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IN THE COURT OF APPEAL OF NEW ZEALAND
CA331/2010 [2010] NZCA 593
BETWEEN YEVGENIY SATYBALDIN Appellant
ANDTHE QUEEN Respondent
Hearing: 8 November 2010
Court: Ellen France, Gendall and Cooper JJ Counsel: K I Jefferies for Appellant
N P Chisnall for Respondent
Judgment: 7 December 2010 at 10.30 am
JUDGMENT OF THE COURT
The application to admit new evidence is declined and the appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] The appellant was charged with a number of counts of assault. All of the charges concerned his former partner, Maria Lashuk. After a trial by jury, he was
SATYBALDIN V R CA331/2010 7 December 2010
convicted on four counts and ordered to pay $2,000 by way of emotional harm reparation in relation to the offending.1
[2] The appellant appeals against his convictions on the basis he was denied a fair trial by the actions of the trial judge, Judge Behrens, in two respects. The first matter relied on is that, after counsel had addressed the jury, the Judge split one count of the indictment into two separate counts. The second complaint is that the Judge did not advise the jury that they could ask questions during the trial. In addition, the appellant says new evidence on one of the counts shows the
unreliability of the complainant’s evidence on that count.2
The factual background
[3] The appellant and Ms Lashuk became romantically involved in early 2008 while they were studying in Wellington as foreign students. They moved in together in late 2008 or early 2009. The charges of assault on the initial indictment were as follows:
(a) Counts 1 and 2: allegations of two assaults in June 2008.
(b)Count 3: an allegation of assault on 7 December 2008. This count involved punching and pushing Ms Lashuk into a clothes rack.
(c)Count 4: an allegation of assault on 8 March 2009. This involved squeezing Ms Lashuk’s throat.
(d)Count 5: an allegation of assault on 28 March 2009. This count alleged an incident in the couple’s flat in the course of which Ms Lashuk said she was pushed, slapped, pulled by the hair, and kicked.
[4] We need to say a little more by way of background about counts 3 and 5.
1 R v Satybaldin DC Wellington CRI-2009-085-4205, 30 April 2010.
2 The notice of appeal contained two other grounds but these were not pursued.
[5] The incident giving rise to count 3 took place on the morning of 7 December
2008. Ms Lashuk’s evidence was that the appellant punched her several times during an argument while they were in the bedroom together and then followed her into the lounge and pushed her into a clothes rack. The appellant said that Ms Lashuk got angry at him but he was just trying to placate her. He says there was no physical contact, although he admitted throwing some of her things out the window.
[6] In…
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