Makarov v R (No. 3)

Case [2008] NSWCCA 293

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Makarov v R (No. 3) [2008] NSWCCA 293

FILE NUMBER(S):
2007/3252

HEARING DATE(S):
5/5/08, 6/5/08

JUDGMENT DATE:
9 December 2008

PARTIES:
Victor Makarov (Appellant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Johnson J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0741

LOWER COURT JUDICIAL OFFICER:
Hock DCJ

LOWER COURT DATE OF DECISION:
11/11/05

COUNSEL:
P Hamill SC (Appellant)
L Babb SC / M Rabich (Respondent)

SOLICITORS:
Giddy & Crittenden (Appellant)
S Kavanagh (Respondent)

CATCHWORDS:
SEXUAL OFFENCES - joinder of counts involving two complainants - risk of prejudice - evidence not admissible as tendency or coincidence - uncharged acts

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995 (NSW)

CASES CITED:
B v R [1992] HCA 68; (1992) 175 CLR 599
Black v R [1993] HCA 71; (1993) 179 CLR 44
Cornwell v R [2007] HCA 12; 231 CLR 260
De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1
DJV v R [2008] NSWCCA 272
Gipp v R [1998] HCA 21; (1998) 194 CLR 106
HML v R [2008] HCA 16; (2008) 82 ALJR 723
Hoch v R [1988] HCA 50; (1988) 165 CLR 292
Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545
Liberato v R [1985] HCA 66; (1985) 159 CLR 507
Makarov v R (No. 1) [2008] NSWCCA [291]
Makarov v R (No. 2) [2008] NSWCCA [292]
Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v ACK (Court of Criminal Appeal, 22 April 1996, unreported)
R v AH (1997) 42 NSWLR 702
R v Beserick (1993) 30 NSWLR 510
R v Dossi (1918) 13 Cr App R 158
R v Fraser (Court of Criminal Appeal, 10 August 1998, unreported)
R v George (1987) 9 NSWLR 527
R v H (Court of Criminal Appeal, 24 October 1994, unreported)
R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198
R v VHP (Court of Criminal Appeal, 7 July 1997, unreported)
R v Wickham (Court of Criminal Appeal, 17 December 1991, unreported; BC9101334)

TEXTS CITED:

DECISION:
1.  The appeal is allowed.
2.  Quash the convictions and sentences imposed in the District Court and direct that there be new, separate, trials.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/00003252

BELL JA
JOHNSON J
McCALLUM J

Tuesday 9 December 2008

Victor Makarov v R (No. 3)

Judgment

THE COURT: 

Introduction

  1. The appellant, a pianist, came to Australia in July 1998 to take up a position as a piano teacher at the Australian Institute of Music (the AIM).  He had been head of the Piano Department at the Kharkov Secondary Special Music Boarding School in the Ukraine.  Five of the appellant’s students immigrated to Australia with him in order to continue their studies: B; C; A; Alexey Koltakov and Illya Zozulya.  On their arrival the appellant, his wife, daughter and…

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Details
AGLC
Makarov v R (No. 3) [2008] NSWCCA 293
Case
[2008] NSWCCA 293
Decision Date

CaseChat Overview and Summary

The appellant was convicted of four counts of sexual offences involving two complainants, B and C, and appealed against his convictions and sentences. The appeal raised issues concerning the joinder of the counts involving the two complainants, the admissibility of evidence of uncharged acts, and the adequacy of directions given to the jury. The High Court of Australia heard the appeal and determined that the trial judge's decision to join the counts involving the two complainants was flawed and that the trial had miscarried as a result. The Court held that where the evidence of one complainant is not admissible in support of counts involving another complainant, there is a risk of impermissible prejudice to the accused that requires the trials to be separated. The Court also held that evidence of uncharged acts is not admissible as tendency or coincidence evidence and that the trial judge's directions to the jury were insufficient to address the risk of prejudice caused by the admission of such evidence. The Court quashed the appellant's convictions and ordered a retrial.

The central issue in the appeal was whether the trial judge's decision to join the counts involving the two complainants was lawful and whether the trial had miscarried as a result. The appellant's counsel argued that the decision to permit the joint trial to proceed on the basis that all of the allegations made by one complainant were admissible on the trial of the allegations involving the other complainant in order to put the offences in context was flawed and that it had caused the trial to miscarried. The High Court agreed with this contention and held that the trial judge's decision was flawed because it failed to take into account the risk of impermissible prejudice to the accused that would result from the admission of evidence that was not admissible in support of counts involving the other complainant. The Court held that where the evidence of one complainant is not admissible in support of counts involving another complainant, there is a risk of impermissible prejudice to the accused that requires the trials to be separated. The Court also held that evidence of uncharged acts is not admissible as tendency or coincidence evidence and that the trial judge's directions to the jury were insufficient to address the risk of prejudice caused by the admission of such evidence.

The High Court held that the trial had miscarried because of the overwhelming nature of the prejudice caused by the admission of inadmissible evidence and the failure of the trial judge to give adequate directions to the jury. The Court quashed the appellant's convictions and ordered a retrial. The Court held that the trial judge's determination to permit the joint trial to proceed on the basis that all of the allegations made by one complainant were admissible on the trial of the allegations involving the other complainant in order to put the offences in context was flawed and that it had caused the trial to miscarried. The Court held that where the evidence of one complainant is not admissible in support of counts involving another complainant, there is a risk of impermissible prejudice to the accused that requires the trials to be separated. The Court also held that evidence of uncharged acts is not admissible as tendency or coincidence evidence and that the trial judge's directions to the jury were insufficient to address the risk of prejudice caused by the admission of such evidence. The Court quashed the appellant's convictions and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There was a substantial measure of overlap between the five grounds. On the hearing of the appeal Mr Hamill distilled them into one contention:the allowance of the trials to be conducted together and then in turn the allowance of a substantial body of what is sometimes referred to as relationship or context evidence, but in any event is evidence of other criminal acts not charged in the indictment, was of such magnitude in terms of prejudice to the appellant that he was unable, in respect of any direction that may have been given, to have a fair trial and that the proceedings in fact miscarried because of the overwhelming nature of the prejudice. (T’cpt 5/5/08 4.19.25)The evidence The evidence in support of count 1 was given by B. The offence occurred when they were living at Epping. B was practising on a grand piano at the AIM in Surry Hills one evening when the appellant entered the practice room. He took B to a corner of the room where he unzipped B’s pants and fellated him. The practice room had large internal windows. The appellant asked B to do the same to him and B refused saying, “I can’t do that and it is so many people watching, that could watch. I can’t it’s very dangerous.” The appellant replied, “Okay” and pulled B’s pants back up and they left the practice room. They collected C and Illya and all four returned to the Epping home. Count 2 – Act of gross indecency with person under 18, viz 16 years between 3 July 1998 and 3 January 1999 – contrary to s 78Q(1) of the Crimes Act, since repealed, maximum penalty imprisonment for two years. The evidence in support of count 2 came from B and C. B said that at around 9.00 or 10.00 pm on a night when they were living in the Epping home the appellant put on a heterosexual pornographic video and invited B, C and Illya Zozulya to watch it with him. The appellant’s wife and daughter were elsewhere in the house. C and Illya Zozulya were sitting on the couch and B was standing near the dining table, facing them. The appellant pulled B’s pants down and started to masturbate him. This continued until B ejaculated. The appellant placed some paper (either a paper towel or some newspaper) on the dining table. He wiped the ejaculate with the paper and put it in the rubbish bin. At the time of this assault C and Illya Zozulya were seated not more than two metres from B. C gave evidence of an occasion at Epping when the appellant approached B, who was seated behind the dining table, he put a piece of paper on the table and started to masturbate B and that B ejaculated onto the paper. C said the incident occurred on the occasion when B and Illya Zozulya hired a movie “about gays” from Video Ezy at the appellant’s request. B recalled that the appellant had asked him and Illya Zozulya to hire a homosexual pornographic video from Video Ezy and that they had hired a video about gay cowboys. After dinner, he, C, Alexey Koltakov and Illya Zozulya watched the video. B did not describe a sexual assault on the occasion of viewing the gay cowboy video.

Decision

Reasons for decision

Her Honour gave short reasons for refusing the second of the applications. She approached the application on the basis that there must be a high degree of need to support a discharge: R v George (1987) 9 NSWLR 527 at 532-533. She considered that it was appropriate to take into account matters such as the length of the trial, the inconvenience to witnesses and the cost of another trial. However, she, correctly, observed that these matters “must take second place where the trial judge takes the view that there is a real risk that the accused would be denied a fair trial because of what has occurred and the problem cannot be appropriately cured by a direction to the jury”. She considered that the jury would be likely to understand C’s evidence in the context of his account of the occasions when the appellant had interfered with him and B during the Horowitz competition in Kiev and of his observation of the episode on the overnight train to Kharkov. The decision to refuse separate trials The trial judge determined that the evidence of one complainant was not admissible on the trial of the counts involving the other complainant because there existed the possibility that the two had concocted their allegations against the appellant: Hoch v R [1988] HCA 50; (1988) 165 CLR 292. In cases involving allegations of sexual offences if the evidence of one complainant is not admissible in support of counts involving another complainant there will usually be a risk of impermissible prejudice to the accused that will require that the trials be separated: Hoch per Mason CJ, Wilson and Gaudron JJ at 297; Brennan and Dawson JJ at 298; De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1. Her Honour was mindful of this. The Crown Prosecutor opposed an order for separation submitting that C was a witness to the offence charged in count 2 and that B was a witness with respect to the offence charged in count 5. In the Crown Prosecutor’s submission the whole of the evidence of each complainant of the appellant’s alleged sexual molestation of him was admissible in chief in the trial of the offence to which he was a witness in order to put the offence in context. Mr Russell submitted that at the trial of the allegations involving B none of C’s allegations as to the appellant’s sexual assaults against him should be led by the Crown. He said that he did not propose to cross-examine C with respect to his evidence concerning the events charged in count 2 in a way that would make C’s allegations relevant. His position was the same with respect to the admissibility of B’s evidence in chief at the trial of the counts involving C. In her reasons for rejecting the application to separate the trials her Honour said this: In the result the whole of the evidence of each complainant as to a long history of sexual assaults on him by the appellant was admitted at the joint trial in circumstances in which none of the allegations made by one complainant constituted evidence of guilt of the counts involving the other complainant. Her Honour considered that any risk of prejudice to the appellant as the result of the decision to permit the trials of the allegations involving both complainants could be addressed by directions. Mr Hamill complained of the sufficiency of the directions, and of the added prejudice of the evidence volunteered by C that was the subject of the unsuccessful applications to discharge the jury, but his central contention was that the determination to permit the joint trial to proceed on the basis that all of the allegations made by one complainant were admissible on the trial of the allegations involving the other complainant in order to put the offences in context was flawed and that it had caused the trial to miscarry.

Ratio Decidendi

Legal Principle Established

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