Makarov v R (No. 3) [2008] NSWCCA 293

Makarov v R (No. 3) [2008] NSWCCA 293

The trial miscarried because the trial judge refused separate trials and allowed the Crown to lead the whole of each complainant's allegations of other sexual misconduct as context in the joint trial, even though one complainant's allegations were not admissible as evidence of guilt on counts involving the other. The evidence carried a high risk of impermissible use and unfair prejudice, and the trial judge's directions could not overcome that prejudice. The convictions and sentences therefore had to be quashed and new, separate trials ordered.

Jurisdiction
Australia
Judgment Date
09 December 2008
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From District Court Convictions; No Appeal Against Sentences
Outcome
Appeal allowed; convictions and sentences quashed; new, separate trials directed.
Legal Topics
['sexual Offences' 'joinder and Severance of Counts' 'tendency Evidence' 'coincidence Evidence' 'context Evidence' 'other Sexual Misconduct Evidence' 'miscarriage of Justice' 'jury Directions']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Offences' 'joinder and Severance of Counts' 'tendency Evidence' 'coincidence Evidence' 'context Evidence' 'other Sexual Misconduct Evidence' 'miscarriage of Justice' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From District Court Convictions; No Appeal Against Sentences

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing to order separate trials for counts involving complainant B and counts involving complainant C.' "Whether evidence of one complainant's allegations of other sexual misconduct by the appellant was admissible in the trial of counts involving the other complainant as context evidence." 'Whether the joint trial and admission of the evidence of other sexual misconduct created prejudice that directions could not cure.' 'Whether the trial judge erred in refusing applications to discharge the jury after evidence volunteered by C.' 'Whether the trial judge gave adequate directions concerning prejudicial evidence, joinder, relationship evidence and the standard of proof.' 'Whether additional grounds argued personally by the appellant established miscarriage of justice.']

Ratio Decidendi

The trial miscarried because the trial judge refused separate trials and allowed the Crown to lead the whole of each complainant's allegations of other sexual misconduct as context in the joint trial, even though one complainant's allegations were not admissible as evidence of guilt on counts involving the other. The evidence carried a high risk of impermissible use and unfair prejudice, and the trial judge's directions could not overcome that prejudice. The convictions and sentences therefore had to be quashed and new, separate trials ordered.

Court Disposition

Appeal allowed; convictions and sentences quashed; new, separate trials directed.

Orders

  • ['The appeal is allowed.' 'Quash the convictions and sentences imposed in the District Court and direct that there be new, separate, trials.']