Citation: Makarov v R (No. 1) [2008] NSWCCA 291
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2008
Judge(s): Bell JA, Johnson J, McCallum J
Background
The appellant, a Ukrainian-born piano teacher employed at the Australian Institute of Music, was convicted in December 2004 of eight sexual offences against a student, identified as D, who had been under his tuition from approximately age ten. The offences were alleged to have occurred between 2002 and 2003, when D was aged thirteen and fourteen. D disclosed the abuse to his mother at the end of January 2004, and the matter proceeded to trial before Latham DCJ in the District Court.
The appellant represented himself on appeal. He raised ten grounds of appeal against conviction, encompassing challenges to the reasonableness of the verdicts, alleged inconsistencies between verdicts, claims of inadequate translation facilities during trial, criticisms of the trial judge's directions and conduct, and allegations of incompetence against his trial counsel.
This judgment is one of three related decisions handed down simultaneously. The other two, Makarov v R (No. 2) and Makarov v R (No. 3), addressed separate convictions arising from offences alleged against other complainants.
Legal Issues
- Whether the verdicts were unreasonable or unsupported by the evidence, including whether the Crown was obliged to call expert evidence on whether a concert pianist could perform at a high level while under significant stress
- Whether the verdicts were inconsistent, in particular whether the acquittal on one count demonstrated a reasonable doubt about the complainant's credibility that should have infected the remaining convictions
- Whether the trial miscarried due to the absence of simultaneous headphone translation facilities for the appellant
- Whether the trial judge's directions to the jury were adequate
- Whether the trial judge demonstrated actual or apprehended bias
- Whether trial counsel's conduct amounted to incompetence that produced a miscarriage of justice
- Whether evidence of admissions by the appellant was wrongly admitted
- Whether hearsay evidence and character evidence was wrongly admitted
Decision
The Court dismissed the appeal on all ten grounds. On the question of unreasonable verdicts, the Court found no basis to conclude that the jury, acting reasonably, could not have been satisfied of the appellant's guilt. The appellant had argued that D's continued success as a concert pianist was inconsistent with having been subjected to sustained sexual abuse, and that the Crown was obliged to call expert evidence on this issue. The Court rejected that argument: the jury was entitled to assess D's credibility and the circumstances of the alleged offending without the benefit of such evidence, and no obligation on the Crown to call it arose.
On the question of inconsistent verdicts, the Court found a rational basis for the jury returning a different verdict on one count while convicting on the others. An acquittal on one count did not, as a matter of law or logic, require acquittals on all remaining counts. The jury was entitled to differentiate between counts based on the specific evidence relating to each.
The translation and procedural complaints were rejected. The Court found no miscarriage of justice arising from the translation arrangements. Similarly, the alleged inadequacies in the trial judge's directions, and the allegations of bias, were not made out. The Court examined each specific complaint and found no error.
The incompetence ground was also dismissed. The Court found that the forensic decisions made by trial counsel, including a decision not to press a particular line of cross-examination relating to a letter written by D, represented legitimate forensic judgment rather than incompetence. The remaining sub-grounds repeated matters raised under other grounds and did not independently support the appeal.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- An acquittal on one count in a multi-count sexual assault trial does not, without more, render the remaining convictions inconsistent or unreasonable; a rational basis for different verdicts is sufficient to uphold the convictions.
- No obligation arose on the Crown to call expert evidence on whether a complainant's high-level professional performance was consistent with having suffered sexual abuse; that question was within the jury's competence to assess.
- Forensic decisions made by trial counsel, including choices not to pursue particular lines of cross-examination, do not constitute incompetence producing a miscarriage of justice where a legitimate forensic rationale exists.
- In dismissing each ground, the Court of Criminal Appeal confirmed that complaints about translation facilities, judicial directions, and judicial bias each require a demonstrated miscarriage of justice, not merely an arguable irregularity.
- No error was established across any of the ten grounds advanced by the self-represented appellant, illustrating the high threshold for overturning a jury conviction on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules 1952 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Dossi (1918) 13 Cr App R 158
- Ignjatic v R [1993] 68 A Crim R 333
- Makarov v R (No. 2) [2008] NSWCCA 292
- Makarov v R (No. 3) [2008] NSWCCA 293
- Markby v R (1978) 140 CLR 108
- R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487
- R v McKnoulty (1995) 77 A Crim R 333
- R v Southammavong; R v Sihavong [2003] NSWCCA 312
- R v Stringer [2000] NSWCCA 293; 116 A Crim R 198
- R v VHP (unreported) Court of Criminal Appeal, 7 July 1997
- Simic v R (1980) 144 CLR 319
- Smale v R [2007] NSWCCA 328
- Walters v The Queen [1969] 2 AC 26