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Court of Criminal Appeal 9 December 2008

Makarov v R (No. 2)

[2008] NSWCCA 292

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES NO ERROR ESTABLISHED RATIONAL BASIS FOR DIFFERENT VERDICTS NO MISCARRIAGE OF JUSTICE DEMONSTRATED

Citation: Makarov v R (No. 2) [2008] NSWCCA 292
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2008
Judge(s): Bell JA, Johnson J, McCallum J

Background

The appellant was an internationally acclaimed piano teacher who had taught at a specialist music school in Kharkov, Ukraine. The complainant, referred to as A, was one of his students, having joined the school at age seven. A was 14 years old at the time of the alleged offences.

The appellant was tried and convicted in the Sydney District Court (Trial 3) on eight counts of sexual assault and related offences against A, including acts of indecency and homosexual intercourse. The offences were alleged to have occurred during two periods in July 1997 in Camperdown. The appellant was acquitted on a ninth count relating to a later alleged offence at Gladesville.

The appellant, who appeared unrepresented at the appeal, filed extensive written submissions (109 pages) and addressed the Court in person. The appeal was one of several conviction appeals heard together arising from three separate trials involving different complainants.

The key legal questions the Court was asked to resolve included:

  • Whether lay witness evidence about the difficulty of performing as a concert pianist under stress was improperly admitted or excluded
  • Whether the Crown Prosecutor's conduct at trial was unfair and resulted in a miscarriage of justice
  • Whether the acquittal on Count 9 rendered the guilty verdicts on the remaining counts unreasonable or inconsistent
  • Whether the failure to provide simultaneous headphone translation facilities during the trial caused a miscarriage of justice
  • Whether, taken individually or cumulatively, any of the grounds established that the verdicts were unreasonable or not supported by the evidence

Decision

The Court dismissed each of the appellant's grounds of appeal. On the question of lay witness evidence concerning concert pianists and the effects of stress on performance, the Court found no error in the way that evidence was handled at trial.

On the prosecutorial fairness grounds, the Court found that the Crown Prosecutor's conduct had not produced any unfairness that amounted to a miscarriage of justice. No error was established in the way the trial was conducted by the prosecutor.

The Court rejected the argument that the acquittal on Count 9 made the convictions on the other counts unreasonable. The Court found a rational basis existed for the jury to return different verdicts on different counts, particularly given that Count 9 involved a distinct time period and different factual circumstances.

On the translation ground, the Court found that the failure to provide simultaneous headphone translation did not result in a miscarriage of justice. None of the grounds, individually or together, demonstrated that the verdicts were unreasonable, unsupported by the evidence, or that any miscarriage of justice had occurred under section 6(1) of the Criminal Appeal Act 1912.

Orders Made

  • Appeal against conviction dismissed.
  • The appeal was to be relisted for resentencing in relation to offences against A, given that convictions from Trial 4 were being quashed in a related appeal (Makarov v R (No. 3) [2008] NSWCCA 293), necessitating adjustment of sentences.

Key Takeaways

  • No error was established across any of the 12 grounds advanced by the self-represented appellant, confirming that the convictions from Trial 3 would stand.
  • Where a jury acquits on one count but convicts on others arising from the same proceedings, an inconsistency argument will not succeed if a rational basis exists for the different verdicts, particularly where the counts differ in time, place, or factual character.
  • In dismissing the translation ground, the Court of Criminal Appeal confirmed that the absence of simultaneous headphone interpretation does not automatically constitute a miscarriage of justice; the appellant must demonstrate actual unfairness flowing from the absence of that facility.
  • Lay witness evidence about the practical demands of concert piano performance, offered to contextualise the complainant's capacity to perform under stress, was considered within the trial framework without the Court finding any error in its treatment.
  • Outcomes in related appeals can affect sentencing even where a conviction appeal is dismissed: because convictions from a companion trial (Trial 4) were quashed, the Court ordered resentencing for the Trial 3 offences to allow the overall sentence structure to be adjusted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2), 78N
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)
- Evidence Amendment Act 2007 No. 46 (NSW)

Cases:
- Makarov v R (No. 1) [2008] NSWCCA 291
- Makarov v R (No. 3) [2008] NSWCCA 293
- HG v The Queen [1999] 197 CLR 414
- TKWJ v The Queen (2002) 212 CLR 124
- Libke v The Queen (2007) 230 CLR 559
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 213 CLR 606
- R v Markuleski (2001) 52 NSWLR 82
- R v Livermore (2006) 67 NSWLR 659
- Longman v The Queen (1989) 168 CLR 79
- Crofts v The Queen (1996) 186 CLR 427
- MacKenzie v The Queen (1996) 190 CLR 348
- Bellemore v Tasmania (2006) 170 A Crim R 1
- R v Birks (1990) 19 NSWLR 677
- Causevic v R [2008] NSWCCA 238
- Skipworth v R [2006] NSWCCA 37
- R v Teasdale (2004) 145 A Crim R 349