Makarov v R (No. 3)

[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 four of the students moved into premises in Epping in which they lived for around six months. A resided for a time in the home of a senior member of the staff of the AIM.  After six months the appellant, his family and the four students moved into premises in Gladesville.  In September 1999 A moved into the Gladesville premises with the appellant, his family and the other students.

1. In February 2004 another of the appellant’s students, D, confronted the appellant at his home and alleged that the appellant had sexually molested him. The appellant contacted A, B and C and arranged for the three of them to come to his home where he informed them of D’s allegations.  Some days later the former students attended the Hornsby Police Station and each made allegations that the appellant had sexually interfered with him.  The appellant was charged with offences against all four young men.

2. An indictment was presented containing counts alleging offences against all four complainants. Latham DCJ directed the separate trial of the offences involving D.  On 10 December 2004 the appellant was convicted of the counts in the indictment concerning D.  He was sentenced to an aggregate sentence of 12 years’ imprisonment to date from 10 December 2004 with an effective non-parole period of eight years for these offences. The non-parole period will expire on 9 December 2012.  The appellant’s appeal against his conviction for these offences was dismissed: Makarov v R (No. 1) [2008] NSWCCA [291]. 

3. On 31 August 2005 the appellant was convicted following a trial before Hock DCJ and a jury of eight counts involving offences against A.  He was sentenced for these offences on 11 November 2005 to an aggregate sentence of eight years’ imprisonment to date from 10 December 2012 with an effective non-parole period of four years, which will expire on 9 December 2016.  His appeal against his conviction for these offences was dismissed:  Makarov v R (No. 2) [2008] NSWCCA [292]. 

4. On 6 September 2005 the appellant was arraigned before Hock DCJ on an indictment that charged him with 10 sexual offences: counts 1 to 4 involved the complainant, B, and counts 5 to 10 involved the complainant, C.  On 21 September 2005 he was convicted of each count.  He was sentenced for these offences to an aggregate term of nine years’ imprisonment to date from 10 December 2009 with an effective non-parole period of six years to expire on 9 December 2015. He appealed against his conviction for these offences and this judgment deals with this appeal. No appeal is brought against the sentences. 

5. The Crown served the appellant with a notice under ss 97 and 98 of the Evidence Act 1995 (NSW) (the Act) of its intention at the trial of relying on the evidence of B and C of the appellant’s sexual assaults against each as tendency and/or coincidence evidence in the trial of the counts involving the other.

6. The appellant moved for orders that the trial of the counts involving B be held separately to the trial of the counts involving C and that the proposed tendency and/or coincidence evidence be rejected.

7. The primary judge found that there existed the possibility that B and C had concocted their allegations and accordingly she rejected the evidence of tendency and/or coincidence (judgment 18 August 2005). Her Honour dismissed the separate trial application because C was a witness to the offence charged in count 2 and B was a witness to the offence charged in count 5. The history of the appellant’s sexual misconduct against C was admissible in the trial of the offence charged in count 2 in order to put it in its true context and the appellant’s sexual misconduct against B was admissible to put the offence charged in count 5 in its true context (judgment 31 August 2005).

8. Mr Russell, who appeared for the appellant at trial, objected to the admission of all of the evidence of sexual misconduct between the appellant and the complainants, which was not the subject of the counts. (T’cpt 1/9/05 6.9-27)  

The grounds of appeal

1. Nine grounds of appeal were filed.  On the hearing Mr P Hamill SC with Mr M King appeared on the appellant’s behalf. Mr Hamill’s instructions were limited to arguing grounds 1 to 5.  He was given leave to file amended grounds of appeal, adding a further particular to ground 5, which arose as the result of the decision of the High Court in HML v R [2008] HCA 16; (2008) 82 ALJR 723.

2. The appellant was given leave to personally argue the balance of the grounds of appeal and to rely on an additional ground (ground 10), which was set out in the written submissions. 

3. The grounds that were argued by Mr Hamill were:

   1.  The learned trial Judge erred in failing to sever the counts relating to one complainant from the counts relating to the other and to order separate trials relating to each.

   2.  The learned trial Judge erred in failing to discharge the jury on the application of defence counsel on 12 September 2005.

   3.  The learned trial Judge erred in failing to discharge the jury on the application of defence counsel on 2 and 13 September 2005.

   4.  The trial miscarried and there was a miscarriage of justice as a result of the prejudice arising out of the matters raised under grounds 1, 2 and 3 above.

   5.  The trial Judge failed adequately to direct the jury in relation to

   (i) the prejudicial evidence,

   (ii) the issues that arose following upon the joinder of the counts,

   (iii) the use that could be made of the evidence of ‘relationship’,

   (iv) the use that could be made of the evidence of one complainant in the counts relating to the other,

   (v) the standard of proof in relation to the evidence of the “improper sexual relationship” between the appellant and the complainants.

4. 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

Count 1 – Homosexual intercourse by teacher with boy above 10 and under 18, viz 16 years between 3 July 1998 and 3 January 1999 - an offence contrary to s 78N of the Crimes Act 1900 (NSW), since repealed, maximum penalty imprisonment for 14 years.

1. 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.

2. 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. 

3. 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. 

4. 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.

5. Illya Zozulya gave evidence that no form of risqué movie had been shown at the Epping home in his presence. He had not seen the appellant masturbate B. 

   Count 3 – Homosexual intercourse by teacher with boy above 10 and under 18, viz 17 years between 20 August 1999 and 18 May 2000 - contrary to s 78N of the Crimes Act. 

6. The evidence in support of count 3 came from B.  During the time that they were living at the Gladesville premises the students sometimes went downstairs to play games on the computer.  On one such occasion he and C were playing games late at night when the appellant entered the room wearing a bathrobe.  He asked, “what are you doing here? You naughty boys”.  He started hugging and kissing both of them and then he sat on the couch, pulled down their pants and performed oral sex on each of them.  Neither ejaculated. 

7. C did not recall the episode charged in count 3. 

   Count 4 – Homosexual intercourse by teacher with boy above 10 and under 18, viz 17 years between 20 August 1999 and 18 May 2000 – contrary to s 78N of the Crimes Act.

8. The final count involving an assault on B took place on an occasion when B said there had not been many people in the house.  Neither the appellant’s wife nor daughter were at home.  It was getting dark outside.  B encountered the appellant in the dining room and the appellant hugged and kissed him.  The appellant, “started talking about gays again”.  He asked, “why do you keep rejecting me” and he touched B on the outside of his pants until B became aroused.  The appellant then went down on his knees and performed oral sex on B for a little time.  The episode did not last long and B did not ejaculate. 

   Count 5 – Homosexual intercourse by teacher with boy above 10 and under 18, viz 13 or 14 years between 3 July 1998 and 31 October 1998 - contrary to s 78N of the Crimes Act. 

9. C gave evidence that within the first few months of arriving in Australia the appellant asked B and Illya Zozulya to go to the Video Ezy store and get a movie “about gays”.  They did so and brought the video home.  The appellant, C, B, Illya Zozulya and Alexey Koltakov were all present and all watched the video.  The appellant was lying on the couch.  He called out to C to come over to him, which he did.  The appellant put his hand inside C’s underwear and took out his penis and started to masturbate C as he watched the movie.  He then performed fellatio on C, who ejaculated.  After this the appellant approached B, who was sitting behind the table and he put a piece of paper on the table and started to masturbate B.  B ejaculated on the piece of paper.  After this they had gone to sleep. 

10. Alexey Koltakov and Illya Zozulya gave evidence and each denied being present during an incident of this description. 

    Count 6 – Aggravated indecent assault of person under 16, viz 13 or 14 years between 3 July 1998 and 3 January 1999 – contrary to s 61M(1) of the Crimes Act, maximum penalty imprisonment for seven years. 

11. The evidence in support of count 6 came from C.  The incident occurred while they were living at the Epping premises.  The appellant was lying on the couch watching television.  Illya Zozulya was sitting nearby.  The appellant called C over to him and put his hand inside C’s pants and touched his penis.  There was some noise from the direction of the kitchen and the appellant immediately removed his hand and C moved away.

12. Illya Zozulya gave evidence and denied seeing the appellant engaging in any sexual act with C on any occasion.

    Count 7 – Aggravated indecent assault of person under 16, viz 13 or 14 years between 3 July 1998 and 3 January 1999 – contrary to s 61M(1) of the Crimes Act.

13. The evidence in support of count 7 came from C.  One night during the period when they were living at the Epping premises he was practicing piano in an upstairs practice room at the AIM.  The appellant came into the practice room and tried to kiss him.  C kept his teeth together and the appellant put his hand on the outside of his pants and moved it around a little bit.

    Count 8 – Aggravated indecent assault of person under 16, viz 13 or 14 years between 3 July 1998 and 3 January 1999 – contrary to s 61M(1) of the Crimes Act.

14. The evidence in support of count 8 came from C.  The assault occurred on the same occasion as that charged in count 7.  The appellant had gone on to put his hand inside C’s pants and to touch his penis.  Following this they had returned to the Epping home. 

    Count 9 – Aggravated indecent assault of person under 16, viz 14 years between 30 January 1999 and 30 April 1999 – contrary to s 61M(1) of the Crimes Act.

15. The evidence in support of count 9 came from C.  The assault occurred when they were living at the Gladesville premises.  C returned home from a party and encountered the appellant in the kitchen.  The appellant asked him about the party and started to kiss him.  He put his hand inside C’s pants and “fiddled with him” for a few seconds. 

    Count 10 – Homosexual intercourse by teacher with boy above 10 and under 18, viz 15 years between 19 August 1999 and 1 August 2000 – contrary to s 78N of the Crimes Act. 

16. The evidence in support of count 10 came from C.  The incident occurred when they were living at the Gladesville premises.  He and the appellant were the only two persons present at the home at the time.  The appellant called to C to join him in the lounge room.  The appellant pulled C’s pants down and started to suck his penis.  C did not get an erection and the appellant stopped.

    Context evidence - B

17. B first met the appellant in Kharkov in 1992, when he was 10 years old.  He had been learning piano for three years, when his teacher recommended that he apply to study at the Kharkov school, which was a special school for talented students. B auditioned for a place at the Kharkov school in front of the appellant, who was the head of the Piano Department.  He was accepted and he commenced boarding at the school.  The first episode of sexual misconduct occurred during a lesson in 1994, when B was aged 12 years.  B was playing a very lyrical piece by Schumann.  The appellant was attempting to teach him how to build a phrase.  He asked B “whether I know something about love”.  When B replied “not really”, the appellant asked if he had ever been with a girl and he put his hand on B’s penis, on the outside of his pants saying to him, “do you feel it?  This is how you should touch the piano”.

18. The next occasion of sexual molestation was around November 1994.  B had returned to the Kharkov school following the school holidays.  The appellant was excited to see B and he locked the classroom door and hugged him and tried to kiss him on the lips.  He unzipped B’s pants and put his hand inside to touch B’s penis.  B pushed him away and started to cry.  The appellant said to him, “don’t worry, don’t worry, it’s okay.  I am sorry if I hurt you, I really didn’t want to, I’m just very happy to see you”. 

19. From this time onwards until 1996 or 1997 the appellant tried to kiss B at nearly every lesson.  He masturbated himself and B in the course of nearly every lesson. On one occasion the appellant bent B over a table and tried to penetrate him anally.  B had pushed him away, crying. 

20. In January or February 1997 B travelled to Kiev with his mother to audition for the Horowitz competition.  The appellant and several of his students, including C, were in Kiev.  When it was announced that B had been accepted into the competition, the appellant congratulated him and took him to a stairway saying, “you have to now let me do what I want to do with you because you still haven’t opened up enough, you still don’t play as good as I want you to and I can only show you by doing this what I have been trying to do with you”.  The appellant kissed B, putting his tongue inside his mouth. 

21. B returned to Kiev in late April to compete in the Horowitz competition.  The appellant and other of his students were staying in the same building.  On occasions the appellant would summons B when there was some free time and “masturbate or do something”.  B recalled one specific incident during this period:  He visited the appellant’s room where he saw the appellant and Alexey Koltakov.  Alexey was a former Horowitz competition prize-winner.  The room contained only one double bed.  Alexey was lying on the bed preparing to go to sleep.  The appellant undressed B and attempted to have anal intercourse with him.  It was painful and B pushed him away.  At the time of this incident B and the appellant were both naked and Alexey was lying centimetres away from them, but his head was facing in the opposite direction. 

1. Alexey Koltakov gave evidence that he had shared a room with the appellant in Kiev, and that it contained two metal beds that were about one metre apart.  He, the appellant and B had not lain together on one bed in that room.  The appellant had not anally penetrated B in his presence on any occasion. 

2. In August 1997 B travelled with the appellant and his daughter to a competition in Senigallia, Italy.  The three of them stayed together in one hotel room, which contained a single bed and a queen sized bed.  The daughter slept in the single bed and the appellant and B shared the queen-sized bed.  One night after they had turned the lights out the appellant reached under the blanket and tried to masturbate B. 

3. The appellant’s daughter gave evidence that she had not noticed anything strange or unusual happening between her father and B on the trip to Senigallia.

4. In March 1998 B, C, A, Alexey Koltakov and another student attended master classes in a village near Kiev.  C and the appellant travelled from there to Israel on a concert tour.  When the group reunited they travelled to Kiev for a concert, returning to Kharkov on the overnight train.  B, C, A and the appellant shared one sleeping compartment, which had four beds.  The appellant locked the door to the compartment.  C had apparently gone to sleep in one of the upper bunks.  B and A remained awake.  The appellant undressed himself and B and A.  He then performed oral sex on B.  After this he made B perform oral sex on A and A perform oral sex on B.  After this he sat in front of them naked and masturbated until he ejaculated. 

5. A gave evidence that he recalled returning to Kharkov with the appellant and students, including B and C on the overnight train but he was unable to recall with whom he had shared a sleeping compartment.  There had been many train journeys from Kiev to Kharkov.  A did not recall sucking B’s penis.

6. C gave evidence that he recalled sharing a sleeping compartment containing four beds with the appellant, B and A.  He recalled that he had got into bed and had observed the appellant performing oral intercourse on B and A. 

7. B said that during the period when he had been living in the appellant’s home in Gladesville the appellant had bought a computer that he had tried “to show us some pictures of gays” on a number of occasions. 

8. B was involved in an accident in January 2004, which led to his being hospitalised.  The appellant and his wife visited B in hospital.  The appellant suggested that B should recuperate in their family home at Pymble.  B accepted the invitation and stayed with the family for about two weeks.  By this time the appellant’s daughter had married Alexey Koltakov and they were living in a separate home.  During the period when B was convalescing at the appellant’s home he told the appellant that, “I hate you for what you have done to me and I’ll never forgive you”.  The appellant replied, “I know but it’s in my nature”.

   Context  evidence - C

9. C gave evidence of his relationship with the appellant.  While he was studying in the Ukraine around May 1996 the appellant talked to him about sex on an occasion when he was playing a mazurka by Chopin.  The appellant had told him, “well this music is about a man and a woman having sex and making love”. 

10. C gave evidence of travelling with the appellant to Senigallia in 1996 to compete in a piano competition.  They had stayed in the same hotel room, which contained a bed for each of them.  On the first night the appellant had stood in front of C’s bed and masturbated saying to him, “watch me, watch me”.  After this the appellant had asked C to come to his bed.  After a time C had done so and the appellant had taken his hand and placed it under his underwear.  C had pulled back and gone back to his bed and gone to sleep.  The following day the appellant had said to him, “you know this is our secret, make sure you know just stays between us” (T’cpt 229.20-47). C said that, “things happened again.  That was not the only time that something happened in Italy”.

11. In late April 1997 C and B were in Kiev for the Horowitz competition.  They had gone to the appellant’s room and he closed the door and instructed them to take their clothes off.  They did so and he made them take turns in sucking his penis and he did the same to them.  At one point the appellant lay on C and forced his penis into C’s mouth.  This was the only sexual encounter with the appellant that C recalled in association with the Horowitz competition.

12. In 1998 C travelled to Israel with the appellant.  After the last concert in Jerusalem the appellant insisted that C share the shower with him.  During the course of the shower he attempted to penetrate C.  C did not permit this and the appellant said, “okay, if you don’t want me to penetrate you, you should penetrate me”.  They had gone to the bed where C said he did not exactly remember but that the appellant had sort of sat on him for a few seconds and then stood up and instructed C to go and wash himself.  Following this, the appellant masturbated C. 

13. C said that while they were living in Gladesville the appellant would engage in minor touching or that he would try to kiss someone. 

    The applications to discharge the jury

14. During the course of the trial Mr Russell made two applications for discharge of the jury as the result of evidence given by C.  The trial judge’s refusal of these applications is the subject of grounds 2 and 3.  C’s evidence in chief, which led to the first application, is set out below:

    Q.  Can you remember when it got moved from the bedroom to the studio?
    A.  I don’t remember that now.  Maybe also it was first in the room and then in the studio as well, I can’t remember exactly. 

    Q.  Did anything happen when you were at Gladesville in conjunction with the computer?
    A.  Well yes, I mean we used the computer for intranet or for some games sometimes, you know, especially when it was downstairs in the studio we would come to the studio and use the computer there or practice the piano of course. Sometimes Makarov would come down and, you know, some usual things like minor touching or trying to kiss someone would happen. 

    Q.  Who did he touch or kiss in the computer room?
    A.  I don’t remember exactly incident that happened, but I remember that something happened sometimes in that room downstairs.  I remember he might have touched me or some others that was there.  (T’cpt 244.27-47) (emphasis added)

15. Mr Russell submitted that the evidence invited the inference that the appellant engaged in improper sexual touching of other boys in C’s presence. 

16. The trial judge refused to discharge the jury.  She offered to give a direction about the matter if one was sought.  Mr Russell submitted this would not cure the harm and may serve to highlight the damage (T’cpt 252.1-22). 

17. The evidence that gave rise to the second discharge application occurred in the course of the cross-examination of C:

    Q.  Why didn’t you think about the – if all these things had happened to you in the Ukraine, why did you not – why did you just simply make a decision to tell your parents, not come to Australia?
    A.  First of all I was 10 years old, secondly because it happened for some time I got used to it as a routine, as a part of being with professor and of course witnessing other boys going through the same – similar things and me being the youngest I followed them as well.  (T’cpt 12/9/05 C -271.11-19)

18. 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

1. 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.

2. 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.

3. 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.

1. 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. 

1. In her reasons for rejecting the application to separate the trials her Honour said this:

However, [Mr Russell] submits that the evidence of the witness who was not the complainant in the particular count should be limited to what he saw on that occasion.  I disagree.  To confine the Crown in that way would present a completely misleading picture to the jury.  The evidence of what is, on the Crown case, the true relationship between the accused and the person who witnessed the particular offence is admissible to put his evidence in context.  Otherwise the jury would be completely misled and, as a matter of common sense and logic, dismiss the likelihood of the accused acting in the way alleged in the presence of another person, unexpectedly and in isolation.  In other words, the alleged offences must be placed in their true context.  See generally R v Wickham (unreported) NSWCCA, 17 December 1991.  (T’cpt 31/8/05  2.1-2.15)

1. 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.

2. On the appeal the Crown maintained that the trial judge had been right to permit the joint trial of the counts involving the two complainants because there was “some connection between the crimes”.  The connection to which the Crown referred was that B was an eyewitness to sexual acts about which C gave evidence and vice versa.  The connection was represented in annexure 1 to the written submissions filed by the Crown (1/5/08).  The connection included that B and C each gave evidence of sexual misconduct involving the appellant that occurred around April 1997 at the Horowitz Competition in Kiev and in March 1998, on the train trip from Kiev to Kharkov.  In the Crown’s submission the evidence of B’s allegations at the trial of the offences involving C and the evidence of C’s allegations at the trial of the offences involving B was probative of the following matters (Crown Written Submissions (Trial 4 – complainants B and C) at pp 2-4, para [6]):

   (i)  prior sexual contact between the Appellant and C may explain why the Accused would not be concerned about performing a sexual act upon B in C’s presence and within his view (Count 2);

   (ii)  prior sexual contact between the Appellant and B may explain why the Accused would not be concerned about performing a sexual act upon C in B’s presence (Count 5);

   (iii)  occasions earlier in time when C had seen the Appellant perform sexual acts upon B – namely, the train from Kiev to Kharkov (Table ref “J”) and in the apartment in Kiev (Table ref “G”) – may explain why C

   i.  did not react at the time or complain to any person shortly thereafter when he saw the Appellant performing a sexual act upon B (Count 2);

   ii.  did not call to B for help, show any reluctance to engage in sexual activity in the presence of B or try and be secretive about the act when the Appellant performed a sexual act upon C (Count 5);

   (iv)  extensive prior sexual contact between the Appellant and C may explain why C did not have a memory of sexual contact involving B in his presence in the studio (Count 3);

   (v)  extensive prior sexual contact between the Appellant and B may explain why B did not have a memory of sexual contact involving C in his presence in the apartment in Kiev (Table ref “G”);

   (vi)  prior sexual contact between the Appellant and B rendered more credible the account of C of sexual abuse by the Appellant within the confines of the home in proximity to other people.  This assumed particular significance because in responding to the charges, the Appellant asserted the impossibility of the claimed misconduct by him, bearing in mind the close living condition and the proximity of the other members of the household (T273, 275); and

   (vii)  prior sexual contact between the Appellant and C rendered more credible the account of B of sexual abuse by the Appellant within the confines of the home in proximity to other people.  This assumed particular significance because in responding to the charges, the Appellant asserted the impossibility of the claimed misconduct by him, bearing in mind the close living condition and the proximity of the other members of the household (T 152).

1. It is necessary to consider whether the trial judge was correct in determining that evidence of the appellant’s sexual misconduct with C was admissible at the trial of the counts involving B and vice versa. In the event that some evidence of sexual misconduct with the witness were admissible it would remain necessary to consider whether nonetheless it was an error for the trials to proceed jointly.

2. The admission of evidence of sexual misconduct that does not form the basis of the charges has been the subject of some controversy. Sometimes evidence of this nature is referred to as evidence of “uncharged acts” however that description has been criticised because the evidence may include discreditable conduct that is not unlawful. We will refer to it as evidence of “other sexual misconduct” in these reasons.  Generally evidence of other sexual misconduct is inadmissible. Opinion was divided as to the circumstances in which evidence of other sexual misconduct may be received in Gipp v R [1998] HCA 21; (1998) 194 CLR 106.

3. After considering Gipp in R v Fraser (Court of Criminal Appeal, 10 August 1998, unreported) the Court (Mason P, Wood J and Sperling J) held that the law as stated in R v Wickham (Court of Criminal Appeal, 17 December 1991, unreported; BC9101334); R v Beserick (1993) 30 NSWLR 510 and R v AH (1997) 42 NSWLR 702 at 708-709 and as declared in B v R [1992] HCA 68; (1992) 175 CLR 599 by Brennan J at 603-605 and Deane J at 610 should continue to be applied in this State.

4. In Wickham the complainant had been subjected to sexual abuse by her father from when she was about four years of age. By the time of the offence charged in the indictment sexual intercourse had become a regular event. Her phlegmatic account of the act of intercourse that was the subject of the indictment may have seemed remarkable in the absence of knowing what had preceded it. Gleeson CJ (with the concurrence of Carruthers and Mathews JJ) held that the trial judge had been right to admit the evidence of the other sexual misconduct. His Honour said that such evidence will often be relevant and tend to make more credible the evidence of the complainant in two ways: firstly, it may establish a sexual relationship which would make the complainant’s allegations more likely to be true and, secondly, it may constitute an essential aid to the understanding of the complainant’s account of events (BC9101334 at 7).

1. In AH the admission of evidence of other sexual misconduct under the Act was considered. Evidence that is tendered on the first of the bases explained by Gleeson CJ in Wickham is tendency evidence and is subject to the threshold test posed by s 101(2) of the Act. (In Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 Hodgson JA at [49] considered that evidence of the accused’s other sexual misconduct directed to the complainant may be relevant to support an inference of sexual attraction evidencing motive, but not amounting to tendency.) Evidence tendered on the second of the bases identified by Gleeson CJ in Wickham has been admitted under the Act because it is evidence that could rationally affect the probability of the existence of a fact in issue: ss 55 and 56. The admission of evidence of other sexual misconduct by way of “context” evidence is discussed in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 by McClellan CJ at CL (Howie and Latham JJ agreeing) at 483-489; [72]-[92]. His Honour emphasised the need to identify the precise evidence of other sexual misconduct that is proposed to be tendered as providing context for the offences charged and to determine whether any issue in the trial makes the evidence relevant on this basis. In the event that the evidence is relevant, there remains a lively question as to whether it should be admitted having regard to s 137 (at 487; [80]).

2. After the present trial, but before the appeal was heard, the decision in HML v R [2008] HCA 16; (2008) 82 ALJR 723 was handed down. In HML the High Court gave further consideration to the admissibility of evidence of other sexual misconduct and to the directions as to the standard of proof that applies to it. The analysis in HML is of the principles at common law.  In each of the three cases that were the subject of consideration, HML, SB and OAE, the issue related to the evidence of the complainant of the accused’s other sexual misconduct that was directed at her. Considerable focus in the judgments is on the admission of such evidence showing the accused’s sexual interest in the complainant, which, subject to the observations of Hodgson JA in Leonard, is treated for the purposes of the Act as evidence of tendency.  

1. In HML Gleeson CJ held that evidence of other sexual misconduct given by a complainant and admitted in order to explain or make intelligible the account of the charged acts was relevant on the second of the bases that he had earlier identified in Wickham. Received on this basis the evidence did not offend the rule against the investigation of collateral issues or amount to an impermissible attempt to bolster the witness’ credit: at 736; [25]. Justices Crennan and Kiefel approached the question consistently with this view: Crennan J at 809 – 810; [423]-[433] and Kiefel J at 821; [500].

1. Hayne J (with whose judgment Gummow J at 739; [41] agreed) considered that evidence given by a complainant of other sexual misconduct by the accused is not received as an exception to the rule against agitating collateral issues. This is because the evidence is circumstantial evidence tending to proof of guilt of the offence charged: 753; [112] – [117]. Kirby J agreed with Hayne J’s approach: 744; [59] – [63]. Heydon J doubted the admissibility of the evidence of a complainant of the accused’s other sexual misconduct received in order to provide a context for the charged incidents in the sense of demonstrating that the incidents did not occur “just out of the blue” (788-793; [316]-[335]) or to explain why the complainant acquiesced (787; [314]) in the conduct or failed to make immediate complaint (781-787; [290]-[313]). In the view that his Honour took it was not necessary to finally determine the question: 793; [36].

2. In HML Kirby J (at 741; [54]) and Heydon J (at 781; [288] and fn 227) both refer to the fact that the appeals are of application to those jurisdictions in which the common law rule stated in Pfennig applies. This is implicit in the reasons of Hayne J (at 753; [112] – [118]). Nonetheless the discussion of the concepts may have relevance to the admission of evidence under the Act. Their Honours’ observations concerning the risk of prejudice associated with the admission of evidence of other sexual misconduct are to be kept in mind in considering the Crown’s submission that the reception of all of the evidence of the appellant’s other sexual misconduct at the joint trial was not productive of unfairness: Gleeson CJ at 723; [28]; Hayne J (Gummow J and Kirby J agreeing) at 753; [112] – [113]; Heydon J at 729; [328]; Crennan J at 811; [436] and Kiefel J at 822; [504].

1. The trial judge’s reasons were delivered ex tempore and although her Honour referred to admitting the evidence of the other sexual misconduct in order to put the witness’ evidence in context, a fair reading of the passage set out at [57] above is that she considered the witness’ evidence was admissible in order to put the evidence of the offence charged in context. In the Crown’s submission her Honour was right to admit the evidence as relevant on this basis: Wickham. Implicit in this submission is that the evidence had a relevance other than as only going to the credibility of the witness: s 102. The purposes identified in (i) and (ii) in the Crown’s written submissions set out at [59] above are relied upon in this respect.

2. The Crown referred to the decision in R v H (Court of Criminal Appeal, 24 October 1994, unreported) as authority for the proposition that evidence of an accused’s other sexual misconduct given by a witness may be received in order to put the allegations that are the subject of the charges in context.  H was described by Gleeson CJ as being an “extraordinary case” (at 1).  At the joint trial of allegations made by two complainants, M and R, the accused’s daughters, evidence of his other sexual misconduct and violent behaviour was given by a number of witnesses.  The leading judgment was written by Dunford J, who said that (at 7-8):

   Once it is accepted that the ratio for admission of the evidence of other sexual misconduct on the part of the appellant includes providing the proper background and setting for a complainant’s evidence so that the jury may be in a better position to assess her credibility in relation to the events charged in the indictment.  I see no reason why such evidence should be limited to that of other conduct involving the appellant and the complainants, and this case provides an ideal example of the relevance of such evidence.  Some of the claims of the complainants taken by themselves were quite outrageous and such as would not invite credibility from the jury simply because they were so outrageous.  However, there was a mass of evidence that this was a household where from a sexual point of view there were virtually no restrictions.  It was, it seems, a case of “anything goes”.  Once that was established, and it was established by the evidence of a number of witnesses describing what went on in the house, the evidence of the complainants relating to the particular charges fitted into place and became much more credible.  In many respects, such evidence was essential to a proper understanding of what the complainants were alleging.

3. H was decided before the introduction of the Act.  As a statement of the common law principles governing the reception of evidence of other sexual misconduct it is to be understood in the light of more recent authority including HML.  H was a singular case.  Some of the evidence of the accused’s other misconduct was not the subject of objection. This is not the occasion to consider the admissibility of evidence of other sexual misconduct, which is not of sufficient probative value to be admitted as tendency or coincidence evidence, because it is relevant to “context” to show that this was a household in which “anything goes”.  The facts of the present case are far removed from those with which the Court was concerned in H.

1. The Crown also relied on the decision in R v ACK (Court of Criminal Appeal, 22 April 1996, unreported).  In that case at the joint trial of the appellant for sexual offences involving two of his children, Z and S, evidence was led from two other of his children, M and O, of similar sexual assaults on them.  Studdert J cited the judgment in H, noting that ACK was a case possessed of similar features.  The appeal was allowed in ACK because the admissibility of the evidence of M and O depended upon it having a quality that was “not reasonably explicable on the basis of concoction” (Hoch at 297) and the trial judge had not considered whether it should be excluded on this ground (at 12). Gleeson CJ noted that there had been no ground of appeal to the effect that the joint trial involved a miscarriage of justice (at 14). The decision in ACK does not assist the Crown. 

2. This was a case in which two complainants made broadly similar allegations of sexual molestation against the appellant. The evidence of one was not admissible in order to prove the appellant’s guilt of the offences involving the other because such probative value as it possessed did not substantially outweigh any prejudicial effect it may have on the appellant: s 101(2). Certain of the purposes for which the Crown submits the evidence of each complainant, as a witness in the trial of a count involving the other complainant, of the appellant’s other sexual misconduct directed at him pays insufficient regard to that fact, including the purposes referred to in subpars (vi) and (vii) (at [59] above).

1. It is unclear whether the incidents charged in counts 2 and 5 relate to the same occasion. Nothing turns on this for the purpose of deciding whether the trial judge was right to allow evidence of the appellant’s other sexual misconduct to be led by the complainant/witness in each case. The reason that her Honour considered that the evidence of the appellant’s other sexual misconduct involving C should be admitted on the trial of count 2 was because the jury might think it improbable that the appellant would behave in such a sexually disinhibited way in C’s presence. His conduct, it was said, would seem less improbable if it were known that he had also sexually molested C. If this reasoning were sound, the appellant’s behaviour might still be thought to be as improbable because Illya was present and it was not asserted that Illya had been sexually molested. It was anticipated that Illya would deny witnessing any sexual misconduct between the appellant and B (or C).  At the separate trial of B’s allegations, B’s evidence, that the appellant had masturbated him in the presence of two fellow students, would receive direct support from one student and be denied by the other. Evidence that C had been sexually molested by the appellant was not needed in order to explain why it was that the appellant might so conduct himself in the presence of others. The risk that C’s evidence of the appellant's other sexual misconduct would be used in an impermissible way was of a high order. It was not admissible in the Crown case on the trial of count 2.

1. Turning to count 5, it was open to the Crown to lead evidence from C of the assault on B that took place in the immediate aftermath of the assault on him charged in that count because it was part of the same transaction:  O’Leary v R [1946] HCA 44; (1946) 73 CLR 566 per Dixon J at 577. B was not expected to give evidence of the assault on C. Nonetheless on C’s account B was present and the Crown would be expected to call B. It was open to lead evidence from B of the assault on him (the incident charged in count 2) because it was open to find that the two assaults occurred on the one occasion. B’s evidence of the assault on him was on such a view evidence so inextricably bound up with the assault charged in count 5 as to be admissible: O’Leary.  This did not necessitate leading the whole of B’s allegations of the appellant’s other sexual misconduct directed at him in order to put C’s evidence of the offence in context. The risk that the evidence would be used to reason impermissibly as to the appellant’s tendency to sexually molest boys was, again, of a high order. B’s evidence of the appellant’s other sexual misconduct against him (apart from the assault that was the subject of count 2) was not admissible in the Crown case on the trial of count 5.

1. A question which the trial judge did not consider, but which was raised by the Crown in its written submissions, concerns the evidence that C was expected to give of the incident charged in count 3. B’s account of the incident was that C was with him in the computer room when the appellant came into the room and removed his pants and C’s pants and fellated them in turn. C did not recall the incident. B would necessarily give evidence of the presence of C and of the assault on C in the course of describing the assault charged in count 3. His account of what occurred cannot be given intelligibly without reference to the almost simultaneous assault on C who witnessed the entire episode.

1. C’s evidence that the appellant had sexually assaulted him on occasions other than the occasion charged in count 3 was not admissible on the trial of the counts involving B’s allegations as evidence of guilt because there existed, objectively, the risk that the two had concocted their accounts: Hoch. This possibility deprived the evidence of C, that the appellant had sexually assaulted him, of probative value in establishing the appellant’s guilt of a count involving B (given that the sexual assaults on each was denied). The Crown seeks to lead evidence of C’s allegations not as evidence from which the jury might reason to guilt – it is accepted that C gives no evidence capable of establishing the appellant’s guilt of count 3 – but because in the absence of this evidence C’s account is likely to be thought to be inconsistent with the acceptance of B as a reliable witness. The distinction as to the basis on which the evidence is available is a subtle one. In HML Hayne J (Gummow J and Kirby J agreeing) was critical of attempts to divide up the uses to which the discreditable acts of an accused may be put into evidence categorised variously, including as  “tendency”, “context”, “explanation” and “intelligibility”. His Honour doubted that the division provides useful guidance to jurors. More fundamentally, his Honour pointed out that the risk to which the rule of exclusion is directed is that the evidence will be misused: 753; [112] – [116]. His Honour’s analysis while addressed to the Pfennig test is nonetheless of significance to the resolution of this issue.

2. C’s evidence only provides the means whereby B’s allegations are assessed in a realistic context if he gives evidence of the whole of the appellant’s other sexual misconduct and only then upon the assumption that his allegations are true. However, the jury may not reason to the appellant’s guilt of the offence charged in count 3 by reference to a conclusion that the appellant had sexually assaulted C.  The risk of misuse of the evidence was, again, of a high order and required that C’s account of the appellant’s other sexual misconduct against him not be led in chief by the prosecution on the trial of the offence charged in count 3. 

3. The trial judge was confronted with a difficult determination given that B and C both were expected to give some evidence relevant to proof of a count involving the other as complainant. We have concluded that it was an error to determine the application upon the basis that this circumstance permitted the Crown to lead the whole of C’s allegations of the appellant’s other sexual misconduct to put his evidence in context in the trial of count 2 and the whole of B’s allegations of the appellant’s other sexual misconduct on the trial of count 5.  Even if there was a foundation for the admission of some of the evidence of other sexual misconduct by way of “context”, and in our view there was not, it would have been necessary for the trial judge to consider the rejection of it under s 137 for the reasons explained in Qualtieri.  

4. In the event, there was a joint trial at which the whole of the evidence of each of complainant as to the appellant’s other sexual misconduct was admitted over objection. On the trial of the appellant for the four offences against B, which involve sexual assaults upon him when he was 16 and 17 years old, evidence was led of a detailed course of events commencing with the grooming and sexual assault of him when he was 12 and continuing until the occurrence of the incident charged in count 4.  B’s evidence included that the appellant had attempted to have anal intercourse with him when he was a child of relatively tender years.  There was C’s evidence, which involved similar allegations of grooming and sexual molestation commencing from when he was aged around 12 years.  The evidence included the allegations made by each complainant of events in the Ukraine and in Italy. This evidence, which was admitted merely to place B’s allegations in context, included the appellant's misconduct on the train trip from Kiev to Kharkov, an incident which was corroborated by the evidence of C.  It is not apparent that it was necessary to lead evidence from B in this detail in order to put in context his account of the offences with which the appellant was charged.  As a practical matter, the appellant's means of testing the allegations concerning the sexual misconduct that was said to have occurred overseas was limited.  Gleeson CJ’s observations in HML at 734; [13], that the adversarial process by which charges are laid, particularised, and contested may be ill-adapted to an investigation of other allegations is apt to the circumstances of this case.

5. On the trial of the appellant for the six counts involving C the same observations apply.

1. The decision to permit the trial to proceed on the indictment charging counts involving the two complainants, in circumstances in which the evidence of the allegations made by one was not admissible on the trial of the allegations involving the other, in our opinion was productive of a miscarriage of justice. The trial judge’s directions were not capable of overcoming the prejudice that arose as the result of the joint trial and the admission of all the evidence of the appellant's other sexual misconduct. No question of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) arises in the circumstances. Taking into account the matters that we deal with below, in our view the appropriate consequential order is that there be new, separate, trials.

2. It is appropriate to say something about the admissibility of evidence in this jurisdiction of other sexual misconduct at the trial of an accused for sexual offences.  The law remains as stated in Fraser and in Qualtieri:  see DJV v R [2008] NSWCCA 272.

3. At the new trial of the offences involving each complainant it will be a matter for the trial judge to determine whether evidence of the appellant’s other sexual misconduct against the complainant is to be admitted. In determining this question it will be necessary to identify the issue to which the evidence of other sexual misconduct goes:  Qualtieri.  In HML Gleeson CJ at 737; [28] discusses the ways in which the prejudicial effect of evidence of other sexual misconduct may be addressed. These include controlling the form in which the evidence is adduced and, in an appropriate case, confining the evidence of other sexual misconduct to brief and general evidence that the occasion the subject of a charge was not an isolated instance. The attitude of the defence is a relevant matter to take into account in this respect. For the reasons that we have earlier explained, in our view C’s evidence of the appellant's other sexual misconduct against him should not be led in chief by the prosecution on the trial of the offence charged in count 3. In the event that the defence make an issue of C’s lack of recall in the course of cross-examination, it may be open to the Crown to re-examine with a view to eliciting the history of abuse by way of explanation for the lack of recall of the particular incident. If the defence choose not to pursue such a line in cross-examination, it would not be open to invite the jury to reason that C’s lack of recall is inconsistent with the incident having occurred.

4. We should refer to the matter raised by ground 5(v), which concerns the standard of proof in relation to evidence of the “improper sexual relationship” between the applicant and the complainants, in light of the decision in HML.  In DJV v R this Court analysed the judgments in HML and concluded that in sexual assault cases the standard of proof of tendency evidence is beyond reasonable doubt: at [30]. McClellan CJ (with whom Hidden and Fullerton JJ agreed) held that evidence admitted as context evidence does not require a direction that it be proved beyond reasonable doubt: at [31].

1. In Cornwell v R [2007] HCA 12; (2007) 231 CLR 260 per Gleeson CJ, Gummow, Heydon and Crennan JJ at 300-301 [105] it was pointed out that intermediate courts of appeal should deal with all the grounds of appeal even when a decisive ground has been determined in a way that may make it appear to be unnecessary to deal with the remaining grounds. In light of this injunction we proceed to deal with the grounds that were argued by the appellant.

   Ground 6 – The trial miscarried and there was a miscarriage of justice as a result of perjury that C and B committed against the appellant during proceedings in relation to the evidence concerning (i) the exclusively professional (musical, psychological and psychiatric) issues; (ii) the “relationship” evidence; (iii) the Counts No. 2 and 5; (iv) the Count No. 3; (v) the Counts No. 7 and 8.

2. B agreed that throughout the period of the claimed sexual abuse he had won prizes, including at the Horowitz competition; the Sydney International Piano competition and in Senigallia.  He agreed that he had performed in a very professional manner and at a very high level.  B said that the appellant was a very good teacher who had taught him to play well.  He said that he had become accustomed to the sexually abusive relationship. 

3. C had been a successful pianist during the period of the sexual abuse. He had undertaken a concert tour of Asia at the age of 16.  He had won second prize in the Senigallia competition and a special prize at the 1997 Horowitz competition.  He had won first prize at the 1999 Horowitz competition and first prize at the Hamamatsu and Rubenstein competitions in 2000.  B said that he was able to achieve because, “what happened to me sexually and psychologically and all my life history, it was a lot of tragedy and a lot of suffering and that is what really makes me play piano with much more expression and with much more intensity in my interpretations”.  (T'cpt 12/9/05 288.15-19)

1. The appellant gave evidence that (T'cpt 13/9/05  342.17-343.11):

   “[W]hen B performed I was together with him I protected him because any competition needs not only preparation as pianist you have to be protected with psychological and mental way.  Because competition when people coming from another cities with a lot of adults people adults with teachers they can very easy to influence you.  They can just with very small things just destroy you.  You will not perform really well so you need protection and I protected him in moment when he performed I was together with him … .  In the basis of this protection is trust.  Students to teacher.  Without this trust it’s impossible to protect psychologically and mentally, just impossible.  You can’t in same moment to protect person psychologically and mentally and to destroy person physiologically and mentally.  If you will invite in this Court any psychologist, any psychiatrist, any professional musician, and they will support my point of view.  It is impossible to perform on high level and to be particularly when you long term is under abuse, it’s just impossible.”

2. Alexey Koltakov gave evidence of the demands placed upon competitors in international piano competitions.  He had won prizes at a number of competitions.  Competitors practised for several months before the competition for at least six hours each day.  The effect of his evidence was that regardless of the amount of preparation, a pianist cannot concentrate and perform at their best if under stress.  He had found it unpleasant when performing after an incident such as an argument with his wife. 

3. Paul Virag, a concert pianist and conductor, gave evidence of the need to devote oneself to practice day and night in order to compete in international competitions.  He had found it necessary to cancel performances at the time of his divorce because of the likely impact of the stress on his ability to play at his best.

4. Leo Novokov, a violinist, also gave evidence of the level of concentration that is required of a soloist performing at the highest level.  On one occasion when a teacher had failed to attend and critique an important audition, he had performed, “at probably 50 per cent of my abilities I think because it distress and it’s very hard to concentrate completely and plus it’s big loss of energy.  When I need my energy to perform, I need to send my energy to an audience.  It’s not playing notes, it’s not enough to play notes.”  (T'cpt 14/9/05  460.15-20)

1. The first aspect of the challenge in ground 6 is to the failure of the Crown Prosecutor to lead expert evidence to establish that the ability of B and C to perform at a high level as pianists was not incompatible with acceptance of their account that each was a victim of sexual abuse. 

2. We discuss the admissibility of expert evidence concerning aspects of the behaviour of sexually abused children in Makarov v R (No. 2) at [59] and [60].  It is not necessary to repeat those observations.  There was no attempt by the defence to adduce expert psychiatric, psychological or medical evidence of the asserted incapacity of a child or young person to play a musical instrument at an elite level while the subject of sexual abuse. The anecdotal evidence of musicians about the difficulty of performing at one’s best while under strain was admitted without objection. Counsel addressed on the issue, which was for the jury’s assessment.  The Crown was not under an obligation to adduce expert evidence to establish that a talented but sexually abused young musician could still achieve standards of excellence in performance notwithstanding the abuse. As we have noted, it is doubtful that evidence of this description would have been admissible as expert evidence: in Makarov v R (No. 2) at [58].

3. In his written submissions the appellant contended that six months after the trial, B and C had made assertions in a statement of claim about the psychological injuries that each had received as the result of his sexual abuse in terms that contradicted his evidence.  (AB 43; [8.9])  On the hearing the appellant sought to adduce as fresh evidence a copy of a statement of claim, dated 9/6/2006, and filed on behalf of C, who is referred to in the claim as “BPC1”.  There was nothing in the pleading of the claim or in the particulars of injuries which would have made the document relevant to any issue in the trial. C’s evidence of his capacity to play the piano at a high level notwithstanding that he was subject to sexual abuse was not inconsistent with the pleading of the claim. The reference in the submissions to a claim made by B is unexplained.

1. Ground 6(ii) complains of the reception of the “relationship” evidence concerning the events in the Ukraine.  The appellant’s written submissions contain a different challenge to the admission of this evidence than the prejudice which was the basis of Mr Hamill’s submissions. The appellant details claimed inconsistencies between the account of B, C, Alexey Koltakov and Ilya Zozulya with a view to demonstrating that B and C gave false evidence. The circumstance that witnesses gave differing accounts of an event that occurred some years earlier does not, of itself, prove that the account of one or more of them is untruthful. The assessment of the reliability of the evidence was for the jury. It is to be observed that there were possible explanations for the inconsistencies, which included that Alexey Koltakov and Illya Zozulya may not have been accepted in their denial of witnessing incidents of sexual misconduct. The appellant’s written submissions do not point to inconsistencies or other apparent deficiencies in the evidence of B and C which lead this Court, undertaking its own assessment of the evidence, to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt based upon the evidence of each complainant.

2. The submissions relating to grounds 6(iii), (iv) and (v) analyse the evidence in support of counts 2, 3 and 5 with a view to demonstrating that the evidence of B and C is false. The contention with respect to ground 3 is that B’s account cannot be accepted because it is not supported by C who is said to have been a participant. This submission is misconceived; the fact that C did not recall the incident left B’s account as uncorroborated but that circumstance did not mean that it was not open to the jury to be satisfied beyond reasonable doubt of the truth of it.  The submissions with respect to counts 2 and 5 fasten on the differing accounts of who was present and which video was being played and on B’s omission of any reference to seeing the appellant fellating C.  Once again, these were factual issues which were agitated at the trial.  There is nothing which leads this Court, undertaking its own assessment of the evidence, to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of each of these three offences.  Ground 6 is rejected.

   Ground 7 – The trial Judge failed adequately to direct the jury in relation to the jurors’ questions concerning the lack of proof, transcript of summing-up and impossibility to reach the verdicts on eight counts out of 10.

3. The jury retired to consider their verdicts at around 1.00pm on Friday 16 September 2005. On Monday 19 September after 3.00pm the jury sent a note, which read:

   We need direction and legal instruction in resolving doubts when undecided on certain verdicts, eg no witness to an incident and only having he said as against what he said.  Are we to go on what witness we find more believable?

4. The Court was re-convened at close to 4.00pm when her Honour told the jury that she would answer the question the following morning.  The following morning she gave the jury the following further directions in answer to the question:

As you are well aware, each count on the indictment relies solely on the evidence of the complainant except of course, count 2.  There is nothing unusual about that where the allegations are of sexual assault because it is often the case that there are only two people present.  The concentration of course of your deliberations must focus on whether you accept the complainant’s evidence who you are considering is honest and accurate in respect of the facts and circumstances on which each count relies.  Where the Crown case depends on the word of a single witness unsupported by any other evidence, a jury has to treat that evidence cautiously because it is on that evidence alone that the Crown has to prove the allegation and prove it beyond reasonable doubt.  That is so, regardless of the nature of the allegations or the nature of the charges which are before a jury.  It has nothing to do with the fact that this trial involves allegations of sexual assault, nor am I expressing any personal view to you about how you should approach each or either complainant’s evidence.  The caution that you have to show in having regard to the evidence of single witness in relation to the Crown case flows from the fact that the Crown has to prove its case against the accused and prove it beyond reasonable doubt and can only rely on the evidence of the complainant to fulfil that obligation.  If you had any reason to doubt about the reliability of a particular complainant in respect of one count, one of the allegations he makes against the accused, then you must take that into account when assessing his reliability or his honesty on another count.  It is only if, after taking that matter into account, you are satisfied beyond reasonable doubt of the complainant’s evidence in respect of a particular charge is both honest and accurate, then you could convict the accused on that count.  Remember that each of allegations is independent of each other and each requires your separate consideration.  It would be quite wrong simply to say that because you found one charge proved, for example, that you find each and every other of the charges proved.  Because of the matters I took you to during the summing up, that is the absence of early complaint, the delay in prosecution, and the inability of the accused to adequately test the allegations, I am required to give you a warning in respect of the evidence of each complainant.  You are perfectly entitled to convict on the evidence of the complainant alone because obviously if that were not the case, you would not be here sitting as a jury in this trial, but it would be dangerous to do so unless you have scrutinised the evidence with great care, have considered all the circumstances relevant to its evaluation and, having taken notice of this warning, you are satisfied beyond reasonable doubt of the truth and accuracy of the evidence so far as it establishes the elements of the particular charge or count you are considering.  In respect of count 2, which I am sure you know falls into a slightly different category, the Crown says that in count 2 the evidence of the complainant does not stand alone because it is supported by the evidence of C who told you that he saw the accused masturbate B’s penis on the occasion that the video was playing.  Mr Russell, on the other hand, on behalf of the accused, says you would not find support for B in that count, count 2, because you would not accept C’s evidence on that and relied on the fact that the accused denied that there was any such act and that Mr Zozulya did not support C’s evidence nor B’s.  He said that incident simply did not happen.  Now, the last part of your note asking, “are we able to go on what witness we find more believable?”  It is important, of course, when you are considering the complainant’s evidence on which the Crown relies, and the denials by the accused of any sexual impropriety towards either complainant, that you keep in mind you are not to choose between competing versions.  You must of course carefully consider the accused’s evidence and any other evidence that you find relevant to that particular count, when you are considering whether you are satisfied beyond reasonable doubt of the complainant’s evidence, but you must keep in mind that there is no burden on the accused, on any issue at all.  Ultimately members of the jury to conclude what assistance I am able to provide you in respect of the question that you have asked, you have to take into account all the evidence in the case, and after carefully considering and examining each complainant’s evidence, if you reach the position that you are satisfied that he is both honest and accurate in respect of the particular charge you are considering, and keeping in mind the cautious way that you must consider that complainant’s evidence and consider it carefully, if you are satisfied that that count has been proved by the Crown beyond reasonable doubt you would convict the accused on that count.  If not, he is to be acquitted of that count.  I believe I have dealt as completely as I am able with that question.  Once again, if you have any further questions or there is any way at all I can be of assistance to you, please follow the same procedure.  (Emphasis added.)

1. No re-direction was sought arising out of the above directions. The jury retired at around 10.30am to continue their deliberations.

2. The jury sent a further note requesting transcripts of the evidence of Katarina Koltakov and Illya Zozulya and a copy of the summing up.  The trial judge arranged for the jury to be supplied with a copy of the transcript of the evidence that they had requested. She explained that she was not able to give them a copy of the summing up because it had not been transcribed.  She offered to repeat or elaborate on any direction or to assist in any other way that the jury might require. 

3. Subsequently the jury sent a further note in these terms:

   A decision has been made on two counts.  We are unable to make unanimous decision on the other eight counts.  What do we do?

4. The Court was re-convened at 12.54pm on Monday 19 September and her Honour gave a direction consistent with that suggested in Black v R [1993] HCA 71; (1993) 179 CLR 44.

5. The jury returned verdicts at 4.00pm on Wednesday 21 September 2005.

6. The first complaint which the appellant makes of the directions given on 19 September in answer to the questions is that her Honour,  “intimidated the jury with the prospect of discharging them”.  (AB; WS 9.1) The direction given conformed to the model direction in Black. It was appropriate to give a Black direction in light of the length of the retirement and the content of the note. The Crown Prosecutor and Mr Russell both agreed with this course. There is no substance to this complaint.

7. The appellant submits that it was incumbent on her Honour to give a direction of the type proposed by Brennan J in Liberato v R [1985] HCA 66; (1985) 159 CLR 507 at 515; namely, that even if the jury preferred the evidence for the prosecution, they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence and even if they did not positively believe the evidence for the defence, they could not find an issue against the appellant contrary to his evidence if it gave rise to a reasonable doubt as to that issue.

8. In the course of the summing up the trial judge directed the jury that (SU 33):

   A proper application of the onus of proof means that you cannot decide what verdict to bring in these allegations simply by weighing up the two competing versions.  That is because it is the Crown that must prove beyond reasonable doubt that the relevant complainant’s evidence is to be accepted by you.

9. The highlighted passages in the further directions set out above were sufficient to make clear to the jury that it was not a question of choosing between competing versions and that the onus was upon the Crown in respect of each count. The direction was reinforced by her Honour’s repetition of the direction that, in light of the absence of early complaint, delay in prosecution and inability of the appellant to test the allegations, it would be dangerous to convict on the evidence of either complainant alone unless, having scrutinised the evidence with great care and having taken notice of the warning, the jury was satisfied beyond reasonable doubt of the truth and accuracy of the evidence.

1. A further complaint was of her Honour’s reference to the Crown depending solely on the evidence of the complainant in relation to each count, save for count 2.  The appellant complains that the direction was erroneous because the offence charged in count 2 was not related to the offence charged in count 5, since the indictment particularised different periods during which each offence was alleged to have occurred. (Count 2 charged that the offence occurred between 3 July 1998 and 3 January 1999 and count 5 charged that the offence occurred between 3 July 1998 and 31 October 1998.) It followed, so it was said,  that it was misleading for the trial judge to suggest that C’s evidence, which concerned the events charged in count 5, was capable of supporting B’s evidence of the event charged in count 2.  The circumstance that the Crown particularised a shorter interval of time with respect to the offence charged in count 5 did not mean that it was not open to the jury to conclude that C’s evidence of seeing the appellant masturbate B was not supportive of B’s evidence of the offence charged in count 2.  Whether the two incidents were one and the same was a factual issue for the jury to determine.  However, there was evidence from which it would be open to conclude that  B’s evidence of the incident charged in count 2 was supported by the evidence of C.  In this respect count 2 was to be distinguished from each of the remaining nine counts in the indictment. 

2. The appellant complains that her Honour’s refusal to provide the jury with the transcript of her summing up was erroneous and unfair.  There was no error in her Honour not providing the jury with a copy of the summing up. It had not been transcribed.  Her Honour made clear that she was willing to repeat any direction or to provide any other assistance which the jury sought.  Ground 7 is rejected.

   Ground 8 – The trial judge erred in failing to reject the “relationship” evidence, which had been related to the jurisdiction of Ukraine and had not been investigated nor by Australian or Ukrainian Police on the territory of Ukraine.

3. We have dealt with the submissions that Mr Hamill made concerning the prejudice created by the admission of the whole of the evidence of each complainant of the appellant’s other sexual misconduct. The challenge  that the appellant makes in ground 8 to the evidence of the sexual misconduct in the Ukraine and in Italy raises a different point.  The appellant submitted that this evidence (AB 63; WS 10.2.3):

   “was not recognized as legitimate or legal by the authority of the countries, which jurisdictions they belong to, should not be permitted and should not affect the legal proceedings in Australia as legally accepted information.  In other words, the trial judge and Crown Prosecutor shouldn’t create perfectly illegal situation, when illegal for Ukraine, Italy and Israel – as sovereign states – information affected legal verdicts of Australian jury. 

4. Where it is relevant, evidence of other sexual misconduct is admissible notwithstanding that the allegations have not been the subject of investigation in the jurisdiction in which the misconduct is said to have occurred or that any investigation has not led to charges being preferred against the accused: see, generally, the discussion in HML. 

   Ground 9 – The trial Judge erred in failing to provide for the appellant as a former foreigner with English as a second language an access to an interpreter t[h]rough the simultaneous headphone translation or proper conditions for simultaneous translation of interpreter – with intervals for translation – that international law and standards required.

1. This ground is common to each of the three appeals; Makarov v R (No.1); Makarov v R (No. 2) and Makarov v R (No. 3).

2. The complaint that the appellant makes is not that he did not have access to an interpreter during the trial, but that he did not have simultaneous headphone translation.  We do not consider that there is an obligation to provide simultaneous headphone translation facilities to an accused in order to ensure a fair trial: Makarov v R (No. 2) at [164].

3. The appellant gave evidence at the trial.  Her Honour inquired of Mr Russell if it was proposed that the appellant would give his evidence in English with the assistance of an interpreter, or whether it was his wish to have his evidence translated by the interpreter.  Mr Russell asked the appellant in English whether he was content to give his answers in English and if there was any problem to have the assistance of an interpreter, to which the appellant responded, “yes, I try to do that” (T'cpt 12/9/05  297.12).

4. It is to be noted that the question of whether evidence may be given through an interpreter is dealt with in s 30 of the Evidence Act, which provides:  

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

1. The appellant gave his evidence without the need for assistance from the interpreter, save in one instance when he had difficulty in recounting the number, “2,300” (T’cpt 13/9/05 361.17). The transcript of the appellant’s evidence suggests that he had an adequate command of English such that he was able to understand the questions asked of him and respond to them. There is force to the Crown’s submission that his evidence would not have been admissible through an interpreter under s 30. However, the appellant’s complaint is not only with his ability to give evidence in English but with his impaired capacity to participate fully in the trial. He says that he was not aware of his “incoherent English”, whereas the trial judge was aware “concerning the appellant's incapacity to fully understand the content of the Court proceedings or express himself adequately in order to be fully understood by the jury, Trial Judge, Crown Prosecutor and Defence counsel”. (AB 68; WS 11.3(ii)). The appellant submits that her Honour ignored the circumstance that he was not able to follow conversations in court or to give proper instructions to his legal representatives. The appellant was represented throughout the trial by counsel. Mr Russell raised no concern about his ability to obtain instructions from his client by reason of language difficulties or otherwise. An interpreter was present at the trial. Ground 9 is rejected.

Ground 10 – The trial miscarried and there was a miscarriage of justice as a result of the Crown Prosecutor and Trial Judge misconduct in relation to the time of the essence offences No. 2, 5 and 3.

1. The appellant’s submissions fasten, again, on the differing particulars of the dates between which the offences charged in grounds 2 and 5 are alleged to have occurred and to the inconsistencies between the complainants’ account of the events. The reason for the inclusion of count 3 in the complaint made in this ground is obscure. The appellant’s argument appears to be that B’s evidence could not be accepted as accurate if it was not reliable as to the date of the offence charged in count 2 and this same deficiency necessarily extended to his account of the incident charged in count 3 (AB 73; WS 11.2.6 and 11.3)

2. Central to the challenge appears to be a misconception arising out of the decision in R v Kennedy (2000) 118 A Crim R 34. In that case time was of the essence because the complainant’s evidence was that the sexual assault occurred while she was watching the live telecast of the wedding of Prince Charles to Princess Diana. There was evidence to suggest that the incident could not have occurred on this occasion. The Crown Prosecutor, wrongly, invited the jury to consider that the complainant may have been watching a replay of the Royal wedding. There are no parallels between this trial and Kennedy. The time specified in an indictment is not a material averment unless it forms an essential part of the offence: R vDossi (1918) 13 Cr App R 158; R v VHP (Court of Criminal Appeal, 7 July 1997, unreported); R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198. There was no feature of counts 2, 3 or 5 that made time essential in the way in which this trial was conducted. As her Honour explained to the jury, the counts were particularised as occurring between dates because in each instance the complainant was not able to identify a precise date when the act was said to have occurred. Ground 10 is rejected.

Fresh evidence

1. In a statement filed in the Registry of the Court of Criminal Appeal, dated 6 January 2008, the appellant identified certain “fresh” evidence which he contended was relevant to the credibility of the evidence given by C. Attached to the statement were copies of a number of documents: (i) a translation from Korean into English which was said to be of an interview with C following his arrival in Seoul in April 2002 that was published in The Piano, a Korean magazine in June 2002; (ii) a translation from Japanese into English which was said to be an interview with C that was published in a Japanese magazine; (iii) a transcription of an interview with C broadcast on the ABC’s 7.30 Report in 2003; (iv) an interview with C published in an Israeli newspaper on the occasion of him winning the Rubenstein International Piano Master Competition and a copy of the statement of claim to which reference has been made above. The Court rejected the tender of this material.  The documents were all available at the date of the trial.  Indeed, C was cross-examined concerning things he said in the course of the interview on the 7.30 Report.  (T'cpt 285.30-48)  The evidence was not fresh evidence.  There was nothing in the material to suggest that its absence at the trial was productive of a miscarriage of justice:  Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259.

2. There was no substance to the grounds of appeal argued by the appellant.  None of the grounds argued by Mr Hamill would lead to the substitution of a verdict of acquittal in respect of any of the counts.  For these reasons the orders of the Court are:

   ORDERS

   1.  The appeal is allowed;

   2.  Quash the convictions and sentences imposed in the District Court and direct that there be new, separate, trials.

   **********

LAST UPDATED:
18 November 2010