McColl JA, Meagher JA, Simpson JA, Bellew J, Coll JA
Source
Original judgment source is linked above.
Judgment (7 paragraphs)
[1]
Background
The brief statement of the applicant's convictions (in [3] above) does not expose the long and tortured history of the criminal proceedings against the applicant. That history is fully set out in the judgment of Bellew J. I will, so far as possible, condense the statement of factual matters to that which is necessary to explain my conclusion in relation to Ground 1 of the Summons.
The applicant is a Ukrainian music teacher. In 1998, accompanied by a number of music students, he travelled to Australia to take up a position at the Australian Institute of Music. LO was not one of the students who came from the Ukraine with the applicant, but came under the applicant's tutelage. In 2004 LO disclosed to his mother that, over a period of 18 months, the applicant had sexually assaulted him. When that allegation became known, three of the Ukrainian students (AY, and two students to whom I will refer as "OG" and "EU") made similar allegations. In late 2004 and in August 2005 the trials (mentioned above) of the allegations made by LO and AY took place, resulting in each case in the applicant's conviction on a number of counts. In the trial concerning LO's allegations, EU, AY and OG gave evidence. The evidence they gave was not of the assaults against them that they alleged, but of admissions they said had been made to them by the applicant. In the trial concerning AY's allegations, the Crown case depended on the evidence of AY alone. Appeals against the convictions were dismissed: R v Makarov (No 1) [2008] NSWCCA 291; R v Makarov (No 2) [2008] NSWCCA 292.
Subsequently, a joint trial concerning the allegations made by OG and EU took place, and the applicant was convicted of 10 counts. AY gave evidence in that trial. However, the convictions were set aside on appeal and new, separate, trials were ordered: R v Makarov (No 3) [2008] NSWCCA 293.
The retrial with respect to the allegations made by OG took place in March 2010. AY gave evidence. The applicant was acquitted on all counts.
The first retrial of the allegations made by EU commenced in April 2010. AY again gave evidence. The jury was discharged due to discrepancies between the evidence he there gave, and the evidence he had given in the joint trial (concerning the allegations made by OG and EU). A second retrial of EU's allegations began in February 2011; this took a similar course to the previous trial - AY gave evidence inconsistent with the evidence he had previously given and the jury was discharged. Prior to this trial, on 9 April 2010, the Crown Prosecutor and her instructing solicitor conferred with OG, who was to be called as a witness. The information he then gave left open the (unsurprising) possibility that he might have had some discussion with EU about the applicant's conduct.
The last trial was the fourth attempt at trying the allegations made by EU. It took place before a judge alone (Haesler DCJ). AY again gave evidence. A police officer gave evidence that, when EU attended the police station for the purpose of making his complaint, OG was present at the station. The police officer was not sure whether OG was present when EU made any allegation of sexual misconduct. He said that OG was not present when EU's statement was taken. The trial judge acquitted the applicant, giving (as he was required by s 133(2) of the Criminal Procedure Act 1986 (NSW) to do) reasons for his decision. In the course of giving reasons he commented adversely upon the credibility of OG and EU. This Court was referred to no comparable adverse comments about the credibility of AY. Indeed, it is not clear whether AY gave evidence in that trial. In the context of his comment about OG's evidence, he noted the possibility of collusion arising from the fact that OG and EU were present at the same time at the police station.
There was one particular aspect of the evidence of AY in the various trials in which he gave evidence upon which the applicant focussed. That concerned a train trip in 1998 from Kiev to Kharkov during which it was said there were instances of sexual misconduct by the applicant. It is sufficient to say that, in the various trials, and in statements made to representatives of the Crown, AY gave conflicting accounts.
[2]
The application before Bellew J
In the application before Bellew J, as in the present proceedings, the applicant relied upon what was said to be fresh evidence that emerged only on the subsequent trials. The fresh evidence relied upon was identified as:
1. evidence given by AY in the later trials;
2. evidence given by OG in the later trials;
3. the evidence in the fourth retrial that OG and EU had been present at the same time at a police station, opening up the possibility of collusion between them;
4. the conclusions of Haesler DCJ concerning the possibility of collusion.
[3]
The judgment of Bellew J
Bellew J commenced his judgment by setting out the relevant legislation and the principles derived from previous judicial discussion of the requirements of s 79 of the Appeal and Review Act. He adopted, as the test posed by s 79, that proposed by Johnson J in Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, that test being whether "unease, or a sense of disquiet, in allowing the conviction to stand" is experienced. No complaint is made about his Honour's discussion and statement of the relevant legal principles, nor the statement of the test.
His Honour then set out at some length the course of the litigation, the nature of the allegations, and the salient evidence. Having done so, he gave his conclusions succinctly. Relevantly to the issues raised on this application, he said:
"112 Notwithstanding 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.
113 Dealing 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.
114 I 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.
115 … [His Honour referred to evidence given by AY that the applicant had, in a conversation with AY, denied LO's allegations, evidence upon which the applicant relied, and commented:] 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.
116 The 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.
117 …
118 …
119 In 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.
120 The position is similar concerning the evidence given by OG at the first trial …" (italics added)
[4]
The applicant's submissions
Although the applicant's written summary of argument ran to 56 paragraphs, his contentions were relatively narrow. He attacked the observation of Bellew J at [114] that the inconsistencies in AY's evidence:
"… do not, in my view, lead to a 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."
Of this, he submitted:
"47 … his Honour effectively imposed a pre-condition that before such a finding could be made, it was necessary for the Court to be satisfied that AY was 'so lacking in credibility'."
He further submitted that his Honour's description of the nature of the inconsistencies "downplayed the significance of those inconsistencies". Contrary to his Honour's description of the inconsistencies as being limited to confusion as to a single incident, 13 years earlier (at [114]), the applicant submitted:
"48 … The incident in question was whether or not [AY] had seen the applicant perform oral sex on EU on the train from Kiev to Kharkov, and the witness had given five versions, each one inconsistent with the one before."
He then attacked the observation, in [115], that there was something of an inconsistency between the applicant's reliance on one part of AY's evidence, and his assertion of AY's unreliability. He submitted that there was no inconsistency in reliance upon part of a witness' evidence, and rejection of other parts.
[5]
Resolution
It will be recalled that the order sought on behalf of the applicant is a declaration of error of law. That reflects the jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW), which is only available where error of law, including jurisdictional error, is disclosed. The Attorney General, who resisted the application, did not contest that relief would be available if the applicant were able to demonstrate error of law (although a question was raised as to whether, having regard to the lengthy delay between the delivery of Bellew J's reasons, and the commencement of the present proceedings, an extension of time was required, and, if so, whether it ought to be granted).
[6]
The grounds
The first ground pleaded complained that Bellew J failed to apply the appropriate test. However, no complaint was made of the statement of relevant legal principles contained at the commencement of the judgment. There, Bellew J referred to relevant authority (Application of Peter James Holland).
The complaint now made is not, it seems, of the articulation of the appropriate test, as stated in Application of Peter James Holland, but what is said to be the imposition of "a precondition" before a finding of "a sense of unease or disquiet" could be made. The "precondition" is that the evidence of AY was:
"so lacking in credibility that there is a resultant sense of unease or disquiet …"
I do not accept that the observation constitutes the imposition of "a precondition"; rather, it reflects the basis upon which the application was put before his Honour. In that application, heavy emphasis was placed upon what was said to be the lack of credibility of AY. In this Court, it was acknowledged that AY's asserted lack of credibility was the sole basis of the argument before Bellew J. His Honour's remark was no more than recognition of the submissions that had been made to him. So much is clear, if from nothing else, from the italicised passage in [113] of the reasons.
The remaining submissions do not assert error of law. To say that his Honour's description of the inconsistencies in AY's evidence "downplayed the significance of those inconsistencies" is no more than to complain about the weight attributed by his Honour to the inconsistencies upon which the applicant had relied. No error of law is identified in this submission.
The observations of Haesler DCJ in acquitting the applicant in relation to the OG allegations also cannot assist the applicant. Haesler DCJ was commenting on the evidence given only in the trial before him; he expressly included reference to the circumstances in which he heard and saw the evidence. His observations have no bearing upon the credibility of witnesses in other proceedings.
Similarly, although it is correct that a party to proceedings is not bound to accept or reject the whole of any witnesses' evidence, no error of law is disclosed in his Honour's passing remark attributing inconsistency to the manner in which the applicant sought to deal with the evidence of AY. There is nothing to suggest that that passing comment was in any way dispositive.
In my opinion, Ground 1 of the application should be rejected. That being the case, it is unnecessary to consider the Attorney General's submission that the applicant requires an extension of time to bring the present proceedings, and, if he does, whether it ought to be granted.
I would therefore dismiss the application.
[7]
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Decision last updated: 08 March 2016
Solicitors:
Hammond Nguyen Turnbull (Applicant)
Crown Solicitors Office (First and Second Respondents)
File Number(s): 2015/217252
Decision under appeal Court or tribunal: Supreme Court
Citation: Application of Victor Makarov pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468
Date of Decision: 4 October 2013
Before: Bellew J
File Number(s): 2012/135729
Judgment
McCOLL JA: I agree with Simpson JA.
MEAGHER JA: I agree with Simpson JA.
SIMPSON JA: In 2004 and 2005, in two separate trials, the applicant was convicted of a series of sexual offences against two victims, to whom I will refer as "LO" and "AY". Appeals to the Court of Criminal Appeal against the convictions were dismissed: R v Makarov (No 1) [2008] NSWCCA 291; R v Makarov (No 2) [2008] NSWCCA 292.
In 2013 the applicant applied, under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") for an inquiry into the convictions. By s 78, such an application lies to the Supreme Court and is to be dealt with in accordance with s 79. Where, after considering the application, it appears to the Supreme Court that there is a doubt or question as to the guilt of the applicant, or as to any mitigating circumstance in the case, or as to any part of the evidence, the court may:
1. direct that an inquiry be conducted by a judicial officer into the conviction (or sentence), or
2. refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW).
The application came before Bellew J. On 4 October 2013 his Honour held that "no sense of unease or disquiet arises in respect of the applicant's conviction" and dismissed the application: Application of Victor Makarov pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468.
By Summons filed on 10 July 2015, the applicant seeks judicial review of that decision. He names the Attorney General of NSW and the Supreme Court of NSW as respondents. The order he seeks is:
"Declare that an error of law on the part of the learned judge dismissing an application made by the Applicant, Victor Makarov, pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW) has been made in finding the [sic] no sense of unease or disquiet arises in respect of the Applicant's convictions in the first and second trials."
The grounds of the application were stated as follows:
"1 That the learned judge did not apply the appropriate test for an application under s. 78 of the Crimes (Appeal and Review) Act 2001 (NSW).
2 That the learned judge erred in finding that no sense of unease or disquiet arises in respect of the applicant's convictions in the first and second trials."
On the hearing of the application, reliance on Ground 2 was abandoned. The Attorney General appeared (by counsel) to resist the application.