Satybaldin v The Queen - [2010] NZCA 593

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Satybaldin v The Queen [2010] NZCA 593
Case: [2010] NZCA 593
Decision Date: 7 December 2010

CaseChat Overview and Summary

Yevgeniy Satybaldin appeals against his convictions on four counts of assault against his former partner, Maria Lashuk. The appellant contends he was denied a fair trial due to two actions of the trial judge, Judge Behrens. Firstly, after counsel had addressed the jury, the Judge split one count of the indictment into two separate counts. Secondly, the Judge did not advise the jury that they could ask questions during the trial. Additionally, the appellant submits new evidence on one of the counts shows the unreliability of the complainant’s evidence on that count. The Court of Appeal found the application to admit new evidence declined and the appeal dismissed. The Court found there was power to amend the indictment under either s 330 or s 335 of the Crimes Act, and that the amendment had not prejudiced the appellant. The Court also found that the trial judge was not required to advise the jury of their ability to submit questions, and that the omission could not possibly give rise to a miscarriage. The Court declined to admit the affidavit of Maxim Lemeshenko as it was not sufficiently fresh.

Orders