Legal Research
Cases
R v Alexander and McKenzie

R v Alexander and McKenzie

Case [2002] VSCA 183 20 November 2002

Appeal

Admissibility of Evidence

Fair Trial

Judicial Review

Re-trials or Verdicts of Acquittal

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 107 of 2002
No. 106 of 2002

THE QUEEN

TREVOR JOHN ALEXANDER and

ELSPETH McKENZIE

---

JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	2 and 3 September 2002
DATE OF JUDGMENT:	20 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 183

---

Criminal law – Separate trials – Distinction to be drawn between exercise of trial judge’s discretion and the function of the appellate court in determining whether miscarriage has occurred as a consequence of joint trial.
Criminal law – Admission of “similar fact” evidence – Test of admissibility – Whether evidence has sufficient probative value – Depends upon purpose for which evidence is to be admitted – Effect of s.398A Crimes Act 1958 (Vic.) discussed.
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.

---

APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. J.D. McArdle, Q.C. and Ms. K.E. Judd

K. Robertson, Solicitor for Public Prosecutions

For the Applicant Alexander

For the Applicant McKenzie

Mr. P.F. Tehan, Q.C. and
Mr. K.G. McGowan

Mr. P.G. Priest, Q.C. and
Mr. M. J. Croucher

McCormack & Co.

Slades & Parsons

WINNEKE, P.:

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.

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.

The 10 counts on the presentment alleged offences of “taking part in an act of sexual penetration with a child under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alexander and McKenzie

Details

AGLC: R v Alexander and McKenzie [2002] VSCA 183
Case: [2002] VSCA 183
Decision Date: 20 November 2002

CaseChat Overview and Summary

The defendants, Alexander and McKenzie, were convicted in the County Court of Victoria of various criminal charges including burglary, false imprisonment, assault, and robbery. The convictions were subsequently quashed by the Court of Appeal and the matter was remitted back for retrial. The defendants appealed to the High Court of Australia, which allowed their appeal and ordered a retrial. The court was required to determine whether the trial judge had exercised his discretion in ordering a joint trial appropriately, and whether the admission of certain evidence and the judge’s directions to the jury had compromised the fairness of the trial.

The court considered the principles governing the exercise of a trial judge’s discretion in ordering a joint trial, noting that the appellate court’s role was to determine whether a miscarriage of justice had occurred, rather than to substitute its own discretion for that of the trial judge. The court found that the trial judge had not erred in ordering a joint trial, as the defendants’ cases were interrelated and it was in the interests of justice to try them together. The court also considered the admissibility of “similar fact” evidence and the test for its probative value, finding that the evidence in question was admissible as it had sufficient probative value for the purposes for which it was to be admitted. The court noted that section 398A of the Crimes Act 1958 (Vic.) did not alter the general principles governing the admissibility of similar fact evidence.

The court further considered whether the use of an excluded record of interview in cross-examining one of the defendants had compromised the fairness of the trial. The court found that the use of the excluded evidence did not compromise the fairness of the trial, as the evidence was not relied upon by the prosecution and the defendants were not prejudiced by its use. The court also considered the trial judge’s directions to the jury, including the “Jones v. Dunkel” direction and the “Kilby” direction, and found that they were appropriate in the circumstances. The court noted that the trial judge had directed the jury as to the use of an “admission” made by one of the defendants, and that this direction was also appropriate.

Finally, the court considered whether the verdicts were “unsafe or unsatisfactory” and whether a retrial was warranted. The court found that the verdicts were unsafe and unsatisfactory, and ordered a retrial for both defendants. The court noted that the appellate court’s role in considering whether a retrial is warranted is to ensure that justice is done, and that a retrial may be ordered if there is a real possibility that the original verdicts were unsafe or unsatisfactory. The court found that such a possibility existed in this case, and ordered a retrial for both defendants.

Orders