Makarov v The Queen (No. 1) - [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

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.
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.

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 the allegations. He then contacted three of the students who had come with him to Australia from the Ukraine and arranged for them to come to his home where he informed them of D’s allegations. Some days later, those three students attended Hornsby Police Station where each made allegations that the appellant had sexually assaulted him. The appellant was charged with offences against all four men.
An indictment was presented containing counts alleging offences against all four complainants. Latham DCJ directed the separate trial of the counts involving D.
On 22 November 2004 the appellant was arraigned before Latham DCJ on an indictment that charged him with 9 sexual offences against D, count 9 being in the alternative to count 8. On 10 December 2004 he was convicted of counts 1 to 7 and count 9. He was sentenced to an aggregate sentence of 12 years’ imprisonment to date from 10 December 2004 with an effective non-parole period of 8 years for those offences. The non-parole period will expire on 9 December 2012. He has appealed against his conviction for those offences. This judgment deals with that appeal. No appeal is brought against the sentences.
On 31 August 2005, following a trial before Hock DCJ and a jury, the appellant was convicted of eight counts involving offences against one of the former students from the Ukraine, A. He was sentenced for those offences on 11 November 2005 to an aggregate sentence of 8 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 those offences is dealt with in Makarov v R (No. 2) [2008] NSWCCA 292.
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 another former student from the Ukraine, B, and counts 5 to 10 involved a different student, C. On 21 September 2005 he was convicted of each count. He was sentenced for those 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. His appeal against his conviction for those offences is dealt with in Makarov v R (No. 3) [2008] NSWCCA 293.

The evidence

The appellant had a studio at his home at Pymble. D had lessons there on Mondays. On Wednesdays, Thursdays and Saturdays he had lessons at the Institute. D said he also sometimes had lessons on a Friday at his home at Neutral Bay. The appellant said he only ever taught at Pymble on Fridays. Most of the time, D’s father drove him to the lessons. Initially D’s father made a point of remaining with his son during the lessons but that changed as they got to know the Makarov family better. Some time during 2002, at the request of D, D’s father started attending lessons less frequently. D said that when his parents started staying away from lessons and before the appellant began sexually assaulting him, the appellant would sometimes give him chocolate and fruit and commend D on his playing more frequently.
Count 1 in the indictment alleged an aggravated act of indecency towards a person under the age of 16 years (namely 13 years) contrary to s 61O(1) of the Crimes Act 1900. The circumstance of aggravation in that count, and in all counts on the indictment, was that D was under the appellant’s authority at the time of the offence. The offence was alleged to have occurred between 10 April 2002 and 1 August 2002 at the appellant’s home studio at Pymble.

In June or July of 2002 D began to prepare the program for a piano competition in Kiev the following year. Part of the program was a piece called the Transcendental Etude by Liszt. When D was learning that piece, the appellant told him that it was about sex and that when the complainant was playing the piece, he should express the act of sex. During one of those lessons, while D was doing an exercise to improve his technical performance of the piece, the appellant exposed his genitals and masturbated while sitting in a chair a few metres away from the piano. When D saw what the appellant was doing he turned his back to the chair. He said he had never seen anyone do that before. The appellant asked D for a tissue box that was behind him and D threw it in the direction of the appellant without looking at him. A short time after that D thought the appellant ejaculated. The appellant then took the tissues to the bathroom.

Counts 2 and 3 alleged offences committed at the home of D at Neutral Bay. Count 2 alleged an act of aggravated indecent assault on a person under 16 years (namely 13 years) between 30 June 2002 and 1 January 2003 contrary to s 61M(1) of the Crimes Act. In late 2002 the appellant was at D’s home in Neutral Bay on a Friday night for a lesson. D was in his study, which was opposite the bathroom. The appellant was in the bathroom. D saw the appellant begin to masturbate. The appellant beckoned D to come to him but he refused. The appellant then came out of the bathroom and grabbed D by the arm and took him into the bathroom where the appellant masturbated himself. The appellant then asked D to masturbate the appellant. D refused and the appellant took D’s hand and put it onto the appellant’s penis forcing D to masturbate him. The appellant was sitting on the bathtub and ejaculated onto the floor of the bathroom.

Count 3 alleged an act of aggravated indecent assault on a person under the age of 16 years (namely 13 or 14 years) between 1 January 2003 and 1 July 2003 contrary to 61M(1) of the Crimes Act. That was another occasion when the appellant forced D to masturbate him in the bathroom when D was having a lesson at D’s home on a Friday night.

The remaining offences were all alleged to have been committed at the appellant’s home at Pymble. Counts 4 to 6 alleged three acts of aggravated indecent assault of a person under the age of 16 years (namely 13 or 14 years) between 1 January 2003 and 31 August 2003 contrary to s 61M(1) of the Crimes Act. Count 4 was based on an incident in the studio when D was playing Beethoven’s Sonata No.7. The appellant got up from his chair and walked around the piano stool, sitting down behind D. The appellant put his hand into D’s underpants and started to masturbate him. The appellant told D to keep playing because the appellant’s wife was in the house and if D stopped playing she might think something was strange. D kept playing. When he finished the piece he moved away from the appellant and stood up. The appellant told him that he should not be so moral and that this was for his own good. The appellant said he was giving everything to D and that D should reciprocate.

Count 5 was based on an incident at the appellant’s home when the appellant and D were in the kitchen on the upstairs floor. D was washing a cup at the sink and the appellant came up behind him with his pants down and forced D to masturbate him until he ejaculated.

Count 6 was based on an incident when D entered the studio and the appellant told him to close the door and the curtain. After D did so, the appellant grabbed him with both hands at the back of his neck and pulled him forward to kiss him on the lips. The appellant told D to open his mouth but he refused. After the lesson started the appellant told D that he should give more and that D was not free enough with the appellant; that this was all for D’s own good and the development of his musical career.

Count 7 alleged an aggravated act of indecency towards a person under the age of 16 years (namely 14 years) between 1 August 2003 and 30 September 2003 contrary to s 61O(1) of the Crimes Act. That charge was based on another incident at the appellant’s home. D was playing a piece by Beethoven before a recital due to be given at the Institute. The appellant took D from the studio and upstairs to the study. There was a computer in the study from which the appellant and D had previously downloaded musical performances or educational files from the internet. On this occasion the appellant showed D a gay pornographic video clip downloaded from the Internet. While D was watching the video clip he could hear the appellant masturbating behind him.

Count 8 alleged an act of aggravated sexual intercourse without consent of a person under the age of 16 years (namely 14 years) knowing that the person did not consent to the sexual intercourse, contrary to s 61J(1) of the Crimes Act. Count 9 alleged, in the alternative, an act of aggravated sexual intercourse with a person of the age of 14 years contrary to s 66C(4) of the Crimes Act. That incident was also alleged to have occurred between 1 August 2003 and 30 September 2003.

After the gay pornographic video clip referred to in count 7 finished, the appellant closed the program and told D to get up. The appellant grabbed him and took him out of the study and across the corridor into the guest bedroom where he threw him on the bed and pulled his trousers down to his ankles. The appellant then lifted D’s legs and penetrated D’s anus with his penis. D said that continued for about six or seven minutes until the appellant ejaculated inside his anus. The appellant asked D if it was painful and D said that it was. The appellant said, “That’s good” and told D to go and wash himself. D said that he did not consent to the appellant doing that and told him that he didn’t want to. The jury returned a verdict of not guilty on count 8 but guilty on count 9.

Ground 1- alleged perjury of the complainant

The appellant represented himself in the appeal. The first ground of appeal was:
“The trial miscarried and there was a miscarriage of justice as a result of perjury committed by D against the appellant during the proceedings in relation to the evidence concerning (i) the exclusively professional (musical, psychological, psychiatric) issues; (ii) the counts 8,9; (iii) the time frame of the counts 1 to 3; (iv) the chapter from the autobiography and letter to the appellant’s fiftieth birthday; (v) the time factor for counts 1, 4 to 9; (vi) the porno showing and CD’s placement issues – counts 4 to 8; (vii) oral sex issue.”
The appellant’s submissions in support of ground 1 were divided into two parts. The first, in broad summary, amounted to a contention that D’s allegations against the appellant must be false because, if they were true, D would have suffered psychological injuries and could not have developed a successful career as a concert pianist. The appellant submitted that the Crown had an obligation to call expert evidence as to whether D had suffered any such injuries and whether he could perform at concert level if he had. In the absence of such evidence, so it was contended, the jury could not reasonably have reached its verdicts.
The second part of the appellant’s submissions in support of ground 1 was a collection of factual matters said to point unequivocally to the falsity of D’s allegations.
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.
In any event, the submission is misconceived. There could be no obligation on the Crown to adduce expert evidence of the kind identified by the appellant. The propositions contended for by the appellant were not elements of the offence. Even assuming there is a relevant area of musical or psychological expertise, it is doubtful whether such evidence would have been admissible if adduced by the Crown, since it would only have been relevant to the assessment of the existence of the facts in issue because it related to D’s credibility: s 55(2), s 102 of the Evidence Act 1995.

There is no force in the complaints as to the submissions put to the jury by the Crown prosecutor. Those submissions went no further than to appeal to the jury on common sense grounds to give favourable consideration to evidence that had been admitted in the trial. They did not trespass into the forbidden territory of offering an expert opinion.
Ground 1 - factual issues
The balance of ground 1 raises issues of fact. The appellant alleges a series of inconsistencies and alleged anomalies in the complainant’s evidence with a view to demonstrating its falsity. The Crown’s submissions proceeded on the basis that the import of the complaint was that the jury’s verdicts are unreasonable or cannot be supported having regard to the evidence: s 6(1) Criminal Appeal Act 1912.

Ground 1(ii) and Ground 9 - alleged inconsistent verdicts in respect of Counts 8 and 9

The appellant’s submissions in support of this part of ground 1 (AWS 4.5.2-4.5.12 at pages 42-46) were duplicated verbatim in the submissions in support of ground 9 (AWS 12.1-12.11 at pages 176-179).
The appellant submitted that the Crown’s case was that all charges were based on force. The contention was that the verdict of not guilty in respect of count 8 (which charged sexual intercourse without consent) demonstrates that the jury was not satisfied with the truthfulness of D, and that his truthfulness could not be different in respect of count 9. The implicit conclusion was that the jury must have had a reasonable doubt about count 9.
Separately, the appellant identified a number of inconsistencies between D’s evidence in the trial and previous statements, which he said proved D’s perjury in respect of count 9. Nothing in those submissions leads the Court to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of count 9.

We are not satisfied that there is any inconsistency between the jury’s verdicts in respect of counts 8 and 9. They were charged as alternative counts. The difference between the elements of the two charges was the requirement in respect of count 8 to prove that the sexual intercourse took place without the consent of D and that the appellant knew that D did not consent. The two verdicts may readily be reconciled by reference to those elements. The jury could have arrived at the different verdicts, either on the basis that they were not satisfied beyond reasonable doubt of lack of consent on the part of D, or on the basis that they were not satisfied beyond reasonable doubt that the appellant must have known that D did not consent.

As noted in the submissions for the Crown, the evidence as to lack of consent, and the appellant’s knowledge that D was not consenting, was not strong. In D’s first account of the incident, he did not mention lack of consent. The Crown prosecutor returned to the issue, specifically asking him whether he consented to the appellant penetrating his anus. He said:
“No. No, no. I told him I didn’t want to, you know, once – yeah” (T48.17).
In cross-examination, D was asked whether he was struggling as he was being manhandled from the office into the guest bedroom. He responded that he was, but described it as “sort of a token resistance in a way” (T204.34). At the conclusion of D’s evidence, before excusing the jury for the day, the trial Judge explained that the cross-examination as to whether D struggled related to the issue of consent, which was relevant to count 8. Her Honour observed that no other count on the indictment required the Crown to prove any element of lack of consent (T256.24-40). The Judge gave careful directions in her summing up as to the elements of the two charges and noted that it would be open to the jury to convict on the alternative count if the Crown had failed to prove beyond reasonable doubt that D was not consenting (SU 30-31). We are not persuaded that the different verdicts on counts 8 and 9 were unreasonable, or that they cannot be supported, having regard to the evidence. Ground 9 is dismissed.
Ground 1(iii) and part of Ground 10 - the time frame for counts 1 to 3
The appellant submitted that evidence in the trial directly contradicted the dates of the offences alleged in counts 1 to 3 in the indictment (AWS 4.6-4.7.1). This submission was expanded in ground 10 where it was contended that these were offences where time was “of the essence”: cf R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 (AWS 13.1-13.3.3). Kennedy was a peculiar case. The complainant’s evidence confined the time of the offence to a specific period that was objectively ascertainable (the duration of the live broadcast of the wedding of Prince Charles and Lady Diana).
That was not the position in the present case. Count 1 alleged that the offence occurred between 10 April 2002 and 1 August 2002. There was no feature of any of the offences that made time essential. The range of dates specified in the indictment was not a material averment, since it did not form an essential part of the offence: Dossi (1918) 13 Cr App R 158; R v VHP (unreported) Court of Criminal Appeal, 7 July 1997; R v Stringer [2000] NSWCCA 293; 116 A Crim R 198.
In any event, the matters relied on did not demonstrate that the offences could not have occurred within the dates alleged. The appellant submitted that D’s father gave evidence that the period when he gradually stopped staying through the whole lesson and waited outside the studio was from August to September 2002 (after the date range in the indictment). That is not an accurate summary of the evidence. D’s father was not specific as to those dates, describing the period in question as “stretchable”, and possibly starting around May (T272.47).

The appellant noted D’s evidence that he asked his parents not to come to the piano lessons because without them the quality of lessons was allegedly much better, suggesting the molestation started after he made that request. D’s evidence (T33.33) was that he began to prepare the program for the Kiev competition in, he thought, June/July of 2002. The sexual explanation of the Transcendental Etude began “during this time” (T33.38) and carried on “for a few lessons” (T34.1) after which the masturbation incident occurred. That evidence did not contradict the time frame in the indictment, nor the father’s evidence as to when he stopped attending the lessons.
A further submission was based on the evidence that D wrote an autobiography which included a chapter praising the appellant. The appellant’s case was that D’s praise for the appellant in the autobiography was inconsistent with the allegations of sexual molestation. D’s evidence was that he handed in the autobiography at the end of second term, which was on 28 June 2002. However, he said that he had written the autobiography well before the sexual molestation began (T195.5). There is no contradiction established.
The final complaint was that the complainant wrote a letter to the appellant for his fiftieth birthday with similar content. That letter was dated 13 September 2003 – there was no doubt that it was written after the sexual assaults began. However, it does not follow that the existence of the letter “contradicts” the time frame of the first (or any) offence. The content of the letter was one of the matters the jury was invited to take into account when assessing the likelihood that the offences occurred as alleged by D. It was open to the jury to accept D’s evidence, notwithstanding the admiration for the appellant he professed in the letter.
Counts 2 and 3 each alleged an incident at D’s home at Neutral Bay on a Friday night. There was a factual dispute in the trial as to whether the appellant ever gave lessons at D’s home on Friday nights within the periods alleged.
In his written submissions, the appellant listed a series of alleged anomalies or weaknesses in the evidence on that issue (4.6.1-4.6.2). As in respect of count 1, the submissions were repeated in support of ground 10 (AWS 13.3). Those matters do demonstrate some inconsistencies in the evidence.

The appellant gave evidence in the trial that he always taught at his home at Pymble on Friday night (T436.10; T437.18; T451.40). His wife gave evidence to like effect (T554.26). As submitted by the Crown, there was clearly a dispute of fact on that issue. The jury must be taken to have resolved that dispute in favour of the complainant. Further, as noted by the Crown, the mere existence of discrepancies or inconsistencies in the evidence is not a sufficient basis for holding that the jury’s verdicts were unsafe or unsatisfactory. The discrepancies must be such as to persuade this Court that there is “a significant possibility that an innocent person has been convicted”: R v McKnoulty (1995) 77 A Crim R 333 at 339 per Hunt CJ at CL.
The discrepancies identified by the appellant in his submissions do not have that character. It was plainly open to the jury to accept the credibility of the complainant notwithstanding those matters.
At the hearing of the appeal, the Court granted leave to the appellant to adduce fresh evidence in support of his grounds of appeal relating to counts 2 and 3. The evidence was from a former student of the appellant, Ms Linda Lin. She said that she had lessons with the appellant on Friday evenings in 2002 at his Pymble home studio. Her lesson time was between 8 and 9pm. Under cross-examination before this Court, she acknowledged that she could not say she had spent every Friday evening during 2002 in a lesson with the appellant. She said that on occasions her lessons were changed to a Thursday or a Wednesday.
The appellant submitted (in support of ground 8) that his Counsel was incompetent not to have called Ms Lin as a witness in the trial. In our view, since her evidence could never unequivocally establish that the offences in counts 2 and 3 did not occur, there was no incompetence and no miscarriage of justice was produced by the absence of her evidence in the trial. We reject that submission.
Ground 1(iv) and part of ground 10 - the autobiography and the letter to the appellant for his fiftieth birthday
The appellant’s written submissions did not separately address ground 1(iv). Issues concerning the autobiography and the letter to the appellant were raised in respect of ground 1(iii) and ground 10 (discussed above) and also in support of ground 5 (alleged bias of the trial judge) and ground 8 (alleged incompetence of Counsel) (discussed below).
Ground 1(v) and part of Ground 10 - the time frame for counts 1, 4, 5, 6, 7 & 9
Apart from counts 2 and 3, all of the offences were alleged to have occurred at the appellant’s home at Pymble. The gist of the appellant’s submission in respect of those counts was that he had no opportunity to commit those offences. He relied on the evidence as to the duration of the lessons, D’s evidence that the sexual misconduct occurred towards the end of the lessons and the constant presence of other people such as students waiting for lessons, Mr Szakos who always arrived early, D’s father and the appellant’s wife (AWS 4.7, repeated in support of ground 10 at AWS 13.4).
The existence of a risk of detection was squarely raised as an issue for the jury’s consideration. It was relevant to their assessment of the complainant’s credibility, but not logically inconsistent with the truthfulness of his evidence. Detection is a risk of every offence. It was open to the jury to be satisfied beyond reasonable doubt that the offences were committed as alleged, notwithstanding the apparent risks.
Ground 1(vi) and part of Ground 10 - pornography
The appellant submitted that the evidence in relation to the allegation that he showed pornography to D and as to the description of his wardrobe where CD’s containing pornography were stored clearly established that D was lying (AWS 4.8-4.8.7 at pages 50-54). The submission concerning the pornography issue was expanded in support of ground 10 where it was contended that the evidence of the police expert incontrovertibly established the unreliability of D’s evidence as to the times he said he was shown pornography (AWS 13.5-13.7 at pages 193-195).
The appellant pointed to a series of pieces of evidence which, he submitted, established that D must have been lying about having been shown pornography. The appellant’s separate complaint that the trial Judge misled the jury on that issue is dealt with under Ground 2(iii) (AWS 5.3).
The evidence of pornography arose in respect of counts 7, 8 and 9. The complainant described a gay pornographic video which the appellant had put on for him to watch on the computer screen. He said that was not the only occasion on which the appellant showed him gay pornography at Pymble:
“There were many occasions where he would do this. At first he would just bring me up to the stage of showing me the music stuff and then at one point, I can’t quite recall when that happened, he started to show me the pornographic videos and this would happen almost, it became almost every time I was there on Mondays” (T44.23-29).
He was asked to estimate how many times he was shown the gay videos and he said:
“Maybe, I don’t know, forty times something like that. I couldn’t give you an exact number but there was a lot.” (T44.33-34).
He could not remember the title of any video other than one that was called “The Russian boys’ picnic” (T45.7).
Contrary to the appellant’s submissions, the complainant did not say that, from the very beginning of 2003 on forty Mondays, he was shown pornography. He did not suggest that it began right from the beginning of the year and the number forty was an estimate.
The Crown called evidence from a police computer forensics expert, Senior Constable Ng. He had examined the hard drives of the appellant’s computer and retrieved the names of files that had been deleted. He said a large percentage of the movie files had “gay titles” and that all of those had been deleted (T414.30). A schedule of the information retrieved in respect of files with so-called gay titles was admitted without objection and became exhibit F (T414.54).

Of the files whose names were listed in exhibit F, all but two appeared on the hard drive of the appellant’s computer only from 2 August 2003 to 10 September 2003. There were two additional files named that appeared to have been downloaded and deleted on the same day, namely 10 November 2003. The proposition appeared to be that this evidence demonstrated the untruthfulness of D’s evidence that he was shown pornographic video clips from the beginning of 2003.
The appellant’s submission misconceives the effect of the evidence of both the complainant and Senior Constable Ng. He did not purport to have identified the names of all the files that were ever downloaded onto the appellant’s computer. His evidence did not preclude the possibility that other pornographic material had been downloaded and deleted within different time frames and not retrieved by him.
The appellant’s submission in respect of the placement of the CD’s in the wardrobe was without substance. D had indicated to police on a diagram the particular place in the wardrobe where he alleged pornographic CD’s were kept by the appellant. There was evidence in the trial that the place D described was in fact a place for hanging clothes, and did not have the shelves and drawers described by him. That apparent anomaly did not establish that D was lying.
Ground 1(vii) - the oral sex issue
There was no count on the indictment that alleged an act of oral intercourse and D gave no account of any such act in his statement to police or in his evidence-in-chief. D had, however, complained to his mother that the appellant had attempted to force him to perform oral sex but that he had managed to prevent that from happening. That issue was raised by the appellant’s Counsel in the cross-examination of D (T183.30). D’s mother gave evidence in the trial of the content of the complaint (T320.52). In addition, a document written by D at his mother’s suggestion before they went to police included an account of the attempted oral sex. There was a dispute in the trial as to whether the words used by D in that statement meant that oral sex took place, or was only attempted.

The appellant submitted that D’s evidence on that issue proves his perjury (AWS 4.9). The appellant noted that D did not make any complaint to police of oral intercourse or attempted oral intercourse. He submitted that, if oral intercourse had occurred, D would never have forgotten that act. Accordingly, so it was said, when D said the reason he did not mention it to police or the Crown prosecutor was that he had forgotten it, he must have meant that he had forgotten that he had included that (false) allegation in his written statement prepared at the request of his mother.
Counsel for the appellant at the trial addressed the jury as to the apparent inconsistency. He said (T29.28 6/12/04):
“it’s a prior inconsistent statement which goes to the heart, you might think, of that boy’s reliability and honesty. It goes to the heart of it.”
The learned trial Judge told the jury that it was a matter for them to construe that passage in D’s statement and to consider whether they regarded the statement and the evidence given in court as being inconsistent (SU 55).
The task of assessing what to make of the fact that D did not tell police, as he had told his mother, that his piano teacher had performed fellatio on him (or had attempted to) was well within their province. The proposition that perjury is established by the omission of that account in the statement to police and in the evidence in chief at the trial must be rejected.
Ground 1 - additional submissions
The appellant’s written submissions addressed an additional issue not formally identified as part of ground 1 (AWS 4.10-4.12) based on the evidence of Dr Edwards, who had undertaken a medical examination of D. Dr Edwards gave evidence that D had told her that the sexual abuse by the appellant included “mutual masturbation” (T337.34) whereas there was no reference to mutual masturbation in D’s statement to police or in his evidence in the trial.
In addition, Dr Edwards said that D complained that the act of sodomy, which was the basis for count 9, had caused pain lasting about half an hour whereas the evidence given in Court was that the pain lasted for about five to ten minutes. The appellant submitted that those inconsistencies demonstrated that the evidence was fabricated. He submitted that a motive for making up such allegations was to be found in the contents of D’s letter to the appellant on the occasion of his fiftieth birthday, which unequivocally proved that D loved and admired his teacher. The appellant said that on 1 February 2004, D’s mother informed him about something which destroyed the image he had of his teacher, with the result that “his deepest love turned into a cruel hate”.
The appellant did not identify what it was that D’s mother was said to have told D on 1 February 2004, but said it was such as to arouse a very strong jealousy in D. The evidence of the mother was that she had asked D whether he was aware of any adult doing anything inappropriate towards D or anyone else. She did not say that she told him anything.
The appellant submitted that the accusations made by D on that occasion later collapsed. He sought to support that contention by reference to the oral sex issue, the pornography issue and the allegedly inconsistent verdicts.
As to D’s parents, the appellant identified a different motive. He submitted that the parents had blackmailed him. The basis for that allegation was that D’s father said to the appellant, when he first confronted him with the allegations, “You have two weeks to get out of the country or I go to the police”. The appellant suggested that, since he himself disclosed the allegations to his other students the following morning, D’s parents had been forced to make the complaints. The thrust of his complaint is that these matters were never raised in the trial, owing to the incompetence of his legal representatives and his own incapacity to understand the proceedings due to the absence of simultaneous translation (raised as a separate ground of appeal in ground 4).
There is no force in that submission. It may be accepted that there were inconsistencies between versions given by D on different occasions. The test is whether such inconsistencies produced the result that the verdicts were unreasonable. In our view, they did not. D was tested vigorously as to the inconsistencies. It was open to the jury to accept his explanations.
As to the suggestion that the trial was unfair because of the lost opportunity to raise the supposed issues of motive, we are unable to see how any injustice or unfairness arises. The threat made by D’s father to go to the police unless the appellant left the country does not point unequivocally to the falsity of D’s allegations. On the contrary, it is perfectly consistent with a belief in the truth of the allegations. In any event, the issue for the jury was not whether D’s parents believed his allegations were true, but whether the jury accepted beyond reasonable doubt that they were true.
Ground 1 is dismissed.

Ground 2 - alleged inadequacies in the trial Judge’s directions

The second ground of appeal was:
“The trial judge failed adequately to direct the jury in relation to (i) the legal concept of the Crown prosecutor status; (ii) the legal concept of “beyond reasonable doubt”; (iii) the evidence concerning the time frame of the deleted computer files; (iv) the evidence of Mr Szakos and Mrs George; (v) the evidence concerning oral sex; (vi) the written records of the piano lessons.”
Ground 2 (i) - opening remarks as to the role of the Crown prosecutor
Ground 2(i) was based on the learned trial Judge’s opening remarks to the jury, which the appellant submitted were erroneous, prejudiced and unfair (AWS 5.1 at pages 66-67).
The remarks of the trial Judge complained of by the appellant are:
“You are here to represent the community and it is your assessment of the evidence that matters, no body else’s” (T17.16-18)
and
“This is a very important matter, not only to the Crown, but to the community, to the accused. As I said the Crown prosecutor represents the community in this matter. Mr Turnbull who appears for the accused, it’s his job to test the evidence brought by the Crown …” (T17.58-T18.4)
This ground of appeal is the same as ground 6 (iv) raised in the appellant’s appeal against his conviction for the counts involving offences against A (Makarov v R (No. 2)). For the reasons identified in paragraphs [110]-[112] of that decision, this ground is rejected.

Ground 2 (ii) - the re-direction as to the term “beyond reasonable doubt”

Ground 2(ii) complained of the trial Judge’s response to a question from the jury (AWS 5.2). The appellant submitted that the jury asked a question about the phrase beyond reasonable doubt after “a few days” of deliberation. That is not correct. The jury retired to consider their verdict at 2.25pm on Tuesday 7 December 2004 (SU 69) (the transcript is dated 8.12.04 but that appears to be wrong – it is a continuation after the luncheon adjournment of the transcript of 7.12.04). They indicated that they wanted to go home and were allowed to leave at 3.55pm. On Wednesday 8 December 2004, one of the jurors was absent due to illness. The remaining jurors were sent home and asked to return the next day. The jury continued its deliberations on 9 December 2004. At 12.21pm the following day, the jury was returned to Court, having asked for a simple elaboration of the term “beyond reasonable doubt”. By that stage, they had been deliberating for less than two days.
The trial Judge indicated, in the absence of the jury, that she proposed to direct them in accordance with the decision of the Court of Criminal Appeal in R v Southammavong; R v Sihavong [2003] NSWCCA 312. No objection to that course was raised by Counsel for the appellant.
The jury was returned to Court and her Honour said:
“Thankyou, ladies and gentleman, I have your note which I have marked for identification. As I understand it you want a simple elaboration of the term, beyond reasonable doubt, is that the position? Beyond reasonable doubt has no independent or objective definition. It is for each of you as members of the jury individually to set the standard of what is reasonable in terms of a doubt in the particular circumstances of the trial. That’s the only instruction I can give you, ladies and gentlemen, it is a matter for you. It’s your subjective assessment of what is a reasonable doubt in the circumstances of the trial. Now would you like to go with the Sheriff’s officer and resume your deliberations.”
The jury retired again at 12.22pm and returned with their verdicts at 2.15pm.
The trial Judge’s redirection was entirely consistent with Southammavong at [28] – [31] per Spigelman CJ, O’Keefe and Greg James JJ agreeing. The appellant submitted that the re-direction given by the trial Judge was erroneous in its assertion that “beyond reasonable doubt” has no independent and objective definition; and in the use of the words “subjective assessment.” He submitted that the jury should have been directed in the following terms:
“beyond reasonable doubt is a standard of proof as an objective measure for determining whether or not a fact or issue has been proved.”
That is not the law. As noted in Southammavong at [28], the proposition that the test is a subjective one that applies to each individual juror is well established. The plain correctness of that proposition is nicely captured in the following words of the Privy Council in Walters v The Queen [1969] 2 AC 26 at 30 (cited with approval in Southammavong at [30]):
“… in the context of “doubt”, which cannot be other than personal to the doubter, it is meaningless to talk of doubt as “objective” and otiose to describe it as “subjective”. It is the duty of each individual juror to make up his own mind as to whether the evidence that the defendant committed the offence with which he is charged is so strong so as to convince him personally of the defendant’s guilt.”
This submission must be rejected.

Ground 2 (iii) - alleged inadequacy of the direction as to the time frame of the deleted computer files

The appellant submitted that there was an error of fact in the following aspect of the trial Judge’s summing-up to the jury (SU 18):
“Now exhibit F is before you and exhibit F is the schedule of the file names and the various dates. Exhibit F indicates that the files were downloaded between May and early November 2003. The majority of them were downloaded in August and September of 2003 and the files that appear on exhibit F were deleted either on the 9^th or 10^th September 2003 or on 10^th November 2003.”
The appellant’s submissions on this ground appear to raise two complaints (AWS 5.3 at pages 70, 71, 80 and 81). First, the appellant suggested that the trial Judge should have told the jury that the evidence of the computer expert proved that D gave false evidence. As explained in the consideration of ground 1(vi) above, that submission was based on a misconception as to the effect of the evidence given by the expert, Senior Constable Ng. There was no inconsistency between that evidence and D’s evidence that he was shown pornographic video clips regularly during 2003. The complaint as to the trial Judge’s failure to refer to the evidence of Senior Constable Ng and “the facts of inconsistency and obvious lies of D’s evidence” (AWS 5.3.5) is accordingly without substance.
The second aspect of this ground is difficult to understand. The appellant submitted “the information which the trial Judge addressed to the jury [files were downloaded between May and early November of 2003] was erroneous because had never been introduced to the Court.”
The thrust of the complaint appears to be that the files themselves were not introduced into evidence. Senior Constable Ng was able to retrieve only the names of the files downloaded. The schedule of some of the information retrieved was admitted without objection (T414.54). The Judge gave careful directions in respect of the inferences that could be drawn from the information as to those file names. The Judge said that in relation to count 7, in addition to the complainant’s evidence, the Crown also relied on “the fact that there were file names indicative of gay pornography which were retrieved from the hard-drive of the computer in the accused’s home in order to support or confirm that what [D] related in that part of his evidence is the truth” (SU 18). It was in that context that the Judge reminded the jury about exhibit F. The Judge then gave careful directions as to the drawing of inferences, which included a direction that it was a matter for them whether they drew the inference contended for by the Crown, and whether that inference tended to confirm the evidence of D. Her Honour’s directions on that issue were both accurate and fair.
Count 2 (iv) - the evidence of Mr Szakos and Mrs George
The appellant submitted (AWS 5.4-5.4.3) that the trial Judge made a factual error in the following passage of the summing-up:
“ … [Mr Szakos] would sometimes be about 10 to 15 minutes early, sometimes he would be late, depending on the traffic” (SU 51).
The Crown acknowledges that those remarks entailed a factual error. The evidence of Mr Szakos was that he usually arrived quite early, sometimes 20 minutes early. He did not suggest that he ever arrived late.
The issue is whether the misdirection might have affected the verdict, that is, whether if it had not been made, the jury might have acquitted the appellant: Simic v R (1980) 144 CLR 319 at 332.
The evidence of Mr Szakos went to the issue of the opportunity for the appellant to have committed the offences at Pymble without detection. However, assuming the evidence was accepted, it did not eliminate all opportunities for the appellant to commit the offences. In the first instance, Mr Szakos said that, when they arrived early, they would hang around outside the house for about 15 minutes before going up a little bit early to watch the end of the lesson of D (T603.19-24). Further, there were periods when they attended only fortnightly. The evidence was unclear as to the parameters of those periods but it was open to the jury to accept that it covered periods in both the first half and the second half of 2002 (T601.43-48; T606.32-54).
The Crown submitted that, since Counsel for the appellant at trial did not request the Judge to correct the error, rule 4 of the Criminal Appeal Rules 1952 (NSW) applies such that leave to appeal on this point is required. Although the appellant did not challenge that assertion, we note that this ground challenges a factual statement made during the Judge’s summary of the evidence led in the appellant’s case. Without deciding whether rule 4 applies to such a statement, it is prudent to address this ground on its merits. The error was a minor factual error, which did not produce a miscarriage of justice. The context in which it was said was a careful summary of all the matters pointed to by the appellant in support of his submission that it would defy common sense if he were to be engaging in the sort of conduct alleged against him on such a regular basis without being disturbed or seen by someone at some stage (SU 53). The fact that Counsel for the appellant, who was alive to the issues in the trial and immersed in its atmosphere, did not seek a correction suggests that the error was not significant.
The second complaint under ground 2 (iv) was in respect of the evidence of Mrs George (AWS 5.4.4-5.4.5). The appellant complained that the trial Judge incorrectly addressed the jury when she said (SU 46.13):
“ … in fact Mrs George conceded that she did not know what the allegations were.”
The appellant submitted that Mrs George gave no such evidence and that the Judge’s remarks may have discredited her as a witness, creating a miscarriage of justice. A review of the evidence of Mrs George discloses that the Judge’s remark was entirely accurate. Mrs George said that she knew the allegations were of a sexual nature and conceded that was all she knew (T633.33-40).
Ground 2 (v) - alleged misrepresentation of the evidence concerning oral sex
The appellant (at AWS 5.5-5.5.3) complained that the trial Judge misrepresented the “oral sex issue” when she said:
“The Crown does not have to prove beyond reasonable doubt that the accused failed to insert his penis into the mouth of the complainant on some occasions when [D] said that that was attempted by the accused.”
This submission proceeded on a misapprehension as to the point her Honour was addressing in that part of the summing-up. The Judge was explaining to the jury that the Crown must prove the ingredients of the offences beyond reasonable doubt. She directed them, correctly, that that does not mean the Crown has to prove every factual matter in the course of the trial that may be in dispute. A number of examples followed, including the passage set out above. There is no substance in the complaint that those remarks misrepresented the appellant’s case.
The appellant also complains of a later part of the summing-up dealing with the oral sex issue. The passage in question came after the Judge had finished saying what she intended to say by way of summing-up. Her Honour told the jury that she needed to discuss with Counsel whether any further directions should be given. She asked the jury to take the luncheon adjournment and not to commence their deliberations. Counsel for the appellant asked the Judge to remind the jury of the totality of the complainant’s statement typed out at his mother’s suggestion before he went to police.
In that context her Honour said:
“You will recall that the complainant [D] was cross-examined on that statement and that it was put to him that there were parts of that statement which were not reflected in the interviews that he had with the police later on and you will recall that I referred earlier to what [D] had said in that earlier typewritten statement about what was a reference to an act of fellatio or oral intercourse. I did not have it in front of me but I do now. I will read you the full text of that statement as it was put to [D] in cross-examination. What he wrote in that statement was,
“He wanted to” it should be “put”, the word “put” is not there but it should be, “He wanted to put his penis in my mouth. He was pushing my head down. I refused and somehow got away. He left that bit for a while but tried again later on several occasions all with the same result. He did however do it to me. While this was happening to me I would concentrate and think something else, hoping that it would help me to endure it and lessen the effects.”
I just wanted to make sure that I had read that to you, in terms of how it was put to [D] that the reference to “he did however do it to me”, according to the accused’s submission, was a reference to an act of fellatio actually occurring as opposed to attempted by the accused. So I will not repeat what I said about the way in which the accused relies upon that inconsistency if you find it to be an inconsistency.”
The appellant complains, in effect, that the Judge had missed the point. He submitted that the oral sex issue was not about whether the act of fellatio actually occurred as opposed to being merely an attempt. It was about the fact that D had given detailed information in relation to an allegation of oral sex which he subsequently abandoned, indicating that he must have made it up.
There is no force in this complaint. The Judge had earlier reminded the jury that the appellant relied on inconsistencies between the out of Court statements and the evidence in Court on the oral sex issue as going to D’s reliability. The Judge may have placed a different emphasis on that issue but ultimately the assessment of the inconsistencies was a matter for the jury.

Ground 2 (vi) - the written records of the piano lessons

Ground 2 (vi) is difficult to understand. The appellant complains (AWS 5.6) of the following portions of the summing-up:
“The fact of the matter is that he has no written records available to him as to the scheduled teaching times because all of those records, if they existed, have been overwritten” (SU 54)
and (SU 55):
“ … he cannot produce any written records of the times that [D] actually attended, and in those circumstances all he can do is simply deny that these things ever occurred”
And (SU 67):
“ … he is not in a position to put forward concrete evidence of when these lesson times actually took place.”
The appellant’s complaint in respect of those remarks appears to be that they suggested the appellant bore an onus of proof. That complaint is without substance when one has regard to the quotes selected by the appellant in the context in which they appear. The first remarks (SU 54) were preceded by the following statements:
“The accused ladies and gentlemen, as I said before, does not bear any onus of proof. I am not suggesting that he is required to prove anything in the way of when these lessons occurred or when they did not occur.”

The second remark (SU 55) was preceded by the statement that there was no doubt the appellant had a busy schedule and that from time to time students cancelled or changed their lesson times, or the appellant had other commitments which meant he had to change lesson times. Her Honour was thus proffering a sensible explanation for the appellant’s inability to produce written records of the times the complainant actually attended lessons.
At the conclusion of those remarks, the Judge added:
“And in those circumstances all he can do is simply deny that these things ever occurred.”
That remark is the subject of separate complaint. The appellant submits it was incorrect, prejudiced and unfair, because it ignored all the other arguments the appellant had as to inconsistencies in the evidence, issues as to the time frame, the evidence of the police computer expert and so on. When the Judge’s remarks are read in their proper context, that is a surprising submission. The Judge gave a careful, balanced summary of the appellant’s case and specifically reminded the jury of inconsistencies that had been raised during the hearing. There is no substance to this complaint.
Ground 2 is dismissed.
Ground 3 - wrongful admission of evidence of admissions
Ground 3 is:
“The trial miscarried and there was a miscarriage of justice as a result of the prejudiced decision the trial Judge made in relation to the evidence of the Ukrainian students (A, B and C) concerning the appellant’s “admissions” and the evidence concerning the deleted computer files.”
The appellant’s submissions in support of this ground were set out at AWS 6.1-6.2.4 and repeated under ground 7 at 10.2.6-10.2.9.
The trial Judge ruled on the admissibility of the admissions after taking the evidence on the voir dire. Her Honour published written reasons on 29 November 2004. She identified the following evidence as being capable of constituting an admission.
As to a conversation between the appellant and B, the appellant said:
“This is my nature, you know … I understand this by brain but there’s nothing I can do.”
As to a conversation with C, the appellant said:
“I understand with my brain that it is wrong what I have done to [D] but I cannot control my genes, it is in my nature to be like that. … It’s hard to understand this … maybe I should commit suicide, maybe I should drive off the cliff and end this.”
In a conversation with A, the appellant said:
“I nearly stopped … I understand how terrible and how awful this – this all is. I do understand it with my mind … but it’s – this is only on my genetical level, … maybe I should drive off a cliff somewhere and just commit some sort of suicide.”
Counsel for the appellant at the trial conceded that the evidence may have substantial probative value but invited the Judge to exclude the evidence in exercise of her discretions under s 90 and s 135 of the Evidence Act 1995 and, alternatively, in accordance with the mandatory exclusion rule under s 137 of the Act.
In relation to s 90, the submission at trial was that it would be unfair to use the admissions, given that they had been made in the context of a conversation with three men who also claimed to have been sexually abused by the appellant. It was not otherwise suggested that the circumstances of the meetings, which had been called at the request of the appellant, rendered the admissions unreliable.
Before this Court, the appellant raised two additional matters as to the circumstances in which the admissions were made. First, he said that he had been intimidated when he was confronted with the allegations by D’s father. Secondly, he said that he had indicated that he would not be interviewed by police and that the admissions to A, B and C were accordingly made in the “course of an interview conducted despite indication”. Those complaints did not form part of the basis on which the evidence was objected to at trial. They are not circumstances relevant to the admissions made to the three Ukrainian students. It is not necessary to consider those matters.

The third complaint as to the circumstances in which the admissions were made was that A had conceded in cross-examination that the appellant said to him:
“With [D], you know, it’s not true” (T370.56-57).
The appellant submitted that this evidence would have caused the jury to speculate as to whether the admissions related to offences against another person. That risk had been identified for consideration by the trial Judge (T163.37). In her reasons for decision, the Judge considered the fact that A acknowledged that, at one point, the appellant denied D’s allegations. Her Honour said:
“[that] does not deprive the identified admissions of their probative value. How those seemingly contradictory statements by the accused are to be resolved is a question of fact for the jury. This exercise on the voir dire is not concerned with the truth or untruth of the admissions (s 189(3) Evidence Act).”
Separately, her Honour considered the problem that some of the admissions were made in response to statements by B, C and A in which they assumed the truth of D’s allegations because of their own experience of the appellant’s conduct. In respect of that issue, the Judge concluded:
“However, the behaviour under discussion included the accused’s behaviour towards D. Any response by the accused which implicitly or explicitly acknowledged that he had behaved towards D in the same way that he had behaved towards B, A and C is available to the prosecution to be used to the detriment of the accused.”

The appellant’s submission in the appeal raises a different point. His complaint is not that he explicitly acknowledged behaving towards D in the same way that he had behaved towards the others, but that he denied the allegations of D whilst implicitly acknowledging behaving in that way towards others. However, as the Judge noted, A’s account included seemingly contradictory statements. The first part of the conversation implicitly acknowledged that D’s allegations were true. The trial Judge correctly held that the resolution of the apparent inconsistent statements was a matter for the jury. In our view, the Judge’s decision not to exercise her discretion under s 90 to exclude the evidence discloses no error.
The appellant’s second submission in respect of the admissions (AWS 6.1.5B, pages 85-87) is difficult to understand. He states that the submission is based on the concept of “admissions by conduct”. The proposition appears to be that the alleged admissions were inconsistent with other conduct of the appellant, such as the fact that he denied the allegations, the fact that he did not leave Australia as D’s father had demanded and the fact that he informed his employer and the Ukrainian students of the accusations. None of those factors bears on the admissibility of the admissions. This submission must be rejected.
The appellant’s third submission in respect of the admissibility of the admissions was said to be based on the concept of the “evidence of bias or a motive for being untruthful” (AWS 6.1.5C at pages 87-89). The thrust of the submission was that, since it was a premise of the decision to order a separate trial of the counts involving the offences against D that there existed the possibility of concoction among the complainants, the same reasoning should have been applied as a basis for excluding the admissions. The appellant submitted that the Ukrainian students, who have since made claims for victim’s compensation, have a financial motive to be untruthful.
Although the submission had not been put in quite that way at trial, the Judge expressly considered whether the risk of fabrication was productive of unfair prejudice. Her Honour concluded that there was nothing in law to prevent Counsel for the appellant from cross-examining each of the Ukrainian students as to their motive for fabricating the admissions. The Judge said:
“Rulings on the admissibility of evidence cannot be made to accommodate any number of defence theories which the trial Judge does not know and can never foresee. In short, the method and scope of cross-examination is a forensic decision for Counsel.”
The risk that the evidence, or Counsel’s cross-examination in respect of the evidence, would reveal that the appellant had engaged in sexual misconduct other than the offences charged did not render the evidence inadmissible: Markby v R (1978) 140 CLR 108 at 116 per Gibbs ACJ; Smale v R [2007] NSWCCA 328 at [33] per Howie J, Mason P and James J agreeing. In the present case, the evidence was not led for the purpose of proving tendency. Indeed, it is highly doubtful whether it would have been understood by the jury as referring to misconduct towards any person other than D. In our view, no error is disclosed and this part of ground 3 must be rejected.
Ground 3 and part of Ground 8 - the deleted computer files
The second ruling challenged under ground 3 was the admission of exhibit F, which was the schedule of the names of the files deleted from the appellant’s computer (AWS 6.2). This submission rested on three contentions. First, the appellant complained that it was wrong to admit the list of names when the complainant himself had not identified the name of any video clip he watched. That is a matter going to the weight of the evidence, not its admissibility.
Secondly, the appellant submitted that the evidence was hearsay. That submission was related to the third complaint which was that, since the hard drive had been destroyed by the time of the trial, the appellant was not able to test the evidence of the police expert who produced the list.
The hearsay objection was not taken at the trial and in fact exhibit F was admitted without objection (T414.54), albeit after some debate. D’s evidence was that, after the appellant had shown him some music files on the computer, the appellant then accessed a program and downloaded or opened a file that he had downloaded from the Internet of a gay pornographic video (T40.25). D said the program was called “Kozaa or Kozaa Light”.
Senior Constable Ng gave evidence that one of the hard drives on the appellant’s computer had the Kazaa program, which is a “peer to peer” file-sharing program. It had been saved to the hard drive in September 2002. The Kazaa folder on the hard drive contained a number of movie files with “gay titles” but all of those files had been deleted. In order to retrieve information concerning those files it was necessary to use specialised software. Using that software, Senior Constable Ng had produced a list of the names of files that had been downloaded from the internet using the Kazaa program, the dates on which they were downloaded and the dates on which they were deleted.
Senior Constable Ng’s evidence established that the hard drive of the appellant’s computer stored information in such a way that it could not be used by the Court without the use of the specialised software. Assuming that information was relevant and admissible, documents produced using the software could have been admitted in accordance with s 48(1)(d) of the Evidence Act. However, the full schedule also referred to child pornography of a heterosexual nature (T6.44), which the trial Judge thought would be far too prejudicial (T6.49). Accordingly, the Crown prepared a reduced schedule of the names only of those deleted files which carried titles suggestive of gay pornography. That was the schedule that was admitted without objection (T414.54).
Examples of the names included in the list are “Jeffs secret porn stash – gay blow job”, “Military (cadinot) - gay porno”, “Italian hottie home naked, GAY, GAY, GAY PORNO”, “Gay rough gangbang” and “Gay porn – jocks – sex muscle teacher fucks student”.
The contents of the schedule were plainly relevant because they could rationally affect the assessment of the probability of the existence of the fact alleged by D that he had been shown a gay pornographic video clip downloaded to the appellant’s computer from the Internet using the Kazaa program. As to whether they were admissible, an objection was flagged by Counsel for the appellant. He said:
“Your Honour I do have a difficulty with the probative value that can arise from files which can’t themselves be resuscitated. Now I know that it might be said, well look common sense would say that those labels would apply to gay files” (T120.11).
That objection, in substance, contended that the titles of the video clips did not prove their content. It also appeared to acknowledge a possible argument that the titles were admissible for that purpose under s 70 of the Evidence Act, which provides that the hearsay rule does not apply to tags, labels or writing placed on an object in certain circumstances. One of the requirements of s 70 is that the label, tag or writing was attached in the course of business. There was no discussion as to whether files available through the Kazaa program are labelled in the course of business.
The Judge’s response to the issue raised by Counsel suggested a preliminary view that the file names would be admissible, so long as the evidence was confined to those which were indicative of gay pornography. However, her Honour did not rule on the question at that stage, but indicated that she would make time for argument if Counsel pressed the objection (T120-121). The objection was not pressed and, a week later, exhibit F was admitted without objection (T414.54). In those circumstances, the Judge was not wrong to admit the evidence.
The appellant submitted, in the alternative, that his Counsel’s failure to press the objection was incompetent and produced a miscarriage of justice (ground 8, AWS 11.15-11.15.3). It should be noted that when it was foreshadowed by the Crown in the absence of the jury, that exhibit F was to be tendered “by consent”, Counsel for the appellant said:
“I have already made my objections, I have been ruled against so I prefer just to stay silent when the matter is presented before the jury” (T403.1).
That statement was incorrect. The Judge had not ruled on the objection but, rather, had indicated she would make time for argument if it were pressed. It is not possible to discern whether Counsel was labouring under a misapprehension about that, or simply acknowledging (albeit in loose terms) his reconciliation to the Judge’s preliminary view. The critical question for the purpose of ground 8 is whether the appellant has satisfied the onus of establishing that the failure to renew the objection was negligent or incompetent and has resulted in a miscarriage of justice: Ignjatic v R [1993] 68 A Crim R 333. In our view, he has not.
First, it is by no means clear that the failure to renew the objection was due to any negligence or incompetence. Even if the court were to decide otherwise, we are not satisfied that Counsel’s decision was productive of any miscarriage of justice.
The expert’s evidence that files had been downloaded using the Kazaa program was admissible as independent evidence to corroborate the evidence of D. The view might reasonably have been taken, in that context, that the names of the files were admissible for a non-hearsay purpose because it was open to the jury to conclude that it was the appellant who had downloaded the videos, in which event the steps he must have undertaken to identify and download files with such names was further independent support for D’s evidence. Counsel may have seen it as expedient to consent to the admission of exhibit F to avoid focussing attention on that issue. He may, in the circumstances, have formed the view that the hearsay rule did not apply to the contents of the list (s 60 of the Evidence Act) and seen little benefit in seeking a direction under s 165 of the Act limiting the use to be made of the evidence.
In addition, Senior Constable Ng had made himself available to confer with the appellant’s Counsel before being cross-examined by him (T419.20). Counsel was accordingly well placed to exercise his forensic judgment as to whether to confine the evidence to those files bearing “gay titles”. By accepting that course, Counsel achieved a forensic advantage, which he put to good effect in cross-examination, in that the list in evidence contained a considerably smaller number of files and a very narrow range of dates during which files were downloaded. The implicit premise of that course, which had a benefit for both the Crown and the defence, was that the names of the files were indicative of their content.
Further, as to the prejudicial effect of the evidence, D’s account was that he had been shown gay pornography on many occasions. He gave a description of the content of some of the material he was shown in respect of count 7 (T44.1) and remembered that one file was called “The Russian Boys Picnic”. The inclusion in the evidence of the file names hardly took the matter any further.
We are not satisfied that the admission into evidence of the file names produced a miscarriage of justice. Ground 3 is dismissed.
Ground 4 - Failure to provide headphone translation facilities
The fourth ground of appeal is (AWS 7.1-7.5):
“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 through the simultaneous headphone translation or proper conditions for simultaneous translation of interpreter – with the intervals for translation – that international law and standards required.”
The same ground of appeal was argued in respect of the two other trials: Makarov v R (No. 2); Makarov v R (No. 3).
In the present trial, the interpreter spoke on only one occasion throughout the evidence of the appellant (T442.36). Further, as noted in the Crown’s submissions, a witness called in the appellant’s case said of him:
“He’s extremely articulate and so he can convey his imagery very effectively albeit in a foreign language …” (T633.21).
The examples cited by the appellant of supposed confusion do not indicate otherwise.
For the reasons given at [164]-[168] of the Court’s judgment in Makarov (No. 2) and at [117] Makarov (No. 3), we reject this ground.
Ground 5 - alleged bias of the trial Judge
The fifth ground of appeal is:
“The trial miscarried and there was a miscarriage of justice as a result of the trial Judge bias against the appellant.”
The appellant’s submissions addressed four areas of alleged bias:
(a)          prejudiced behaviour towards the appellant’s Counsel;
(b)          prejudiced decisions;
(c)          legal errors;
(d)the trial Judge’s use of “a special technology of psychology programming the jury against the appellant.”
Ground 5 - prejudice towards Counsel
In respect of the alleged prejudice towards the appellant’s Counsel, the appellant referred to two occasions when the trial Judge interrupted cross-examination of the complainant (AWS 8.1-8.3). The first occurred during cross-examination as to an apparent inconsistency between the content of D’s autobiography and the proposition that he was being sexually molested at that time. The following exchange occurred (T195.1-195.37):
“Q.And would you recognise that potentially it’s inconsistent in terms of the emotion expressed, as being an inconsistent expression of emotion between a person who’s being molested and the person who’s molesting them?
A.No because it was written well before. That was Chapter 4, there were more than 4 chapters, I don’t think I finished that chapter probably I don’t know beginning of term 2 or something like that, I wasn’t being molested at that point so my – it’s perfectly consistent with my feeling towards Victor Makarov at that time.
Q.However, if your parents stopped coming regularly to your lessons in August–September --
A.No, no, I said they came earlier, you said August– September.
Q.I know but I’m putting a proposition to you. If they stopped coming in August–September then the situation would be, wouldn’t it, that it was well before that point?
H H:  Sorry, what was well before that point?
Turnbull:               The writing of this particular statement.
HH:But how has he related the writing of the statement or the writing of the autobiography to the time when his parents ceased to come regularly to--
Turnbull:Because that’s when he says the molestation started, because they were out of the way and he got the fantastic lesson and so forth.
HH:But I don’t understand him to have associated with that event the writing of the biography, he associates it with the end of term 2. Anyway--
Turnbull:               I’ll move on your Honour.”
There can be no complaint about the Judge’s interruption. The question before the interruption was confusing. It was not unfair for the trial Judge to seek to identify, by reference to the complainant’s evidence, the point sought to be made.
The second interruption came during cross-examination of the complainant about the letter he wrote to the appellant for the appellant’s fiftieth birthday. The following exchange occurred (T249.23-249.29):
“Turnbull:             Did you love him when you wrote that letter?
HH:What’s that got to do with this Mr Turnbull? Really what’s it got to do with this whether he loves him now or not?
Turnbull:               It’s in the letter.
HH:I’m having trouble with the relevance of whether or not he loves your client.
Turnbull:               If your Honour pleases I’ll withdraw that question.”
As submitted by the Crown, the question was of doubtful relevance and in any event it was withdrawn.
The appellant also sought to sustain the allegation of bias on the part of the trial Judge by reference to remarks made during the trial by his Counsel, in the absence of the jury. Counsel had complained that the Judge was giving “short shrift” to his complaints during cross-examination and referred to the Judge’s demeanour in relation to his most recent objection (T537.32). The Judge asked Counsel to identify what demeanour he was referring to. He said that the Judge was becoming “exasperated and impatient”. The substance of the Judge’s response was that she was becoming exasperated and impatient because the objections were without foundation. An examination of the transcript of the cross-examination does not disclose any foundation for the accusation of bias. Counsel’s objections were not dealt with unfairly. It should be acknowledged that the likely appearance of the transcript was itself part of Counsel’s complaint to the Judge. He had submitted that the transcript would not disclose the dynamics of the trial. He complained that the tone of the Judge’s voice and her demeanour may convey a different flavour (T538.49).
Counsel confirmed that he was not seeking a discharge of the jury (T537.38). However difficult it may be for an appellate Court to discern the mood of a trial from its transcript, the fact that Counsel distanced himself from the proposition that the Judge should discharge the jury is a compelling indication that there was no miscarriage of justice. This part of ground 5 should be rejected.

Ground 5 - prejudiced decisions

The appellant’s written submissions (AWS 8.4) referred to three matters. The first was a complaint about the Judge’s warning to the jury, at the outset of the trial, to disregard anything they might have heard through the newspapers (or otherwise) when the accused was first charged by police. The complaint appeared to be that her Honour’s remarks would in fact have directed the jury to the Internet, where there was publicity about the allegations made by the other complainants. There is no substance in that complaint. Her Honour was specifically directing the jury not to have regard to any such material. A failure to give such a warning might equally be a cause for complaint.
The other two matters repeated the appellant’s complaints in respect of two of the Judge’s rulings on evidence which are dealt with under ground 3 above.
In his oral submissions, the appellant also complained that the Judge failed to instruct the jury (as Hock DCJ had in the later trials) that if she did not remind them of any particular piece of evidence, they should not draw any conclusion from that. The Judge told the jury that she did not propose to repeat all of the evidence (SU 3) and gave proper directions as to the role of the jury to decide what evidence to accept (SU 2). She also told them that they should consider the totality of the evidence and not only the evidence to which she had referred (SU 6). There is no substance to this complaint.
Ground 5 - legal errors
The submissions under the third limb of ground 5 (AWS 8.5) repeated the submissions made under ground 2 (AWS 5.1-5.6) discussed above. No bias is disclosed by those matters.
Ground 5 - use of psychological programming
The fourth limb of ground 5 alleged that the Judge used a special technology of psychological programming to turn the jury against the appellant. The appellant submitted that the Judge used key signal words and phrases to undermine him, and deliberately erased information positive for his case (AWS 8.6-8.8). He sought to sustain the submission with a list of references by the trial Judge to the complainant as a “witness of truth”. Separately, the appellant identified a number of occasions on which the Judge referred to “convicting” the accused, and similar references. The examples given were in fact the directions required by law to be given. As submitted by the Crown, the Judge, quite properly, emphasised to the jury the need to find the complainant to be honest and truthful before they could return a guilty verdict.

Separately, the appellant submitted (AWS 8.7) that the Judge used language calculated to arouse parental feelings towards the complainant by referring to him by his christian name whilst referring to the appellant as the accused. He complained that the Judge never referred to him by his title “Professor” or “Professor Makarov”. There is no substance in that submission. The term “accused” is a neutral, accurate description of the status of a person being tried for an offence.
Finally, the appellant complained that the Judge omitted in her summing-up to refer to “all proven facts of D’s lies”. The matters pointed to by the appellant to demonstrate the supposed perjury of D are discussed above in respect of ground 1. For the reasons there set out, we are not satisfied that any of the matters relied on by the appellant demonstrated that D lied. It follows that there is no substance in the complaint that the Judge failed to refer to those supposed lies in her summing-up.
Ground 5 is dismissed.

Ground 6 - character

The sixth ground of appeal is:
“The trial miscarried and there was a miscarriage of justice as a result of impossibility of introducing the appellant’s “character”.
This ground was based on an indication given by the trial Judge at the outset of the trial and repeated on the third day that, if the appellant raised character, that would potentially bring into play the evidence of the three Ukrainian students (T11; T133.16). The substance of the appellant’s submissions (AWS 9.1-9.7) was that, as a result of that indication, he was precluded from adducing a great deal of evidence (summarised in his submissions at pages 117-124) that would have demonstrated his good character.
This submission proceeds on a misconception. Evidence of the appellant’s good character was not excluded by any decision of the trial Judge. The appellant’s Counsel stated that he would be endeavouring not to put character into play (T133.25). It would have been open to the appellant to adduce evidence of his good character but, as the trial Judge correctly warned, that course carried the risk that some of the evidence of the Ukrainian students would have become admissible. The appellant’s Counsel was wise to avoid that risk.
Ground 6 is dismissed.
Ground 7 - quality of the evidence
The seventh ground of appeal was:
“The trial miscarried and there was a miscarriage of justice as a result of the nature and quality of the evidence relied upon by the trial Crown prosecutor and violation by the trial Crown prosecutor the (sic) legal principles of burden of proof, proof, standard of proof and presumption of innocence.”
In support of this ground, the appellant repeated all of the complaints made under ground 1 as to inconsistencies and alleged anomalies in the evidence at the trial (AWS 10.1.1-10.3.1 at pages 132-147 and 10.4.4 at pages 148-149). His purpose in doing so appears to have been to establish the foundation for his submission that the Crown failed to adduce any evidence or objective measure to establish the existence of the facts in issue in the trial (AWS 10.4-10.4.3 and 10.5). The appellant submitted that, rather than discharging her “persuasive” burden, the Crown had taken the “incantious” (presumably intended to mean “incantatory”) approach of frequently repeating the allegations to produce a magical effect. He submitted that, as a result, the Crown prosecutor had created an illegal situation where “the accusations against the appellant without any proof had been turned into the supporting evidence, which allegedly established existence of the facts” (AWS 10.5 at page 150).
That submission is completely misconceived. The evidence of the complainant D was admissible to prove the elements of the offences alleged in the indictment. The insinuation that the Crown’s frequent repetition of D’s allegations may be likened to a form of sorcery is absurd and must be firmly dismissed.
The appellant also submitted that the Crown prosecutor misled the jury in a number of respects during her closing address (AWS 10.6-10.7). An examination of the transcript of the Crown’s address against the evidence she was referring to demonstrates that those submissions are without foundation.
Separately, the appellant submitted that the Crown prosecutor was guilty of misconduct in respect of remarks made during her opening address (AWS 10.8 at page 157). The complaint was that the Crown prosecutor referred to the fact that the appellant came to Australia with his wife and daughter and “five talented young pianists, some of whom will be witnesses in this case”.
The appellant submitted that the prosecutor’s remark was incorrect because it was made on 22 November 2004, before the trial Judge had made her ruling that the evidence of admissions made to the three Ukrainian students would be admitted. That submission is misconceived. The remarks were plainly made in anticipation of the Judge’s ruling. In the event that the Judge had ruled against the Crown, an issue might have arisen as to whether the reference in opening to evidence which was not in due course admitted gave rise to any prejudice. However, that situation did not arise.
Secondly, the appellant submitted that it was highly prejudicial to identify the students as Crown witnesses because the jury could wonder about information beyond the allegations involving D. There is no substance in that submission. The students were Crown witnesses. It was entirely appropriate for the Crown prosecutor to identify the evidence she anticipated calling. The suggestion that the jury would have speculated about other matters is itself speculative.
Ground 7 is dismissed.
Ground 8 - alleged incompetence of counsel
The eighth ground of appeal was:
“The trial miscarried and there was a miscarriage of justice as a result of the appellant’s legal representatives incompetence in failing to uncover and lead the evidence that may affected (sic) the result”.
There is some overlap between ground 8 and the first part of ground 1. The appellant submitted (AWS 11.1-11.4) that his legal representatives at the trial failed to uncover expert evidence in relation to the impossibility of developing a successful career as a concert pianist whilst suffering from the psychological injuries that inevitably flow from sexual abuse. He submitted alternatively that his Counsel should have made submissions to the trial Judge to invite the Crown to lead such evidence. That submission assumes the acceptance of ground 1(i), which we have rejected. It should also be rejected, for the same reasons.
The appellant also submitted (AWS 11.5-11.10) that his Counsel failed to lead “the crucial evidence” in relation to the autobiography and the letter written to the appellant for his fiftieth birthday. This submission was based on the passage of cross-examination set out at [149] above in support of the appellant’s complaint that the Judge was biased (ground 5). The appellant submits that the same exchange also demonstrates the incompetence of his Counsel. The substance of the submission was that the Judge’s interruption was based on the irrelevance of the issue whether the complainant loved the appellant at the time of the trial, whereas Counsel’s question had been directed to whether the complainant loved the appellant at the time he wrote the letter.
One of the matters relied on by the appellant to establish why this evidence was crucial was his contention that the letter must have been written after the act of sodomy charged in count 9. As discussed above, that contention is based on a misapprehension as to the evidence of Senior Constable Ng. It was open on the evidence to find that the sodomy offence was committed after D wrote the letter (even if that took it outside the time frame alleged in the indictment). Even if the position were otherwise, the content of the letter did not conclusively establish anything. The likelihood that D would write such a letter if he had been indecently or sexually assaulted was one of the many factors to be taken into account by the jury in their assessment of the issues in the trial.
Further, the complainant had given an explanation as to why he wrote the letter (T248.21-248.33). It is doubtful whether it would have advanced the appellant’s defence to press the topic. The decision to withdraw the question was a forensic judgment that does not display incompetence.
The appellant also submitted that the failure to object to the admission of exhibit F, the list of names of files deleted from the hard drive of the appellant’s computer, amounted to incompetence that produced a miscarriage of justice (AWS 11. 15 at page 169). That submission is addressed in the discussion of the admissibility of that evidence under count 3 above.
The remaining submissions in support of count 8 (AWS 11.11-11.14 and 11.16) repeated matters agitated in support of other grounds and alleged that the appellant’s Counsel and legal representatives were incompetent in failing to raise those matters at trial. It is not necessary to address those submissions, since they assumed the acceptance of other grounds which we have rejected as being without substance.
Ground 8 is dismissed.
Grounds 9 and 10
The ninth ground of appeal was:
“The acquittal on Count 8 as proof of the jury’s reasonable doubt concerning D’s credibility and truthfulness”.
Our reasons for dismissing that ground are set out in the discussion of ground 1(ii) above.
At the hearing of the appeal, the Court granted leave to the appellant to rely on a tenth ground of appeal that was addressed in his written submissions, but not included in the notice of appeal. It was:
“The trial miscarried and there was a miscarriage of justice as a result of the Crown prosecutor and trial Judge’s misconduct in relation to the time of the essence of the offences No. No. 1-7 and 9.”
The submissions in support of that ground duplicate the matters raised in support of grounds 1(iii), (v) and (vi) above and, as to the autobiography and the fiftieth birthday letter, parts of grounds 5 and 8. They are addressed in the discussion of those grounds above. For the reasons there set out, ground 10 is dismissed.
The appeal against conviction is dismissed.
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LAST UPDATED:
2 November 2010