Makarov v The Queen (No. 2)

Case [2008] NSWCCA 292

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Makarov v R (No. 2) [2008] NSWCCA 292
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/3252

HEARING DATE(S):
5 May 2008 and 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:
Her Honour Judge Hock

LOWER COURT DATE OF DECISION:
11 November 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 student of Appellant
relevance of anecdotal evidence of lay witnesses concerning difficulty in performing as a concert pianist when under stress
claims of unfairness against Crown Prosecutor
claim that acquittal on one count rendered convictions unreasonable
claim that trial miscarried through failure to provide simultaneous headphone translation facilities
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
Evidence Act 1995
Evidence Amendment Act 2007 No. 46

CATEGORY:
Principal judgment

CASES CITED:
Makarov v R (No. 1) [2008] NSWCCA 291
Makarov v R (No. 3) [2008] NSWCCA 293
Ingles v R (Tas Court of Criminal Appeal, 4 May 1993, BC9300044)
R v C (1993) 60 SASR 467
R v F (1995) 83 A Crim R 502
R v E (1997) 96 A Crim R 489
HG v The Queen [1999] 197 CLR 414
R v S (2001) 125 A Crim R 526
Bellemore v Tasmania (2006) 170 A Crim R 1 (
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen (2002) 212 CLR 124
R v Livermore (2006) 67 NSWLR 659
Causevic v R [2008] NSWCCA 238
Skipworth v R [2006] NSWCCA 37
R v Teasdale (2004) 145 A Crim R 345
Cornelius and Briggs v R (1988) 34 A Crim R 49
Libke v The Queen [2007] 230 CLR 559
Jones v The Queen (1997) 191 CLR 439
R v Markuleski (2001) 52 NSWLR 82
Longman v The Queen (1989) 168 CLR 79
Crofts v The Queen (1996) 186 CLR 427
R v Murray (1987) 11 NSWLR 12
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
De La Espriella-Velasco v The Queen (2006) 197 FLR 125
R v Rostom (2007) 98 SASR 528
R v Kennedy (2000) 118 A Crim R 341

TEXTS CITED:

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3252

BELL JA
JOHNSON J
McCALLUM J

9 December 2008

VICTOR MAKAROV v REGINA (No. 2)

Judgment

  1. THE COURT:  On 5 and 6 May 2008, the Court heard together several appeals by the Appellant, Victor Makarov, from his conviction for a number of sex offences at three different trials in the Sydney District…

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AGLC
Makarov v The Queen (No. 2) [2008] NSWCCA 292
Case
[2008] NSWCCA 292
Decision Date

CaseChat Overview and Summary

The case of Makarov v The Queen (No. 2) involved an appeal against the conviction of the Appellant for sexual assault offences. The complainant in the case was a concert pianist student of the Appellant. The Appellant raised several grounds of appeal, including claims of unfairness against the Crown Prosecutor, the assertion that acquittal on one count rendered his convictions unreasonable, and that the trial miscarried due to the failure to provide simultaneous headphone translation facilities. The court was tasked with determining the validity of these claims.

The court examined each of the Appellant's grounds of appeal. Firstly, the court rejected the Appellant's claim that the acquittal on one count rendered his convictions unreasonable, finding that there was a rational basis for the different verdicts. Secondly, regarding the issue of fairness, the court found no misconduct on the part of the Crown Prosecutor. The court also dismissed the Appellant's claim that the trial miscarried due to the absence of simultaneous translation facilities, finding that this did not amount to a miscarriage of justice. Furthermore, the court rejected the Appellant's submission that the jury's verdicts were based on false evidence given by the complainant and another witness, Mr Thomson. The court held that there was no basis for finding that the jury’s verdicts were unreasonable, and that the evidence presented did not establish a miscarriage of justice.

In conclusion, the court found no merit in any of the Appellant's grounds of appeal. The court dismissed the appeal against conviction, finding that no error had been established and that the Appellant's claims of unfairness, miscarried trial, and false evidence were without foundation. The convictions were upheld, and the appeal was dismissed in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We would reject Ground 6(i) and (ii). Part of Ground 5 - Claim that “Fresh” Evidence is Proof of the Fact that the Verdicts Were Reached on the Basis of False Evidence Given by A and Mr Thomson Submissions The Appellant seeks to adduce fresh evidence on a point which he says is related to the argument in Ground 1, namely, that A must have committed perjury when he said that he was sexually assaulted because he could not have performed at a concert level had he been sexually assaulted. The evidence tendered was a copy of the “Ukrainian Weekly in Australia” dated 30 July 1997 (part of which is translated at page 53 of the Appellant’s written submissions). The article contains a review of an unexpected and short recital given by A at the Ukrainian People House at Lidcombe on 16 July 1997. The author of the article noted that A played to a small number of people and that he played well. The Crown objected to the tender of this evidence upon the basis that it was neither fresh nor significant. Decision During the hearing of the appeal, the Court declined to admit this evidence as fresh evidence (T16, 6 May 2008). We observe, in any event, that this material did not add anything of significance to the evidence that was before the jury. A had been cross-examined about an earlier performance and agreed that he played well shortly after being sexually assaulted (T63.5). An article reviewing another of A’s performances in July 1997 was tendered during the trial (T105.45). Defence counsel had read onto the record during a question the portion of the article that noted that A had played well (T62). There was also evidence from Mr Thomson who said that he had witnessed A give an outstanding performance on 7 July 1997 (T122). If the article from the “Ukrainian Weekly in Australia” had been tendered at trial, it would have added very little to the unchallenged body of evidence that A performed well in 1997 despite having been sexually assaulted by the Appellant. Accordingly, even if this evidence had been admitted on appeal, it would not have affected the position materially. No miscarriage of justice has been established. We reject this part of Ground 5.Ground 2 – There was a Miscarriage of Justice Resulting From False Testimony of A and Mr Thomson Concerning the Date of A’s Very Last Performance in Sydney in July 1997 The Appellant sought to rely upon the extract from the “Ukrainian Weekly in Australia” dated 30 July 1997 in support of Ground 2. As mentioned at [74] above, the Court declined to admit this as fresh evidence on the appeal. It is appropriate to refer briefly to the arguments concerning the second ground of appeal to demonstrate that this article would not, in any event, have advanced the appeal against conviction. Submissions The Appellant sought to rely upon this article to challenge evidence of A and Mr Thomson at trial. The Appellant points to the fact that A did not mention a performance to the Ukrainian People House at Lidcombe on 16 July 1997 in his evidence at trial. The Appellant argues that A and Mr Thomson gave false evidence at trial with respect to the timing of A’s last performance in Sydney in July 1997.

Decision

Reasons for decision

The Crown submits that there was nothing about the anecdotal evidence of personal experiences of the four musicians called in the defence case, that impacted upon the evidence of A and demonstrated him to be a liar when he said that he was able to put the sexual abuse out of his mind at the time of playing. The Crown submits that there is no basis for finding that the jury’s verdicts were unreasonable when a close analysis of this issue at trial is undertaken.Decision The Appellant’s submissions on this topic involve a number of misconceptions. The Crown had no obligation to adduce expert evidence which, in some way, sought to explain how A could still perform professionally as a concert pianist despite acts of sexual abuse having been perpetrated upon him by the Appellant. It is doubtful that evidence of this type would have been admissible as expert evidence. Consideration has been given in a number of Australian cases (both before and after the Evidence Act 1995) to admissibility of expert evidence concerning aspects of behaviour of sexually abused children, including delay in complaint and the so-called childhood sexual abuse accommodation syndrome: Ingles v R (Tas Court of Criminal Appeal, 4 May 1993, BC9300044); R v C (1993) 60 SASR 467; R v F (1995) 83 A Crim R 502 (NSW Court of Criminal Appeal); R v E (1997) 96 A Crim R 489 (NSW Court of Criminal Appeal); HG v The Queen [1999] 197 CLR 414; R v S (2001) 125 A Crim R 526 (Qld Court of Appeal) and Bellemore v Tasmania (2006) 170 A Crim R 1 (Tas Court of Criminal Appeal). In some cases, evidence of this type has been admitted and in others, it has been rejected. The position in Tasmania has been affected by s.79A Evidence Act 2001 (Tas) which concerns the admission of expert evidence of the impact of sexual abuse on children: Bellemore v Tasmania at 19-21, 39-47, 61-66. The position may change in New South Wales upon the commencement of the Evidence Amendment Act 2007 No. 46, which will amend s.79 Evidence Act 1995 (opinions based upon specialised knowledge) to give effect to Recommendation 9-1 of the collaborative report of the Australian, New South Wales and Victorian Law Reform Commissions, Uniform Evidence Law Report 112, 2005, thereby making express reference to specialised knowledge of the impact of sexual abuse on children and their development and behaviour following abuse. The issues considered in these authorities, however, are far removed from the present case and the matters raised in these grounds of appeal. Defence counsel cross-examined A concerning his ability to perform at piano concerts. A answered in the manner set out at [36] above. The defence did not seek to adduce expert psychiatric, psychological or medical evidence on this topic. As defence counsel readily (and correctly) accepted at trial, the evidence adduced from the four musicians involved a combination of anecdotal evidence and personal views arising from their own experiences, none of which involved an experience of sexual abuse. There is force in the Crown submission that this evidence was irrelevant (s.55 Evidence Act 1995) and thus inadmissible. The evidence having been admitted, however, the trial judge directed the jury in the manner requested by defence counsel. It remained a matter for the jury to consider the competing submissions concerning this evidence.

Ratio Decidendi

Legal Principle Established

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