AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 9 December 2008

Makarov v R (No. 3)

[2008] NSWCCA 293

Sexual offences
SEXUAL OFFENCES RISK OF PREJUDICE UNCHARGED ACTS

Citation: Makarov v R (No. 3) [2008] NSWCCA 293
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2008
Judge(s): Bell JA, Johnson J, McCallum J

Background

The appellant was a pianist and piano teacher who had brought several students from Ukraine to Australia to continue their studies. He lived with those students and taught at the Australian Institute of Music. Following allegations made in 2004, he was charged with sexual offences against four of those students.

The charges relevant to this appeal involved two complainants, referred to as B and C. An indictment containing ten counts was presented: four counts involving B and six involving C. The trial proceeded before Hock DCJ and a jury in the District Court, and the appellant was convicted of all ten counts in September 2005.

Before trial, the Crown served notice of its intention to lead the evidence of each complainant as tendency and coincidence evidence against the counts involving the other. The trial judge rejected that tendency and coincidence evidence on the basis that collusion between B and C could not be excluded. However, her Honour declined to order separate trials, reasoning that each complainant was a witness to an offence alleged in a count involving the other, and that evidence of the appellant's sexual conduct with each complainant was admissible as "relationship" or "context" evidence in the counts concerning the other.

  • Whether the trial judge erred in refusing to order separate trials for the counts involving B and those involving C
  • Whether the admission of substantial "relationship" or "context" evidence (being evidence of uncharged sexual acts involving one complainant adduced in the trial of counts concerning the other) was permissible, particularly after the tendency and coincidence notices had been rejected
  • Whether the directions given to the jury adequately addressed the risks of prejudice arising from the joinder and from the admission of that evidence
  • Whether the cumulative effect of these matters denied the appellant a fair trial

Decision

The Court allowed the appeal on the basis that the joinder of the counts and the conduct of the trial together resulted in substantial, irreparable prejudice to the appellant. The central problem was that, having rejected the tendency and coincidence evidence because of the risk of concoction, the trial judge nonetheless permitted the evidence of each complainant to be used as context or relationship evidence in the trial of counts involving the other. This produced, in practical terms, much the same prejudicial effect that exclusion of the tendency evidence was meant to prevent.

The Court found that the admission of this body of uncharged acts evidence, in circumstances where tendency and coincidence cross-admissibility had been ruled out, meant the jury was exposed to a volume of highly prejudicial material without adequate justification or sufficient direction. The directions given to the jury were held to be inadequate to address the prejudice arising from the joinder and from the use of the relationship evidence across the two groups of counts.

The Court concluded that no direction, however carefully crafted, could have cured the prejudice generated by the way the trial was conducted. However, the Court was not satisfied that the grounds argued by senior counsel would support a verdict of acquittal on any count. Accordingly, the appropriate remedy was not acquittal but rather the quashing of the convictions and the ordering of new, separate trials.

The appellant also personally argued additional grounds, including a ground concerning alleged misdirection on the standard of proof and a "fresh evidence" ground based on published interviews with one of the complainants. The Court rejected the fresh evidence application, finding that the material existed at the time of trial and had in part been the subject of cross-examination. None of the grounds argued personally by the appellant were upheld.

Orders Made

  • The appeal is allowed
  • The convictions and sentences imposed in the District Court are quashed
  • New, separate trials are directed

Key Takeaways

  • Where a trial judge has rejected tendency and coincidence evidence due to the risk of concoction, allowing extensive uncharged acts evidence from one complainant to be led as "context" or "relationship" evidence in the trial of counts involving another complainant may produce equivalent prejudice and undermine the rationale for the original exclusion.
  • Joinder of counts involving multiple complainants carries a significant risk of prejudice, and that risk is not adequately managed simply by limiting the formal basis on which cross-complainant evidence is admitted if the practical effect remains highly prejudicial.
  • A conviction will be quashed where the cumulative prejudice from erroneous joinder and the admission of uncharged acts evidence is of such magnitude that no adequate jury direction could have secured a fair trial.
  • The Court of Criminal Appeal confirmed that quashing convictions and ordering separate retrials, rather than directing acquittals, is the appropriate remedy where grounds of appeal establish a miscarriage of justice but do not demonstrate that the verdicts were unreasonable or unsupported by the evidence.
  • Fresh evidence applications will fail where the material in question was available at the time of trial, even if not formally tendered, and there is no basis to conclude its absence caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), particularly ss 97 and 98 (tendency and coincidence evidence)

Cases
- HML v R [2008] HCA 16; (2008) 82 ALJR 723
- Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259
- Hoch v R [1988] HCA 50; (1988) 165 CLR 292
- Black v R [1993] HCA 71; (1993) 179 CLR 44
- B v R [1992] HCA 68; (1992) 175 CLR 599
- Gipp v R [1998] HCA 21; (1998) 194 CLR 106
- De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1
- Liberato v R [1985] HCA 66; (1985) 159 CLR 507
- Cornwell v R [2007] HCA 12; 231 CLR 260
- Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- DJV v R [2008] NSWCCA 272
- R v AH (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 510
- R v Dossi (1918) 13 Cr App R 158
- R v George (1987) 9 NSWLR 527
- R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198
- Makarov v R (No. 1) [2008] NSWCCA 291
- Makarov v R (No. 2) [2008] NSWCCA 292
- Various unreported Court of Criminal Appeal decisions including R v ACK, R v Fraser, R v H, R v VHP, and R v Wickham