trial ..."; to which the judge replied:

"I don't think separate trials get merit. Its running out of the same narrative. This is a lead-in into the essential narrative that I suspect would be given in both trials because its relevant to the relationship of how she was seduced."

I have some difficulty in understanding what his Honour meant by his last comment, particularly in the light of his ultimate ruling, and his subsequent charge to the jury, that the "similar fact" evidence could not be used against McKenzie. However, if his Honour meant that evidence of the means employed by Alexander to seduce girls was relevant to the establishment of a relationship with the complainant which was the "lead-in" to the events of 20 December, he was - in my opinion - in error in concluding, if indeed he did, that the evidence would have been admissible in the trial of McKenzie.

109. Of course, it must be borne in mind that his Honour's ruling was made at the outset of the trial when he was at the disadvantage of not having heard the evidence; and of not knowing what course was going to be taken by the accused. No doubt his Honour had in mind the prima facie rule that persons charged jointly with committing the same offence or offences should be tried jointly; particularly where there is a likelihood of the co-accused raising "cut-throat defences"[3]. As these authorities have made clear, there are strong reasons of principle and policy for this prima facie rule, such as the avoidance of "inconsistent verdicts". However, as judges are constantly telling juries, convenience based upon policy, cannot be permitted to usurp justice. There will be cases, and - in my view - this was one of them, where those words become little more than empty rhetoric because the injustice done to the co-accused, by evidence inadmissible against him or her, cannot be rectified by judicial direction.

112. Whilst it is significant for an appellate court to be satisfied that an application for a separate trial has been made and refused, the issue for it will depend not so much upon an erroneous exercise of the judge's discretion as it will upon the view which it forms upon the question whether the course of the trial has constituted a miscarriage of justice to the applicant. This was made clear in R. v. Demirok[4] where the Full Court, comprising Young, C.J., Lush and Crockett, JJ., said (at 251):

"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."

Their Honours referred to a number of authorities from England and other States of Australia to support the propositions which they had stated[5].

117. In this case, the grounds of appeal taken on behalf of McKenzie assert that the trial judge's discretion was erroneously exercised, and that, in any event, the course of the trial demonstrated that an injustice had been occasioned to McKenzie. On her behalf, Mr. Priest contended that her trial has miscarried for a number of reasons, the most significant of which are as follows:

* that the case which McKenzie wished to make, and did make, at the trial (namely that she was not present at the events which the complainant alleged to have occurred on 20 December, but was elsewhere) was completely swamped by the introduction of the "similar fact evidence" and indeed by evidence given by the complainant, all of which evidence was highly prejudicial to her but inadmissible as against her.

* the knowledge that the trial was likely to be dominated by issues solely related to the case against Alexander was to be found, first, in the fact that Alexander was charged with a number of offences additional to those with which McKenzie was charged, and occurring over a longer period; secondly, it was known that the evidence of conversations to be deposed to by the other students was designed to prove relationships between those students and Alexander, established over a long period to which McKenzie was not a party, but which were replete with comments about McKenzie's sexual predilections which created a prejudice against her which was palpable and incapable of being cured by judicial direction.

Mr. McArdle, who appeared with Ms. Judd for the respondent, primarily contended that the Court should conclude that any prejudice which flowed to McKenzie was overcome by his Honour's directions and that, as a consequence, no miscarriage had occurred.

123. I agree with the submissions made by counsel for McKenzie that there were powerful reasons for concluding that his Honour's discretion not to grant separate trials miscarried. But, in my view, the course of the trial demonstrated that a miscarriage of justice did occur in the trial of McKenzie which was not, and could not have been, cured by direction. It is true that his Honour told the jury that the evidence of the five students, and the complainant, as to what Alexander was alleged to have said to them, particularly with regard to McKenzie, was not evidence against her. It is also true that his Honour gave to the jury a "separate consideration" direction. Thus, reasonably early in his charge, the judge said:

"... those counts [are] on that one presentment for convenience, but obviously in this case [it would be] highly inconvenient and expensive to hold a separate trial before a separate judge and jury in respect of each of those counts. However, they are to be considered separately by you, as in effect separate trials being held on the one occasion. You must not allow convenience to usurp justice. The accused is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. ... However, some of the evidence can only be considered by you against one accused and not the other accused. For example, the alleged admission that the accused, Alexander, was said to have made to L.S.M. that there was a sexual encounter between he, McKenzie and [the complainant] is hearsay evidence against McKenzie. She was not there and it is inadmissible in the case against McKenzie. It can only be noted by you in your assessment of the Crown case against Alexander and not McKenzie. Similarly, the various conversations that Alexander had with the students about sexual matters was in the absence of McKenzie. That evidence cannot be led in the case of McKenzie."

127. 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.

130. There were other aspects of prejudice which flowed to McKenzie from the joint trial:

* The "similar fact evidence", inadmissible against McKenzie, constituted the bulk of the evidence at the trial. His Honour sought to limit its use, but his comments were only directed, of course, to the Crown case against Alexander. Thus, inter alia, he said:

"The only use the evidence of the other girls you can make is whether or not the accused had a course of conduct, speaking to the girls in the way that they have described ...

If the prosecution can prove such a course of conduct, then that evidence may be considered by you as evidence that tends to support what [the complainant] says about what the accused said to her. Whether it does or not is a matter for you. Now members of the jury, I should direct you, and direct you firmly, that the evidence of what the other students say is capable of being used only by you as (sic) the probability of assessing whether the accused had the conversation with [the complainant] and for no other purpose. The evidence has no relevance to any other aspect of the case ... . The evidence as to whether he spoke in that fashion to the other girls, however, has nothing to do, and says nothing about, whether the accused man engaged in sexual acts with [the complainant]."

These directions were confined to the case being made against Alexander. It is a direction to which I will need to return in considering the application of Alexander. But the prejudice which it carried to McKenzie was described in his Honour's following comment:

"The amount of evidence relating to this collateral issue has been a matter that has been the greatest part of this trial in many ways."

That comment clearly reflected the fact. It also reflects the fact that the trial of McKenzie was overborne by evidence which was not admissible against her.

* The judge gave to the jury a "Longman direction" coupled with a direction as to corroboration. His Honour directed the jury that the evidence of LSM that Alexander had, in 1997, told her that there had been "a sexual relationship between himself, McKenzie and [the complainant] and [the complainant] lacked the maturity to handle that event" was capable of corroborating the [complainant's] evidence, but could "only be ... an admission in the case against Alexander, but not McKenzie". Such a direction was inviting the jury to perform, as I see it, mental gymnastics having regard to the fact that it was the Crown's case that all the events of 20 December 1996 involved the "threesome" of the complainant and both applicants. The prejudice flowing from these directions to McKenzie was none the less palpable by reason of the fact that the judge told the jury that there was no corroboration of the Crown's case against McKenzie. The problem which was created for the jury in this respect was highlighted by the comments made by the Court of Criminal Appeal (Vic.) in the case of R. v. Gibb and McKenzie[6], where the Court referred to the difficulty, in joint trials, posed by directions to juries that the evidence of a witness is capable of corroborating the case against one accused but not the other. As the Court said (at 165):

"Thus the jury might in considering the case against McKenzie have concluded that [the witness's] evidence was reliable, because corroborated, and if so it would be impossible to expect that the jury, when considering the case against Gibb could approach the question of [the witness's] evidence unaffected by the view of that evidence formed as a result of a consideration of it in the case in which it was corroborated."

The danger to which the Court was referring was made apparent in this case by a statement which the prosecutor made in the course of her final address to the jury. Towards the end of her address she said, in respect of the corroboration of the complainant's evidence:

"So you've got that, and you also have the admissions to [LSM]. As I have said those admissions can only be used against Mr. Alexander, but you have on two separate occasions Mr. Alexander confirming that a sexual encounter occurred, and it was a sexual encounter involving Beth. That's what he said." (my emphasis)

That, of course, was a closet invitation to the jury to use Alexander's admission to implicate McKenzie in the crimes; and it is reasonable to suppose that a juror would have great difficulty in comprehending any legal analysis suggesting that the alleged admission was impotent to advance the case against McKenzie.

145. Over the years, various courts have proffered various guidelines for determining whether an injustice would accrue, or has accrued to an accused person jointly charged with another for the same offence as a consequence of the joinder. All of the authorities have recognized the prima facie rule, already referred to, that persons charged jointly for committing the same offence should be tried jointly[7]. It is recognized that such guidelines as have been proffered cannot be exhaustive, and that each case will depend upon its own facts. Different considerations must necessarily apply depending upon whether the trial judge is considering an application for severance at the outset of the trial; or whether an appellate court is considering whether injustice has accrued to one of the accused from the joint trial. In each circumstance, the touchstone must remain general. Where the trial judge is considering an application for separate trials, the consideration must be whether the applicant for a separate trial has shown that there is a real risk of positive injustice to the accused were he or she to be tried jointly[8]. Where an appellate court is asked to set aside a verdict on the ground that a miscarriage has occurred as a consequence of the accused being tried jointly with the co-accused, "the essential issue to be considered is whether any real injustice has been done to the applicant, as otherwise the proviso ... can be applied"[9].

148. Whatever might be said about his Honour's discretionary ruling not to order separate trials, I am in no doubt, for the reasons given, that a manifest injustice has accrued to McKenzie as a consequence of her being jointly tried with Alexander. As the Court said in Demirok (supra at 255-6):

"Essentially, an accused ... is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or ... only marginally relevant. In ... very rare cases ... the result may have been to expose the accused ... to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce."

This was such a "rare case". The "similar fact" evidence, as I have said, dominated the trial. It was accepted that it was inadmissible against McKenzie. Above all, it contained highly prejudicial statements asserting sexual predilections on the part of McKenzie which, no matter what judicial directions were given, were likely to have been taken into account by the jury in considering the case against her, and thus to have depreciated the case which she made.

154. It remains to consider the submission that the jury should have entertained a reasonable doubt as to McKenzie's guilt. Mr. Priest's submission was that this was a case of the complainant's word against McKenzie's word, bolstered by the alibi evidence which had been led in her case. It was contended by Mr. Priest that this latter evidence was strong and that, although the prosecutor in her final address suggested to the jury that the alibi witnesses were not telling the truth, such an assertion was not put to either of the alibi witnesses. She certainly, however, suggested that McKenzie was "lying", and that - whether the alibi witnesses were mistaken or lying - McKenzie was at Alexander's house in Brighton on 20 December 1996. She further submitted to the jury that McKenzie's mother "only had to be out an hour or so" in her recollection of times to have enabled McKenzie to have left Brighton, driven the complainant home, and returned to Berwick in time to talk to her mother. Such a scenario, Mr. Priest submitted, was unrealistic. Mr. Priest also pointed to the unreliability of the complainant, her failure to make any complaint for nearly four years, the unlikelihood of the complainant's evidence having regard to the uncontradicted evidence of good character in respect of McKenzie, and the fact that the complainant's assertions against her were totally uncorroborated.

157. The principles which govern this ground of appeal, are not in doubt. In M. v. R.[10], Mason, C.J., Deane, Dawson and Toohey, JJ. said:

"Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. ... In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. ... The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand." (Footnote omitted).

"When, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of having seen and heard the witnesses." (Footnotes omitted)

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court ... to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence." (Footnotes omitted).

165. There are, of course, difficulties in applying these principles in a case such as this where the evidence before the jury contained the inadmissible and prejudicial evidence to which I have referred. In that sense, the Court is being asked to look at the evidence, cleansed, as it were, of that inadmissible evidence, and ask itself whether the evidence properly admissible in the case against McKenzie was insufficient to sustain a verdict of guilty. Whilst I am of the view that, in those circumstances, the case against McKenzie would not be a strong one - for the reasons submitted by counsel - I cannot conclude that a jury, acting reasonably and properly instructed, would be bound to return a verdict of acquittal. Much depends upon the view which the jury takes of the evidence of the complainant, on the one hand, and McKenzie and her witnesses on the other.

168. For these reasons I would uphold the appeal of McKenzie, set aside the verdicts recorded against her, and direct that there be a new trial. In determining whether such a re-trial should be had, I have no doubt that the Director will take into account that the minimum sentence which his Honour imposed upon McKenzie has all but been served.

172. The grounds of appeal relied upon by Alexander were the following:

(i) The trial miscarried by reason of the evidence of the "5 other students"

of conversations with the applicant in 1995 and 1996 or occasions other than those charged.

(ii) The trial miscarried by reason of SMT's evidence that the applicant told her that he had seduced a girl from another school.

(iii) The judge erred in allowing the prosecutor to cross-examine the applicant on an excluded record of interview.

(iv) The trial miscarried by reason of the prosecutor's cross-examination of the applicant on matters further than those alleged in the prosecution case.

(v) On count 9 the learned trial judge misdirected the jury that a telephone conversation constituted:

(a) an "act"

(b) which was performed "with" the complainant.

(vi) The judge failed adequately to direct the jury on the use to be made of the prosecutor's failure to call the father of the complainant.

(ix) The judge erred in failing to properly direct the jury in relation to similar fact evidence.

(x) The judge erred in failing to properly direct the jury in relation to propensity evidence.

(xi) The judge erred in failing to properly direct the jury in relation to delay in complaint.

(xii) The judge erred in failing to properly direct the jury in relation to an alleged admission by the applicant.

(viii) and (xiii). The verdicts are unsafe and unsatisfactory.

Ground (i) - Inadmissibility of evidence of the 5 students

178. In support of this ground, Mr. Tehan submitted that his Honour was in error in concluding that the evidence of LSM, SMT, AHH, AKH and TFL was relevant and admissible in the trial of Alexander as "similar fact evidence", particularly having regard to the purpose for which he concluded it should be used. It was wrong, Mr. Tehan submitted, for such prejudicial material to be admitted to prove a collateral issue in the trial; namely in support of the probability that Alexander had had conversations with the complainant of the nature she asserted and, thus, to explain their relationship. Mr. Tehan submitted that the admission of the evidence for this purpose created the opportunity, which was availed of, for the Crown to introduce before the jury all manner of conversations of a sexual nature, which were highly prejudicial, but had no probative value to proof of the offences with which Alexander was charged. Much of the evidence, thus admitted, was not "similar fact evidence" capable of proving the facts in issue in the trial; but was rather evidence of criminal or discreditable conduct on the part of Alexander tending to prove that he was a person of a particular disposition and, thus, likely to have committed the crimes in question.

181. The nature of the submissions made by counsel in support of ground (i) made it apparent that those submissions inter-acted with submissions made in support of other grounds which derived from his Honour's admission of the "similar fact" evidence of the five other students; e.g. ground (ii) which asserted that the trial had miscarried by reason of evidence of a conversation which SMT had said that she had had with Alexander in the course of which he told her that he had seduced a girl at another school; grounds (iii) and (iv) which assert that the trial miscarried as a result of the prosecutor being allowed to cross-examine Alexander about matters contained in a 1999 record of interview conducted between Alexander and police; and grounds (ix) and (x) which contend that the judge's directions in respect of the "similar fact" evidence were inadequate.

184. The common law has long been cautious to ensure that the fair trial of an accused person is not prejudiced by the introduction of evidence which tends to show that such person is of criminal disposition, or is - by nature - the type of person likely to commit the crime charged, unless that evidence is clearly probative of the offence which is before the court. For this reason, courts have been cautious in their receipt of "similar fact" evidence, which usually discloses discreditable conduct on the part of the accused on occasions other than those which relate to the charges which fall to be determined. Since the seminal case of Makin v. A.G. (NSW)[11], such evidence has generally been treated by courts as a special class of circumstantial evidence which, because of its discrete prejudicial nature, will be excluded unless - in the opinion of the judge - it has a high probative value in proof of the offence charged beyond that of merely demonstrating that the accused is a person of criminal disposition or one who is likely to have committed the offence with which he is charged. Thus, in individual cases, courts which have admitted such evidence have sought to define its probative value as being relevant to "proof of intent", as "negating accident or mistake", or as demonstrating such a striking similarity or `modus operandi' of criminal offending as to make it an `affront to common sense' not to leave it to the jury in the instant case in proof of the fact that the accused was the offender. It follows that each case must depend upon its own circumstances, but in each such case the ultimate question for the court to determine is whether the evidence sought to be led has a high degree of probative value in proof of an element of the offence charged, or in proof that the crime charged has been committed and that the accused was the person who committed it.

187. These principles have been defined and restated by the High Court in this country in such cases as Perry v. R.[12], Sutton v. R.[13], Markby v. R.[14] and Pfennig v. R.[15]. Although, in this State, the legislature has sought - by s.398A of the Crimes Act 1958 - to define the circumstances in which "propensity evidence" can be admitted, this Court has expressed the view that, at least in cases where "similar fact evidence" is concerned, the section was not intended to "set at nought" the common law principles which had been established by this long line of authority[16]. In Perry[17], Gibbs, C.J. said:

"With all respect, it is not right to treat evidence which tends to show the commission by the accused of other criminal acts in the same way as any other circumstantial evidence. In the first place ... a jury might place too much weight on the fact that the accused had a criminal tendency. Secondly evidence of this kind will often raise difficult and doubtful questions as to whether the accused had in fact been guilty of other criminal acts and may distract the jury from the vital issues in the case. It is therefore not enough that the evidence be only technically relevant (otherwise than as showing a propensity); it must be really material; it must have strong probative force."

In Markby[18], Gibbs, A.C.J. said (omitting footnotes), after referring to the observations of Lord Herschell, L.C., in Makin[19] and Harris v. D.P.P.[20]:

"It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However, when in doubt a judge should remember that the admission of similar fact evidence, is the exception rather than the rule. To be admissible the evidence must have `a strong degree of probative force', or `a really material bearing on the issues to be decided'; it may not be going too far to say that it will be admissible only if it is `so very relevant that to exclude it would be an affront to common sense'. ... The question is thus one of degree, and in answering it the judge must apply his experience and common sense. ... In applying the test of admissibility ... practical assistance, in many cases, will be obtained by considering whether there is a `striking similarity' between the similar facts and the facts in issue."

Gibbs, C.J. adhered to the principles which he had enunciated above in Sutton[21]. Brennan, J. expressed similar views[22]; as did Deane, J.[23], and Dawson, J.[24]. Again, in Pfennig v. R.[25], Mason, C.J., Deane and Dawson, JJ. referred to the statement of Lord Goddard, L.C.J. in R. v. Sims[26] that:

"Evidence is not to be excluded merely because it tends to show the accused to be of bad disposition, but only if it shows nothing more."

"What his Lordship was insisting on was that the evidence of bad disposition should also have some `specific connexion' with the commission of the offence alleged. That is because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect. So the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspects of it."

197. In paragraph [18] I have referred to the reasons which the judge gave for admitting the evidence of the five students. Although he referred to their evidence as "evidence from which the jury may properly find a pattern of behaviour", it would seem that he was not admitting the evidence of conversations with the five girls as evidence of a strikingly similar method of seducing his students giving rise to a strong inference that he had seduced the complainant by similar means; rather he was admitting it as corroboration of "aspects of the relationship" which the complainant had with the accused. Indeed, as Mr. Tehan has submitted, the ultimate directions which his Honour gave to the jury demonstrated that this was the purpose of the admission of the evidence. In the course of those directions, his Honour said, without descending to specifics of the evidence, that the prosecution was relying upon "a particular kind of logic arising from similarity which it suggests existed between some of the conversations it alleges that Alexander had with [the complainant] and the conversations which he had with the other five girls about the same time. ... The prosecution say these conversations were so similar because of the content and style relating to improper sexual matters; the context, the topics and the fact that all the girls were students of the accused at the time, that you should conclude that [he] indulged in a regular course of conduct ... that makes it more probable that he had the same or very similar conversations with [the complainant]."

"Now when it is explained in that way, I hope you can see that it only is a small aspect of the total Crown case. It is evidence that the Crown leads to support the nature of the relationship prior to 2 December in terms of similar conversations."

"The only use of the evidence of the other girls you can make is whether or not the accused had a course of conduct, speaking to the girls in the way that they have described. You could only be so satisfied if, after hearing the evidence of the girls, you were able to accept that the accused did have a course of repeated conduct in the way he spoke to the girls. The essence as to whether the evidence can be used by you is proof by the prosecution that the accused had a repeated style of conversation, a course of conduct, and it is likely to be repeated. If the prosecution can prove such a course of conduct, then that evidence may be considered by you as evidence that tends to support what [the complainant] says about what the accused said to her ... . Now members of the jury I should direct you ... that the evidence [of] what the other students say is capable of being used only by you as [to] the probability of assessing whether the accused had the conversations with [the complainant] and for no other purpose. The evidence has got no relevance to any other aspect of the case. You should appreciate that if the Crown has satisfied you that the accused did speak to the other girls and spoke to [the complainant], the evidence of speaking to the other girls makes it more likely he spoke to [the complainant], and that evidence of his conversations with [the complainant] can be used by you as explanatory of the relationship the accused man had with [the complainant]. The evidence as to whether he spoke in that fashion to the other girls, however, has nothing to do, and says nothing about whether the accused man engaged in sexual acts with [the complainant]. It is a matter which must be limited strictly to the context being called for; that is to make it more likely that he spoke to [the complainant] in the way that she has described because of the repeated conversation with the other girls." (my emphasis)

Because the judge had limited the use of the "similar fact" evidence in this way, he concluded by telling the jury that it was "a very small matter" and that the "amount of evidence relating to this collateral issue has been a matter that has been the greatest part of the trial in many ways. ... But in reality, their bond of evidence can only be applied to a small portion of the Crown case. So I don't want you to be overwhelmed by it. ... It can only be used in a very limited fashion indeed."

205. 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].

208. 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.

212. These grounds assert that the trial of Alexander miscarried by reason of the prosecutor's cross- examination of him on matters which were contained in a police record of interview conducted in 1999 at a time when no complaint had been made against him by the complainant. The trial judge had excluded the record of interview from the evidence but appears to have reserved leave to the prosecutor to cross-examine the applicant on matters contained therein if the occasion should arise. This led to considerable difficulty when Alexander was giving evidence. On several occasions the prosecutor sought to traverse the applicant's evidence by putting, as suggested prior inconsistent statements, things said by the applicant in the 1999 record of interview where the applicant had been speaking generally to the police about his relationship with students but where his mind had not been addressed to the particular matters which were the subject of the charges. His Honour, when objection was taken, had pointed out to the prosecutor:

"But the difficulty I have is that all these questions that [the police] asked were not relevant in a direct sense to this trial. They're relevant because some of the topics they talked about involve topics in this trial, and therefore the ruling that I made was based on the unfairness to the accused because he would not have had the opportunity to fully answer matters directly central to issues in this trial, and for the jury to tease out and try and get some balance from bits and pieces of the record of interview pertinent to another matter would make it very unfair, as I estimate. I couldn't be satisfied ... that it wasn't [sic] going to be fair use of the record of interview, so I ruled on the question of discretion that that record of interview should be excluded."

Notwithstanding these remarks, the prosecutor continued to challenge the applicant on the basis of what he had said in the record of interview. When objection was again taken by counsel, his Honour told the prosecutor to "keep away from the record of interview". Again, his Honour declined an application by counsel for the discharge of the jury. Shortly thereafter, the prosecutor put it to the applicant that he had displayed an interest in "sexual threesomes". When the applicant said that he did not, the prosecutor gave him the record of interview and asked him to look at it. His Honour intervened, said there was "a difficulty" and asked the jury again to leave the court. In the absence of the jury his Honour remarked that the questions being put were "out of context" and "unfair" and that it was for that reason that he had excluded the record of interview "as such". Trial counsel for Alexander renewed his application for a discharge of the jury. His Honour again denied the application, but told the prosecutor that he was "not proposing to allow [the prosecutor] to go any further on the topic".

217. In my view, there is much substance in Mr. Tehan's submission that the cross-examination of the applicant on the various topics which had been referred to in the excluded record of interview was unfair. That record had been excluded because it was made at a time before any complaint about the matters in issue in the trial had been made and the questions to which he had been asked to respond were general. The jury would well have understood that the prosecutor was cross-examining upon a document, the provenance of which was unknown and the circumstances in which it had been made were also unknown. The prosecutor knew that the provenance of the document could not be revealed without further prejudice to the applicant's trial. The questions which were asked were selective and were being drawn from answers made to questions which had, of course, nothing to do with the matters in issue. In my view the procedure adopted was both impermissible and unfair. Again I would uphold these grounds.

220. It is apparent from what I have already said that the trial of Alexander miscarried in a number of material respects, and that the convictions recorded against him should be quashed. It also follows from what I have said that I would uphold ground (viii), namely that "the trial miscarried by reason of an accumulation of errors", and ground (ix), namely "that the judge failed to properly direct the jury in relation to similar fact evidence". I am not, however, prepared to accept ground (xiii); namely that "the verdicts were unsafe and unsatisfactory" in the sense described in M. v. R. (supra). Mr. Tehan contended that this Court should conclude that no reasonable jury, confining themselves to relevant matters, and being properly instructed, could properly convict the applicant. He therefore submitted that we should enter verdicts of acquittal. He relied upon the fact that the offences were old, that no complaint was made until the end of 1999 and that, when it was made, it was calculated to confer on the complainant a benefit of extension of time in completing her VCE exams; that before this time she had consistently denied any improper conduct towards her by Alexander; that the offences described were inherently unlikely; that the only corroboration left to the jury was the alleged admission made to LSM which was itself unreliable in the sense that it was given by a patently unreliable witness; and that the applicant had consistently denied the allegations made against him. In my view, none of these matters, taken alone or in cumulation, would entitle this Court to enter verdicts of acquittal. There was, and is, ample evidence upon which a reasonable jury, properly instructed, could safely convict the applicant.

223. This Court should, accordingly, order a re-trial of Alexander. It is appropriate, however, that I should make some comments about ground (v) which, effectively, asserts that count 9 on the presentment ("indecent act") is not supported by the evidence led in respect of it, and that the judge was in error in instructing the jury that it was. That count alleges that, between 21 December 1996 and 31 May 1997, Alexander "wilfully committed an indecent act with the complainant, a child under the age of 16 years to whom he was not married". This charge was laid pursuant to s.47(1) of the Crimes Act which is in the following form:

"A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he ... is not married."

Count 9 alleged an offence pursuant to this section in relation to a telephone conversation which the complainant said that she had had with Alexander - and to which I have previously referred in paragraph [11] - during the course of which he had encouraged her to masturbate in accordance with instructions given but which she had not in fact followed, although pretending to do so. At the outset of the trial, counsel for Alexander had submitted that this evidence would not, and could not, sustain the offence alleged because it could not establish that the accused had committed "an indecent act with or in the presence of [the complainant]". His Honour declined to rule on the matter at that point in the trial on the basis that it was "a matter for argument ... at the close of evidence". The matter was revisited at the close of evidence and counsel for Alexander submitted that talking over the telephone to the complainant in the manner in which she alleged could not constitute an "indecent act with or in the presence of a child" for the purpose of s.47. The prosecutor contended that the fact that s.47 distinguished between the doing of an act "with" as distinct from "in the presence of" evidenced an intention on the part of the legislature to embrace the act of "talking indecently" to the child on the telephone. The judge ruled that the telephone conversation was "capable of amounting to an indecent act with" a child, particularly having regard to the fact that consent was no defence to the charge (s.47(2) of the Crimes Act).

228. Mr. Tehan submitted that, for an accused person to be guilty of the offence under s.47, the offence had to be committed in the physical presence or proximity of the person offended against. The word "with", he submitted, should take its colour from the words "in the presence of" suggesting that the legislature intended that the act contemplated by the section required physical contact "with" the victim. It was true, he submitted, that it was not necessary for the victim to be taking an active role, or be consenting, but the offence required that the offence was "directed to or against" a person who was in the physical proximity of the accused. To the contrary of these submissions, Ms. Judd submitted that "involvement or participation in the telephone conversation was sufficient to sustain the offence of committing an indecent act with a child".

231. In the recent case of R. v. TSR[28] this Court traced the history of s.47 in the context of a submission that proof of the offence which it describes requires the Crown to establish that an indecent act was committed "with the participation (meaning the willing participation) or co-operation or consent of the complainant or in concert with her". The Court rejected that submission. Chernov, J.A. said, at paragraph [94], (with the concurrence of the Chief Justice and Phillips, J.A.):

"The offence may thus be constituted by an indecent act committed in front of the child, as well as by an indecent act committed on the person of the child, and in neither case is it necessary to know whether the child was consenting, or even approving. Indeed to hold to the contrary would seriously impinge upon what I conceive to have been the legislative intention."

His Honour traced the history of s.47 which was introduced in 1991 to replace what had been the offences previously described by s.44 (indecent assault) and s.50(1) (gross indecency "by with or in the presence of" a young person). The 1991 amendments had introduced a new s.42 dealing generally with indecent assault in which "consent" was or might be relevant but, as Chernov, J.A. pointed out at [95], it was apparent from the context of the legislation that the new s.47 "was intended to deal fully with indecent acts involving children under the age of 16, where the question of consent was to be of limited relevance". I have looked at the Second Reading speech introducing the Crimes (Sexual Offences) Bill of 1991[29]. Nothing is said which bears on the meaning of s.47 which it introduced.

236. It is true, as the respondent argued, that the words "with or in the presence of" comprehends a broader range of offending than would be contemplated if the relevant offence was simply described as "an indecent act with ...". But that is because of the addition of the words "in the presence of". In this State, s.69(1) Crimes Act 1958 had, as long ago as 1958, made it an offence for "any male person ... in public or private" to commit "any act of gross indecency with or in the presence of any girl under the age of 16 years". However, it had never been suggested that the word "with" was to be interpreted as extending to indecent acts beyond the presence of the person offended against or, in particular, that it could extend to the use of indecent language over the telephone. Rather, the word "with" was confined to participating conduct[30]. The same view was taken by the Court of Criminal Appeal (NSW) in R. v. Page[31] in respect of the offence then described by s.81A of the Crimes Act (NSW), namely "Whosoever, being a male person commits ... an act of indecency with another male person". Again, in R. v. Orsos[32], the Court of Criminal Appeal (NSW) considered the meaning of the words "with or towards" in the offence described by s.61N of the Crimes Act (NSW). Grove, J. with whom Priestley, J.A. concurred, said[33]:

"To commit an act of indecency `with' a person involves two participants whereas logically and grammatically one person may commit an act of indecency `towards' another."

240. In Crampton v. R.[34], the High Court agreed with the view taken by the Court of Criminal Appeal (NSW) of s.81A of the Crimes Act (NSW) that an act of indecency "with" another person required for its proof "consensual participating acts, or, acts done in concert"[35]. Although it is true that s.47 of the Crimes Act (Vic.) contemplates an offence without consent or concert, it seems to me that the word "with", used in juxtaposition with the words "in the presence of" must imply actual physical contact with the victim. Kirby, J.[36] expressed the view that any ambiguity which attended the word "with" had been removed in other jurisdictions by combining it with the words "in the presence of". He referred, in this regard, to s.47 of the Crimes Act (Vic.).

243. It follows that, in this case, where the offence alleged in count 9 was one of committing an indecent act "with" the complainant, the evidence of speaking indecently to her over the telephone was incapable of supporting the offence alleged in the count, and that the judge was wrong to direct the jury that it could. It may be that such conduct would constitute an offence under s.85ZE(1)(b) of the Crimes Act 1914 (Cth.) but, in my view and for the reasons given, cannot constitute the offence described by s.47 of the Crimes Act (Vic.). In my view, a verdict of acquittal on that count should be entered. It goes without saying that the admission of this evidence further prejudiced the trial of Alexander.

247. Mr. Tehan submitted, in support of ground (vi) that the judge erred in refusing to give a direction in accordance with Jones v. Dunkel[37] in relation to the failure by the Crown to call the complainant's father who was alleged to have driven her to Brighton on 20 December 1996. It was submitted that he was a person whom it could reasonably have been expected that the Crown would have called to confirm that the complainant had been in Brighton on that day. It was put that the failure to call the father was unexplained; and was "most unusual". His Honour refused to give such a direction because, as he said:

"... it has never been suggested ... that he is now available to be called ... and that seems to me to be an essential foundation for the ability to make a comment ... ."

Mr. Tehan submitted that this was not a proper basis for declining to give a Jones v. Dunkel direction. He relied upon what this Court said in R. v. GEC[38]. In my view, the judge was not in error in refusing to give the direction sought. As a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those that it did call as witnesses. There may be rare exceptions to the rule, but only in cases where it is shown that the "failure to call" amounts to a breach of the prosecutor's duty to call all material witnesses[39]. There was, in this case, no basis for asserting that the prosecutor had failed to comply with the fundamental requirement to call all available material witnesses. I simply add, for completeness, that the circumstances of this case were very different from those which obtained in the case of G.E.C. (supra) upon which Mr. Tehan relied.

253. 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]:

"In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue."[43]

257. For the reasons given, the applications of Alexander and McKenzie for leave to appeal against their convictions should be allowed, and the convictions recorded against them should be quashed. As I have already indicated, I would order a re-trial of McKenzie (separate from Alexander) but subject to the exercise of the Director's discretion. I would direct that Alexander be re-tried on all counts, save count 9 upon which there should be a direction of acquittal.

262. I have had the considerable advantage of reading a draft of the reasons of the President in these applications. I agree with those reasons and with the orders proposed by his Honour for the disposition of each application.

267. For the reasons advanced by the honourable President I agree that the application for leave to appeal in each case should be allowed and that the convictions recorded against both applicants should be quashed. I also agree with the disposition of the respective matters proposed by him.

[1] S.398A Crimes Act 1958.

[2] R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 419; R. v. T.J.B. [1998] 4 V.R. 621 at 631-2 per Callaway, J.A.

[3] Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41 at 88-9 per Toohey, J.; R. v. Collie [1991] SASC 2996; (1991) 56 S.A.S.R. 302 at 307-11 per King, C.J.; R. v. Vollmer [1996] VicRp 9; [1996] 1 V.R. 95.

[4] [1976] VicRp 19; [1976] V.R. 244.

[5] R. v. Grondkowski [1946] K.B. 369, per Goddard, C.J. at 371, 373; R. v. Kerekes (1953) 70 W.N.(N.S.W.) 102 at 105, per Owen, J.; R. v. Teitler [1959] VicRp 54; [1959] V.R. 321 at 325, per Lowe and O'Bryan, JJ., at 335 per Sholl, J.

[6] [1983] VicRp 78; [1983] 2 V.R. 155, see particularly at 165.

[7] R. v. Middes, unreported, Supreme Court (N.S.W.), 27 March 1991, per Hunt, J.; R. v. Darby [1982] HCA 32; (1982) 148 C.L.R. 668 at 677-8 (a conspiracy case); Webb & Hay v. R. [1994] HCA 30; (1994) 181 C.L.R. 41 at 88-9; R. v. Patsalis & Spathis [1999] NSWSC 649; (1999) 107 A.Crim.R. 432 at 436-7.

[8] Patsalis & Spathis, supra, at 435.

[9] R. v. Assim [1996] 2 Q.B. 249 at 259; Demirok, supra.

[10] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492; See also M.F.A. v. R. [2002] H.C.A. 53, particularly at [25] and [26] per Gleeson, C.J., Hayne and Callinan, JJ. and at [55] and [56] per McHugh, Gummow and Kirby, JJ.

[11] [1894] A.C. 57

[12] [1982] HCA 75; (1982) 150 C.L.R. 580

[13] [1984] HCA 5; (1984) 152 C.L.R. 528.

[14] [1978] HCA 29; (1978) 140 C.L.R. 108.

[15] [1995] HCA 7; (1995) 182 C.L.R. 461.

[16] R. v. Tektonopoulos, supra, at 416-7; As was pointed out in this decision, s.398A incorporates a test of admissibility for "propensity evidence" in general terms; namely "if the court considers that in all the circumstances it is just to admit it, despite any prejudicial effect it may have on the person charged". Its purpose was to import the test of admissibility enunciated by the House of Lords in D.P.P. v. P. [1991] 2 A.C. 447 in place of the "no other reasonable explanation" test developed by the majority judges of the High Court in Pfennig v. R., supra at pp.482-3. But, as Callaway, J.A. (with the concurrence of Phillips, C.J. and Buchanan, J.A.) explained in R. v. Best [1998] 4 V.R. 603 at 612, the test required by s.398A(2) "means that properly applied, it will not greatly alter the conduct of criminal trials" because, as his Honour pointed out, propensity evidence will be admissible whenever it is just to do so "in all the circumstances" and those circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. What needs to be remembered in all cases where admission of propensity evidence is being considered is that "it has a prejudicial capacity of high order" and, where it is disputed "similar fact" evidence, its probative value will be less than would be the case where the similar facts are not in dispute (Pfennig, supra, at 482-3).

[20] [1952] A.C. 694.

[26] [1946] K.B. 531 at 537.

[27] R. v. Scarrott [1978] 1 Q.B. 1016 at 1025; R. v. Barrington [1981] 1 W.L.R. 419 at 429-30. Indeed, as Mr. McArdle pointed out, Pfennig (supra) was a case of "similar facts" which fell short of the charged conduct.

[28] [2002] VSCA 87.

[30] cf. R. v. Hunt [1950] 2 All.E.R. 291; R. v. Preece [1977] Q.B. 370 at 376.

[31] Unreported, Court of Criminal Appeal of NSW, 25 November 1991.

[32] (1997) 95 A.Crim.R. 457.

[35] at 144 per Gaudron, Gummow and Callinan, JJ.

[37] [1959] HCA 8; (1959) 101 C.L.R. 298.

[38] [2001] VSCA 146; (2001) 3 V.R. 334, particularly at 344-6.

[39] Dyers v. R. [2002] HCA 45 per Gaudron and Hayne, JJ. at [6]; R. v. MGG [2001] VSCA 17 at [51]- [60].

[40] Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460; Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 449-51.

[41] See Burns v. R. [1975] HCA 21; (1975) 132 C.L.R. 258 at 261.

[43] See, also, R. v. D'Orta-Ekenaike [1998] 2 V.R. 140 at 147.