Makarov v R (No. 3)

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.