Citation: Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468
Court: Supreme Court of New South Wales
Date: 4 October 2013
Judge(s): Bellew J
Background
The applicant, a piano teacher who arrived in Australia from Ukraine in 1998, was convicted across two separate District Court trials of multiple sexual offences against two former students, referred to in the judgment as LO and AY. He was convicted of eight counts arising from each trial and sentenced to terms of imprisonment. Those convictions were subsequently the subject of proceedings before the Court of Criminal Appeal.
Following the exhaustion of his ordinary appeal avenues, the applicant sought relief under s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW). That provision allows a convicted person to apply to the Supreme Court for an inquiry into their conviction where material has emerged since trial that may cast doubt on guilt.
The application rested on matters said to have come to light after the trials, concerning the reliability and conduct of witnesses who gave evidence against the applicant. The Attorney-General for New South Wales opposed the application.
Legal Issues
- Whether the material placed before the Supreme Court was sufficient to give rise to a "doubt or question" as to the applicant's guilt under s. 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether post-trial concerns about witnesses, including the possibility of collusion between two of them (OG and EU), created a relevant sense of unease or disquiet sufficient to warrant directing an inquiry or referring the matter to the Court of Criminal Appeal
- Whether any doubt about parts of the evidence in the case translated into a doubt or question as to guilt
Decision
Bellew J applied the well-established test under s. 79(2): whether the available material causes a sense of unease or disquiet in allowing the convictions to stand. His Honour confirmed that the s. 78 procedure is an administrative function, not an additional avenue of appeal, and is not an opportunity to relitigate the trial on paper.
On the question of potential collusion between witnesses OG and EU, the court acknowledged that certain matters, including their presence together at a police station at the commencement of the investigation and a remark by the Crown Prosecutor, raised the possibility. However, Bellew J noted that neither witness's evidence at the first trial turned on contested credibility in a way that would be undermined by collusion. In the case of EU, the applicant had not disputed the words attributed to him at trial but had argued only for a different interpretation of them. No attack on EU's credit had been mounted at trial.
A similar conclusion applied to OG's evidence. The applicant had effectively conceded at trial that he used the word "genetics" in conversation with OG, framing the dispute as one of interpretation rather than factual denial. Even accepting the possibility of collusion, Bellew J found it did not impact the convictions in any relevant sense.
Having considered the entirety of the material, Bellew J concluded that no sense of unease or disquiet arose in respect of the convictions recorded following the first and second trials. The application was dismissed.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s. 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), a court considering a s. 78 application must assess whether the available material, as a matter of practical reality, gives rise to a sense of unease or disquiet in allowing the conviction to stand.
- The s. 78 procedure is an administrative function, not an appellate one. It is not available as a further avenue of appeal once ordinary appeal processes have been exhausted, nor does it permit a retrial on paper.
- Where an applicant challenges part of the evidence in the case, a doubt about that part of the evidence must produce a relevant doubt as to guilt before the court will act. It is insufficient that concerns exist in only a vague or generalised form.
- Post-trial suggestions of collusion between prosecution witnesses did not generate the necessary sense of disquiet where, at the relevant trial, the disputed evidence went to admissions whose utterance was not denied by the applicant, with only their interpretation in contest.
- The powers available under s. 79 are limited to directing a judicial inquiry or referring the matter to the Court of Criminal Appeal. The Supreme Court has no power under this procedure to quash convictions or direct acquittals.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss. 78, 79
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases:
- Application of Peter James Holland under s. 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251