Makarov v The Queen (No. 2) - [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

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 Court:
(a)a trial before her Honour Judge Latham (as her Honour then was) and a jury between 22 November and 10 December 2004 with respect to offences against D (Trial 2);
(b)a trial before her Honour Judge Hock and a jury between 16 and 31 August 2005 concerning offences against A (Trial 3);
(c)a trial before her Honour Judge Hock and a jury between 31 August and 21 September 2005 concerning offences against B and C (Trial 4).
An earlier trial (Trial 1) had proceeded between 8 and 16 November 2004 until the jury was discharged, and no further reference need be made to it.
On 28 January 2005, her Honour Judge Latham sentenced the Appellant, for the Trial 2 offences, to an effective head sentence of 12 years’ imprisonment to date from 10 December 2004 and to expire on 9 December 2016 with a non-parole period of eight years to date from 10 December 2004 and to expire on 9 December 2012.
On 11 November 2005, her Honour Judge Hock sentenced the Appellant for offences for which he had been convicted at Trials 3 and 4. The effective sentence passed for these offences comprised a head sentence of 11 years, with a non-parole period of seven years to date from 10 December 2009 and to expire on 9 December 2016, and a balance of term of four years to expire on 9 December 2020.
Thus, the effective overall sentence for Trials 2, 3 and 4 comprised a term of imprisonment for 16 years with a non-parole period of 12 years, both to date from 10 December 2004.
The appeals relate to conviction only. No application is made for leave to appeal against any of the sentences imposed, except to the extent that any of the convictions are quashed, thereby giving rise to the need to restructure any of the sentences imposed.
Appeal Against Convictions at Trial 3
This judgment concerns the appeal against conviction at Trial 3 which related exclusively to offences committed against the complainant, A. The Court will deliver separate judgments with respect to the appeals concerning Trial 2 (Makarov v R (No. 1) [2008] NSWCCA 291) and Trial 4 (Makarov v R (No. 3) [2008] NSWCCA 293).
The Appellant appeared unrepresented with respect to the hearing of his appeal arising from Trial 3. Mr Hamill SC and Mr King appeared for the Appellant with respect to certain grounds of appeal arising from Trial 4. Detailed written submissions (extending to 109 pages) were filed by the Appellant with respect to his appeal from Trial 3. In addition, the Appellant addressed the Court in support of his grounds of appeal. The Appellant had been represented by counsel at each of the trials.
The Verdicts at Trial 3
On 31 August 2005, the Appellant was found guilty upon the following charges:
(a)Count 1 - That he between 5 July 1997 and 10 July 1997 at Camperdown in the State of New South Wales, in circumstances of aggravation, did assault A and at the time of that assault did commit an act of indecency on the said A, he being then under the age of 16 years, namely 14 years (s.61M(1) Crimes Act 1900);
(b)Count 2 - Further that he between 5 July 1997 and 10 July 1997 at Camperdown in the State of New South Wale, in circumstances of aggravation, did assault A and at the time of that assault did commit an act of indecency on the said A, he being then under the age of 16 years, namely 14 years (s.61M(1) Crimes Act 1900);
(c)Count 3 - Further that he between 5 July 1997 and 10 July 1997 at Camperdown in the State of New South Wales, did have sexual intercourse with A, he being a person between the ages of 10 and 16 years, namely 14 years of age and under his authority (s.66C(2) Crimes Act 1900);
(d)Count 4 - Further that he between 13 July 1997 and 19 July 1997 at Camperdown in the State of New South Wales, in circumstances of aggravation, did assault A and at the time of that assault did commit an act of indecency on the said A, he being then under the age of 16 years, namely 14 years (s.61M(1) Crimes Act 1900);
(e)Count 5 - Further that he between 13 July 1997 and 19 July 1997 at Camperdown in the State of New South Wales, being a teacher of A, a boy of or above the age of 10 years and under the age of 18 years, namely 14 years, did have homosexual intercourse with him (s.78N Crimes Act 1900);
(f)Count 6 - Further that he between 13 July 1997 and 19 July 1997 at Camperdown in the State of New South Wales, being a teacher of A, a boy of or above the age of 10 years and under the age of 18 years, namely 14 years, did have homosexual intercourse with him (s.78N Crimes Act 1900);
(g)Count 7 - Further that he between 13 July 1997 and 19 July 1997 at Camperdown in the State of New South Wales, did have homosexual intercourse with A, he being a person above the age of 10 years and under the age of 16 years, namely 14 years, and under his authority (s.66C(2) Crimes Act 1900);
(h)Count 8 - Further that he between 13 July 1997 and 19 July 1997 at Camperdown in the State of New South Wales, being a teacher of A, a boy of or above the age of 10 years and under the age of 18 years, namely 14 years, did have homosexual intercourse with him (s.78N Crimes Act 1900).
The Appellant was found not guilty on a further charge (Count 9) which alleged that he between 20 October 1999 and 1 August 2000 at Gladesville in the State of New South Wales, being a teacher of A, a boy of or above the age of 10 years and under the age of 18 years, namely 16 or 17 years, had homosexual intercourse with him (s.78N Crimes Act 1900).

The Crown Case

The Appellant was born in 1953. He was an internationally renowned piano teacher, teaching piano at the Special School for musically gifted children and young people in the city of Kharkov in Ukraine (“the Kharkov school”). The complainant, A, was born in November 1982. He was a student of the Appellant at the Kharkov school, having been admitted to the school’s programs in 1990 when he was seven years old.
It was A’s evidence that the first five years at the Kharkov school passed without incident. When A was 12 years old, the Appellant, who was his teacher, had a conversation with him discussing sexual matters. The Appellant told A that “What I am going to tell you has to stay between you and me”. A asked whether he could tell his mother and was told “No”. The Appellant told A that music had a lot of erotic content to it and he put his hand on A’s upper thigh. Thereafter, the Appellant sexually assaulted A on many occasions. These acts (all of which occurred in Ukraine) included masturbating A and instructing A to perform fellatio on him during individual lessons at the Kharkov school. Evidence of these acts was adduced at trial as context or relationship evidence (referred to hereafter as context evidence).

The Appellant and A were invited to attend the Third Australian National Piano Pedagogy Conference to be held in Sydney in July 1997. The invitation was extended by Mr Warren Thomson, who at the time was the Artistic Director of Professional Development Programs at the Australian Institute of Music (“the Institute”). Mr Thomson had met the Appellant when he attended piano competitions in Ukraine and he had seen a number of the Appellant’s students, including the complainant, A, perform at competitions. It was this initial contact in Europe between Mr Thomson and the Appellant and A that led him to extend an invitation to them to attend the conference in Sydney in July 1997.
Mr Thomson arranged for the Appellant and A to stay at the Travelodge Hotel (as it then was) at Camperdown for the duration of their stay in Australia. He gave evidence that the Appellant and A arrived in Sydney on 3 July 1997 and departed on 19 July 1997 (T110). During their stay in Sydney, it had been arranged for A to give three piano performances. The first was a solo performance at Sydney University on 7 July, the second was a performance in the company of the Sydney Youth Orchestra on 10 July, and the third was a solo performance at the Pitt Street Uniting Church on 13 July 1997 (T111).
Counts 1 to 8 on the indictment related to incidents that A said occurred whilst he and the Appellant were in Sydney attending the conference in July 1997. The complainant, A, was 14 years’ old at that time. The Appellant was 43 years old.
The events giving rise to Counts 1 - 3 on the indictment occurred before a scheduled rehearsal for the Sydney Youth Orchestra performance. It was the evidence of A that he was in his room at the Travelodge preparing himself to leave for the rehearsal. The Appellant entered the room and instructed A to have a shower, which he did. While A was in the shower, the Appellant got into the shower with him and asked him for the soap. The Appellant started soaping and washing A and said to him “Would you like to get stuck into me?” to which A said “No”. The Appellant then said, “Because I would like to get stuck into you”. The Appellant took A's hand and placed it on his (the Appellant’s) penis and told A to rub it gently (Count 1). The Appellant then placed his own hand onto A’s penis and fondled it (Count 2). The Appellant then rubbed A’s back and lower back before moving his hand down until he inserted his finger into A’s anus (Count 3). A turned away so that the Appellant’s finger would be removed and it was his evidence that this brought the incident to an end (T18).
The events giving rise to Counts 4-8 on the indictment occurred after A’s final solo performance at the Pitt Street Uniting Church on 13 July 1997. The Appellant and A returned to the Travelodge some time after dinner. They went back to one of their rooms (in evidence, A was unable to recall which one). A said that they talked generally and watched television for a period. A was tired and decided to go to bed. He got undressed and got under the bed covers. The Appellant undressed and hopped into bed with A. A said that he was facing the wall with his back to the Appellant. The Appellant hugged A from behind and then placed his hand inside A’s underwear and fondled his penis (Count 4). The Appellant removed A’s underwear as well as his own underwear. He placed A on top of him so that A was facing his legs. He instructed A to take his penis in his mouth (Count 5). He also performed fellatio on A (Count 6). The Appellant then rolled A onto his belly and inserted his finger in A’s anus (Count 7). A said the Appellant was moving his finger inside his anus and that he felt pain. After a couple of minutes, the Appellant put A on top of him again and he tried to insert his penis into A’s anus, but was unable to do so. He instructed A to put it in for him and A complied (Count 8). After a few minutes, the Appellant ejaculated inside A. It was the evidence of A that the Appellant then smiled and remarked “You’re mine”.
At the conclusion of the conference the Appellant and A returned to Ukraine.
In December 1997, the Institute in Sydney offered the Appellant a piano teaching position. The Appellant accepted and in July 1998, he migrated to Australia together with his wife, daughter and five Ukrainian music students, including A.
A initially lived with Mr Thomson who had organised scholarships for A and the other students, including the Appellant’s daughter. A legal guardianship document was drafted in relation to Mr Thomson’s care of A. The document was tendered at the Appellant’s trial (Exhibit E). The four other Ukrainian students lived with the Appellant and his wife and daughter, initially at a house in Epping that had been arranged for them by Mr Thomson and then, some months later, at a house in Gladesville.
It was the evidence of A that, about a year-and-a-half after he arrived in Australia, he left the care of Mr Thomson and went to live with the Appellant at the house in Gladesville. In cross-examination, A said that the reason he left the care of Mr Thomson was that he had an argument with Mr Thomson, and that he had spoken to the Appellant who had told him to pack his things and come to his house in Gladesville (T49). In evidence, Mr Thomson confirmed that A left his care in October 1999 (T115).
The events giving rise to Count 9 on the indictment, to which the jury returned a verdict of not guilty, were alleged to have occurred some time after A moved into the Gladesville house with the Appellant. At the time, A was alone in the house with the Appellant. The two were in the living room of the house. A said that the Appellant was sitting in a chair and called him over. He opened A’s fly and took A’s penis in his mouth (Count 9). A said that he told the Appellant “Don’t do it” and the Appellant looked up at him and said, “Don’t you want me any more?” to which A replied “No”. This was the end of the incident. In cross-examination, A agreed that he had told police that the Appellant had pulled his pants and underwear down, exposing his penis, not that the Appellant had opened his fly (T76).
A gave evidence that in the period between when he and the Appellant returned to Ukraine in July 1997 and the time of their migration to Australia in July 1998, other incidents of a sexual nature occurred, but that the frequency of those encounters was reduced. He said that the Appellant would occasionally try to kiss him or try to fondle him (T23).
A first reported these matters to the police on 18 February 2004. He made a formal statement to police on 25 March 2004. A gave evidence that his report to police in February 2004 was the first time that he had told anyone in detail of the incidents which had occurred between the Appellant and himself (T24). The Appellant was arrested on 12 May 2004.
The Appellant’s Case
The Appellant gave evidence at his trial, denying that any sexual activity had occurred with A. He denied sexually assaulting A when the pair were in Sydney in July 1997 (T147). He denied sexually assaulting A at his Gladesville home some time between 20 October 1999 and 1 August 2000 (T154). The Appellant said that A’s allegations of sexual incidents occurring at the Kharkov school in Ukraine , both before and after the July 1997 trip to Australia, were all untrue (T148).
With respect to A’s (context) evidence of sexual assaults by the Appellant during lessons at the Kharkov school, the Appellant’s case was that there was limited or no opportunity for any sexual conduct or inappropriate behaviour during lessons at the Kharkov school as there were constant visitors to his classroom and interruptions to his lessons. The same (limited opportunity) argument was raised by the Appellant in relation to Count 9 on the basis of the Appellant’s household being very busy with eight persons residing there.
Two witnesses, Ilya Zozulya and Alexey Koltakov, gave evidence that they also lived at the house, were friends with A and had never seen anything of this nature between A and the Appellant, nor had A ever mentioned anything to them. Both ceased their friendship with A upon hearing of the allegations being reported to the police.
Three other musicians, Paul Virag, Leo Novikov and Ella Fokina, gave evidence that they had seen A at different times covered by either the relationship or indictment counts, and that he had appeared happy.
Mr Zozulya, Mr Virag, Mr Koltakov and Mr Novikov also gave evidence, which was relied upon by the Appellant at trial and on appeal, suggesting that performance at an elite level as a concert pianist was incompatible with stress or personal upset. More detailed reference will be made to the evidence later in the judgment. A short summary of the evidence is given here. Mr Zozulya gave evidence that he had played the piano in competitions and performances where everything is played from memory, without sheet music. He said that he had played when he had been upset and that, when he was upset, he would play much worse than if he was happy (T193). Mr Koltakov gave evidence that it was difficult to perform well if one was upset about something and could not concentrate (T213). Mr Virag gave evidence that he had worked as a pianist, teacher and conductor. He had worked at the Institute and knew the Appellant during the period that they both worked there. He gave evidence that, if he was upset about something, it affected him as a concert pianist. He said that a public performance required a “very very big degree of concentration” and that if a person was upset or stressed, they would be lacking in concentration especially if they were playing from memory. He said that the piece played by A on 10 July 1997 when he was in Australia was an extremely demanding piece (T235). Mr Novikov, a violinist, gave evidence that he had known the Appellant since the Appellant had first arrived in Australia. As a performer, Mr Novikov felt that it was almost impossible to perform to even 30% of one’s abilities if one felt humiliated (T241). Mr Novikov said that he had met A when visiting the Appellant’s house, and also when he was teaching at the Institute. He said that he had never noticed anything strange or unusual about A and that he remembered A as a very self-confident happy person (T242).
In the Appellant’s case, a video recording of a room at the Kharkov school where the Appellant taught piano to students was tendered (Exhibit 1). This was the room where A alleged that a number of incidents of a sexual nature had taken place with the Appellant. The recording (which was an edited tape) showed that, during the course of a lesson, there were a number of interruptions by persons entering the room (T146).
Grounds of Appeal

The grounds of appeal are expressed in the following way:
(a)Ground 1 - the trial miscarried and there was a miscarriage of justice as a result of the perjury of A committed against the Appellant during the trial in relation to the evidence concerning the exclusively professional (musical, psychological and psychiatric) issues.
(b)Ground 2 - the trial miscarried and there was a miscarriage of justice as a result of the false testimony under oath that both A and Mr W Thomson committed against the Appellant during proceedings in relation to the date of A’s very last performance in Sydney in July 1997.
(c)Ground 3 - the trial miscarried and there was a miscarriage of justice as a result of the false testimony under oath that both A and Mr W Thomson committed against the Appellant during proceedings in relation to the reasons and circumstances of A’s moving from Mr Thomson’s place to the Appellant’s place in October 1999.
(d)Ground 4 - the trial miscarried and there was a miscarriage of justice as a result of the trial judge and Crown Prosecutor’s misconduct in relation to the evidence of the Appellant concerning the reasons and circumstances of A’s moving from Mr Thomson’s place to the Appellant’s place in October 1999.
(e)Ground 5 - the “fresh” evidence as a proof of the fact that the verdicts of the jury had been reached on the grounds of the false evidence that A and Mr Thomson provided under oath during proceedings in relation to the “relationship” evidence and Counts 1-9.
(f)Ground 6 - both the trial judge and Crown Prosecutor failed adequately to direct the jury in relation to:
(i)an examination the area of the musical performing under stress [sic];
(ii)an examination of the evidence of the Defence’s witnesses, Mr Virag and Mr Novikov;
(iii)the Exhibit 1 [video recordings of the piano lessons interruptions in Room 34 of the Kharkov Music School in Ukraine];
(iv)the legal concept of the Crown Prosecutor’s status.
(g)Ground 7 - 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 of the legal principles of burden of proof, proof, standard of proof and presumption of innocence.
(h)Ground 8 - the trial miscarried and there was a miscarriage of justice as a result of unfair conduct by the trial Crown Prosecutor in relation to the trial separation rule.
(i)Ground 9 - the acquittal of the Appellant on Count 9 as a proof of the jurors’ reasonable doubt concerning A’s credibility and truthfulness.
(j)Ground 10 - the trial judge erred in failing to reject the context evidence, which had been related to the jurisdiction of Ukraine and had not been investigated by Australian or Ukrainian police on the territory of Ukraine.
(k)Ground 11 - 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.
(l)Ground 12 - the trial miscarried and there was a miscarriage of justice as a result of improper investigation, DPP and Crown Prosecutor conducted in relation to the time of the essence of the Offences 4-8, that caused a misconduct of the trial judge and Crown Prosecutor on the same issue.
The grounds of appeal are not all expressed elegantly. However, their meaning and content will become clear. There is some overlap between a number of issues raised by different grounds of appeal. It will be helpful to group a number of the grounds of appeal which have common factual elements.
In effect, the grounds raised various events during the trial and contend, in one way or another, that the verdicts of guilty were unreasonable or were unsupported by the evidence or that a miscarriage of justice has otherwise resulted: s.6(1) Criminal Appeal Act 1912.
Grounds 1, 2, 5 and 6(i) and (ii) - An Issue at Trial Concerning the Ability of A to Play the Piano at Concert Level if he had Truly Been Sexually Assaulted
An overlapping feature of Grounds 1, 2, 5 and 6(i) and (ii) is the claim that a miscarriage of justice has occurred because of the jury’s acceptance of the evidence of A that he was sexually assaulted by the Appellant in 1997, in a period when A was performing as a concert pianist successfully, and without what are said by the Appellant to be the inevitable difficulties which would have affected A if he had been sexually assaulted as alleged. It is appropriate to trace the manner in which this issue emerged at the trial before turning to consider the grounds of appeal which relate to this question.
An issue at trial was the ability of A to play at concert level if he had truly been sexually assaulted. The Appellant contends that it is simply not possible. Reference will be made to the evidence, the closing addresses of counsel and the summing up dealing with this issue.
A was cross-examined about his rehearsal with the Sydney Youth Orchestra in July 1997. He agreed that his evidence was that he had been sexually assaulted in the hotel room prior to attending the rehearsal (Counts 1-3). He agreed that he had been upset by the assault. It was put to him by defence counsel (T60-61):
“Q. Mr [A] you cannot perform at the standard, the very high level standard that you are required to perform at if you are upset, correct?
A. Incorrect.
Q. Incorrect?
A. Incorrect because rehearsal at the time of the rehearsal there could easily be put a lot of pressure from Makarov on me about my playing that would easily push out any other emotion I have.”
As mentioned earlier, four witnesses, who were musicians, gave evidence in the defence case. Mr Zozulya was asked in chief (T192):
“Q. Have you ever played in a performance or a competition when you’ve been upset for some reason?
A. Yes I did yes.
Q. You recall some times when that happened?”
The Crown objected on the grounds of relevance and submitted that this was anecdotal evidence relevant only to Mr Zozulya’s experiences. Her Honour queried the relevance of the evidence, observing that “everybody’s different surely” (T193). Defence counsel submitted that the “jury are entitled to have some yardstick, the jury are entitled not just to simply have Mr [A] saying well I was upset but I played brilliantly” (T193). The trial judge eventually allowed the question. Defence counsel asked (T193.36):
“Q. So when you were upset did you notice anything different about your performance?
A. Yeah well if I was upset I would play usually much worse than I would play if I would be like all happy you know just on my good days so I would treat it like a bad day performance you know.”
Mr Koltakov, the son-in-law of the Appellant, was asked in chief by defence counsel (T213.1):
“Q. We have a little bit of evidence about the difficulty of playing at such a top level a particular piece of music, but it may be different for different people. As far as you’re concerned if you are to play in a competition or an exhibition, a concert, a particular piece of music that might take 15 or 20 minute [sic] to play, what sort of preparation do you need to learn this music, for you?
A. Well you need to start preparation at least a few months in advance and the program must be quite ready and at least a few weeks in advance and what’s even more important is the day of performance, how you spend the last day. You have to be well rested, you cannot practice a lot you have to practice just a little bit to warm up your fingers otherwise you’ll just let all your energy go. So in other words you have to be fresh and excited to play.
Q. What if you were upset if someone had, well, sexually assaulted you?
OBJECTION
HER HONOUR: I reject that question.
RUSSELL: Q. Can I ask you this. Have you ever gone to a competition yourself after being upset about something?
A. Not a competition but performances, yes, it has happened to me. Sometimes with the professor I would have to perform and we would have a little fight, I would definitely be upset about it and it would not go as good at all as it would be. Yeah it’s hard. It’s just you’re playing and you cannot concentrate and you know that you’re doing not the right thing because you’re not enjoying it, you cannot actually play the music.
Q. What sort of a level of concentration do you need?
A. Well I don’t know the numbers, I cannot tell you that.
Q. It’s more difficult is it because there’s no music in front of you?
A. Not only because of that. It’s like, you know, in aeroplane they have autopilot so you can use autopilot and you can go and have a rest. Well it’s still very difficult and complicated to operate such a machine. But in piano playing you don’t have autopilot, you have to be always there every moment, every minute you have to be tremendously concentrated, every moment. That’s what’s most difficult.”
Mr Virag gave evidence that he had worked as a pianist, teacher and conductor (T232). He had worked at the Institute and knew the Appellant. Defence counsel asked Mr Virag in chief (T233-234):
“Q. Can you give us some idea of what is required to produce a quite good performance in piano, what is required?
A. Well it’s a complex question. Firstly, you need to have proper preparation, which is based on your individual preparation, like practising the piano. You need the guidance, you need the leadership, so until you become an independent, and I would say independent pianists at the age of maybe, I don’t know, 25, 30. Some people even get guidance later on. So you need to work with a teacher. In early stages of my career my teachers were only - always a very important part of it, because --
Q. Very important?
A. Very important part of the preparation because they play the guidance role, so I was getting the explanation of music itself, the technical guidance, how to press the keys the right way, because - and then the musical understanding. To understand music is a little bit more complex than to press the right keys in the right time. So there is a lot of psychological preparation.
Q. Can I stop you there. At any stage when you were being prepared in your younger years by your teacher or teachers of piano, did anyone ever suggest to you that you had to experience some act of sex to appreciate the great composers and what their music was all about?
A. Not to my recollection.
Q. What do you think about that notion that you have to experience sex to understand a piece of music?
CROWN PROSECUTOR: I object, it’s not relevant.
RUSSELL: This is what the Crown put to the witnesses, your Honour.
HER HONOUR: To whom?
RUSSELL: Put to the accused and led through Mr [A] that the accused told him this.
HER HONOUR: That’s what the complainant said he was told by the accused.
RUSSELL: Your Honour, surely we can get some sort of understanding from an independent source as to how sensible this all is.
HER HONOUR: That’s not the issue. I reject the question.
RUSSELL: Q. If you are upset, there are varying degrees of upset I understand, if you’re upset about something has it affected you as a concert pianist?
A. Yes, always.
Q. Can you please explain the situation?
A. Well the performance - any public performance or even if you perform in a class in front of your mates, it - it is a - requires very very big degree of concentration. It’s not only the preparation, because you may be well prepared for that particular performance, but at the same time you have to be in a very special state of mind in order to perform on the best of your level, and obviously when you are upset or if you - if you are stressed most of that concentration or your ability actually to deal with - with your task performing, most of that part goes to deal with the stress. So obviously you are lacking quite a lot of - lot of concentration and that may adversely affect your performance. Especially when you are playing say from memory, you may have erratic memory, obviously you may have so-called black holes and all of a sudden you may forget a part of music. It’s like you probably all remember that situation in rowing on the Olympics when that young lady from the - from the rowing stopped rowing just couple of hundreds of metres before and that was the black hole, right. The situation was we don’t know. We remember all of that situation. So that was actually - that was said that was a black-out, right. So if this happens in your performance you are jeopardising your reputation, your position as a professional, so you obviously have to look after that part.”
Defence counsel asked Mr Virag concerning the degree of difficulty of one of the pieces played by A at the concert on 10 July 1997, the Mozart Concerto in D Minor (K466). Mr Virag observed that this was “an extremely demanding piece” (T235.21).
Mr Novikov gave evidence that he was a violinist. He had known the Appellant since the Appellant first arrived in Australia. Defence counsel asked Mr Novikov in chief (T241-242):
“Q. Okay. Can I ask you about performing, as a performer in an orchestra, classical music, if you are upset. First of all, have you ever played a performance that you recall when you’ve been upset?
A. Yes, yes.
Q. Can you just tell us a little bit about the dynamics, tell the jury about the dynamics of this and what is required in playing this music?
A. There could be different reasons for distress. So, for example, an argument with parents, you know, and that kind of distress causes aggression and I would say with aggression may be it would be impossible to perform though still not as well as being in normal condition. Another case is humiliation. When you feel yourself humiliated, it’s another kind of distress. I feel it like a musician, like a person, not like a psychiatrist of course. I would say it’s impossible, almost impossible to perform even thirty percent of your abilities if you feel yourself humiliated. In my life I can recall just one case of such thing when I felt myself humiliated. Not as sexual abuse, of course, it’s hard to imagine. But I felt humiliation when I played after that. It was a case when my teacher, I expected to him to come for an audition when I played, for an important audition for a competition, and he didn’t come. As I found, because he had to meet his wife and take her to their house near Moscow and so on, so I was really upset because I felt myself very lonely, like, like he just failed to come to support me.
Q. He let you down?
A. Let me down, yes. And that was awful and firstly I didn’t want to play but then I went to play and that was maybe one of my worst performances, because I felt myself like, you know, powerless. That’s the worst thing when humiliation occurs, when a persons let down.”
The Crown Prosecutor touched upon this issue during her closing address to the jury (T2-4, 29 August 2005):
“Now, another theme which the accused touched on in his evidence, but which was developed very, very - well I'd say most aggressively by defence witnesses is this, that because there was no evidence in Mr [A]’s performance as a pianist or in his outward presentation when dealing with others in a social context that that means that his allegations of being sexually abused were baseless and they were, in fact, lies. This was - this theme was pushed very hard in relation to the first three counts which you will recall Mr [A] said occurs as the three counts that were in the shower allegedly, they occurred before a rehearsal before the performance with the Sydney Youth Orchestra during the conference in 1997. Remember the alleged sexual assaults occurred before one of the
rehearsals.
Now l reminded you the other day about Mr [A]'s evidence that he said that at the rehearsal, 'Emotion could be driven out of me by Mr Makarov’. Firstly, his allegations about these three counts, the ones before one of the rehearsals, do not relate to competition performances. He wasn't due to perform in a competition which all the witnesses have liked to refer to in the terms of his lack of success around about 1999/2000. In 1997 he was giving performances and it's understandable that he would have learnt the music and perfected his playing of it technically and then after this alleged series of events in the shower there was a rehearsal so his mind had to get into gear to work with the conductor and the orchestra. He never said that after the incident in the shower he was all upset and depressed and he couldn't cope. This is rather a red herring, something of a red herring, that the defence has put forward to try and get pseudo expert evidence from the defence witnesses. I say pseudo expert evidence because what they've been trying to establish is that because there were no outward signs of distress or upset that equals that nothing occurred.
And that is probably scientifically a totally invalid way to assess emotional or psychological turmoil because when you consider the opposite some people may be very expressive, some people may readily turn on emotions. That's called hysteria. Some people may express emotions and show outward signs of extreme distress when there is no basis for it. And so it would be just as wrong to say, if Mr [A] had gone around behaving in a very emotional fashion, that would be wrong to say ‘That is evidence of the truth of his allegations’. But we all know that humans are complex persons and that emotions are processed in different ways. And the idea of Mr [A] appearing at all times to be happy and showing no signs of distress was laboured by the defence witnesses, but in
the end it is meaningless. You can't rely on a neutral, a neutral, that is no signs of distress, to prove a negative, that is that his allegations are baseless. You have to go back to assessing his evidence and whether you accept that he was telling the truth.
Now from his close friends, Mr Koltakov and Mr Zozulya, they go further. In fact, Mr Koltakov said specifically ‘He’, that's Mr [A], ‘never told me that he was not well emotionally and he looked normal. You can't perform well if you're upset therefore the allegations that he was sexually abused are false’.
Now, as I've said, this is an illogical analysis and I remind you about Mr Virag’s evidence that he gave on Friday. He said that rehearsals with orchestras are as important as the performances themselves and they require exactly the same level of performing quality and to a degree the rehearsal is even more important than the performance. I remind you also that Mr [A] has, told you that he was abused in the same way but the shower incidents referred to, he was abused in this way for many, many years. This was not a one-off event. If you accept his evidence that he had been subjected to the accused's unwanted sexual attentions for four years, this incident in the shower in the hotel room was one of a number, a large number, of such incidents. You wouldn't expect it to generate higher emotions than those which had been generated over the years.
Performing in a concert hall or on a sports field would depend, one would expect, on the preparation, both psychological and technical. Performers often have setbacks, they prime themselves to overcome them. And the observations of a person's emotional state depends on how well the observer knows that person and how equally, how attuned the observer is to changes or to underlying factors in the observed person's emotional state.”
Defence counsel addressed the jury on this issue in the following way (T15.9, 29 August 2005):
“Well you've heard the evidence given by the young man, Zozulya, Koltakov. You've heard the evidence of Mr Virag about performances and how difficult it is to put these things out of your mind. As Madam Crown pointed out to you in the evidence of Mr Novikov, that he said, 'Well I'm, you know, effectively pretty confused about all of this. This man would have to have the cold blood of James Bond’, he said, as the Crown reminded you about that. Well I think what he was really trying to say, and it's a matter for you, is that we've all seen James Bond movies, but I think he was trying to tell us something about the west. We've all seen James Bond movies and we've seen the precarious situations that Mr Bond's always placed in and he just doesn't even get his hair out of place, you know. Nothing happens. He just goes and wanders off and has a dry martini at the bar, and that's it. Nothing fazes him. And we all laugh at it because it's quite humorous because we know, as human beings, if those sort of things happened to us we'd probably be on a hospital trolley somewhere with a drip in our arm or something like that because these things just - it doesn't happen.
And that's what Mr Novikov was trying to say, ‘This is so unrealistic, you cannot be sexually assaulted one minute and then you go and play these performances’. We're not talking about someone tapping out Chopsticks. We're talking about incredible performances as described by expert observers such as the observer from the paper that I read out to you, and that was explained by Mr Virag about this man was, the reporter from the paper who's an expert, it appears, in observing this type of music, was just, it appeared, quite overwhelmed by the performance of young [A] who was performing at the age of about 15 years. So just bear that in mind as well.”

A short time later, the morning adjournment was taken. During the break, the trial judge received a note from the jury which contained nine questions, one of which was “Would the Crown have been allowed to call expert witnesses on whether a pianist could perform well whilst under stress?” (T17.14, 29 August 2005). Her Honour deferred answering any of the questions until after defence counsel completed his address.
Defence counsel went on to submit to the jury (T20.29, 29 August 2005):
“Now look whether you accept Mr Virag on that is a matter for yourself, but ladies and gentlemen he appeared when he gave his evidence to you to be a fairly straight forward sort of bloke, a wealth of experience in music, unbelievable experience this man has had in music. Not just in the art or skill of piano but also in conducting orchestras and things of that nature and how many performances, over 200 performances or more than he's made himself. So I think he is the sort of person who you could attach quite a deal of weight to in relation to what he had to say about performance and so forth.
I will not go through it, but you will have before you and you have seen exhibit 2 which is the extract from the paper of 1997 when Mr [A] came to Sydney and the report in the paper there, which I won't go into any detail. It is all there for you about how fine his performance was. And you will look at that ladies and gentlemen and you will give it such weight as you think, bearing in mind the considerable evidence that has been before you and the only evidence before you from these variety of witnesses that say look you just cannot perform if you are very upset.”
Defence counsel returned to this topic later in his closing address (T29.51, 29 August 2005):
“The weight of evidence supports the contention that it would be highly unlikely that his performances would not have been affected if he had been sexually assaulted as he said. And of course the only evidence before you is that from expert witnesses and what weight you give them is a matter for your [sic] ladies and gentlemen, but it is the only evidence before you, apart from Mr [A] - apart from Mr [A]’s just blanket one line denial, ‘no it didn't affect me’, is all these persons saying not just from their own studies but from their own personal experience, that to play at this high level and we are - we've got some ideal [sic] what level Mr [A]'s playing at, to play at this high level, if you're very upset, as Mr [A] said he was when he had been sexually assaulted and you would obviously think, ladies and gentlemen quite obviously, that he would be, then you would know that it is highly unlikely that he would not show - would not show in his performances.
And again I invite you, ladies and gentlemen, don't just rely upon the witnesses, rely upon your commonsense because the other thing that supports what I'm saying to you about the unlikely nature of his performance not being affected, is your own commonsense, your own experience in life. You bring your experience, as I say, to the Court room, it may be that you - some of you may be magicians if you've been lucky enough to get to that high standard that Mr [A]'s at, well congratulations but perhaps you haven't, but you know we're not all piano players or musicians or violinists. We've all been playing in sports events, we've all been students sitting exams and things of that nature. Cast your mind back to a time when you may have been very upset about something. Did it affect you? Did it affect your performance or did you say 'No I can't do this', you know 'I can't do this exam' or 'I can't hit the ball like I normally can', 'I can't concentrate'.
And the concentration level that we're talking about for a performance such as the one that he performed in Sydney with Duncan Gifford, something for, was it 40 minutes or something like that, I think it was, I will stand corrected. But it was a lengthy performance where you had to be very much concentrating on every note, all the other notes of the other instruments in the orchestra coming in at the right time and so forth. An incredible amount of concentration and focus. And you ask yourself the question; if you'd just been sexually assaulted, would you be likely to be able to do that? Even if you'd been sexually assaulted in the
preceding week, would you be likely to be able to that or would your mind be not on the job and I would suggest to you that your mind simply could not be on the job if something like that had happened.”
Defence counsel returned to the topic (T33.42, 29 August 2005):
“And that’s, you would think, a matter of common sense ladies and gentlemen, you can’t be thinking about a sex act or having been sexually assaulted or anything of that nature when you are trying to concentrate on your music, it’s just quite impossible.”
At the conclusion of the defence address, her Honour discussed the jury questions with counsel, in the absence of the jury. When her Honour came to the question concerning “expert witnesses”, the following discussion ensued (T40-41, 29 August 2005):
“CROWN PROSECUTOR: Your Honour, I was a bit concerned with Mr Russell's treatment of this area of so-called expert evidence in his address because he went from saying that these witnesses - well, asking question [sic] of them during their evidence as to, ‘How can you perform if you are upset?’ to elevating them to expert witnesses about the inability of somebody to perform after being sexually assaulted, and of course that was never a question that was asked of them. They were simply asked a rather general question, ‘How would you perform - how does being upset affect your performance?’, and suddenly in his address they're now expert witnesses on the effects of sexual assault on performance.
This has really obviously become an issue which the jury has seized on, but I'd ask your Honour to firstly say that they're, not experts in any recognised sense about the relationship between performance and stress, because there's no such area of expertise as to how somebody can perform when they're under stress. All they can say is it would be difficult for them to perform. They don't know how somebody else reacts. There's no known area of expertise. They're not expert witnesses as to the effects of sexual assault on performance and, no, the Crown would not have been able to call expert evidence in reply.
Because there's another issue here. If these people are witnesses about stress and performance and major trauma, then there are other witnesses who the Crown could have called who have allegedly been sexually assaulted by the accused and who have managed to perform at very high levels; one of whom has obviously been accepted by a jury. But obviously the Crown can't call that sort of expert or pseudo-expert evidence. But I'd ask your Honour to answer this question in very, very strong terms to stop the jury speculating about it, speculating in a way that Mr Russell invited them to, which was totally improper and outside the evidence.
…
RUSSELL: Your Honour, I've got no difficulty with your Honour dealing with the question along the lines of explaining to them that the witnesses that have been called that have mentioned matters relevant to this particular question are not performance psychologists or anything of that nature. They've simply been put forward as expert musicians who have given their own perspective
about performing or attempting to perform when they might be upset or very upset. That's all. They give what weight to that that they feel is appropriate.”
Following this discussion, the trial judge provided answers to the jury, concerning the nine questions before commencing the summing up. In relation to the question, “Would the Crown have been allowed to call expert witnesses on whether a pianist could perform well whilst under stress?", her Honour gave an answer in the form requested by defence counsel, namely (T47.40, 29 August 2005):
"Again, I will have something more to say to you about that area when I sum-up the case to you. Once again, you must decide the case on the evidence that has been placed before you and I should say to you that those witnesses who were called in the accused's case could not be classified as expert witnesses in the particular area as to whether a person could perform at peak level having been sexually assaulted. They are not expert witnesses in that particular area and, I don’t know, I doubt very much whether there would be such an expert available. They were expert musicians and you will obviously have to weigh up their evidence and give it such weight as you think fit. Again, I will come back to that in the summing-up when I'm dealing with the respective cases."
In the course of summing up, her Honour referred to this issue (SU33-34):
“In terms of the witnesses called by the accused, they generally gave evidence in general terms about the effect of stress in their opinion on performance, whether a person would be able to perform well if suffering stress. In terms of the evidence, it is important that you bear in mind that counts 1, 2 and 3 are alleged to have taken place before a rehearsal, certainly not the Duncan Gifford performance, before a rehearsal for a performance. Counts 4 to 8 are alleged to have taken place after the last performance in Sydney.
As I said to you when I was dealing with your questions, there is no doubt that some of those people who were called were very talented and experienced musicians. The weight that you give their opinion evidence as to what they had to say about whether they could perform or general terms about performance is entirely a matter for you and it is important to keep in mind the timing of these allegations, when it is they are said to have taken place.”
Defence counsel made no complaint concerning this direction nor was any further direction sought on this topic.
It is appropriate to return to the grounds of appeal, which are set out in terms which reflect more clearly the Appellant’s complaints.
Ground 1 – There was a Miscarriage of Justice Resulting from A’s Perjury Concerning the Alleged Offences and His Ability to Perform Thereafter as a Concert Pianist
Submissions
In his written submissions, the Appellant challenges the truthfulness of A’s evidence. He submits that the occupation of concert pianist requires such qualities as a high level of attention (volume, stability, concentration, distribution and flexibility), a steady nervous system and mentality, great emotional and energetic expression, an ability to communicate with a large audience and a strong long-term memory. The Appellant submits that acts of sexual assault would inevitably cause particular psychological injuries such as difficulty concentrating, depression, feelings of helplessness, inability to fully pursue music as a profession, anxiety, guilt, fear, withdrawal and acting out together with non-participation in school and social activities.
The Appellant submits that, during the trial, the Crown did not introduce any professionally examined evidence concerning the psychological injuries A received as the consequence of sexual abuse and assault. The Appellant contends that it was the obligation of the Crown to prove that A received psychological injuries. He contends that it “was impossible objectively to prove guilt of the appellant without proving the fact of psychological injuries” and that it was also “impossible for the jury to reach reasonable verdicts without knowing the opinion of professional experts, because a subject of this issue was outside the experience of jurors” (paragraph 4.10, Appellant’s written submissions). The Appellant complains about the trial judge’s reply to the jury question concerning expert witnesses. As a result of her Honour’s directions, the Appellant submits that the jury completely ignored the evidence of the defence’s “professional experts concerning the impossibility of performing at the top level of the international competitions while being under the strain and pressure of suffering sexual abuse and assault” (paragraph 4.11, Appellant’s written submissions).
Thus, the Appellant contends that it would have been impossible for A to have a successful career as an international pianist if he had been sexually abused as alleged, and that this conclusion points to A’s evidence that he was sexually abused by the Appellant as being perjury.
The Crown points to the Appellant’s central claim under the first ground as being 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 Crown observes that this was an issue ventilated at length during the trial. Both the Crown and defence counsel made submissions on the issue. By the verdicts, it may be taken that the jury ultimately found A to be credible when he said that “At the time of the rehearsal there could easily be put a lot of pressure from Makarov on me about my playing that would easily push out any other emotion I have” (T60-61).
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.
This is not a case where the Crown was permitted, over objection, to adduce objectionable opinion evidence. Nor is it a case where the defence was prevented from adducing admissible opinion evidence. The Appellant had the benefit of this evidence, accompanied by appropriate directions to the jury from the trial judge. It was for the jury to consider what weight to give the evidence.
We are wholly unpersuaded that any error has been demonstrated with respect to this issue at trial. It was a question for the jury to consider the evidence and arguments. It has not been demonstrated, by reference to this issue, that the verdicts of the jury were unreasonable or not supported by the evidence or that there was a miscarriage of justice. We reject the first ground of appeal.
Ground 6(i) and (ii) - The Trial Judge and Crown Prosecutor Failed Adequately to Direct the Jury in Relation to (i) the Issue of a Musician Performing Under Stress and (ii) the Evidence of the Defence Witnesses, Mr Virag and Mr Novikov
Submissions
In Ground 6(i) and (ii), the Appellant advances arguments which effectively overlap with the first ground of appeal. His submissions refer, once again, to the failure of the Crown to call an expert witness on this topic and complaints which he makes concerning the directions of the trial judge to the jury. Complaint is made concerning the Crown’s submissions to the jury in closing on this issue.
The Crown submits that defence counsel sought no further direction (after her Honour’s direction set out at [50]), and that this is not surprising given that her Honour had directed the jury in accordance with the form proposed by defence counsel. The Crown submits that the Crown Prosecutor at trial was right to have objected to the evidence relating to Mr Zozulya’s ability to play when upset. It was not relevant and constituted anecdotal evidence of personal experience which had no general application.
In any event, the Crown submitted that the admission of the evidence of the four musicians on this topic could only have worked to the advantage of the Appellant and did not cause him any disadvantage, let alone give rise to a miscarriage of justice.
The Crown submits that the closing submissions of the Crown to the jury were balanced and reasonable and that no miscarriage resulted from the Crown’s address. The Crown repeats submissions made with respect to the first ground of appeal, emphasising that the anecdotal evidence of the musicians had questionable relevance but that, in any event, the evidence was admitted and had worked to the advantage of the Appellant. The Crown submits that the directions of the trial judge on this issue were balanced and reasonable.
Decision
The conclusions expressed above (at [61]-[64]) apply equally to this ground and do not need to be repeated. The closing submissions of the Crown Prosecutor were balanced and were based on the evidence. The directions of the trial judge were those sought by the Appellant’s trial counsel. No reasonable criticism can be made by the Appellant with respect to those directions. No miscarriage of justice has been established.
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.
In effect, the Appellant’s submission is that the strength of his argument that A could not have played well after being sexually assaulted was not properly before the jury, because the case proceeded upon the basis that his last Sydney performance was on 13 July 1997 at the Pitt Street Uniting Church with no reference to the performance at the Ukrainian People House at Lidcombe on 16 July 1997.
The Crown submits that this point goes nowhere. Neither A nor the Appellant gave evidence at trial concerning the performance to the Ukrainian People House at Lidcombe on 16 July 1997 although, according to the article, the Appellant was present as well. The Crown submits that it is apparent from the article that the performance was unexpected and was attended by few people. A’s evidence that his last solo recital was in the Pitt Street Uniting Church was a correct reference to his last official and scheduled performance on the trip to Australia (A, T17, T19; Thomson, T110-111).
The Crown notes that the Appellant seeks to argue that it was important for the jury to know that there was a small, unplanned performance on 16 July 1997 and that, reportedly, A played well on that occasion. The Crown submits that the trial in no way miscarried as a result of this evidence not being before the jury. The Appellant’s submission is once again premised on the idea that the lack of outward signs of distress necessarily proves that no sexual assault took place. The Crown submits that this issue was well ventilated before the jury.
Decision
The article from the “Ukrainian Weekly in Australia” was not admitted by the Court as fresh evidence on the appeal. If it had been admitted, however, it would have provided no material assistance to the Appellant on the appeal.
The Appellant seeks to draw a very long bow in attacking the truthfulness of A and Mr Thomson with respect to the date of A’s last performance in Sydney in July 1997 by reference to this article. As the Crown correctly points out, the Appellant was present at the small, unplanned and short performance on 16 July 1997, but yet he also made no reference to it in his evidence at trial. At the hearing of this appeal, the Appellant said that he “knew that he performed at the Ukrainian House. At the time of the trial, I did not remember all the dates” (T15, 6 May 2008). Why the failure of A and Mr Thomson to remember and mention this would point to perjury on their part, but the same failure on the part of the Appellant could be put to one side has not been explained by the Appellant. This observation serves to demonstrate the weakness of the Appellant’s argument.
No miscarriage of justice has been demonstrated as a result of this evidence not being before the jury.
We reject the second ground of appeal.
Grounds 3, 4 and 5 – There was a Miscarriage of Justice Arising From False Testimony of A and Mr Thomson and the Conduct of the Crown Prosecutor and the Trial Judge Concerning the Reasons for A Moving from Mr Thomson’s House to the Appellant’s House in October 1999
Submissions
Grounds 3, 4 and 5 can be conveniently dealt with together as each involves a claim that the trial miscarried by reference to the circumstances of A moving from Mr Thomson’s house to the Appellant’s house in 1999.
The Appellant developed an argument in written submissions that both A and Mr Thomson gave false testimony concerning the reasons and circumstances of A moving from Mr Thomson’s place to the Appellant’s home in October 1999. The Appellant submits that he attempted to explain at trial what were said to be the real reasons that caused A to move, but he was stopped (T149-152), thereby giving rise to the fourth ground of appeal.
The Appellant sought to rely on certain material as fresh evidence. At the hearing of the appeal, the Court declined to admit this material as fresh evidence (T22-24, 6 May 2008). The Court also declined to admit a statement dated July 2007 from Dr P Calvo. Dr Calvo was referred to in the Appellant’s evidence at trial (T152), but he was not called as a witness in the defence case.
The Crown submits that A gave evidence of a number of reasons for moving from Mr Thomson’s house to live with the Appellant and other students, including that he had an argument with Mr Thomson (T49, T52, T68, T78), that he had been told to pack his bags and go by the Appellant (T49, T52, T68, T78) and because he was lonely as Mr Thomson was not often home (T63). The Crown submits that none of these reasons are inconsistent in themselves. Mr Thomson said he did not know why A wanted to leave, but later received a letter from A explaining that he needed to be with the other Ukrainian students (T115). The Appellant alleges that the evidence of both A and Mr Thomson is false and, the Crown submits, the Appellant speculates about a number of other bases for A’s move, each of which is unsupported by the evidence.
The Crown notes that the Appellant alleges misconduct on the part of the trial judge and the Crown Prosecutor for not allowing the Appellant to explain his version of the reasons for A’s move from Mr Thomson’s house (Ground 4; page 46, Appellant’s written submissions). The Crown submits this complaint is misconceived since it was defence counsel who made the decision to not try and lead the explanation which the Appellant attempted to introduce at trial (T151.40). The Crown Prosecutor took a proper objection to hearsay evidence. However, the trial judge did not have to rule upon its admission because of the course adopted by defence counsel.
The Crown submits that the Appellant seeks to introduce on appeal a number of documents, including the letter he attempted to introduce at trial which was not pressed by his counsel. The Crown submits that none of the items sought to be relied upon by the Appellant support the proposition that A or Mr Thomson deliberately lied or that there was a plot or conspiracy orchestrated against the Appellant as contended at pages 50-58 of the Appellant’s written submissions.
The Crown submits that the reasons and circumstances behind A’s move of house was a minor matter, going to a peripheral issue rather than to the substance of the counts on the indictment. The Crown submits that nothing in the material raised would demonstrate that the verdicts of the jury were unreasonable.
Decision
The Court rejected the tender of documents relied upon by the Appellant as they did not constitute fresh evidence. We express the conclusion, in any event, that this material was not capable of demonstrating that a miscarriage of justice had occurred if it had been admitted, viewed on its own or together with the other evidence relied upon by the Appellant.
The Appellant was reminded, on more than one occasion, during the hearing before this Court that this is a Court of error and is not sitting as a trial court. The short answer to the Appellant’s complaint that evidence was not given at trial concerning possible reasons for A’s move of house is that defence counsel at trial determined not to seek to adduce the evidence. No decision was made by the trial judge to reject the evidence. The Appellant has not sought to challenge the decisions made, on his behalf, by trial counsel by reference to the principles in R v Birks (1990) 19 NSWLR 677 and TKWJ v The Queen (2002) 212 CLR 124.
In our view, these grounds of appeal are misconceived. In any event, we accept the Crown submission that the issue raised by these grounds was peripheral at best, and had little to do with the substantial issues in the trial. The Appellant has not demonstrated, by reference to these grounds of appeal, that a miscarriage of justice has occurred.
We reject these grounds of appeal.
Grounds 6, 7 and 8 - Claims of Alleged Misconduct on the Part of the Crown Prosecutor
There is substantial overlap in the matters raised in Grounds 6, 7 and 8, each of which alleges misconduct on the part of the Crown Prosecutor. In essence, the Appellant claims that the trial miscarried due to the behaviour of the Crown Prosecutor in relation to her:
(a)criticism of defence evidence (Ground 6(iii));
(b)alignment on the “same side” as the jury (Ground 6(iv));
(c)failure to prove elements to the requisite standard (part Ground 7);
(d)criticism of defence witnesses (part Ground 7);
(e)attack on the Appellant’s character (part Ground 7); and
(f)use of the word “harem” in the Crown closing address (Ground 8).
Criticism of Defence Evidence (Ground (6)(iii))
For the purposes of the trial, the Appellant created a videotape of short duration containing excerpts from 18 master tapes of whole 45-minute lessons given by the Appellant at the Kharkov school in Ukraine. The videotape was tendered by defence counsel (Exhibit 1). The purpose of the tender was to show interruptions to lessons by people coming and going and that the door to the room was not locked. This was relevant to an assessment of the context evidence of A, who said that assaults had occurred in that room at the Kharkov school in Ukraine. As the videotape contained a series of extracts from a large number of lessons, it did not depict complete lessons.
Submissions
The Appellant complains about the way in which the Crown Prosecutor referred to Exhibit 1 in her closing address to the jury. The Crown Prosecutor said (T6.1, 29 August 2005):
“Now in the accused’s evidence he described how he was always being interrupted in his music class in room 34. And you have two videos, one which features room 34 exclusively, and that is exhibit 1, a defence exhibit. The other is exhibit A which is the training video of which you have an excerpt and a large part of that features students playing in room 34. You will notice a difference between them, and there is a reason for that. Exhibit 1 was, as the accused said, specifically edited to show movement in and out of the doors to the room. And you might get a very distorted impression from exhibit 1 about the interruptions in room 34, but when you realise that the accused usually taught 45 minute classes it’s clear that what you have in exhibit 1 is very much less than that. And it has, the movement in and out of the room has been specifically selected to prove a point.
Now the point seems to be that because the accused could be interrupted at any time who could have done to Mr [A] what Mr [A] said he did on at least two occasions that Mr [A] has told you about, highlights from his memory of many, many such incidents where the accused either touched him on the genitals or got Mr [A] to touch him, the accused, on the genitals. It is obvious that within a class of 45 minutes that there will not be people walking in and out of the room every minute and it is also quite clear that when there is specific work that needs to be done or so preparation for a competition or an important event that the accused would want to limit the interruptions and 45 minutes is a considerable period of time for a teacher and a student to be alone in the room, even though people might come and go at the start or end of those lessons.”
The Appellant complains that the Crown Prosecutor’s address completely distorted the essence of the evidence in Exhibit 1. It had not been the aim of the Appellant to show complete 45-minute lessons. The Appellant had edited 18 master tapes and made a videotape of short duration especially for the court proceedings. The Appellant submitted that the Crown had misled the jury by suggesting that the jury “might get a very distorted impression” and by suggesting that the “movements in and out” of the room had been selectively recorded.
The Crown submits that the arguments of the Crown Prosecutor on this issue were entirely appropriate. It was consistent with evidence of A to the effect that “the video [has] been compiled especially to fish out those interruptions” and “every excerpt of every student has people coming in, that is definitely not the frequency people were coming in” (T55). The Appellant’s evidence was to a similar effect (T146, T168-169, T184).
The Crown points to the defence closing address on this issue (T29.1, 29 August 2005):
“Now the accused gave his evidence and I just remind you of this, he was not obliged to give any evidence. He explained how the video, Exhibit 1, came into existence and it was an extract from a larger video and so too is Exhibit A which the Crown produced. So there’s a large body of material and he’s produced two videos. One video he’s produced from that material recently to show that there were a lot of interruptions and of course, look it’s a matter of common sense ladies and gentlemen, you don’t have to be a genius to work this one out, that the interruption shown, if that is unrealistic it’s not - they’re not coming in every - it’s all been cut and edited, but it just shows that there were interruptions.”
Decision
There is no substance in Ground 6(iii). There was no issue at trial that Exhibit 1 contained edited selections for the purpose of demonstrating persons coming in and out of the room during lessons. The submissions made by the Crown Prosecutor were both open on the evidence and appropriate.
The principles which guide a prosecutor’s function when addressing a jury in a criminal trial are well known: R v Livermore (2006) 67 NSWLR 659 at 665-671; Causevic v R [2008] NSWCCA 238 at [3]-[6]. No breach of these principles has been demonstrated with respect to Ground 6(iii). We reject that ground of appeal.
Alignment on the “Same Side” as the Jury (Ground 6(iv))
Submissions
By Ground 6(iv), the Appellant complains with respect to part of the Crown’s closing address concerning the status of a Crown Prosecutor. The Crown Prosecutor said to the jury (T1.27, 26 August 2005):
“The Crown has brought these very serious charges against the accused on behalf of the community.”
The Appellant submits that this statement was erroneous, prejudicial and unfair. He submits that the Crown did not represent the community, but the police, as part of the State, against him. He submits that the jury represents the community and that, by saying that the Crown was acting on behalf of the community, the Crown Prosecutor placed the jury and the Prosecutor on the “same side” of the proceedings against him.
The Crown submits there was no error in the remarks of the Crown Prosecutor, which were consistent with the trial judge’s opening comments to the jury (T14):
“The Crown Prosecutor presents the charges in the name of the State and on behalf of the community.”
The Crown observes that the Criminal Trial Courts Bench Book (published by the Judicial Commission of New South Wales) contains a proposed direction, by way of initial remarks to the jury, which includes the following (at [1-520]):
“Let me introduce the lawyers to you. The barrister sitting […] is the Crown prosecutor. In a criminal case, the Crown prosecutor presents the charge(s) in the name of the State, and on behalf of the community. By tradition, the Crown prosecutor is not referred to by personal name but as, in this case, [Mr/Ms] Crown.”
Decision
There is no substance in this ground of appeal. In the course of rejecting a similar ground of appeal in Skipworth v R [2006] NSWCCA 37, Mason P (Barr and Hall JJ agreeing) said at [44]-[48]:
“44The appellant’s principal complaint relates to the references to the prosecutor bringing the charges ‘on behalf of the community as a whole and because he does that acts on behalf of the community’ (second passage) and to the jury itself being representative of the community (fourth passage). The separation of the two observations (they are a page apart in the transcript) makes it hard for the appellant to establish the sinister secondary implication sought to be drawn, ie that both prosecutor and jury were in some way ‘on the same side’. The lastmentioned words were never used nor, in my view, were they implied. After all, the jury were well aware that they were to become the factual arbiters of an adversary contest in which the Crown had to establish its case beyond reasonable doubt. This understanding would have been reinforced throughout the course of the trial.
45Furthermore, each comment was accurate in its own context; and would have been understood in that context by the jury.
46As regards the prosecution, the point being made was that the charges were not being advanced in a private capacity. A traditional monarchist might cavil at using any term other than ‘the Crown’ to denote the official role of the prosecution arm. But monarchists and republicans of all shades know that prosecutions for serious crimes in modern Australia are conducted by an arm of government. They also know that this arm must prove its case with evidence duly admitted, in accordance with the directions of the trial judge and to the criminal standard of proof. Because ‘in the eyes of the jury the prosecutor is the State… the prosecutor must refrain from doing anything which might improperly influence the jury and deny the defendant a fair trial’ (Alister v The Queen (1984) 154 CLR 404 at 429-30 per Murphy J).
47As regards the jury itself, it is commonplace to refer to its representative nature. Many recent amendments to the Jury Act have sought to achieve this goal more completely, as the High Court acknowledged in Cheatle v The Queen (1993) 177 CLR 541 at 560. Indeed, juries have been discharged if the right of challenge has been exercised in a manner clearly opposed to that aim (R v A Judge of District Courts & Shelley; Ex parte Attorney General [1991] 1 Qd R 170. Cf R v Su [1997] 1 VR 1). See generally Michael Chesterman, ‘Criminal Trial Juries in Australia: From Penal Colonies to Federal Democracy’ in N Vidmar, ed, World Jury Systems, OUP 2000). The random process for selecting the panel and balloting the jurors to be called were alone sufficient to bring the point home to the instant jury.
48The often encountered reference to the jury representing the community also conveys and reinforces the idea that they are not to be overawed by the (specialist) lawyers or by individuals in their own ranks. As lay people they were to apply common (ie community) sense to their particular role in the trial.”

The Crown Prosecutor’s comment concerning the role of a prosecutor was accurate and consistent with authority and practice. To the extent that the ground of appeal contends that the comment might have led the jury to believe that the jury and the Crown Prosecutor were “on the same side”, we reject the ground for the same reasons expressed by Mason P in Skipworth v R. In any event, we note that no complaint was made by defence counsel about the Crown Prosecutor’s use of this phrase.
We reject this ground of appeal.
Failure to Prove Elements to Requisite Standard (Part Ground 7)
Submissions
Parts of Ground 7 have been touched upon earlier in this judgment. In summary, the Appellant submits in support of Ground 7, that the Crown bore an onus to prove the following matters beyond reasonable doubt:
(a)A’s ability to perform as a concert pianist whilst under stress in July 1997;
(b)the circumstances of A leaving Mr Thomson’s house and moving to the Appellant’s house in October 1999; and
(c)the date of A’s last piano performance in Sydney in 1997.
The Crown submits that this argument is misconceived. Insofar as Ground 7 contends that there was error in the statement of legal principles concerning burden and standard of proof and the presumption of innocence, the Crown submits that the trial judge correctly directed the jury that what the Crown had to prove were the elements or ingredients of the offences and not every statement or fact in issue (SU13). The Crown submits that the directions to the jury with respect to the onus and standard of proof and the continuation of the presumption of innocence were correct (SU11).
Decision
The Appellant has not demonstrated any error in the directions of the trial judge with respect to onus and standard of proof and the presumption of innocence. Insofar as the Appellant contends that it was necessary for the prosecution to prove beyond reasonable doubt the three matters referred to at [113] above, the argument is misconceived. It was for the Crown to prove beyond reasonable doubt the elements or ingredients of the offences. The factual matters raised by the Appellant under this ground were issues raised at the trial. They were the subject of proper directions to the jury. It was for the jury, as the tribunal of fact, to decide whether it was satisfied beyond reasonable doubt of the guilt of the Appellant.
No error has been demonstrated in this respect nor has the Appellant established a miscarriage of justice. We reject that part of Ground 7 which raises these matters.
Criticism of Defence Witnesses (Part Ground 7)
Submissions
Under the umbrella of Ground 7, the Appellant submits that the Crown Prosecutor unfairly attacked defence witnesses in the Crown closing address. The Appellant points to the Crown’s reference to “pseudo expert evidence from the defence witnesses” (see [43] above). The Appellant also complains concerning the following part of the Crown closing address (T5.25, 26 August 2005):
“Firstly, the views of witnesses as to the truthfulness of the principal Crown witness, does not matter, because it is your judgment that matters. Obviously witnesses such as Mr Koltakov, the accused’s son-in-law and Mr Zozulya are not impartial judges. They have closed their minds, in fact they have prejudged the matter before even hearing the allegations. They have a bias towards the accused and a prejudice against Mr [A]. That is why they could not be on a jury to judge this matter because they are not impartial, like you are. They make judgments before they hear the evidence presented and explored. They do not allow themselves to consider that there might be some truth to Mr [A]’s allegations.”
The Appellant submits that this submission was unfair and insulting to these defence witnesses.
The Crown submits that the trial prosecutor was not unfairly discrediting witnesses in her address to the jury. In suggesting that the witnesses, Mr Zozulya and Mr Koltakov, were not impartial, the Crown was accurately summarising the effect of the evidence of those witnesses. In respect of Mr Zozulya, the cross-examination reveals that he stopped being friends with A as soon as he reported the matter to police, that he will never believe the allegations and nothing he hears will ever cause him to change his mind about it (T194, T196, T197-198, T202-203). In respect of Mr Koltakov, the cross-examination reveals that he made up his mind about A’s allegations being untrue on the basis of A never having discussed the matter with him and said he would never allow himself to believe otherwise. The fact of Mr Koltakov’s marriage to the Appellant’s daughter was also raised in several places throughout the trial (T216, T217-218).
The Crown points to the following statement by defence counsel to the trial judge, in the absence of the jury (T88):
“Well to demonstrate that he has a bias or something of that nature, that’s possible your Honour. But that would be on the face of it apparent anyway by way of the Crown’s cross examination of Koltakov to indicate that he’s married to the daughter of the accused. And that would be sufficient and enough for the Crown then to address the jury in that respect and ask them to discount his evidence accordingly.”
The suggestion of a lack of impartiality having clearly been put to these witnesses in cross-examination, the Crown submits that there was no error in the Crown Prosecutor’s closing remarks: R v Teasdale (2004) 145 A Crim R 345. While the Crown must be fair, there is no requirement that the prosecutor cannot criticise a witness: Cornelius and Briggs v R (1988) 34 A Crim R 49.
Decision
In our view, there is no substance in this part of Ground 7. The Crown Prosecutor cross-examined the defence witnesses in a manner which laid the foundation for a submission that each was biased in favour of the Appellant and against A. It was clearly understood by defence counsel during evidence that this was the nature of the Crown challenge which lay the foundation for the ultimate Crown submission. Closing addresses were made against this background. The trial judge touched on this issue during summing up (SU7):
“Whilst I am on this topic I will just touch briefly on the evidence of those witnesses called by the accused to whom the Crown prosecutor suggested that they did not believe the complainant’s evidence. What they believe is irrelevant to your consideration. The purpose of the Crown prosecutor asking that question of those witnesses called by the accused was to attempt to demonstrate that those witnesses were biased in the accused’s favour; that is, that they had not approached the matter objectively. Each of those witnesses agreed with the Crown prosecutor’s proposition that he or she would never believe the complainant, no matter what evidence was presented. They, of course, are entitled to their opinion because they are not entrusted with the responsibility that you have here in the case. But it is important that you understand that their opinion as to the accused’s guilt is not relevant to the task that you have to perform. It is only relevant to your assessment of their evidence as witnesses.”
There is no merit in the Appellant’s submission in support of this ground. The Crown Prosecutor laid the foundation through cross-examination for the submission ultimately made to the jury. The trial judge left the issue to the jury in an accurate fashion. No further direction was sought by defence counsel.
A Crown Prosecutor may be robust and be expected and required to conduct the prosecution conscientiously and firmly: Libke v The Queen [2007] 230 CLR 559 at 557 [35], 586 [71]. A firm and positive presentation of the Crown case is to be expected: R v Livermore at 660-671 [51]. No breach of the prosecutor’s duty has been demonstrated, nor has it been demonstrated that a miscarriage of justice occurred.
We reject this part of Ground 7.
Attack on the Appellant’s Character (Part Ground 7)
Submissions
Still under the umbrella of Ground 7, the Appellant contends that the Crown unfairly attacked his character. He pointed to a number of questions put to him in cross-examination by the Crown including questions such as “But you really exercised a great control over his mind, didn’t you?”, “You reacted with anger, when he didn’t do things you wanted?”, “And you reflected in the glory that came to [A], didn’t you?” and “Because his success ultimately reflected well on you didn’t it?”
The Crown summarises the Appellant’s complaint under this heading as being that the Crown Prosecutor attacked his character in circumstances where he was not able to raise evidence of good character in his defence, due to the risk of the Crown then being able to lead evidence from other witnesses about being sexually assaulted by the Appellant. The Crown submits that the passages relied upon by the Appellant do not demonstrate that the Crown attacked his character, or raised evidence of bad character, in the trial. Descriptions of the Appellant being “in a position of power and authority” and “a position of trust”, and of the Appellant being “a dominant figure”, were used (without objection by defence counsel) by the trial judge in her summing up (SU31). The Crown points to Mr Zozulya’s acceptance that the Appellant was “strict” (T199) and Mr Koltakov’s acceptance that the Appellant was “a very persuasive and charismatic figure” who “demanded” much of his students (T222).
Decision
In our view, this part of Ground 7 is misconceived. The propositions put in cross-examination to the Appellant were appropriate in the context of the trial. We do not accept that the Crown was raising bad character. It is clear that one of the issues in the trial was the extent to which the Appellant exercised a degree of control over A, which may throw light upon the circumstances in which the offences charged were said to have occurred, his ability to continue to perform as a concert pianist and A’s reasons for not making earlier complaint with respect to them.
We reject this part of Ground 7.
The Use of the Word “Harem” (Part Ground 7 and Ground 8)
Submissions
Also under the umbrella of Ground 7, and also contained in Ground 8, is a complaint by the Appellant that the trial miscarried because of the unfair conduct of the Crown Prosecutor with respect to the trial separation rule. The Appellant’s submission arises from the use of the word “harem” by the Crown Prosecutor in her closing address (T4.34, 26 August 2005):
“Actually I’ve intruded into my third point that the accused was a power figure, both at the school at the Ukraine and at the Australian Institute of Music. You can see that he was a very dominant and domineering personality and from all accounts of his students, he was a strict teacher and that is obviously how he got the results with all these prize winning students in his - I don’t know what the word is, not a harem, but in his group. He obviously has an enormous skill and he applied that along with measures of strict discipline and control.”
The Appellant submits that the use of the word “harem” in this context was prejudicial and dangerous, suggesting that the Appellant was sexually active with other students apart from A. He points to the fact that defence counsel complained about the Crown’s use of the term (T14, 26 August 2005). The following discussion ensued after defence counsel raised the issue (T14.55, 26 August 2005):
“HER HONOUR: Yes, well my note was the Crown said ‘not a harem’, she was looking for a word to describe the group and specifically said, ‘not a harem’, which I agree is unfortunate, but I’m quite sure the Crown wouldn’t be going back to it.
CROWN PROSECUTOR: No, No. No I was trying to think of a word for a group of people united about a common theme, around a person who travelled with him. I wasn’t intending to convey that there was - it was for sexual exploitation or anything, but I - I did hesitate over it, I was struggling to find an appropriate collective noun.
HER HONOUR: Yes, it was just an - it was unfortunate that that was the one you came up with, but I don’t believe it’s going to cause any problems Mr Russell. You’ll have an opportunity over the weekend to consider it and you will have second address. I certainly don’t intend to say anything about it.
RUSSELL: No, I wouldn’t ask your Honour to either.”
The Crown submits that the use of the phrase “not a harem” should be considered in the context of the passage in which it was used. It was said, in a search for the correct word, and then immediately withdrawn. The Crown acknowledges that it was a poor choice of noun, but not one likely to jeopardise the fairness of the trial.
The Crown notes that the Appellant’s submission goes further to suggest that the jury should immediately have been discharged upon the use of the word “harem” because the principle of trial separation had been breached by suggesting that other students living with he Appellant were also involved in sexual activities with him. The Crown submits that, viewed in context, the use of the word does not carry the inference suggested by the Appellant and fell far short of necessitating a discharge of the jury. The Crown submits that it is significant that defence counsel did not ask for a discharge of the jury and agreed that the trial judge should not say anything to the jury about it.
Decision
It is necessary to consider the Appellant’s complaint concerning the use of the word “harem” in context. It was an unfortunate choice of word, but its context (and the later explanation) support the view that it was proffered in a hesitant (and negative) fashion and then withdrawn. There was no repetition of the use of the word. Defence counsel made no application for discharge of the jury then or when the trial resumed the following week. He addressed the jury and the summing up of the trial judge followed.
In the context of the trial, the use of this word on one occasion does not give rise to a breach of the trial separation rule, or the principles underlying that rule. It has not been demonstrated that a miscarriage of justice resulted.
We reject that part of Ground 7 which raises this issue together with Ground 8.
Ground 9 - The Acquittal of the Appellant on Count 9 Demonstrates that the Convictions on Counts 1 to 8 Were Unreasonable
Submissions
The Appellant submits that the jury’s acquittal on Count 9 is inconsistent with convictions on Counts 1 to 8, so that those verdicts are unreasonable and ought be quashed. He submits that the jury did not believe A concerning Count 9 and that this reasonable doubt ought to have flowed on to the other eight counts. The Appellant refers to Jones v The Queen (1997) 191 CLR 439.
The Crown submits that it has not been demonstrated that the verdicts on Counts 1 to 8 were unreasonable because of the acquittal with respect to Count 9. The Crown submits that the trial judge directed the jury, in accordance with R v Markuleski (2001) 52 NSWLR 82, that any doubt they had about A’s reliability on any one count must be taken into account in relation to every other count, before the jury can be satisfied beyond reasonable doubt of the honesty and accuracy of his evidence on all other counts sufficient to convict the Appellant (SU9-10).
The Crown submits that, in light of the very strong direction given to the jury on this issue, it is safe to assume that the points raised by the defence in relation to Count 9 raised some doubt in the jury’s collective mind sufficient to return a verdict of not guilty on that count. The main points raised by the defence with respect to the ninth count were:
(a)differences between what A said in his statement to police and in his evidence at trial (including whether the Appellant pulled down A’s pants or undid his fly (T76.10) and not telling the police about the call from the Appellant telling him to “pack his bags and go” from Mr Thomson’s house);
(b)A’s failure to tell his friends, Mr Zozulya and Mr Koltakov, with whom he was living;
(c)the inability of A to be particular about the time of day that the alleged assault occurred (T75.10); and
(d)a lack of opportunity for the offence to have occurred in light of it being a busy house with eight people living there.
The Crown submits that a further available explanation, other than inconsistent verdicts, is that the jury decided that convictions on eight out of nine counts was sufficient to reflect the total criminality of the Appellant’s conduct, and there was therefore no point in deciding whether or not the issues raised in the preceding paragraph did leave, in their minds, a reasonable doubt with respect to Count 9: R v Markuleski at 100 [76] (per Spigelman CJ) and 115 [144] (per Wood CJ at CL).
The Crown points to statements in R v Markuleski by Spigelman CJ (at 117 [153]) and Wood CJ at CL (at 130-132 [233], [236]) that the fact of differing verdicts is but one matter to be considered on review, in context, alongside all of the other circumstances of the case. Other relevant circumstances to consider include the type and strength of directions given to the jury by the trial judge. In addition to the clear R v Markuleski given on inconsistent verdicts referred to above, her Honour gave a full direction in accordance with Longman v The Queen (1989) 168 CLR 79 (SU31-32), a direction in accordance with Crofts v The Queen (1996) 186 CLR 427 (SU28-30) and a direction in accordance with R v Murray (1987) 11 NSWLR 12 (SU24-25).
The Crown submits that, in addition to what the jury may consider to reflect the totality of the criminality, there are infinite other possible bases for an acquittal on one count and guilty verdicts on the others. In this respect, the Crown points to examples provided by Wood CJ at CL in R v Markuleski at 131 [235] that:
(a)the complainant has conceded the possibility of faulty recollection, in relation to the details of the event the subject of the charge on which the accused was acquitted;
(b)there was a lack of particularity as to time or place in relation to such charge;
(c)the accused has called positive evidence in relation to the charge or charges on which he was acquitted, but not in relation to the others.
The Crown submits that each of these examples could be found here with respect to the matters mentioned at [139], namely:
(a)the inconsistency in A’s evidence regarding the Appellant taking his pants down and the Appellant telling him to leave Mr Thomson’s house;
(b)A not being particular about the time of the Count 9 offence other than it occurring in daylight; and
(c)the evidence which was particular to this offence such as not telling his close friends and lack of opportunity due to the busy household.
The Crown submits that R v Markuleski provides strong authority for the proposition that where an appropriate direction is given (as was the case here), it may alleviate the concern which might otherwise subsequently arise, where differing verdicts are returned in relation to multi-count indictments. As Wood CJ at CL stated in R v Markuleski at 135 [258]:
“In such a case, the court may feel greater confidence that the jury has focused closely upon the issues of reliability and credibility of the evidence going to each charge, and has found good cause for differentiating between the individual counts.”
Decision
The Court’s approach to a ground which asserts the existence of inconsistent verdicts, giving rise to an unreasonable conviction, involves application of several principles. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the Crown in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt: MacKenzie v The Queen (1996) 190 CLR 348 at 367; MFA v The Queen (2002) 213 CLR 606 at 617. The jury will be instructed (as here) that the evidence of a witness may be accepted in whole or in part: MFA v The Queen at 617. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach by the jury to the discharge of a heavy responsibility: MFA v The Queen at 617. It may be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his evidence than about others: MFA v The Queen at 617.

Ultimately, the question remains one of fact and degree as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, bringing to account a range of factors including the practical approach which juries are entitled to bring to their task, the convictions should be regarded as unreasonable or incapable of being supported by the evidence: R v Markuleski at 132 [238].
We are not persuaded that the acquittal of the jury on Count 9 ought lead this Court to conclude that the convictions on Counts 1 to 8 were unreasonable. Whether or not the failure of the jury to accept A’s version in one respect ought to have led the jury to have a reasonable doubt with respect to other matters, must depend upon the full range of relevant circumstances that go to an assessment of credibility and reliability. It was open to the jury to accept some parts of A’s evidence and not others. There is no automatic consequence flowing from an acquittal on one count with respect to other counts. It is a question of fact and degree in each case and the variation in fact and degree will differ from case to case: R v Markuleski at 93 [36].
There were issues relied upon by the defence with respect to Count 9 which may serve to explain the different position taken by the jury concerning that count as opposed to the remaining counts (see [139], [142]-[143] above). We accept the Crown submissions in this regard. As Wood CJ at CL observed in R v Markuleski at 127 [221], in the context of a system of justice that requires proof of criminality beyond reasonable doubt, the occurrence of different verdicts is to be expected and is understandable. Acquittal does not amount to a positive finding that the act alleged did not occur or that the evidence of the complainant concerning it was rejected as a lie, or as lacking in credibility.
In this case, there was a rational basis for the jury to discriminate and return a verdict of not guilty on Count 9 whilst being satisfied to the necessary standard upon A’s evidence in support of Count 1-8. Count 9 was a separate incident, removed in time and place from the other counts. There was some uncertainty on A’s part as to matters of detail in Count 9. Like R v Markuleski, this is not a case where there was such an integral connection between the counts, or where there were other circumstances present, such as to compel the conclusion that A’s overall credibility or reliability was so diminished that the guilty verdicts should, for that reason, be overturned.
The Appellant has not demonstrated that the verdicts on Counts 1 to 8 were unreasonable or that a miscarriage of justice has otherwise occurred. We reject the ninth ground of appeal.
Ground 10 – Error in Admission of Context Evidence Involving Events in Ukraine Which Had Not Been Investigated in that Jurisdiction
Submissions
The Appellant submits that the trial judge erred in not rejecting the context evidence of A concerning sexual acts committed by the Appellant upon him in Ukraine. The Appellant’s argument is that this evidence should have been excluded because the events did not happen in Australia and were not investigated by Australian or Ukrainian police.
The Appellant does not contend that the context evidence should not have been introduced at all. He accepts that it could be admitted because it was relevant to A’s failure to complain and to place events in context (page 85, Appellant’s written submissions). However, the Appellant contends that such evidence could only be introduced on the basis of legal investigation in Ukraine. As the alleged acts had not been investigated in Ukraine, it ought not to have been admitted.
The Crown submits that the Appellant’s argument in this respect is misconceived. There is no requirement that the relevant conduct must occur within the jurisdiction of New South Wales before it can be admitted as context evidence. Further, there is no requirement for the purpose of admissibility that such evidence be the subject of some official investigation before it can be admitted.
The Crown submits that the trial judge gave very clear directions to the jury about the permitted use of this evidence at the time when it was led from A (T41) and during the summing up (SU41).
Decision
The Appellant’s submissions underlying Ground 10 are misconceived. The law does not provide that sexual acts must occur within New South Wales before evidence of them is admissible as context evidence. Further, there was no requirement that A’s allegation of sexual acts by the Appellant committed against him in Ukraine must be subjected to some type of official investigation before it could be admitted at trial as context evidence. It is notable that no such arguments were advanced by defence counsel at trial.
The Appellant does not contend that the context evidence should not have been admitted for any other reason.
The trial judge gave clear directions to the jury concerning the permitted use of context evidence at the time it was led from A, and again during the summing up. No further direction was sought by defence counsel in this respect. No error has been established nor has a miscarriage of justice been demonstrated.
We reject Ground 10.
Ground 11 - The Trial Miscarried Through the Failure to Provide the Appellant with Simultaneous Headphone Translation Facilities
Submissions
The Appellant submits that the trial miscarried given the failure to provide simultaneous headphone translation, or proper conditions for simultaneous translation. Although acknowledging that an interpreter was available and assisted for the purpose of the trial (including his own evidence) the Appellant submits that he was prejudiced through the failure to utilise simultaneous headphone translation of a type he said was used in international tribunals.
He submits that the right to an interpreter means not only having access to an interpreter, but a right to fully understand the content of court proceedings and to be fully understood by all parties. He submits that only simultaneous translation, as an international standard of a fair trial, could guarantee a protection of such rights. In the absence of such an approach, he submits that a miscarriage of justice has resulted.
The Crown observes that the Appellant’s complaint in relation to interpreter services is not that he did not have access to an interpreter, but that he did not have simultaneous headphone translation, something that he asserts is required by international law. The Crown submits that there is no right to such services in this State. In fact, because of the Appellant’s competency in the English language, the Crown submits that it is unlikely that he would have been permitted to give his evidence wholly through an interpreter, had he sought to do so in accordance with s.30 Evidence Act 1995.
The Crown notes that the Appellant gave evidence in English, although he did have an interpreter present throughout the giving of his evidence to offer him assistance should he require it. The interpreter assisted briefly on only four occasions throughout the evidence of the Appellant (T147, T170, T172 and T178). On the whole, the Appellant did not need the assistance of the interpreter.
With respect to the Appellant’s reliance upon a number of passages from the transcript in support of the contention that he did not receive a fair trial due to the absence of simultaneous headphone translation, the Crown submits that the claim is not made out when the examples cited from cross-examination are examined closely.
Decision
In the context of appeals from convictions at criminal trials, consideration has been given to the provision of an interpreter for an accused person and the quality of interpreting services: De La Espriella-Velasco v The Queen (2006) 197 FLR 125 (WA Court of Criminal Appeal); R v Rostom (2007) 98 SASR 528 (SA Court of Criminal Appeal). These authorities do not support the Appellant’s argument that there was an obligation to provide simultaneous headphone translation facilities to ensure a fair trial.
An examination of the complete transcript of the trial does not indicate that any unfairness arose with respect to interpreting during the trial. An interpreter was available throughout to assist the Appellant, if required, to follow the trial. Defence counsel made clear at the commencement of the Appellant’s examination in chief (T139.46):
“RUSSELL: Q. Now Mr Makarov, you understand that we’d like you to try your best in English to answer the questions. If there’s anything that you don’t understand from anything that I ask you or Madam Crown or her Honour, you must say straight away and with the assistance of the interpreter you may be able to answer that question?
A. Understood thank you.”
The Appellant thereafter gave evidence (T139-185) almost entirely in English, in circumstances where the interpreter was present to assist if required.
The entitlement to a fair trial under statute or common law does not extend to a requirement that simultaneous translation facilities must be provided. Defence counsel did not submit in this case that such facilities were either necessary nor desirable. No complaint was made by defence counsel during the trial concerning the nature and quality of the interpreter services available to the Appellant.
It is not entirely irrelevant to this ground that the Appellant appeared for himself at the hearing of this appeal on 5 and 6 May 2008. Detailed handwritten submissions were filed by him for the purpose of the appeal. The Appellant addressed the Court in a manner which, in our view, allowed him to do justice to his case. Although the trial of the Appellant took place in August 2005, his ability to communicate in the English language prior to and for the purposes of this appeal does not assist him on the present ground.
It has not been demonstrated that any miscarriage of justice or unfairness resulted because of the nature of the interpreter facilities available to the Appellant during the trial. We reject the eleventh ground.
Ground 12 - the Trial Miscarried as a Result of Improper Investigation and the Conduct of the Trial in Relation to Time of the Essence of Counts 4-8 Involving Misconduct of Trial Judge and Crown Prosecutor
Submissions
The Appellant submits that time was of the essence for the offences charged in Counts 4-8 in the indictment. He refers to the decision of this Court in R v Kennedy (2000) 118 A Crim R 34.
The Appellant points to the evidence of A and Mr Thomson that the very last performance of A in Sydney in July 1997 was on 13 July 1997. He repeats the submission made earlier with respect to Grounds 2 and 7 that A’s very last performance in Sydney in that month was in fact that given at the Ukrainian People House at Lidcombe on 16 July 1997. He refers to parts of the Crown closing address and the summing up, which referred to A’s last or final performance as being the solo recital at the Pitt Street Uniting Church on 13 July 1997. He submits that the trial miscarried because of this focus on A’s last performance as being one on 13 July 1997, and not 16 July 1997. He contends that these circumstances rendered time of the essence in the indictment so that a miscarriage of justice has resulted.
The Crown submits that the Appellant’s claim that time was made of the essence in relation to Counts 4-8, is misconceived. The indictment averred that those offences took place between 13 and 19 July 1997. The evidence of A was that the sexual assaults which were the basis of Counts 4-8, took place after he had performed at the Pitt Street Uniting Church in Sydney. The unchallenged evidence of Mr Thomson was that that concert took place on 13 July 1997 (T111.20).
The Crown submits that Ground 12 is, in truth, a rehash of the points advanced by the Appellant in relation to earlier grounds. The Crown submits that this ground of appeal ought be rejected.
Decision
The indictment alleged that each of the offences charged in Counts 4-8 had been committed between 13 July 1997 and 19 July 1997. It was the Crown case that these offences had been committed after A had performed at the Pitt Street Uniting Church at Sydney on 13 July 1997. The Crown case on these counts remained, from beginning to end, one that involved an allegation of sexual offences by the Appellant against A after the 13 July 1997 concert.
The arguments advanced by the Appellant in support of this ground involve several misconceptions. The decision of this Court in R v Kennedy provides no assistance to him. This is not a case where the Crown sought to amend the indictment to enlarge the period in which it was alleged the crime had been committed. Nor is it a case where there is an issue that the alleged offences happened at some time outside the period charged in the indictment.
The Appellant’s argument in support of this ground is effectively the same as that considered and rejected with respect to earlier grounds. The Court did not admit as fresh evidence the article from “Ukrainian Weekly in Australia”. However, even if that evidence had been admitted, it would only have raised an issue (and a false issue) that A had in fact given a short impromptu performance to a small group on 16 July 1997, so that it may not have been strictly correct to describe the Pitt Street Uniting Church concert on 13 July 1997 as his last performance in Sydney. As mentioned earlier in this judgment (at [85]), it might be concluded that neither the Appellant nor A had a conscious recollection of the impromptu performance on 16 July 1997, although both had been present at it, but neither referred to it at trial.
To the extent that Ground 12 advances submissions previously rejected with respect to other grounds, we similarly reject the arguments here. No error has been established nor has the Appellant demonstrated that a miscarriage of justice has occurred.
In our view, there is no substance in Ground 12 and it ought be rejected.
Conclusion
We have considered each of the grounds advanced by the Appellant in support of his appeal against conviction at Trial 3. None of the grounds has been made good. No error has been demonstrated with respect to the trial and conviction of the Appellant. It has not been demonstrated that the verdicts of guilty returned by the jury were unreasonable or were not supported by the evidence or that a miscarriage of justice has otherwise resulted: s.6(1) Criminal Appeal Act 1912.
The appeal against conviction is dismissed.
As the appeal against conviction is to be allowed with respect to Trial 4 (Makarov v R (No. 3)), it will be necessary to adjust the sentences imposed for offences against A. The appeal should be relisted for that purpose.
The Court proposes to sit at 2.00 pm on 19 December 2008 to consider the question of sentence for offences against A. The Court will set a timetable for written submissions on sentence in advance of that hearing.
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AMENDMENTS:

23/02/2009 - In paragraph 60, the reference to "Uniform Evidence Law Report 112, 2005" has been changed to "Uniform Evidence Law Report 102, 2005". - Paragraph(s) 60

LAST UPDATED:
29 October 2010