Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001(NSW) [2013] NSWSC 1468

Subsequent proceedings before the Court of Criminal Appeal 16The applicant appealed to the Court of Criminal Appeal against the convictions recorded against him following the first trial (see R v Makarov (No. 1) [2008] NSWCCA 291]. The Court (Bell JA (as her Honour then was), Johnson and McCallum JJ) dismissed the appeal. No appeal was lodged against sentence. 17The applicant also appealed to the Court of Criminal Appeal against the convictions recorded against him following the second trial. The Court (similarly constituted) dismissed the appeal (see Makarov v R (No. 2) [2008] NSWCCA 292). Again, no appeal was lodged against sentence. 18A third appeal was brought by the applicant before the Court of Criminal Appeal in respect of the convictions recorded following the third trial. On that occasion the Court (again similarly constituted) upheld the appeal, quashed the convictions and ordered new (separate) trials (see Makarov v R (No. 3) [2008] NSWCCA 293). The essence of the reasoning of the Court in upholding the appeal was encapsulated at [82]: "The decision to permit the trial to proceed on the indictment charging counts involving the two complainants, in circumstances in which the evidence of the allegations made by one was not admissible on the trial of the allegations involving the other, in our opinion was productive of a miscarriage of justice. The trial judge's directions were not capable of overcoming the prejudice that arose as the result of the joint trial and the admission of all of the evidence of the appellant's other sexual misconduct. No question of the proviso to s. 6(1) of the Criminal Appeal Act 1912 (NSW) arises in the circumstances. Taking into account the matters that we deal with below, in our view the appropriate consequential order is that there be new, separate, trials".

The applicant's re-trials 19In March 2010, following the decision of the Court of Criminal Appeal referred to in [18] above, the applicant was re-tried solely in respect of the complaints made by OG ("the first re-trial"). He was acquitted on all counts 20In April 2010 the applicant's re-trial in respect of the complaints made by EU was commenced ("the second re-trial"). The trial judge discharged the jury in the course of the Crown case. The circumstances in which this occurred are more fully set out below. 21In February 2011, a further re-trial of the applicant in respect of the complaints made by EU was commenced ("the third re-trial"). Once again, the trial judge discharged the jury in the course of the Crown case. The circumstances in which this occurred are again more fully set out below. 22Finally, in August 2011 a re-trial of the complaints made by EU was commenced and concluded before a judge alone ("the fourth re-trial"). The applicant was acquitted in respect of all counts. 23Accordingly, the present position is that the applicant stands convicted of the offences for which he was tried in the first trial (arising from the allegation made by LO) and the second trial (arising from the allegations made by AY).

The basis of the present application 24Shortly put, it is the applicant's contention that since the first and second trials, and since his appeals against those convictions were heard and dismissed, fresh evidence has emerged which, undermines the reliability of the evidence given by each of AY, OG and EU in the first trial, and that given by AY in the second trial. It has been submitted on behalf of the applicant that the court would, as a consequence, be left with a sense of unease or disquiet in allowing the convictions arising from the first and second trials to stand.

The charges 25On 22 November 2004 the applicant was arraigned before Latham DCJ (as her Honour then was) on an indictment charging him with a total of 9 offences against LO which may be summarised as follows: COUNT OFFENCE DATE OF OFFENDING SECTION 1 Aggravated act of indecency towards a person under the age of 16 years (namely 13 years) Between 10 April 2002 and 1 August 2002 Crimes Act s. 61O 2 and 3 Aggravated act of indecency towards a person under the age of 16 years (namely 13 years) Between 10 April 2002 and 1 August 2002. Crimes Act s. 61O 4, 5 and 6 Aggravated indecent assault towards a person under the age of 16 years (namely 13 years) Between 1 Jan. 2003 and 31 August 2003 Crimes Act s.61M 7 Aggravated act of indecency towards a person under the age of 16 years (namely 13 years) Between 1 August 2003 and 30 September 2003 Crimes Act s. 61O 8 Aggravated sexual assault of a person under the age of 16 years (namely 14 years) Between 1 August 2003 and 30 September 2003 Crimes Act s. 61J 9 (alternative to 8) Aggravated sexual intercourse with a person under the age of 14 years Between 1 August 2003 and 30 September 2003 Crimes Act s. 66T

The Crown case against the applicant 26LO took music lessons each Monday at the applicant's home. On each Wednesday, Thursday and Friday he took lessons at the Institute. According to LO, he sometimes took lessons from the applicant in his (i.e. LO's) own home. On most occasions, LO's father drove him to those lessons he undertook away from home. Initially, LO's father made a point of remaining with LO during the lessons, but that changed as he came to be better acquainted with applicant. 27LO said that when his parents started staying away from lessons, but before the applicant began sexually assaulting him, the applicant would sometimes give him chocolate and fruit and would commend LO on his piano playing on a more regular basis. 28In respect of count 1 the Crown alleged that in June or July of 2002 LO commenced to prepare the program for a piano competition in Kiev, which was to take place the following year, part of which was a piece entitled "The Transcendental Etude" by Liszt. When LO was learning that piece, the applicant told him that it was about sex and that when playing it, he should express himself accordingly. During one lesson, whilst LO was doing an exercise to improve his technical performance of the piece, the applicant exposed his genitals and masturbated while sitting in a chair a few metres away from the piano. When LO saw what the applicant was doing, he turned his back. The applicant asked LO for a tissue box that was behind him and LO threw it in the direction of the applicant without looking at him. LO thought the applicant ejaculated a short time after. The applicant then took the tissues to the bathroom. 29Counts 2 and 3 alleged offences committed at the home of LO. As to count 2, the Crown alleged that in late 2002 the applicant was at LO's home for the purpose of a lesson. LO was in the study, which was opposite a bathroom. When the applicant was in the bathroom, LO saw him begin to masturbate. The applicant beckoned LO to come to him, but LO refused. The applicant then came out of the bathroom, grabbed LO by the arm and took him into the bathroom where the applicant continued to masturbate himself. The applicant then asked LO to masturbate him. LO refused and the applicant took LO's hand and put it onto his (the applicant's) penis forcing LO to masturbate him. The applicant was sitting on the bath tub and ejaculated onto the floor of the bathroom. 30Count 3 similarly alleged that the applicant forced LO to masturbate him in the bathroom of LO's home. 31Count 4 was based upon an incident in a studio at the applicant's home. The Crown alleged that the applicant got up from a chair and walked around a piano stool before sitting down behind LO. The applicant put his hand into LO's underpants and started to masturbate him. The applicant told LO to keep playing because his wife was in the house and he was concerned that if LO stopped playing she might think something was strange. LO kept playing and when he finished the piece he moved away from the applicant and stood up. The applicant told LO that he should not be so "moral" and that what had occurred was for LO's own good. The applicant also said that he was giving everything to LO, and that LO should reciprocate. 32Count 5 was based on an incident at the applicant's home when the applicant and LO were in the upstairs kitchen. LO was washing a cup at the sink and the applicant came up behind him with his pants down. He forced LO to masturbate him until he ejaculated. 33In respect of count 6 the Crown alleged that LO entered the applicant's studio, when the applicant told him to close the door and curtain. After LO did so, the applicant grabbed him with both hands at the back of his neck and pulled him forward to kiss him on the lips. The applicant told LO to open his mouth but he refused. After the lesson started the applicant told LO that he should "give more". 34In respect of count 7, the Crown alleged that the applicant took LO from the studio into an upstairs study. There was a computer in the study from which the applicant and LO had previously downloaded musical performances and educational files from the Internet. On this occasion the applicant showed LO a gay pornographic video clip which had been downloaded from the internet. Whilst LO was watching the video clip he could hear the applicant masturbating behind him. 35As to counts 8 and 9 (which were in the alternative) the Crown alleged that following the showing of the video clip referred in count 7, the applicant closed the program and told LO to get up. The applicant grabbed LO and took him out of the study and across the corridor into a guest bedroom, where he threw him on the bed and pulled his trousers down to his ankles. The applicant then lifted LO's legs and penetrated LO's anus with his penis. LO said that continued for about 6 or 7 minutes until the applicant ejaculated inside his anus. The applicant asked LO if it was painful and LO said that it was. The applicant said "that's good" and told LO to go and wash himself.

The evidence relied upon by the Crown 36The Crown case against the applicant in the first trial necessarily depended to a significant extent upon the evidence of LO. However, the Crown also relied on evidence given by each of EU, AY and OG of statements made by the applicant to each of them after they had become aware of LO's allegations. It was not suggested by the Crown that any of the evidence given by EU, AY or OG was directly corroborative of any allegation made against the applicant by LO. Rather, the Crown asserted that properly construed, the statements made by the applicant to each of EU, AY and OG amounted to an admission.

The evidence of EU 37EU gave evidence that in February 2004 he was staying with the applicant at his home. He said that on 4 February 2004 the applicant had spoken to him about calling a meeting with the various students who had accompanied him (the applicant) to Australia. EU was asked whether the applicant said anything specific about any issue raised by LO or any accusation made by him and gave the following evidence: Q: So on the night, sorry, on 4 February the Professor told you that there was to be a meeting and can you remember when that meeting was to take place? A: Fourth of February is Wednesday, yes. The meeting was on Thursday fifth, the next day. Q: Because you were living in the house at the time, did you continue to discuss the matter of LO's allegations with the Professor at various times. A: Yes, we did, yes. Q: At one time did he say something specifically about what LO had raised and what LO had accused him of? A: Well, he just - yes, he said that - as I said before, he said, he accused him of having sex for one and a half years and you know he said this in details in front of his family and Victor Makarov himself. Q: And at some stage did he say something further about the allegations? A: He said - yeah. He said something like, 'it's my nature and I understand this by brain, but it's like I can't do anything about it'. That's what he said (emphasis added). 38When asked whether or not the applicant had said anything else to him about his relationship with LO, EU said: "He said that he loved him like a son and he, he also said he had better connection with him than any of us even though he had betrayed, and he said yes he was surprised. He said he was surprised because LO had told his parents about it and he thought he was happy with what they were doing." 39As the trial judge noted in her summing up, it was not suggested that the conversation with the applicant of which EU gave evidence had not taken place. Her Honour directed the jury that the issue was one of interpretation, the Crown suggesting that the statement was an admission by the applicant that he had been assaulting EU, with the applicant submitting that the appropriate interpretation to be placed upon the conversation was an entirely neutral one.

The evidence of AY 40AY was one of the five Ukrainian students who came to Australia with the applicant in 1998, following which he lived at the applicant's premises for a period of time. 41In the course of his evidence in chief AY (commencing at T365 L51) told the court that along with a number of other students, he attended a "meeting" with the applicant in the course of which the applicant had informed him of the allegations made by LO. After the meeting the applicant offered to drive AY and OG to the railway station, about which AY gave the following further evidence: Q: When you got to the station was there a conversation in the car? A: Yes. Q: About the fact that LO had made these allegations against the Professor is that right? A: Yes, yes. Q: Did the Professor say something to you about his thoughts about the matter? A: Yes he did. He said 'I understand how awful and how terrible this all is but it is only on my genetical level' and after which he was talking about suicide. I think at some stage he even said maybe I should drive off a cliff somewhere. (emphasis added). Q: Did you say something in response to that? A: No I didn't say anything, I didn't." 42In cross-examination (commencing at T370 L36) AY agreed that at the time of the meeting the applicant was "obviously shocked" and that he was speaking of committing suicide. In terms of the conversation in the car at the railway station, AY was asked: "Q: You told us about a conversation that took place in the car, yes in the car at Gordon Station, do you remember that? A: Yes. Q: You see what he said in that conversation was 'with (LO), you know, its not true', didn't he say that? A: He did. 43In the course of her summing up, the trial judge reminded the jury that AY had been cross-examined to suggest that there was no such conversation in the car. She reminded the jury that what had been suggested was that there had been a conversation at some stage, and that the reference to suicide was not denied by the applicant.

The evidence of OG 44OG was also one of the students who had accompanied the applicant to Australia. He told the court (commencing at T383) that he had been asked to attend a meeting at the applicant's premises to discuss the allegations made by LO. He also gave evidence of having travelled to the railway station with AY: Q: Did he give you and AY a lift to the station? A: Yes. Q: Before you got out of the car was there another conversation about the general subject of LO's allegations? A: Yes. Q: Did Makarov say something about - - A: Yes, he did say something. Q: What did he say? A: He said 'I understand with my brain that what I did to (LO) was wrong but I cannot control my genes and this is in my nature to be like this' (emphasis added). Q: Did he also say something about suicide? A: Yes, he said 'maybe I should end this, maybe I should drive off the cliff and have suicide'. Q: Then did you and AY leave and go and catch the train? A: Yes." 45When cross-examined, it was not put to OG that there had not been a conversation at the railway station, nor was there any challenge to the evidence that the applicant had made reference to committing suicide. However, it was put to him that the highlighted portion of the evidence in [44] above had not been said by the applicant. It was also put to OG that the applicant had said words to the effect "with LO, you know it's not true", of which OG had no recollection. 46In the course of his evidence, the applicant said that he had told OG: " Yes, I told him, Don't worry and I will overcome all this stuff. In context of this rules about genetical level was that they know me so long term and we have so strong relationship and people doing this on a genetical level but they know me". 47In addition, the trial judge asked the following question: Q: I just need to clarify something. When the Crown asked you that you had said something about your genetic level being a sexual interest in LO and your response was "It's not true" are you saying that what you said in that regard was not true or that the interpretation is not true? A: Interpretation not true. This genetic level, these words, I use these words but I never use these words about myself. And this is not true".

The summing up of the trial judge 48Having reminded the jury of the evidence of each of the three witnesses, her Honour directed them in the following terms: "Now let me just say something about these statements by the accused according to the Crown case ladies and gentlemen. The Crown's submission is, as I have said, that all of these statements that have been given in evidence by these three witnesses constituted admissions by the accused that he had been engaging in sexual conduct with and towards LO. In other words, the Crown says the accused's statement (sic) should be interpreted as a confession to all three, albeit at different times, because one of the conversations occurs with EU somewhere in the house I am assuming, and the other conversations occur with AY and OG at the station on 5 February, but those statements according to the Crown should be interpreted as the accused admitting that he could not help indulging in a sexual interest LO, even though he could understand intellectually that it was wrong. Now I have indicated to you where the accused would place a different construction on those statements. Before you could use those statements by the accused in support of the evidence of LO you would have to find in favour of the construction which is suggested by the Crown, and as I have already said the interpretation of that statement is a matter for you. Just as all words derive a meaning from their context, the meaning of these statements is to be determined by you by reference to the context in which they were said and the surrounding circumstances. If you were to conclude that the statements are open to an interpretation other than that suggested by the Crown, then they would not assist you towards proof of the Crown case. So in simple terms ladies and gentlemen it is a fact-finding function for you. What do you think those words mean? If you agree with the construction placed upon them by the Crown, they are available to you to be used in support of LO's evidence. If they do not have that construction - that is, the construction suggested by the Crown - then they do not assist you much further."

The charges 49On 22 August 2005 the applicant was arraigned before her Honour Judge Hock in the District Court on an indictment alleging a total of 9 offences against AY which may be summarised as follows: COUNT OFFENCE DATE OF OFFENDING SECTION 1 and 2 Aggravated indecent assault Between 5 and 10 July 1997 Crimes Act s. 61M 3 Aggravated sexual intercourse Between 5 and 10 July 1997 Crimes Act s. 66C 4 Aggravated indecent assault Between 13 July and 19 July 1997 Crimes Act s. 61M 5, 6 and 8 Homosexual intercourse Between 13 and 19 July 1997 Crimes Act s. 78N 7 Homosexual intercourse Between 13 and 19 July 1997 Crimes Act s. 66T 9 Homosexual intercourse Between 20 October 1998 and 1 August 2000 Crimes Act s. 78N

The Crown case against the applicant 50AY commenced as a student of the applicant in 1990 at the Kharkov School when he was 7 years old. 51In July 1997 the applicant and AY travelled to Sydney to attend the Third Australian National Pedagogy Conference in Sydney. During their stay, which extended over a period of 13 days, they stayed at a hotel in Camperdown. The conduct supporting counts 1 to 8 inclusive in the indictment allegedly occurred at the hotel, when AY was 14 years of age. 52On the Crown case, the conduct in respect of each of counts 1, 2 and 3 occurred whilst AY was preparing for a rehearsal for a performance. AY gave evidence that the applicant instructed him to have a shower and that whilst he was in the shower, the applicant entered the shower recess with the applicant and started washing him. The applicant then said to AY: "Would you like to get stuck into me?" 53When AY said he would not, the applicant responded: "Because I would like to get stuck into you". 54The following then occurred: (i)the applicant took AY's hand, and placed it on his (the applicant's) penis, and told him to rub it gently (count 1); (ii)the applicant then placed his own hand on AY's penis and fondled it (count 2); and (iii)the applicant inserted his finger into AY's anus, and removed it when AY turned away (count 3). 55AY gave his final performance at the conference on 13 July 1997. After he and the applicant returned to the hotel following that performance, they talked and watched television for a period of time. When AY got undressed and got into bed, the applicant also undressed and got into bed with him. The following conduct then occurred: (i)the applicant hugged AY from behind, placing his hand inside AY's underwear and touching his (AY's) penis (count 4); (ii)the applicant then manoeuvred AY and placed him on top of him, so that AY was facing his legs. The applicant then instructed AY to take the applicant's penis in his mouth (count 5); (iii)the applicant performed fellatio on AY (count 6); (iv)the applicant rolled AY onto his belly and placed a finger in AY's anus (count 7); (v)after several minutes the applicant placed AY on top of him again and attempted to insert his penis into AY's anus. When he was unable to do so, AY complied with a request from the applicant that he assist in doing so. The applicant ejaculated after several minutes before smiling and saying to AY 'you're mine"(count 9). 56The Crown case against the applicant as the second trial was dependent upon the jury's acceptance of the evidence of AY. It is evident from the verdicts that his evidence was accepted.

THE EVIDENCE IN SUPPORT OF THE PRESENT APPLICATION 57I have already set out, in broad terms, the basis of the present application. The particular evidence which is relied upon in support of the application, and which is said to undermine the reliability of each of AY, OG and EU, is as follows: (i)evidence given by AY in the applicant's third and fourth re-trials; (ii)evidence given by OG in the applicant's first and second re-trials; (iii)evidence which emerged in the fourth re-trial which, it is said, supports the possibility of collusion having taken place between OG and EU at or about the time of making their original statements to police; and (iv)conclusions reached by his Honour Judge Haesler in relation to the possibility of collusion at the fourth re-trial. 58I will deal with each of these matters separately.

Evidence given by AY in the second, third and fourth re-trials 59As I have previously noted, each of the second, third and fourth re-trials concerned the allegations of EU. In the third trial, an order was made discharging the jury. In the fourth trial, which proceeded before a judge alone, the applicant was acquitted of all counts. 60In order to put this aspect of the applicant's complaint into context, it is necessary to firstly make reference to evidence given by AY in the third trial (that being the joint trial of the allegations made by EU and OG in respect of which the Court of Criminal Appeal ordered that there be separate re-trials). 61In the course of opening the Crown case in the third trial, the Crown Prosecutor said the following: "You will hear about different aspects of the relationship between EU and the accused in the Ukraine which, of course, is not the subject of the charges in this indictment, but while the accused was developing EU's skill as a pianist in private he was engaging in improper sexual activity with him". 62One of the incidents of improper sexual activity which was not the subject of any specific charge against the applicant but which was led by the Crown as context evidence was said to have occurred during a train trip from Kiev to Kharkov. The Crown Prosecutor opened on that incident as follows: "On their return from Israel (the applicant and OG) met up with EU and another boy who'd participated in the competition in Kiev and travelled back to their home town of Kharkov by train and in a compartment of the - the sleeping compartment in which four of them were accommodated the accused said to OG "you've had enough of me in Israel, you go to the top of the bed" and the boy, OG did that and then the accused engaged in sexual activity in the body of the compartment with EU and that was viewed by OG from the top bunk until he turned over and faced the wall". 63AY gave evidence that the applicant and OG had gone to Israel although contrary to the Crown Prosecutor's opening, AY thought that this had been in the winter of 1988 and not in 1997. Having confirmed that he travelled back to Kharkov by train with the applicant and OG, AY was asked the following: Q: Do you remember the trip specifically that trip on that occasion from that master class in Kiev back to - - A: It's trip one of very many because from Kiev and back we would travel usually only by train so it was overnight trip. Q: Right. Do you remember on that occasion with whom you travelled specifically? A: It had to be .... all five of us ... Q: But did you have sleeping quarters on the train? A: Yes. Q: Who did you share an apartment with on that occasion, on that specific occasion? A: No that - - I don't. Q: Do you remember anything that happened on that trip that's in the winter of 1998 back from Kiev to Kharkov, just answer yes or no? A: No, not really, I can't"(emphasis added). 64AY was cross-examined (commencing at T192 L34) as follows: "Q: So this trip from the master class that was being conducted in 1998 at a little village out on the - little village or little cabins is that right outside of the town? A: Yes. Q: And you were travelling back and you mentioned that you would've been travelling as you say with (EU)? A: Yes, he was back on that trip. Q: You don't remember sucking his penis? A: No." 65On 12 April 2010, prior to the second re-trial, the Crown Prosecutor and her instructing solicitor conferred with AY. The notes of that conference record that AY was given a copy of the transcript of his evidence from the third trial, extracts of which are set out in [63] and [64] above. 66The notes also record the following : "Will be asked about train trip - & that's all. Can't volunteer "were lots of train trips and he did lots of things". 67The final paragraph of the conference notes is in the following terms: "Now remembers trip but doesn't remember anything in particular happening". 68Left at that point, the notes tend to reflect an expectation on the part of the Crown that the evidence of AY would be the same as that which he had given at the applicant's third trial, the essence of which was that he could recall the trip in question but could not recall anything untoward having occurred on the part of the applicant. 69On 13 April 2010, the day following the conference, AY forwarded an email to the Crown Prosecutor's instructing solicitor which was in the following terms: "I need to see yourself and Tanya again today. Can I come around lunch time? I can definitely confirm now that it WAS that train trip that I thought I was confused about. I do remember things happening and can describe them if needed. I was confusing it with another train trip which I'll you later about. So I need to see you for five minutes and ask you for advise (sic) what to do tomorrow. What time is lunch time? Kind regards I'll make sure my phone has reception till 3pm." 70The indications in AY's email represented something of a departure from his evidence at the third trial. Accordingly on the following day, 14 April 2010, he made a further statement to the police which contained the following: "5. Since being involved in EU's and Makarov's trial back in 2005 I have not given any real thought to that train trip that was raised in evidence back then. I did remember that trip, I just wasn't sure if it was the one where Makarov did those things. I have not spoken to EU or OG about that train trip and I certainly have not spoken to EU or OG about what evidence I would be giving in this particular trial. I just thought it was important that I should let the Crown prosecutor know that I do recall that particular train trip which was raised with me in 2005. Back then when I gave my evidence, because there were numerous train trips with Makarov and OG, myself and EU where he did things to us, I just wasn't sure at the time whether it was that particular train trip where these things occurred. I remember being asked to just answer specifically yes or no about that train trip and because that the time I wasn't sure I thought I'd better say no. 6. I remember that train trip being over night in the winter of 1998 and I was around 15 years (sic) old. It was a trip from Kiev back to Kharkov after a Master Class season, like a winter school which was held in the village of Vorzel outside Kiev. Inside the sleeping compartment which accommodated four people were OG, myself, Makarov and EU. I can't remember absolutely everything but I do remember Makarov making me masturbate EU and EU masturbate me. We did this to each other at the same time. I remember that we were all naked including Makarov. I recall EU flicking me on the tip of my penis and it hurt. There was very little light in the cabin however when the train would pass a light outside you could see what was happening. Makarov was watching us touch each other and I don't remember if OG was involved but he may have been at some stage at the beginning. I do remember him being on one of the upper beds at some time. 7. The other memory I have of this particular train trip in 1998 was EU lying naked on one of the lower beds with Makarov sitting on the same bed with him. Makarov put his hand on the back of my head and forced it towards EU's penis. As he forced my mouth closer to EU's penis I turned away and I felt EU's penis on my left cheek. After this, I think that it is where it ended." 71On the same day, AY made a second statement to police which, in effect explained the circumstances in which the first statement had come into existence. 72When proceedings in the second re-trial resumed on 15 April 2010, and apparently having been provided with the additional statements made by AY along with the notes of his conference with the Crown, counsel for the applicant expressed concern at the possibility of AY giving evidence at odds with that which had been given by him at the applicant's third trial. The Crown confirmed that it was proposed to lead from AY the contents of paragraphs (6) and (7) of his statement of 14 April (set out in [70] above). 73After lengthy argument, the trial judge made an order that the jury be discharged. 74On the following day, the matter again came before the trial judge for the purposes of allocating a new trial date. As to the evidence of AY, the Crown put its position in these terms: "The other issue is in terms of the Crown outlining what evidence it does propose to lead on the issue of the context evidence of what's being referred to as the Kiev train trip. The Crown has had (sic) advised the defence that it will be relying on the evidence of the act of oral sex that was carried out by the accused upon the complainant EU. It's not proposed that the Crown rely upon the acts that are alleged to have been carried out upon AY or the acts that its (sic) alleged that EU and AY were made to do on each other. Simply the act of oral sex your Honour by the accused on the complainant....The other two witnesses then, AY and OG would simply be asked about the particular acts, namely whether they observed in particular the act of oral sex by the accused upon EU. HER HONOUR: To which it is anticipated OG will say yes. CROWN: Yes and its anticipated AY even with his more recent statement would say no, he doesn't recall that". 75Accordingly, although it was proposed to call AY at the next trial, the Crown anticipated that, if asked, his evidence would be that he had no recollection of having observed any sexual act committed by the applicant on EU in the course of the train trip in 1997. 76The applicant's third re-trial then commenced in February 2011. AY was called by the Crown and confirmed having travelled by train from Kiev to Kharkov with the applicant and EU. He was asked: Q: Do you remember seeing an act of oral sex on EU by the Professor? A: Yes. Q: What was it that you saw? A: Oral sex. Q: Where were you when you saw it? A: Top. Q: I beg your pardon? A: Top bed. Q: Were you lying down or sitting up? A: Lying." 77Immediately after that evidence, and in the absence of the jury, the Crown Prosecutor expressed some surprise at the evidence given by AY that he witnessed the applicant performing oral sex on EU: "I can indicate, for the benefit of your Honour, that wasn't the expected response, "yes", to that question "Had seen anything?" He was conferenced on Friday, he indicated his answer was "yes". He's made some additional statements recently about it which indicated many sexual acts, none of which were oral intercourse by the accused on the complainant. When he answered yes in conference I said, pointed out, that was not in his statement, and he said "I'm sorry, I've become confused with another train trip". And I indicated to him then he must focus solely on that train trip. That would be the only thing that he was asked about. And, of course, the contents of that conference were disclosed." 78A subsequent application to discharge the jury was made by counsel for the applicant and was supported by the Crown. That application was acceded to by the trial judge. In articulating her position on the application, the Crown Prosecutor expressly acknowledged the difficulties which had been experienced with AY's evidence, telling the trial judge that the Crown would have to "give some serious consideration as to what it does with this particular witness". 79On 7 July 2011, AY made a further statement to the police. Paragraph 10 confirmed that he had travelled from Kiev to Kharkov with EU and the applicant. Paragraph 11 was in the following terms: "11. I remember seeing Makarov perform oral sex on (EU) while we were in the train carriage. I was lying on the top bed and I saw Makarov do this to (EU)" 80AY then made a further statement on that same day. Paragraph 10 was in terms similar to paragraph 10 the previous statement. However, paragraph 11 stated as follows: "11. I did not see Makarov perform oral sex on (EU)." 81It will be evident that the contents of paragraph 11 of each of these statements were fundamentally inconsistent. The second of the two statements was tendered at the fourth re-trial as the evidence of AY. In the circumstances more fully outlined below, the applicant was acquitted following the fourth re-trial.

The evidence given by OG in the first and second re-trials 82The applicant was found not guilty of all counts following the first re-trial, which involved the complaints made by OG. In circumstances where the Crown case was necessarily dependent upon the acceptance of the evidence given by OG, the applicant points, in a general sense, to that outcome in support of the proposition that OG's credit has been undermined since he gave evidence in the first trial. 83However the more specific matter concerning OG which is relied upon in support of this application arises from evidence given by OG in the applicant's second re-trial. As was the case with AY, it is necessary, in order to put this aspect of the matter in context, to go back to evidence given by OG in the third trial. 84When called by the Crown in the third trial, OG gave evidence that there was a studio at the applicant's premises which contained books, a piano and later, a computer. His evidence in chief including the following: "Q: Did anything happen when you were at Gladesville in conjunction with the computer? A: Well yes, I mean we used the computer for intranet (sic) or for some games sometimes, you know, especially when it was downstairs in the studio we would come to the studio and use the computer there or practise the piano of course. Sometimes Makarov would come down and, you know, some usual things like minor touching or trying to kiss someone would happen. Q: Who did he touch or kiss in the computer room? A: I don't remember exactly incident that happened, but I remember that something happened sometimes in that room downstairs. I remember he might of (sic) touched me or some others that was (sic) there." 85A short time after this evidence was given, trial counsel for the applicant raised an objection to OG's reference to the fact that the applicant "might have .... touched others" but did not seek any direction from the trial judge at that point. As previously noted, the applicant was convicted following the third trial but successfully appealed to the Court of Criminal Appeal, who ordered separate re-trials. Although the first re-trial resulted in the applicant's acquittal, the Crown proposed to call OG as a witness in the second re-trial (being the trial arising from the complaints of EU). 86On 9 April 2010, in preparation for the second re-trial, the Crown Prosecutor and her instructing solicitor conferred with OG. A copy of the Crown's notes of that conference forms part of the material on the present application. It is apparent from those notes that the Crown explained to OG that the applicant was on trial for offences concerning EU and that in these circumstances, it was not open to him (i.e. OG) to give evidence about any incident said to have occurred between himself and the applicant (in respect of all of which the applicant had been acquitted). In this regard the conference notes include the following: "Crown - Gladesville - you can give evid re what you saw happened to (EU) but not what happened to you. Defence can't xx - if do I can ask qs - do I talk about video. Crown - yes, marked transcript for you also in original police s'ment. OG - re video - (EU) thought heterosexual. Crown - doesn't matter - your recollection." 87In respect of the evidence given by OG at the original trial about the applicant interfering with "others', the conference notes read as follows: "Crown - do you know who others. OG - could have been Alexey or EU, maybe even Illya. This thought of things happened a lot in Kharkov + Gladesville in. Crown - but that best recollection OG - remember it happened on few occasions but don't remember exact incident step by step. Crown - might have been (There's no mention of oral sex to) OG - might have been but can't remember step by step. Crown - appeal court - you didn't have specific recollection - oral sex - can give evidence but defence can't say didn't happen Jury will be left with that you don't have a specific recollection. OG - this sort of thing happened many many times. Can I say it might have been Crown - don't think HH will let you. OG - what is it that (EU) says happened. Crown - (EU) says you both in computer room when A'd came down and oral sex on you both. OG - pretty sure it did happen. Crown - will talk to you about qs plus A after talked to HH & come to an agreement." 88A reading of the conference notes tends to suggest that OG's recollections of the events involving "others" may have been clearer in 2010 than had been the case when giving evidence in the third trial in 2005. The reference to "EU thought heterosexual" suggests that some discussion may have taken place between OG and EU regarding this aspect of the evidence. 89The issues arising from the conference between the Crown Prosecutor and OG were raised by counsel for the applicant in the second re-trial at the same time as he raised the issues involving AY to which I have already referred. As previously noted, the trial judge discharged the jury.

Evidence in the fourth re-trial and conclusions of the Trial Judge 90In the course of the fourth re-trial, evidence was given by Detective Slade, the officer in charge of the investigation, that when EU attended at the police station to make his original complaint against the applicant, OG was also present. In re-examination (T5) Detective Slade gave the following additional evidence: Q: Was OG present when EU made his allegations about the accused? A: You're talking about the, well, the initial allegation on sorry, which is 24 February 2004? Q: You were asked by Mr Coyne whether or not OG was present when you first spoke to EU; you said he was. A: Yes Q: Did EU made (sic) any allegation about the particulars of the sexual abuse that he alleged the accused had engaged in whilst OG was present. A: I can't say whether he did or didn't. Q: Was OG present when EU's statement was being taken? A: No HIS HONOUR Q: That would be standard procedure, that you would take a statement without anyone else being present? A: Most definitely, yes. Q: But if a number of people came to make an allegation or were present when an allegation was made, you couldn't control that initial conversation because you wouldn't know what it was about? A: That's correct. It would also depend on the initial officer that took, responded to that initial allegation. Q: So, it may well have been you were called, the detectives were called down because someone or people had come into the police station? A: That is pretty much what occurred, yes. CROWN PROSECUTOR Q: Standard procedure would be to keep the witnesses separate during any detailed allegations being given by one or the other. A: Yes, that would be standard procedure, yes." 91In the course of his judgment (at T9) his Honour noted that in the course of the Crown case he had heard a recording of the evidence of OG in "an earlier trial". At T18 his Honour continued: "Counts 2 and 3 were, on the complainant's accounts witnessed. So far as count 2 is concerned, OG's version differs in a number of respects from EU's. The diagrams are different. The video scene is different: see exhibits C2 and G. Mr Zozulya says, bluntly and forcefully, no such event occurred. So far as count 3 is concerned, OG says he cannot recall it. If it did occur, this failure of recalls seems extraordinary, given OG says that he recalls the Kiev to Kharkov train event in great detail and the summary recollection of the event said to constitute count 2. The lack of recall for later events supports the contention there was some collusion in February 2004; collusion that was not complete enough to provide total cover for each of the allegations as the matters were on the evidence before me, not discussed after March 2004. If there remains a possibility of collusion the probative value of the evidence of OG and EU is diminished." 92His Honour then said (at T21): "I then have to consider questions of support and corroboration. Making due allowance for the circumstances in which OG gave his evidence I did not find him a credible, convincing witness. This may have had something to do with the fact he gave evidence late at night via video link from an overseas location and I was listening only to the audio version. It may also have something to do with the fact he's recall of more recent events was not good. But, whatever the reason, when given and tested, much of what he said did not ring true. He was evasive, for example, when he said he was not 100 percent sure Mr Zozulya and Mr Koltakov were present when the masturbation incident occurred. Small details did not match, such as the A4 paper and the position of the accused and Brown. More importantly he had no recollection of count 3. Given the time that has elapsed, some difference between his testimony and that of the complainant is to be expected. In fact, if there was an exact match I would be entitled to be suspicious. But when I come to scrutinise his evidence and its reliability, in the light of the warning I must give myself, I must confess that his evidence was far from convincing." 93His Honour also made a number of findings in relation to EU. In the context of the delay between the alleged incidents in 1999 and 2000 and the making of the complaints in 2004, his Honour said: "So far as the other counts are concerned, the delay also operated to the disadvantage of the accused, but in a more general fashion. I give an example. The complainant made three statements to police in 2004. He was cross-examined about those statements and about discrepancies between conversations recounted in the statements and his evidence at the trials in 2005 and 2001 (sic). In response to cross-examination (page 93, 2005) he said: 'What do you think, I can remember? I can straight away tell you every single conversation that I've had for the last ten years?' At page 35 he said he did not remember the exact words but chose to give details to illustrate what he remembered or pictured occurred. He said, 'I pictured it and that's what I came up with. I remember". He denied trying to colour the events. Very few people have total recall but different versions of conversations were given. Given the delay this is perfectly understandable. That different versions were given, however, must have some impact on my assessment on the reliability of the accounts." 94At pages 17 to 18, under the heading "Credibility" his Honour said: "When tested, the complainant conceded that, given the lapse of time, he could not remember everything that was said by the accused and him. This is understandable, no-one could do so. Very few, if any, of us have total recall of conversations. This does not mean that the allegations were made when it comes to considering what was done and when it occurred. What concerns me is this. If the conversations could be re-imagined and additional words added in evidence which were not put in statements, could not the events also be the subject of reconstruction and re-imagining? It is important to know that EU did not make any concessions in chief about this but only after sustained cross-examination." 95Subsequently at page 19, under the heading "Problems with the evidence" his Honour said: "Some things EU said did not ring true to me. His account of the train carriage incident and the Epping masturbation incident count 2, in particular. I note the discrepancies between the accounts given by himself and OG in the absence of any supporting evidence from the other young men...Exhibits C2 and G also, while superficially similar, show inconsistencies between OG and EU. There is some implausibility in these events occurring when Mr Koltakov, who denies any knowledge of pornographic videos, and the complainants wife and daughter could have simply, by leaving their bedrooms, witnesses the event (count 2). I am troubled by the failure of (OG) to support what was said in count 3. Given both men were at the police station in February 2004, there remains, as I said, a risk of collusion. (OG's) lack of memory of count 3 may indicate the two simply did not discuss the matter, although I take into account the Crown's submission that he's mentioning of other persons, presuming they would support his version, may enhance his credibility. ... Making due allowance for the fact that I was listening to and viewing recordings under constraints imposed by the legislation I did not form such a positive view of (EU) and his evidence to conclude his evidence was sufficiently credible, accurate and reliable on its own to support the allegations. I make that conclusion knowing that evidence in such matters can rarely be corroborated and that corroboration is not required before I can reach a conclusion accepting such evidence."

The submissions on behalf of the applicant 96Senior Counsel for the applicant submitted that the matters concerning AY to which I have referred raised grave concerns about AY's credibility, independence and reliability which were not known and available at the time of the applicant's first or second trials. He submitted, in particular, that the circumstances surrounding the evidence given by AY at the applicant's second and third re-trials in particular, and his various contradictory statements to the police (the last of which constituted his evidence before Judge Haesler in the fourth re-trial) supported the conclusion that AY was a witness completely lacking in credibility. Senior counsel submitted that this was significant in light of the fact that the applicant: (i)had been convicted following the first trial in which AY had been called to give evidence by the Crown; and (ii)had also been convicted following the second trial in circumstances where the Crown case was essentially wholly reliant upon the evidence of AY. 97Senior counsel advanced a similar submission in respect of OG. In particular, he submitted that the notes of the conference between the Crown Prosecutor and OG on 9 April 2010 at least suggested that OG had discussed his proposed evidence with EU. He also submitted that exchanges between OG and the Crown Prosecutor which were disclosed in those notes impacted upon a proper assessment of the credibility and reliability of OG as a witness. 98Senior Counsel further submitted that there was a clear opportunity for, and risk of, collusion as between OG and EU as a consequence of the evidence given by Detective Slade, and about which Judge Haesler had commented extensively. 99It was submitted that had these matters been known to the applicant at the time of the first and second trials, it would necessarily have impacted upon the strength of the Crown case in each instance. 100Senior counsel acknowledged that the evidence given by each of OG, EU and AY in the applicant's first trial related to statements relied upon by the Crown as admissions, as opposed to being evidence of direct corroboration of LO's complaints. However, he submitted that the evidence of each of the three witnesses was nevertheless important because it was the principal, if not the only, evidence capable of corroborating that of LO. 101Senior Counsel further submitted that trial counsel, being aware that each person had made his own complaint against the applicant, was necessarily restricted in his manner of cross-examination and was also prevented, in the circumstances, from raising the question of the applicant's good character. He pointed out that in light of the acquittal of the applicant in respect of the complaints made by OG and EU, counsel would not be similarly restricted in cross examining OG, AY and EU at any re-trial. Submissions on behalf of the Attorney-General 102In respect of AY, counsel for the Attorney-General accepted that the Crown case against the applicant in the second trial depended entirely upon the evidence of AY, and that it had not been open to the jury to convict the applicant unless satisfied beyond reasonable doubt that the evidence of AY was both honest and accurate. However, counsel submitted that the proposition that subsequent events had so affected the credibility of AY so as to raise a general doubt about his reliability should be rejected. 103In this regard, counsel pointed out that the submission advanced on the applicant's behalf was primarily based upon matters concerning AY's recollection of a particular train trip which had occurred in 1998. Counsel pointed out that AY had said in one of his statements that he had gone on many train trips with the applicant, in the course of which the applicant had done many things to him. She submitted that the fact that AY could, in those circumstances, experience confusion about what happened on the particular train trip in question did not raise any doubt or question about his credibility at all. 104Counsel also drew attention to the time periods which had elapsed between the time of the train trip (in 1998) and the time at which AY had given evidence in the various trials. She submitted that in circumstances where there had been many train trips, and in circumstances where AY was giving evidence about them more than 10 years after the event, an inconsistency in this one aspect of his evidence should be viewed as unremarkable, and one which fell well short of being sufficient to raise any doubt about the credibility of the evidence he had given. 105In all of these circumstances, counsel submitted that no question properly arose about the applicant's convictions following the second trial. 106In terms of the submissions made on behalf of the applicant in relation to the evidence given by AY, EU and OG in the first trial, counsel for the Attorney-General firstly took issue with the proposition that their evidence provided the only evidence of corroboration of the complaints of LO. Counsel pointed out that the Crown had also relied upon the fact that pornographic videos generally meeting the description given by LO were found on the applicant's computer and provided corroboration of his complaints. 107Counsel pointed out that the applicant's trial was conducted on the basis of a general acceptance of the evidence of EU as to the relevant conversation and submitted that in these circumstances, no relevant sense of unease or disquiet as to the applicant's conviction following the first trial arose. Counsel also pointed out that the various concerns expressed by Judge Haesler about EU concentrated upon suggested discrepancies in evidence given by EU at earlier trials, and the suggested possibility of collusion as between EU and OG. Counsel submitted that neither matter had any bearing at all on evidence given by EU in the first trial, in circumstances where that evidence was not in dispute. 108In terms of AY's evidence in the first trial, counsel pointed out that the applicant's evidence in the first trial conceded some conversation having taken place with AY, although he could not recollect a conversation in the car on the way to the railway station. Counsel also pointed out that the applicant did not deny that he had discussed suicide in the period after LO had made his allegations, an issue to which AY (and OG) referred in their evidence. Counsel noted that when summing up to the jury, the trial judge observed that the reference to suicide was not disputed, and that this was an observation which was clearly correct. 109Counsel also relied upon the fact that the applicant had, in the conduct of his defence in the first trial, specifically relied upon the truth of AY's evidence that he (i.e. the applicant) had, at one point, expressly denied that what LO had alleged was true. 110Counsel also relied upon the fact that in her summing up in the first trial, the trial judge had directed the jury that whether they could use the evidence of the statements about which EU, AY and OG had given evidence depended upon whether they accepted the Crown's construction of what had been said. Counsel submitted that in finding the applicant guilty, it was evident that the jury either accepted the construction advanced by the Crown, or did not accept that construction but nevertheless found the remaining evidence to be so compelling that there was no reasonable doubt of the applicant's guilt. Counsel submitted that irrespective of the basis upon which the jury returned its verdict, the matters upon which the applicant now sought to rely in relation to the credibility of AY, EU and OG did not, as a matter of practical reality, raise any doubt or question about the applicant's conviction in relation to the offences following the first trial. CONSIDERATION AND CONCLUSION 111I have already set out the principles which are to be applied in determining an application of this nature. 112Notwithstanding the submissions of senior counsel for the applicant, the material which has been put before me in support of the application does not cause me unease, or a sense of disquiet, in allowing the applicant's convictions to stand. I have reached this view for a number of reasons. 113Dealing firstly with the matters concerning AY, to the extent that reliance was placed upon matters relating to his evidence of the train trip in 1998, I am not satisfied that such evidence erodes his credibility to the extent which has been suggested. Clearly, he made inconsistent statements in relation to that issue. Equally, he was seeking to recall matters years after the event, and in circumstances where he had, according to his account, been on many train trips with the applicant and had become confused. 114I accept that the Crown case in the second trial, which concerned the allegations of AY, necessarily relied upon the jury's acceptance of AY's evidence. However, inconsistencies arising from a level of confusion as to one single event, particularly where that event occurred some 13 years before, do not, in my view, lead to the conclusion that AY is a person so lacking in credibility that there is a resultant sense of unease or disquiet arising from the applicant's convictions following the second trial. 115Similarly, I do not accept the submission that the matters which have emerged in respect of other evidence given by AY impacts in any relevant sense upon the applicant's convictions following the first trial. I have previously noted that counsel for the applicant at trial cross-examined AY to the effect that in the relevant conversation, the applicant had denied the truth of LO's allegations. AY agreed that the applicant had made such a statement and the applicant relied upon that evidence before the jury. There is, in my view, something of an inconsistency between an assertion that AY is unreliable on the one hand, and specific reliance being placed upon his evidence on the other. 116The notes of the conference between OG and the Crown Prosecutor on 9 April raise the possibility of OG and EU having discussed their evidence. Their presence together at the police station at the commencement of the investigation also raises that possibility, although without more it does so in what could only be described vague terms. What is clear is that OG and EU were separated when making their original statements. 117I have had regard to the statements made by Judge Haesler SC in the course of his judgment following the fourth re-trial. Clearly, his Honour thought that there was some possibility of collusion between OG and EU, although he does not appear to have reached an affirmative finding in that regard. In any event, and even if that possibility exists, whether it has any relevant impact upon the applicant's convictions following the first trial must be assessed according to the evidence that each of OG and EU gave in that trial. 118As I have previously noted, the evidence of OG and EU went to statements said to have been made by the applicant which were relied upon by the Crown as admissions. In the case of EU's evidence it was not the applicant's case that the words attributed to him by EU had not been said, and the trial judge directed the jury accordingly. Rather, it was the applicant's case that a different interpretation should be placed upon the words he had used. 119In these circumstances, even if the possibility of collusion between OG and EU exists it does not, in my view, impact upon the applicant's convictions in any relevant sense. No attack was made on the credit of EU at the applicant's first trial. 120The position is similar concerning the evidence given by OG at the first trial. Although the conversation about which he gave evidence was disputed to some degree, there was no issue that in a conversation with OG the applicant had used the word "genetics" and that he had spoken of committing suicide. Significantly, as to his use of the first term, the applicant (in answer to the question from her Honour) made it clear that as far as he was concerned, the question was one of interpretation, not the fact that he had used that term. ORDER 121For these reasons, and having considered the material relied upon, no sense of unease or disquiet arises in respect of the applicant's convictions for the offences arising out of the first and second trials. 122The application is therefore dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2013