Makarov v R [2008] NSWCCA 292 | Case summary

Makarov v R [2008] NSWCCA 292 | Case summary | Zoe

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13 The Appellant and A were invited to attend the Third Australian National Piano Pedagogy Conference to be held in Sydney in July 1997. The invitation was extended by Mr Warren Thomson, who at the time was the Artistic Director of Professional Development Programs at the Australian Institute of Music ("the Institute"). Mr Thomson had met the Appellant when he attended piano competitions in Ukraine and he had seen a number of the Appellant's students, including the complainant, A, perform at competitions. It was this initial contact in Europe between Mr Thomson and the Appellant and A that led him to extend an invitation to them to attend the conference in Sydney in July 1997. 14 Mr Thomson arranged for the Appellant and A to stay at the Travelodge Hotel (as it then was) at Camperdown for the duration of their stay in Australia. He gave evidence that the Appellant and A arrived in Sydney on 3 July 1997 and departed on 19 July 1997 (T110). During their stay in Sydney, it had been arranged for A to give three piano performances. The first was a solo performance at Sydney University on 7 July, the second was a performance in the company of the Sydney Youth Orchestra on 10 July, and the third was a solo performance at the Pitt Street Uniting Church on 13 July 1997 (T111). 15 Counts 1 to 8 on the indictment related to incidents that A said occurred whilst he and the Appellant were in Sydney attending the conference in July 1997. The complainant, A, was 14 years' old at that time. The Appellant was 43 years old. 16 The events giving rise to Counts 1 - 3 on the indictment occurred before a scheduled rehearsal for the Sydney Youth Orchestra performance. It was the evidence of A that he was in his room at the Travelodge preparing himself to leave for the rehearsal. The Appellant entered the room and instructed A to have a shower, which he did. While A was in the shower, the Appellant got into the shower with him and asked him for the soap. The Appellant started soaping and washing A and said to him "Would you like to get stuck into me?" to which A said "No". The Appellant then said, "Because I would like to get stuck into you". The Appellant took A's hand and placed it on his (the Appellant's) penis and told A to rub it gently (Count 1). The Appellant then placed his own hand onto A's penis and fondled it (Count 2). The Appellant then rubbed A's back and lower back before moving his hand down until he inserted his finger into A's anus (Count 3). A turned away so that the Appellant's finger would be removed and it was his evidence that this brought the incident to an end (T18). 17 The events giving rise to Counts 4-8 on the indictment occurred after A's final solo performance at the Pitt Street Uniting Church on 13 July 1997. The Appellant and A returned to the Travelodge some time after dinner. They went back to one of their rooms (in evidence, A was unable to recall which one). A said that they talked generally and watched television for a period. A was tired and decided to go to bed. He got undressed and got under the bed covers. The Appellant undressed and hopped into bed with A. A said that he was facing the wall with his back to the Appellant. The Appellant hugged A from behind and then placed his hand inside A's underwear and fondled his penis (Count 4). The Appellant removed A's underwear as well as his own underwear. He placed A on top of him so that A was facing his legs. He instructed A to take his penis in his mouth (Count 5). He also performed fellatio on A (Count 6). The Appellant then rolled A onto his belly and inserted his finger in A's anus (Count 7). A said the Appellant was moving his finger inside his anus and that he felt pain. After a couple of minutes, the Appellant put A on top of him again and he tried to insert his penis into A's anus, but was unable to do so. He instructed A to put it in for him and A complied (Count 8). After a few minutes, the Appellant ejaculated inside A. It was the evidence of A that the Appellant then smiled and remarked "You're mine". 18 At the conclusion of the conference the Appellant and A returned to Ukraine. 19 In December 1997, the Institute in Sydney offered the Appellant a piano teaching position. The Appellant accepted and in July 1998, he migrated to Australia together with his wife, daughter and five Ukrainian music students, including A. 20 A initially lived with Mr Thomson who had organised scholarships for A and the other students, including the Appellant's daughter. A legal guardianship document was drafted in relation to Mr Thomson's care of A. The document was tendered at the Appellant's trial (Exhibit E). The four other Ukrainian students lived with the Appellant and his wife and daughter, initially at a house in Epping that had been arranged for them by Mr Thomson and then, some months later, at a house in Gladesville. 21 It was the evidence of A that, about a year-and-a-half after he arrived in Australia, he left the care of Mr Thomson and went to live with the Appellant at the house in Gladesville. In cross-examination, A said that the reason he left the care of Mr Thomson was that he had an argument with Mr Thomson, and that he had spoken to the Appellant who had told him to pack his things and come to his house in Gladesville (T49). In evidence, Mr Thomson confirmed that A left his care in October 1999 (T115). 22 The events giving rise to Count 9 on the indictment, to which the jury returned a verdict of not guilty, were alleged to have occurred some time after A moved into the Gladesville house with the Appellant. At the time, A was alone in the house with the Appellant. The two were in the living room of the house. A said that the Appellant was sitting in a chair and called him over. He opened A's fly and took A's penis in his mouth (Count 9). A said that he told the Appellant "Don't do it" and the Appellant looked up at him and said, "Don't you want me any more?" to which A replied "No". This was the end of the incident. In cross-examination, A agreed that he had told police that the Appellant had pulled his pants and underwear down, exposing his penis, not that the Appellant had opened his fly (T76). 23 A gave evidence that in the period between when he and the Appellant returned to Ukraine in July 1997 and the time of their migration to Australia in July 1998, other incidents of a sexual nature occurred, but that the frequency of those encounters was reduced. He said that the Appellant would occasionally try to kiss him or try to fondle him (T23). 24 A first reported these matters to the police on 18 February 2004. He made a formal statement to police on 25 March 2004. A gave evidence that his report to police in February 2004 was the first time that he had told anyone in detail of the incidents which had occurred between the Appellant and himself (T24). The Appellant was arrested on 12 May 2004.

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The Appellant's Case 25 The Appellant gave evidence at his trial, denying that any sexual activity had occurred with A. He denied sexually assaulting A when the pair were in Sydney in July 1997 (T147). He denied sexually assaulting A at his Gladesville home some time between 20 October 1999 and 1 August 2000 (T154). The Appellant said that A's allegations of sexual incidents occurring at the Kharkov school in Ukraine , both before and after the July 1997 trip to Australia, were all untrue (T148). 26 With respect to A's (context) evidence of sexual assaults by the Appellant during lessons at the Kharkov school, the Appellant's case was that there was limited or no opportunity for any sexual conduct or inappropriate behaviour during lessons at the Kharkov school as there were constant visitors to his classroom and interruptions to his lessons. The same (limited opportunity) argument was raised by the Appellant in relation to Count 9 on the basis of the Appellant's household being very busy with eight persons residing there. 27 Two witnesses, Ilya Zozulya and Alexey Koltakov, gave evidence that they also lived at the house, were friends with A and had never seen anything of this nature between A and the Appellant, nor had A ever mentioned anything to them. Both ceased their friendship with A upon hearing of the allegations being reported to the police. 28 Three other musicians, Paul Virag, Leo Novikov and Ella Fokina, gave evidence that they had seen A at different times covered by either the relationship or indictment counts, and that he had appeared happy. 29 Mr Zozulya, Mr Virag, Mr Koltakov and Mr Novikov also gave evidence, which was relied upon by the Appellant at trial and on appeal, suggesting that performance at an elite level as a concert pianist was incompatible with stress or personal upset. More detailed reference will be made to the evidence later in the judgment. A short summary of the evidence is given here. Mr Zozulya gave evidence that he had played the piano in competitions and performances where everything is played from memory, without sheet music. He said that he had played when he had been upset and that, when he was upset, he would play much worse than if he was happy (T193). Mr Koltakov gave evidence that it was difficult to perform well if one was upset about something and could not concentrate (T213). Mr Virag gave evidence that he had worked as a pianist, teacher and conductor. He had worked at the Institute and knew the Appellant during the period that they both worked there. He gave evidence that, if he was upset about something, it affected him as a concert pianist. He said that a public performance required a "very very big degree of concentration" and that if a person was upset or stressed, they would be lacking in concentration especially if they were playing from memory. He said that the piece played by A on 10 July 1997 when he was in Australia was an extremely demanding piece (T235). Mr Novikov, a violinist, gave evidence that he had known the Appellant since the Appellant had first arrived in Australia. As a performer, Mr Novikov felt that it was almost impossible to perform to even 30% of one's abilities if one felt humiliated (T241). Mr Novikov said that he had met A when visiting the Appellant's house, and also when he was teaching at the Institute. He said that he had never noticed anything strange or unusual about A and that he remembered A as a very self-confident happy person (T242). 30 In the Appellant's case, a video recording of a room at the Kharkov school where the Appellant taught piano to students was tendered (Exhibit 1). This was the room where A alleged that a number of incidents of a sexual nature had taken place with the Appellant. The recording (which was an edited tape) showed that, during the course of a lesson, there were a number of interruptions by persons entering the room (T146).

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Grounds 1, 2, 5 and 6(i) and (ii) - An Issue at Trial Concerning the Ability of A to Play the Piano at Concert Level if he had Truly Been Sexually Assaulted 34 An overlapping feature of Grounds 1, 2, 5 and 6(i) and (ii) is the claim that a miscarriage of justice has occurred because of the jury's acceptance of the evidence of A that he was sexually assaulted by the Appellant in 1997, in a period when A was performing as a concert pianist successfully, and without what are said by the Appellant to be the inevitable difficulties which would have affected A if he had been sexually assaulted as alleged. It is appropriate to trace the manner in which this issue emerged at the trial before turning to consider the grounds of appeal which relate to this question. 35 An issue at trial was the ability of A to play at concert level if he had truly been sexually assaulted. The Appellant contends that it is simply not possible. Reference will be made to the evidence, the closing addresses of counsel and the summing up dealing with this issue. 36 A was cross-examined about his rehearsal with the Sydney Youth Orchestra in July 1997. He agreed that his evidence was that he had been sexually assaulted in the hotel room prior to attending the rehearsal (Counts 1-3). He agreed that he had been upset by the assault. It was put to him by defence counsel (T60-61): "Q. Mr [A] you cannot perform at the standard, the very high level standard that you are required to perform at if you are upset, correct? A. Incorrect. Q. Incorrect? A. Incorrect because rehearsal at the time of the rehearsal there could easily be put a lot of pressure from Makarov on me about my playing that would easily push out any other emotion I have." 37 As mentioned earlier, four witnesses, who were musicians, gave evidence in the defence case. Mr Zozulya was asked in chief (T192): "Q. Have you ever played in a performance or a competition when you've been upset for some reason? A. Yes I did yes. Q. You recall some times when that happened?"

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The Crown objected on the grounds of relevance and submitted that this was anecdotal evidence relevant only to Mr Zozulya's experiences. Her Honour queried the relevance of the evidence, observing that "everybody's different surely" (T193). Defence counsel submitted that the "jury are entitled to have some yardstick, the jury are entitled not just to simply have Mr [A] saying well I was upset but I played brilliantly" (T193). The trial judge eventually allowed the question. Defence counsel asked (T193.36): "Q. So when you were upset did you notice anything different about your performance? A. Yeah well if I was upset I would play usually much worse than I would play if I would be like all happy you know just on my good days so I would treat it like a bad day performance you know." 38 Mr Koltakov, the son-in-law of the Appellant, was asked in chief by defence counsel (T213.1): "Q. We have a little bit of evidence about the difficulty of playing at such a top level a particular piece of music, but it may be different for different people. As far as you're concerned if you are to play in a competition or an exhibition, a concert, a particular piece of music that might take 15 or 20 minute [sic] to play, what sort of preparation do you need to learn this music, for you? A. Well you need to start preparation at least a few months in advance and the program must be quite ready and at least a few weeks in advance and what's even more important is the day of performance, how you spend the last day. You have to be well rested, you cannot practice a lot you have to practice just a little bit to warm up your fingers otherwise you'll just let all your energy go. So in other words you have to be fresh and excited to play. Q. What if you were upset if someone had, well, sexually assaulted you? OBJECTION HER HONOUR: I reject that question. RUSSELL: Q. Can I ask you this. Have you ever gone to a competition yourself after being upset about something? A. Not a competition but performances, yes, it has happened to me. Sometimes with the professor I would have to perform and we would have a little fight, I would definitely be upset about it and it would not go as good at all as it would be. Yeah it's hard. It's just you're playing and you cannot concentrate and you know that you're doing not the right thing because you're not enjoying it, you cannot actually play the music. Q. What sort of a level of concentration do you need? A. Well I don't know the numbers, I cannot tell you that. Q. It's more difficult is it because there's no music in front of you? A. Not only because of that. It's like, you know, in aeroplane they have autopilot so you can use autopilot and you can go and have a rest. Well it's still very difficult and complicated to operate such a machine. But in piano playing you don't have autopilot, you have to be always there every moment, every minute you have to be tremendously concentrated, every moment. That's what's most difficult." 39 Mr Virag gave evidence that he had worked as a pianist, teacher and conductor (T232). He had worked at the Institute and knew the Appellant. Defence counsel asked Mr Virag in chief (T233-234): "Q. Can you give us some idea of what is required to produce a quite good performance in piano, what is required? A. Well it's a complex question. Firstly, you need to have proper preparation, which is based on your individual preparation, like practising the piano. You need the guidance, you need the leadership, so until you become an independent, and I would say independent pianists at the age of maybe, I don't know, 25, 30. Some people even get guidance later on. So you need to work with a teacher. In early stages of my career my teachers were only - always a very important part of it, because -- Q. Very important? A. Very important part of the preparation because they play the guidance role, so I was getting the explanation of music itself, the technical guidance, how to press the keys the right way, because - and then the musical understanding. To understand music is a little bit more complex than to press the right keys in the right time. So there is a lot of psychological preparation. Q. Can I stop you there. At any stage when you were being prepared in your younger years by your teacher or teachers of piano, did anyone ever suggest to you that you had to experience some act of sex to appreciate the great composers and what their music was all about? A. Not to my recollection. Q. What do you think about that notion that you have to experience sex to understand a piece of music? CROWN PROSECUTOR: I object, it's not relevant. RUSSELL: This is what the Crown put to the witnesses, your Honour. HER HONOUR: To whom? RUSSELL: Put to the accused and led through Mr [A] that the accused told him this. HER HONOUR: That's what the complainant said he was told by the accused. RUSSELL: Your Honour, surely we can get some sort of understanding from an independent source as to how sensible this all is. HER HONOUR: That's not the issue. I reject the question. RUSSELL: Q. If you are upset, there are varying degrees of upset I understand, if you're upset about something has it affected you as a concert pianist? A. Yes, always. Q. Can you please explain the situation? A. Well the performance - any public performance or even if you perform in a class in front of your mates, it - it is a - requires very very big degree of concentration. It's not only the preparation, because you may be well prepared for that particular performance, but at the same time you have to be in a very special state of mind in order to perform on the best of your level, and obviously when you are upset or if you - if you are stressed most of that concentration or your ability actually to deal with - with your task performing, most of that part goes to deal with the stress. So obviously you are lacking quite a lot of - lot of concentration and that may adversely affect your performance. Especially when you are playing say from memory, you may have erratic memory, obviously you may have so-called black holes and all of a sudden you may forget a part of music. It's like you probably all remember that situation in rowing on the Olympics when that young lady from the - from the rowing stopped rowing just couple of hundreds of metres before and that was the black hole, right. The situation was we don't know. We remember all of that situation. So that was actually - that was said that was a black-out, right. So if this happens in your performance you are jeopardising your reputation, your position as a professional, so you obviously have to look after that part." 40 Defence counsel asked Mr Virag concerning the degree of difficulty of one of the pieces played by A at the concert on 10 July 1997, the Mozart Concerto in D Minor (K466). Mr Virag observed that this was "an extremely demanding piece" (T235.21). 41 Mr Novikov gave evidence that he was a violinist. He had known the Appellant since the Appellant first arrived in Australia. Defence counsel asked Mr Novikov in chief (T241-242): "Q. Okay. Can I ask you about performing, as a performer in an orchestra, classical music, if you are upset. First of all, have you ever played a performance that you recall when you've been upset? A. Yes, yes. Q. Can you just tell us a little bit about the dynamics, tell the jury about the dynamics of this and what is required in playing this music? A. There could be different reasons for distress. So, for example, an argument with parents, you know, and that kind of distress causes aggression and I would say with aggression may be it would be impossible to perform though still not as well as being in normal condition. Another case is humiliation. When you feel yourself humiliated, it's another kind of distress. I feel it like a musician, like a person, not like a psychiatrist of course. I would say it's impossible, almost impossible to perform even thirty percent of your abilities if you feel yourself humiliated. In my life I can recall just one case of such thing when I felt myself humiliated. Not as sexual abuse, of course, it's hard to imagine. But I felt humiliation when I played after that. It was a case when my teacher, I expected to him to come for an audition when I played, for an important audition for a competition, and he didn't come. As I found, because he had to meet his wife and take her to their house near Moscow and so on, so I was really upset because I felt myself very lonely, like, like he just failed to come to support me. Q. He let you down? A. Let me down, yes. And that was awful and firstly I didn't want to play but then I went to play and that was maybe one of my worst performances, because I felt myself like, you know, powerless. That's the worst thing when humiliation occurs, when a persons let down." 42 The Crown Prosecutor touched upon this issue during her closing address to the jury (T2-4, 29 August 2005): "Now, another theme which the accused touched on in his evidence, but which was developed very, very - well I'd say most aggressively by defence witnesses is this, that because there was no evidence in Mr [A] 's performance as a pianist or in his outward presentation when dealing with others in a social context that that means that his allegations of being sexually abused were baseless and they were, in fact, lies. This was - this theme was pushed very hard in relation to the first three counts which you will recall Mr [A] said occurs as the three counts that were in the shower allegedly, they occurred before a rehearsal before the performance with the Sydney Youth Orchestra during the conference in 1997. Remember the alleged sexual assaults occurred before one of the rehearsals. Now l reminded you the other day about Mr [A] 's evidence that he said that at the rehearsal, 'Emotion could be driven out of me by Mr Makarov'. Firstly, his allegations about these three counts, the ones before one of the rehearsals, do not relate to competition performances. He wasn't due to perform in a competition which all the witnesses have liked to refer to in the terms of his lack of success around about 1999/2000. In 1997 he was giving performances and it's understandable that he would have learnt the music and perfected his playing of it technically and then after this alleged series of events in the shower there was a rehearsal so his mind had to get into gear to work with the conductor and the orchestra. He never said that after the incident in the shower he was all upset and depressed and he couldn't cope. This is rather a red herring, something of a red herring, that the defence has put forward to try and get pseudo expert evidence from the defence witnesses. I say pseudo expert evidence because what they've been trying to establish is that because there were no outward signs of distress or upset that equals that nothing occurred.

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And that is probably scientifically a totally invalid way to assess emotional or psychological turmoil because when you consider the opposite some people may be very expressive, some people may readily turn on emotions. That's called hysteria. Some people may express emotions and show outward signs of extreme distress when there is no basis for it. And so it would be just as wrong to say, if Mr [A] had gone around behaving in a very emotional fashion, that would be wrong to say 'That is evidence of the truth of his allegations'. But we all know that humans are complex persons and that emotions are processed in different ways. And the idea of Mr [A] appearing at all times to be happy and showing no signs of distress was laboured by the defence witnesses, but in the end it is meaningless. You can't rely on a neutral, a neutral, that is no signs of distress, to prove a negative, that is that his allegations are baseless. You have to go back to assessing his evidence and whether you accept that he was telling the truth. Now from his close friends, Mr Koltakov and Mr Zozulya, they go further. In fact, Mr Koltakov said specifically 'He', that's Mr [A] , 'never told me that he was not well emotionally and he looked normal. You can't perform well if you're upset therefore the allegations that he was sexually abused are false'. Now, as I've said, this is an illogical analysis and I remind you about Mr Virag's evidence that he gave on Friday. He said that rehearsals with orchestras are as important as the performances themselves and they require exactly the same level of performing quality and to a degree the rehearsal is even more important than the performance. I remind you also that Mr [A] has, told you that he was abused in the same way but the shower incidents referred to, he was abused in this way for many, many years. This was not a one-off event. If you accept his evidence that he had been subjected to the accused's unwanted sexual attentions for four years, this incident in the shower in the hotel room was one of a number, a large number, of such incidents. You wouldn't expect it to generate higher emotions than those which had been generated over the years.

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And the concentration level that we're talking about for a performance such as the one that he performed in Sydney with Duncan Gifford, something for, was it 40 minutes or something like that, I think it was, I will stand corrected. But it was a lengthy performance where you had to be very much concentrating on every note, all the other notes of the other instruments in the orchestra coming in at the right time and so forth. An incredible amount of concentration and focus. And you ask yourself the question; if you'd just been sexually assaulted, would you be likely to be able to do that? Even if you'd been sexually assaulted in the preceding week, would you be likely to be able to that or would your mind be not on the job and I would suggest to you that your mind simply could not be on the job if something like that had happened." 47 Defence counsel returned to the topic (T33.42, 29 August 2005): "And that's, you would think, a matter of common sense ladies and gentlemen, you can't be thinking about a sex act or having been sexually assaulted or anything of that nature when you are trying to concentrate on your music, it's just quite impossible." 48 At the conclusion of the defence address, her Honour discussed the jury questions with counsel, in the absence of the jury. When her Honour came to the question concerning "expert witnesses", the following discussion ensued (T40-41, 29 August 2005): "CROWN PROSECUTOR: Your Honour, I was a bit concerned with Mr Russell's treatment of this area of so-called expert evidence in his address because he went from saying that these witnesses - well, asking question [sic] of them during their evidence as to, 'How can you perform if you are upset?' to elevating them to expert witnesses about the inability of somebody to perform after being sexually assaulted, and of course that was never a question that was asked of them. They were simply asked a rather general question, 'How would you perform - how does being upset affect your performance?', and suddenly in his address they're now expert witnesses on the effects of sexual assault on performance. This has really obviously become an issue which the jury has seized on, but I'd ask your Honour to firstly say that they're, not experts in any recognised sense about the relationship between performance and stress, because there's no such area of expertise as to how somebody can perform when they're under stress. All they can say is it would be difficult for them to perform. They don't know how somebody else reacts. There's no known area of expertise. They're not expert witnesses as to the effects of sexual assault on performance and, no, the Crown would not have been able to call expert evidence in reply. Because there's another issue here. If these people are witnesses about stress and performance and major trauma, then there are other witnesses who the Crown could have called who have allegedly been sexually assaulted by the accused and who have managed to perform at very high levels; one of whom has obviously been accepted by a jury. But obviously the Crown can't call that sort of expert or pseudo-expert evidence. But I'd ask your Honour to answer this question in very, very strong terms to stop the jury speculating about it, speculating in a way that Mr Russell invited them to, which was totally improper and outside the evidence.

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… RUSSELL: Your Honour, I've got no difficulty with your Honour dealing with the question along the lines of explaining to them that the witnesses that have been called that have mentioned matters relevant to this particular question are not performance psychologists or anything of that nature. They've simply been put forward as expert musicians who have given their own perspective about performing or attempting to perform when they might be upset or very upset. That's all. They give what weight to that that they feel is appropriate." 49 Following this discussion, the trial judge provided answers to the jury, concerning the nine questions before commencing the summing up. In relation to the question, "Would the Crown have been allowed to call expert witnesses on whether a pianist could perform well whilst under stress?", her Honour gave an answer in the form requested by defence counsel, namely (T47.40, 29 August 2005): "Again, I will have something more to say to you about that area when I sum-up the case to you. Once again, you must decide the case on the evidence that has been placed before you and I should say to you that those witnesses who were called in the accused's case could not be classified as expert witnesses in the particular area as to whether a person could perform at peak level having been sexually assaulted. They are not expert witnesses in that particular area and, I don't know, I doubt very much whether there would be such an expert available. They were expert musicians and you will obviously have to weigh up their evidence and give it such weight as you think fit. Again, I will come back to that in the summing-up when I'm dealing with the respective cases." 50 In the course of summing up, her Honour referred to this issue (SU33-34): "In terms of the witnesses called by the accused, they generally gave evidence in general terms about the effect of stress in their opinion on performance, whether a person would be able to perform well if suffering stress. In terms of the evidence, it is important that you bear in mind that counts 1, 2 and 3 are alleged to have taken place before a rehearsal, certainly not the Duncan Gifford performance, before a rehearsal for a performance. Counts 4 to 8 are alleged to have taken place after the last performance in Sydney. As I said to you when I was dealing with your questions, there is no doubt that some of those people who were called were very talented and experienced musicians. The weight that you give their opinion evidence as to what they had to say about whether they could perform or general terms about performance is entirely a matter for you and it is important to keep in mind the timing of these allegations, when it is they are said to have taken place." 51 Defence counsel made no complaint concerning this direction nor was any further direction sought on this topic. 52 It is appropriate to return to the grounds of appeal, which are set out in terms which reflect more clearly the Appellant's complaints.

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Submissions 53 In his written submissions, the Appellant challenges the truthfulness of A's evidence. He submits that the occupation of concert pianist requires such qualities as a high level of attention (volume, stability, concentration, distribution and flexibility), a steady nervous system and mentality, great emotional and energetic expression, an ability to communicate with a large audience and a strong long-term memory. The Appellant submits that acts of sexual assault would inevitably cause particular psychological injuries such as difficulty concentrating, depression, feelings of helplessness, inability to fully pursue music as a profession, anxiety, guilt, fear, withdrawal and acting out together with non-participation in school and social activities. 54 The Appellant submits that, during the trial, the Crown did not introduce any professionally examined evidence concerning the psychological injuries A received as the consequence of sexual abuse and assault. The Appellant contends that it was the obligation of the Crown to prove that A received psychological injuries. He contends that it "was impossible objectively to prove guilt of the appellant without proving the fact of psychological injuries" and that it was also "impossible for the jury to reach reasonable verdicts without knowing the opinion of professional experts, because a subject of this issue was outside the experience of jurors" (paragraph 4.10, Appellant's written submissions). The Appellant complains about the trial judge's reply to the jury question concerning expert witnesses. As a result of her Honour's directions, the Appellant submits that the jury completely ignored the evidence of the defence's "professional experts concerning the impossibility of performing at the top level of the international competitions while being under the strain and pressure of suffering sexual abuse and assault" (paragraph 4.11, Appellant's written submissions). 55 Thus, the Appellant contends that it would have been impossible for A to have a successful career as an international pianist if he had been sexually abused as alleged, and that this conclusion points to A's evidence that he was sexually abused by the Appellant as being perjury. 56 The Crown points to the Appellant's central claim under the first ground as being that A must have committed perjury when he said that he was sexually assaulted because he could not have performed at a concert level had he been sexually assaulted. The Crown observes that this was an issue ventilated at length during the trial. Both the Crown and defence counsel made submissions on the issue. By the verdicts, it may be taken that the jury ultimately found A to be credible when he said that "At the time of the rehearsal there could easily be put a lot of pressure from Makarov on me about my playing that would easily push out any other emotion I have" (T60-61). 57 The Crown submits that there was nothing about the anecdotal evidence of personal experiences of the four musicians called in the defence case, that impacted upon the evidence of A and demonstrated him to be a liar when he said that he was able to put the sexual abuse out of his mind at the time of playing. The Crown submits that there is no basis for finding that the jury's verdicts were unreasonable when a close analysis of this issue at trial is undertaken.

[55]

Decision 58 The Appellant's submissions on this topic involve a number of misconceptions. The Crown had no obligation to adduce expert evidence which, in some way, sought to explain how A could still perform professionally as a concert pianist despite acts of sexual abuse having been perpetrated upon him by the Appellant. It is doubtful that evidence of this type would have been admissible as expert evidence. 59 Consideration has been given in a number of Australian cases (both before and after the Evidence Act 1995) to admissibility of expert evidence concerning aspects of behaviour of sexually abused children, including delay in complaint and the so-called childhood sexual abuse accommodation syndrome: Ingles v R (Tas Court of Criminal Appeal, 4 May 1993, BC9300044); R v C (1993) 60 SASR 467; R v F (1995) 83 A Crim R 502 (NSW Court of Criminal Appeal); R v E (1997) 96 A Crim R 489 (NSW Court of Criminal Appeal); HG v The Queen [1999] 197 CLR 414; R v S (2001) 125 A Crim R 526 (Qld Court of Appeal) and Bellemore v Tasmania (2006) 170 A Crim R 1 (Tas Court of Criminal Appeal). In some cases, evidence of this type has been admitted and in others, it has been rejected. 60 The position in Tasmania has been affected by s.79A Evidence Act 2001 (Tas) which concerns the admission of expert evidence of the impact of sexual abuse on children: Bellemore v Tasmania at 19-21, 39-47, 61-66. The position may change in New South Wales upon the commencement of the Evidence Amendment Act 2007 No. 46, which will amend s.79 Evidence Act 1995 (opinions based upon specialised knowledge) to give effect to Recommendation 9-1 of the collaborative report of the Australian, New South Wales and Victorian Law Reform Commissions, Uniform Evidence Law Report 112, 2005, thereby making express reference to specialised knowledge of the impact of sexual abuse on children and their development and behaviour following abuse. 61 The issues considered in these authorities, however, are far removed from the present case and the matters raised in these grounds of appeal. 62 Defence counsel cross-examined A concerning his ability to perform at piano concerts. A answered in the manner set out at [36] above. The defence did not seek to adduce expert psychiatric, psychological or medical evidence on this topic. As defence counsel readily (and correctly) accepted at trial, the evidence adduced from the four musicians involved a combination of anecdotal evidence and personal views arising from their own experiences, none of which involved an experience of sexual abuse. There is force in the Crown submission that this evidence was irrelevant (s.55 Evidence Act 1995) and thus inadmissible. The evidence having been admitted, however, the trial judge directed the jury in the manner requested by defence counsel. It remained a matter for the jury to consider the competing submissions concerning this evidence. 63 This is not a case where the Crown was permitted, over objection, to adduce objectionable opinion evidence. Nor is it a case where the defence was prevented from adducing admissible opinion evidence. The Appellant had the benefit of this evidence, accompanied by appropriate directions to the jury from the trial judge. It was for the jury to consider what weight to give the evidence. 64 We are wholly unpersuaded that any error has been demonstrated with respect to this issue at trial. It was a question for the jury to consider the evidence and arguments. It has not been demonstrated, by reference to this issue, that the verdicts of the jury were unreasonable or not supported by the evidence or that there was a miscarriage of justice. We reject the first ground of appeal.

[66]

Submissions 88 Grounds 3, 4 and 5 can be conveniently dealt with together as each involves a claim that the trial miscarried by reference to the circumstances of A moving from Mr Thomson's house to the Appellant's house in 1999. 89 The Appellant developed an argument in written submissions that both A and Mr Thomson gave false testimony concerning the reasons and circumstances of A moving from Mr Thomson's place to the Appellant's home in October 1999. The Appellant submits that he attempted to explain at trial what were said to be the real reasons that caused A to move, but he was stopped (T149-152), thereby giving rise to the fourth ground of appeal. 90 The Appellant sought to rely on certain material as fresh evidence. At the hearing of the appeal, the Court declined to admit this material as fresh evidence (T22-24, 6 May 2008). The Court also declined to admit a statement dated July 2007 from Dr P Calvo. Dr Calvo was referred to in the Appellant's evidence at trial (T152), but he was not called as a witness in the defence case. 91 The Crown submits that A gave evidence of a number of reasons for moving from Mr Thomson's house to live with the Appellant and other students, including that he had an argument with Mr Thomson (T49, T52, T68, T78), that he had been told to pack his bags and go by the Appellant (T49, T52, T68, T78) and because he was lonely as Mr Thomson was not often home (T63). The Crown submits that none of these reasons are inconsistent in themselves. Mr Thomson said he did not know why A wanted to leave, but later received a letter from A explaining that he needed to be with the other Ukrainian students (T115). The Appellant alleges that the evidence of both A and Mr Thomson is false and, the Crown submits, the Appellant speculates about a number of other bases for A's move, each of which is unsupported by the evidence. 92 The Crown notes that the Appellant alleges misconduct on the part of the trial judge and the Crown Prosecutor for not allowing the Appellant to explain his version of the reasons for A's move from Mr Thomson's house (Ground 4; page 46, Appellant's written submissions). The Crown submits this complaint is misconceived since it was defence counsel who made the decision to not try and lead the explanation which the Appellant attempted to introduce at trial (T151.40). The Crown Prosecutor took a proper objection to hearsay evidence. However, the trial judge did not have to rule upon its admission because of the course adopted by defence counsel. 93 The Crown submits that the Appellant seeks to introduce on appeal a number of documents, including the letter he attempted to introduce at trial which was not pressed by his counsel. The Crown submits that none of the items sought to be relied upon by the Appellant support the proposition that A or Mr Thomson deliberately lied or that there was a plot or conspiracy orchestrated against the Appellant as contended at pages 50-58 of the Appellant's written submissions. 94 The Crown submits that the reasons and circumstances behind A's move of house was a minor matter, going to a peripheral issue rather than to the substance of the counts on the indictment. The Crown submits that nothing in the material raised would demonstrate that the verdicts of the jury were unreasonable.

[75]

Submissions 101 The Appellant complains about the way in which the Crown Prosecutor referred to Exhibit 1 in her closing address to the jury. The Crown Prosecutor said (T6.1, 29 August 2005): "Now in the accused's evidence he described how he was always being interrupted in his music class in room 34. And you have two videos, one which features room 34 exclusively, and that is exhibit 1, a defence exhibit. The other is exhibit A which is the training video of which you have an excerpt and a large part of that features students playing in room 34. You will notice a difference between them, and there is a reason for that. Exhibit 1 was, as the accused said, specifically edited to show movement in and out of the doors to the room. And you might get a very distorted impression from exhibit 1 about the interruptions in room 34, but when you realise that the accused usually taught 45 minute classes it's clear that what you have in exhibit 1 is very much less than that. And it has, the movement in and out of the room has been specifically selected to prove a point. Now the point seems to be that because the accused could be interrupted at any time who could have done to Mr [A] what Mr [A] said he did on at least two occasions that Mr [A] has told you about, highlights from his memory of many, many such incidents where the accused either touched him on the genitals or got Mr [A] to touch him, the accused, on the genitals. It is obvious that within a class of 45 minutes that there will not be people walking in and out of the room every minute and it is also quite clear that when there is specific work that needs to be done or so preparation for a competition or an important event that the accused would want to limit the interruptions and 45 minutes is a considerable period of time for a teacher and a student to be alone in the room, even though people might come and go at the start or end of those lessons." 102 The Appellant complains that the Crown Prosecutor's address completely distorted the essence of the evidence in Exhibit 1. It had not been the aim of the Appellant to show complete 45-minute lessons. The Appellant had edited 18 master tapes and made a videotape of short duration especially for the court proceedings. The Appellant submitted that the Crown had misled the jury by suggesting that the jury "might get a very distorted impression" and by suggesting that the "movements in and out" of the room had been selectively recorded. 103 The Crown submits that the arguments of the Crown Prosecutor on this issue were entirely appropriate. It was consistent with evidence of A to the effect that "the video [has] been compiled especially to fish out those interruptions" and "every excerpt of every student has people coming in, that is definitely not the frequency people were coming in" (T55). The Appellant's evidence was to a similar effect (T146, T168-169, T184). 104 The Crown points to the defence closing address on this issue (T29.1, 29 August 2005): "Now the accused gave his evidence and I just remind you of this, he was not obliged to give any evidence. He explained how the video, Exhibit 1, came into existence and it was an extract from a larger video and so too is Exhibit A which the Crown produced. So there's a large body of material and he's produced two videos. One video he's produced from that material recently to show that there were a lot of interruptions and of course, look it's a matter of common sense ladies and gentlemen, you don't have to be a genius to work this one out, that the interruption shown, if that is unrealistic it's not - they're not coming in every - it's all been cut and edited, but it just shows that there were interruptions."

[91]

Submissions 117 Under the umbrella of Ground 7, the Appellant submits that the Crown Prosecutor unfairly attacked defence witnesses in the Crown closing address. The Appellant points to the Crown's reference to "pseudo expert evidence from the defence witnesses" (see [43] above). The Appellant also complains concerning the following part of the Crown closing address (T5.25, 26 August 2005): "Firstly, the views of witnesses as to the truthfulness of the principal Crown witness, does not matter, because it is your judgment that matters. Obviously witnesses such as Mr Koltakov, the accused's son-in-law and Mr Zozulya are not impartial judges. They have closed their minds, in fact they have prejudged the matter before even hearing the allegations. They have a bias towards the accused and a prejudice against Mr [A] . That is why they could not be on a jury to judge this matter because they are not impartial, like you are. They make judgments before they hear the evidence presented and explored. They do not allow themselves to consider that there might be some truth to Mr [A] 's allegations." 118 The Appellant submits that this submission was unfair and insulting to these defence witnesses. 119 The Crown submits that the trial prosecutor was not unfairly discrediting witnesses in her address to the jury. In suggesting that the witnesses, Mr Zozulya and Mr Koltakov, were not impartial, the Crown was accurately summarising the effect of the evidence of those witnesses. In respect of Mr Zozulya, the cross-examination reveals that he stopped being friends with A as soon as he reported the matter to police, that he will never believe the allegations and nothing he hears will ever cause him to change his mind about it (T194, T196, T197-198, T202-203). In respect of Mr Koltakov, the cross-examination reveals that he made up his mind about A's allegations being untrue on the basis of A never having discussed the matter with him and said he would never allow himself to believe otherwise. The fact of Mr Koltakov's marriage to the Appellant's daughter was also raised in several places throughout the trial (T216, T217-218). 120 The Crown points to the following statement by defence counsel to the trial judge, in the absence of the jury (T88): "Well to demonstrate that he has a bias or something of that nature, that's possible your Honour. But that would be on the face of it apparent anyway by way of the Crown's cross examination of Koltakov to indicate that he's married to the daughter of the accused. And that would be sufficient and enough for the Crown then to address the jury in that respect and ask them to discount his evidence accordingly." 121 The suggestion of a lack of impartiality having clearly been put to these witnesses in cross-examination, the Crown submits that there was no error in the Crown Prosecutor's closing remarks: R v Teasdale (2004) 145 A Crim R 345. While the Crown must be fair, there is no requirement that the prosecutor cannot criticise a witness: Cornelius and Briggs v R (1988) 34 A Crim R 49.

[92]

Decision 122 In our view, there is no substance in this part of Ground 7. The Crown Prosecutor cross-examined the defence witnesses in a manner which laid the foundation for a submission that each was biased in favour of the Appellant and against A. It was clearly understood by defence counsel during evidence that this was the nature of the Crown challenge which lay the foundation for the ultimate Crown submission. Closing addresses were made against this background. The trial judge touched on this issue during summing up (SU7): "Whilst I am on this topic I will just touch briefly on the evidence of those witnesses called by the accused to whom the Crown prosecutor suggested that they did not believe the complainant's evidence. What they believe is irrelevant to your consideration. The purpose of the Crown prosecutor asking that question of those witnesses called by the accused was to attempt to demonstrate that those witnesses were biased in the accused's favour; that is, that they had not approached the matter objectively. Each of those witnesses agreed with the Crown prosecutor's proposition that he or she would never believe the complainant, no matter what evidence was presented. They, of course, are entitled to their opinion because they are not entrusted with the responsibility that you have here in the case. But it is important that you understand that their opinion as to the accused's guilt is not relevant to the task that you have to perform. It is only relevant to your assessment of their evidence as witnesses." 123 There is no merit in the Appellant's submission in support of this ground. The Crown Prosecutor laid the foundation through cross-examination for the submission ultimately made to the jury. The trial judge left the issue to the jury in an accurate fashion. No further direction was sought by defence counsel. 124 A Crown Prosecutor may be robust and be expected and required to conduct the prosecution conscientiously and firmly: Libke v The Queen [2007] 230 CLR 559 at 557 [35], 586 [71]. A firm and positive presentation of the Crown case is to be expected: R v Livermore at 660-671 [51]. No breach of the prosecutor's duty has been demonstrated, nor has it been demonstrated that a miscarriage of justice occurred. 125 We reject this part of Ground 7.

[97]

Submissions 130 Also under the umbrella of Ground 7, and also contained in Ground 8, is a complaint by the Appellant that the trial miscarried because of the unfair conduct of the Crown Prosecutor with respect to the trial separation rule. The Appellant's submission arises from the use of the word "harem" by the Crown Prosecutor in her closing address (T4.34, 26 August 2005): "Actually I've intruded into my third point that the accused was a power figure, both at the school at the Ukraine and at the Australian Institute of Music. You can see that he was a very dominant and domineering personality and from all accounts of his students, he was a strict teacher and that is obviously how he got the results with all these prize winning students in his - I don't know what the word is, not a harem, but in his group. He obviously has an enormous skill and he applied that along with measures of strict discipline and control." 131 The Appellant submits that the use of the word "harem" in this context was prejudicial and dangerous, suggesting that the Appellant was sexually active with other students apart from A. He points to the fact that defence counsel complained about the Crown's use of the term (T14, 26 August 2005). The following discussion ensued after defence counsel raised the issue (T14.55, 26 August 2005): "HER HONOUR: Yes, well my note was the Crown said 'not a harem', she was looking for a word to describe the group and specifically said, 'not a harem', which I agree is unfortunate, but I'm quite sure the Crown wouldn't be going back to it. CROWN PROSECUTOR: No, No. No I was trying to think of a word for a group of people united about a common theme, around a person who travelled with him. I wasn't intending to convey that there was - it was for sexual exploitation or anything, but I - I did hesitate over it, I was struggling to find an appropriate collective noun. HER HONOUR: Yes, it was just an - it was unfortunate that that was the one you came up with, but I don't believe it's going to cause any problems Mr Russell. You'll have an opportunity over the weekend to consider it and you will have second address. I certainly don't intend to say anything about it. RUSSELL: No, I wouldn't ask your Honour to either." 132 The Crown submits that the use of the phrase "not a harem" should be considered in the context of the passage in which it was used. It was said, in a search for the correct word, and then immediately withdrawn. The Crown acknowledges that it was a poor choice of noun, but not one likely to jeopardise the fairness of the trial. 133 The Crown notes that the Appellant's submission goes further to suggest that the jury should immediately have been discharged upon the use of the word "harem" because the principle of trial separation had been breached by suggesting that other students living with he Appellant were also involved in sexual activities with him. The Crown submits that, viewed in context, the use of the word does not carry the inference suggested by the Appellant and fell far short of necessitating a discharge of the jury. The Crown submits that it is significant that defence counsel did not ask for a discharge of the jury and agreed that the trial judge should not say anything to the jury about it.

[111]

Decision 145 The Court's approach to a ground which asserts the existence of inconsistent verdicts, giving rise to an unreasonable conviction, involves application of several principles. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the Crown in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt: MacKenzie v The Queen (1996) 190 CLR 348 at 367; MFA v The Queen (2002) 213 CLR 606 at 617. The jury will be instructed (as here) that the evidence of a witness may be accepted in whole or in part: MFA v The Queen at 617. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach by the jury to the discharge of a heavy responsibility: MFA v The Queen at 617. It may be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his evidence than about others: MFA v The Queen at 617. 146 Ultimately, the question remains one of fact and degree as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, bringing to account a range of factors including the practical approach which juries are entitled to bring to their task, the convictions should be regarded as unreasonable or incapable of being supported by the evidence: R v Markuleski at 132 [238]. 147 We are not persuaded that the acquittal of the jury on Count 9 ought lead this Court to conclude that the convictions on Counts 1 to 8 were unreasonable. Whether or not the failure of the jury to accept A's version in one respect ought to have led the jury to have a reasonable doubt with respect to other matters, must depend upon the full range of relevant circumstances that go to an assessment of credibility and reliability. It was open to the jury to accept some parts of A's evidence and not others. There is no automatic consequence flowing from an acquittal on one count with respect to other counts. It is a question of fact and degree in each case and the variation in fact and degree will differ from case to case: R v Markuleski at 93 [36]. 148 There were issues relied upon by the defence with respect to Count 9 which may serve to explain the different position taken by the jury concerning that count as opposed to the remaining counts (see [139], [142]-[143] above). We accept the Crown submissions in this regard. As Wood CJ at CL observed in R v Markuleski at 127 [221], in the context of a system of justice that requires proof of criminality beyond reasonable doubt, the occurrence of different verdicts is to be expected and is understandable. Acquittal does not amount to a positive finding that the act alleged did not occur or that the evidence of the complainant concerning it was rejected as a lie, or as lacking in credibility. 149 In this case, there was a rational basis for the jury to discriminate and return a verdict of not guilty on Count 9 whilst being satisfied to the necessary standard upon A's evidence in support of Count 1-8. Count 9 was a separate incident, removed in time and place from the other counts. There was some uncertainty on A's part as to matters of detail in Count 9. Like R v Markuleski, this is not a case where there was such an integral connection between the counts, or where there were other circumstances present, such as to compel the conclusion that A's overall credibility or reliability was so diminished that the guilty verdicts should, for that reason, be overturned. 150 The Appellant has not demonstrated that the verdicts on Counts 1 to 8 were unreasonable or that a miscarriage of justice has otherwise occurred. We reject the ninth ground of appeal.

[116]

Submissions 159 The Appellant submits that the trial miscarried given the failure to provide simultaneous headphone translation, or proper conditions for simultaneous translation. Although acknowledging that an interpreter was available and assisted for the purpose of the trial (including his own evidence) the Appellant submits that he was prejudiced through the failure to utilise simultaneous headphone translation of a type he said was used in international tribunals. 160 He submits that the right to an interpreter means not only having access to an interpreter, but a right to fully understand the content of court proceedings and to be fully understood by all parties. He submits that only simultaneous translation, as an international standard of a fair trial, could guarantee a protection of such rights. In the absence of such an approach, he submits that a miscarriage of justice has resulted. 161 The Crown observes that the Appellant's complaint in relation to interpreter services is not that he did not have access to an interpreter, but that he did not have simultaneous headphone translation, something that he asserts is required by international law. The Crown submits that there is no right to such services in this State. In fact, because of the Appellant's competency in the English language, the Crown submits that it is unlikely that he would have been permitted to give his evidence wholly through an interpreter, had he sought to do so in accordance with s.30 Evidence Act 1995. 162 The Crown notes that the Appellant gave evidence in English, although he did have an interpreter present throughout the giving of his evidence to offer him assistance should he require it. The interpreter assisted briefly on only four occasions throughout the evidence of the Appellant (T147, T170, T172 and T178). On the whole, the Appellant did not need the assistance of the interpreter. 163 With respect to the Appellant's reliance upon a number of passages from the transcript in support of the contention that he did not receive a fair trial due to the absence of simultaneous headphone translation, the Crown submits that the claim is not made out when the examples cited from cross-examination are examined closely.

[121]

Decision 173 The indictment alleged that each of the offences charged in Counts 4-8 had been committed between 13 July 1997 and 19 July 1997. It was the Crown case that these offences had been committed after A had performed at the Pitt Street Uniting Church at Sydney on 13 July 1997. The Crown case on these counts remained, from beginning to end, one that involved an allegation of sexual offences by the Appellant against A after the 13 July 1997 concert. 174 The arguments advanced by the Appellant in support of this ground involve several misconceptions. The decision of this Court in R v Kennedy provides no assistance to him. This is not a case where the Crown sought to amend the indictment to enlarge the period in which it was alleged the crime had been committed. Nor is it a case where there is an issue that the alleged offences happened at some time outside the period charged in the indictment. 175 The Appellant's argument in support of this ground is effectively the same as that considered and rejected with respect to earlier grounds. The Court did not admit as fresh evidence the article from "Ukrainian Weekly in Australia". However, even if that evidence had been admitted, it would only have raised an issue (and a false issue) that A had in fact given a short impromptu performance to a small group on 16 July 1997, so that it may not have been strictly correct to describe the Pitt Street Uniting Church concert on 13 July 1997 as his last performance in Sydney. As mentioned earlier in this judgment (at [85]), it might be concluded that neither the Appellant nor A had a conscious recollection of the impromptu performance on 16 July 1997, although both had been present at it, but neither referred to it at trial. 176 To the extent that Ground 12 advances submissions previously rejected with respect to other grounds, we similarly reject the arguments here. No error has been established nor has the Appellant demonstrated that a miscarriage of justice has occurred. 177 In our view, there is no substance in Ground 12 and it ought be rejected.

Makarov v R

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