Makarov v The Queen (No. 1)

Case [2008] NSWCCA 291

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Makarov v R (No. 1) [2008] NSWCCA 291

FILE NUMBER(S):
2007/3252

HEARING DATE(S):
5 May 2008; 6 May 2008

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:
Latham DCJ

LOWER COURT DATE OF DECISION:
28 January 2005

COUNSEL:
Appellant (In person)
Mr L Babb SC/Ms M Rabsch (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
appeal against conviction
sexual assault offences
complainant a concert pianist and student of appellant
whether Crown was obliged to call expert evidence concerning impossibility of performing as a concert pianist when under stress
whether verdicts unreasonable or not able to be supported having regard to the evidence
whether inconsistent verdicts
claim that trial miscarried through failure to provide simultaneous headphone translation facilities
alleged inadequacies in trial Judge's directions
alleged bias of trial Judge
alleged incompetence of Counsel
alleged wrongful admission of evidence of admissions
alleged wrongful admission of hearsay evidence
character
no error established
rational basis for different verdicts
no miscarriage of justice demonstrated
appeal against conviction dismissed

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules 1952
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Dossi (1918) 13 Cr App R 158
Ignjatic v R [1993] 68 A Crim R 333
Makarov v R (No. 2) [2008] NSWCCA 292
Makarov v R (No. 3) [2008] NSWCCA 293
Markby v R (1978) 140 CLR 108
R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487
R v McKnoulty (1995) 77 A Crim R 333
R v Southammavong; R v Sihavong [2003] NSWCCA 312
R v Stringer [2000] NSWCCA 293; 116 A Crim R 198
R v VHP (unreported) Court of Criminal Appeal, 7 July 1997
Simic v R (1980) 144 CLR 319
Smale v R [2007] NSWCCA 328
Walters v The Queen [1969] 2 AC 26

TEXTS CITED:

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

- 49 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3252

BELL JA
JOHNSON J
McCALLUM J

TUESDAY 9 DECEMBER 2008

Victor MAKAROV v R (No. 1)

JudgmeNT

THE COURT

Introduction

  1. The appellant is a piano teacher from the Ukraine. He came to Australia in July 1998 to take up a position at the Australian Institute of Music. He had previously been head of the piano department at the Kharkov Secondary Special Music Boarding School in the Ukraine. Five of his students immigrated to Australia with him to continue their studies.

  2. In around August 1999, the appellant took on a student in Australia, D, who was then 10 years old. D had piano lessons about four times a week and the two families became quite close.

  1. At the end of January 2004, D told his mother that the appellant had been sexually assaulting him over the past 18 months. D’s parents confronted the appellant at his home. The appellant denied…

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Details
AGLC
Makarov v The Queen (No. 1) [2008] NSWCCA 291
Case
[2008] NSWCCA 291
Decision Date

CaseChat Overview and Summary

The appellant, in this case, was appealing against his convictions for various sexual assault offences, with the complainant being a concert pianist and a student of the appellant. The High Court of Australia was tasked with examining the appeal. The appellant raised several grounds for appeal, including the Crown's failure to call expert evidence regarding the impossibility of performing as a concert pianist while under stress, the reasonableness of the verdicts, and claims of trial miscarried due to various alleged inadequacies.

The appellant argued that the Crown was obliged to call expert evidence to prove that the psychological injuries suffered by the complainant, a concert pianist, were incompatible with the performance of her profession, and that she could not have performed successfully under the stress of such injuries. The court considered the appellant's argument, which was based on the assumption that any psychological injury from sexual abuse would preclude the possibility of performing as a successful concert pianist. The court found no basis to accept this as an established premise. The court held that it was not necessary for the Crown to call expert evidence to prove that the complainant could not have performed successfully under the stress of her psychological injuries, as the jury was capable of drawing such inferences from the evidence presented. Furthermore, the court found that the Crown prosecutor's submissions to the jury did not go beyond her expertise.

The court also considered other grounds of appeal, including the reasonableness of the verdicts, and found that the verdicts were able to be supported by the evidence. The court found no miscarriage of justice and dismissed the appeal against conviction. The court held that there was a rational basis for the different verdicts and that the appellant's claims of trial miscarried due to various alleged inadequacies were not substantiated.

In conclusion, the High Court of Australia dismissed the appellant's appeal against his convictions for various sexual assault offences. The court found that the Crown was not obliged to call expert evidence regarding the impossibility of performing as a concert pianist when under stress, and that the verdicts were able to be supported by the evidence. The court found no miscarriage of justice and dismissed the appeal.

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 substantial overlap between ground 1 and grounds 7, 9 and 10. Where appropriate, those grounds are addressed together. Ground 1(i) - absence of expert evidence The appellant submitted that it was a proven fact that D, whilst studying with the appellant, developed a successful career as a concert pianist. He submitted that the occupation of concert pianist requires a person to function at an intellectual and emotional level that is incompatible with the psychological injuries that inevitably flow from sexual abuse and assault. These matters, so it was contended, are beyond the experience of the ordinary juror. The appellant submitted that the Crown ought to have called expert evidence in the trial after professional examination of the complainant (AWS 4.4.1-4.4.16). It was contended that, in the absence of any expert evidence as to psychological injuries suffered by D, the Crown had failed to discharge its burden of proof because such injuries are the inevitable consequence of sexual abuse and assault. The appellant submitted “it was impossible objectively to prove guilt of the appellant without proving the fact of psychological injuries” (AWS 4.4.8). Secondly, it was suggested that the Crown also bore an onus of proving that it is possible to perform successfully at the level of international competitions whilst being under the consequences of sexual abuse and assault. A discrete aspect of the second proposition was the complaint that the Crown prosecutor, having failed to adduce expert evidence on the issue, made a submission to the jury that was beyond her expertise when she said:“Well, you’d understand as adults that people can suppress feelings of great hurt and trauma for a while and outwardly behave normally and pretend that there is nothing troubling them”… (Transcript, 3/12/04 p14 at L44-47). The same complaint was made in respect of the absence of expert evidence to support submissions made to the jury by the Crown prosecutor as to the possibility of D continuing to play Beethoven’s Sonata No.7 while being masturbated, as alleged in respect of count 4 (T3.12.04 page 6, L11-14) and her reference to evidence given by D in respect of count 8 that the appellant was strong enough to manhandle D because “committed piano players” develop muscles. A similar ground of appeal was argued by the appellant in each of his other appeals: Makarov v R (No. 2) at [53]-[64]; Makarov v R (No.3) at [87]-[94]. The issue arose in a different context in those appeals because the appellant had at trial called a number of accomplished musical performers as witnesses to give evidence as to what is required of a performer in order to produce a good performance on the piano. No such evidence was adduced in the trial concerning D. The first observation to be made is that the appellant’s submission assumes the absolute truth of the proposition that any psychological injury flowing from sexual abuse precludes the possibility of performing as a successful concert pianist. There is no basis for this Court to accept that proposition as an established premise for the argument.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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