Constantinidis v R; Lazar v R

1. [1]

   THE COURT: These are appeals against conviction following a joint trial of the two appellants by judge alone in the District Court. The appellants were tried and convicted on a single count, as follows:

2. [2]

   The trial was conducted over 13 days between 22 July 2019 and 14 August 2019. On 24 January 2020 the learned trial judge found each accused guilty and at that time published her reasons for decision: R v Lazar; R v Constantinidis [2020] NSWDC 3. Neither of the appellants has been sentenced.

3. [3]

   For brevity, when the appellants are referred to individually in these reasons their surnames only will be used. The full name of Witness B was given in the indictment. He was a police informant and gave evidence against the appellants. At an early stage of the trial, on 25 July 2019, orders were made suppressing his name and any information that might tend to identify him. Similar orders were made in relation to a number of other witnesses, each of whom was assigned a letter of the alphabet as an identifier.

The nature of the Crown case

1. [4]

   The Crown adduced evidence that prior to Wednesday 8 August 2012 Ms A was informed by her husband that he had hidden some gold bars in a speaker at the home of Ms A’s mother. He had said that the gold was the property of Mr Y but that he was not to be given all of the bars at once. By 8 August 2012 the gold bars had come under the control of Ms A because her husband was in custody. On 8 August 2012 Ms A located six gold bars, hidden as described. She removed two of them at the request of Mr Y and accompanied him to the city, where Mr Y said he wanted to exchange the two bars for cash. Ms A and Mr Y were driven to the city by Mr C. According to evidence given by Ms A and not disputed, Mr Y met with Lazar at around midday on 8 August 2012 on a street near the Queen Victoria Building. Mr Y took the two gold bars with him to the meeting. When he returned to Ms A he still had one of the bars, which he carried in a laptop bag.

2. [5]

   Mr C then drove Ms A and Mr Y to Arncliffe and other places. At about 8:00pm or 9:00pm they were driving through Annandale when their vehicle was stopped by uniformed police on traffic patrol, in response to an erratic swerve by Mr C. Police intelligence concerning the occupants of the vehicle caused the patrolmen to search the car. They found the gold bar in Mr Y’s possession. He told the officer who located it that it was not his but had been given to him by “a mate”, to sell. He identified the mate as Lazar.

3. [6]

   The gold bar was seized by the police. Mr C, Ms A and Mr Y were then permitted to drive away. They drove to an apartment block next to Luna Park in North Sydney, where Mr Y again met with Lazar and spoke to him for about 15 minutes. All of this was recounted in Ms A’s evidence and was not disputed.

4. [7]

   The gold bar weighed 1 kg and the Crown alleged that it was worth in the order of $50,000. After it had been seized and entered as an exhibit at Glebe Police Station, Detective Senior Constable David Roberts (“DSC Roberts”) of the Leichardt Detectives Office commenced to investigate whether the gold bar was stolen or the proceeds of crime.

5. [8]

   In 2012 Lazar conducted a business of mortgage lending. He was 41 years old. On 6 June 2012 a telephone intercept warrant was issued, on the application of an officer of the New South Wales Police Fraud and Cybercrime Squad (“the Fraud Squad”), in respect of Lazar’s mobile service number. The evidence at trial did not reveal what suspected offences were being investigated by the Fraud Squad or who was thought to have committed them. The existence of the warrant was coincidental to the seizure of the gold bar on 8 August 2012 and to Lazar’s subsequent communications with DSC Roberts. DSC Roberts’ enquiries concerning the gold bar were not part of the investigation for which the warrant had been issued.

6. [9]

   The Crown tendered numerous recordings and transcriptions of conversations and SMS texts that were obtained from this fortuitous phone intercept. Those communications were capable of satisfying the learned judge that Lazar became aware of the seizure of the gold bar late on the evening of 8 August 2012 and that, from 9 August, he claimed title to it and displayed considerable anxiety about recovering it. On DSC Roberts’ side, the intercepted calls showed that he contacted Lazar frequently between 9 and 22 August and was insistent that Lazar should provide a statement concerning the provenance of the gold bar. That is the context in which the Crown alleged that the appellants formed and participated in a joint criminal enterprise to pay Witness B to influence the detective improperly to cease his investigation of the gold bar.

7. [10]

   In 2012 Constantinidis was 57 years old. The intercepted calls showed that he was a close associate of Lazar and a person in whom Lazar confided and from whom he took advice. Evidence from Witness B and from the phone intercepts proved that the two appellants had business dealings together, including in relation to mortgage lending. Their association with each other in that sense was not disputed. The intercepted communications on Lazar’s mobile phone included long and frequent conversations with Constantinidis, in many of which Lazar’s thought processes appeared erratic and anxious, while Constantinidis endeavoured to calm him and to focus his thoughts.

8. [11]

   The Crown adduced from Witness B that in August 2012 he met with Constantinidis on one occasion and separately with Lazar on two occasions, when each of them asked him to take steps to deter or prevent DSC Roberts from pursuing his investigation concerning the gold bar. Witness B did not in terms state that Constantinidis agreed or offered to pay him for this. He said that Lazar made two payments, one of about $50,000 and one of about $49,000, in consideration for Witness B undertaking to influence DSC Roberts. Witness B said that he did not in fact do anything to deflect DSC Roberts from the performance of his duty and that he had never intended to carry out the appellants’ request.

9. [12]

   The Crown tendered evidence that DSC Roberts ceased his investigation concerning the gold bar on 23 August 2012 as a result of a discussion he had with an officer of the Fraud Squad. Public interest immunity was claimed in respect of the discussion. Although the circumstances were not further elaborated in the evidence, it was clearly accepted by the Crown that the cessation of DSC Roberts’ enquiries was not attributable to any action taken by Witness B.

10. [13]

    In her reasons for returning the verdicts of guilty, the learned judge summarised the Crown’s formulation of its case, from the prosecutor’s closing address, as follows:

11. [14]

    At [13] of the learned trial judge’s reasons for refusing to enter a directed verdict, her Honour referred to the Crown’s express disavowal of any allegation that Constantinidis had offered to pay Witness B for influencing DSC Roberts. Her Honour recorded the following:

12. [15]

    At [21] of the trial judge’s reasons her Honour noted, correctly, with respect, that:

13. [16]

    At the conclusion of the Crown case, Constantinidis sought a verdict by direction. He contended that there was no evidence that he had agreed with Lazar in a joint criminal enterprise to arrange or offer to pay Witness B to influence the detective. Her Honour reserved her decision on that application. Neither accused gave evidence. Each of them tendered documents and additional transcripts of intercepted phone calls. Her Honour dismissed Constantinidis’ application for a directed verdict on 24 January 2020, at the same time as she returned her finding of guilty against him. Separate reasons for refusing a directed verdict were published.

Grounds of appeal

1. [17]

   The following grounds of appeal were pressed by Constantinidis:

2. [18]

   Lazar’s grounds of appeal are as follows:

3. [19]

   The unreasonable verdict ground raised by both appellants must be determined irrespective of the disposition of any other ground. As regards Constantinidis’ appeal, consideration of the unreasonable verdict ground will cover substantially the same field as his ground 1 (failure to give a directed verdict). With respect to the ground raised by both appellants concerning s 165 of the Evidence Act and the good character direction, a finding by the Court in their favour on either part of that ground would, alone, justify no more than an order for retrial. However, if the unreasonable verdict ground should be upheld, verdicts of acquittal would be entered and a retrial would be obviated. As for Lazar’s ground 1 (fitness to stand trial), if his contentions thereunder should be made good the appropriate orders might include that his fitness to be retried should be assessed. Depending on the outcome of the assessment, a retrial or special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) might be ordered. However, a determination under Lazar’s ground 3 that the verdict against him is “unreasonable, or cannot be supported, having regard to the evidence” would eliminate the need for further psychiatric assessment towards a retrial or special hearing. It will therefore be useful to commence with consideration of the unreasonable verdict ground.

Principles upon which the unreasonable verdict ground is to be determined

1. [20]

   In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 French CJ, Bell, Keane and Nettle JJ considered the nature of an appeal from a finding of guilt by a judge sitting alone where the “first limb” of s 6(1) of the Criminal Appeal Act 1912 (NSW) is invoked. The first limb is the following part of the subsection:

2. [21]

   Having identified the way in which the first limb is applied when an appeal is brought against conviction following a trial by jury, their Honours held as follows:

3. [22]

   Gaegler J held as follows (citations omitted):

4. [23]

   In the present case neither appellant limited his argument about unreasonableness of the verdict to particular components of the evidence, or to discreet aspects of the learned judge’s reasoning or to isolated intermediate findings of fact. In order for this Court to decide whether it feels a reasonable doubt about the appellants’ guilt and, if so, whether such doubt ought to have been felt by her Honour, it is necessary to review the whole of the evidence. The two major components of the Crown case were the large body of intercepted calls on Lazar’s mobile phone and the testimony of Witness B. There was no dispute about the contents of the intercepted conversations, which were therefore objectively established. The meaning of the calls and the identification of what events and actions the speakers were referring to depended upon interpretation and inference.

5. [24]

   Significant grounds of challenge to Witness B’s credit were raised, including the following: his poor character, reflected in a substantial criminal record; his motive to fabricate arising from personal animosity because he believed the appellants had defrauded him and his wife of their home in 2015; his further motive to fabricate, in order to secure a discount on sentence for unrelated charges that were laid in 2014; internal inconsistencies in his evidence with respect to important details; absence from his first two police statements of any mention of his alleged meeting with Constantinidis; absence from any of the police statements and from the witness’ committal evidence of a significant part of his alleged conversation with Constantinidis concerning an alleged request that violence be done to DSC Roberts; and features of his account that arguably rendered it inherently improbable.

6. [25]

   The centrality of Witness B’s evidence and the number and nature of the grounds upon which his credibility was seriously put in issue meant that the question whether his allegations against the appellants were supported by, or were at least consistent with, other evidence assumed great importance. The evidence that mainly fell to be considered for whether or not it supported Witness B was the body of intercepted calls on Lazar’s mobile phone.

7. [26]

   At trial the Crown called Witness B first. However, for the purposes of this appeal, the issues concerning acceptability of Witness B’s evidence can be more readily understood if the evidence is summarised in the chronological order of the facts that were sought to be proved by the Crown. The great bulk of the chronological events consisted of the communications to and from Lazar’s mobile phone.

Intercepted conversations and other events up to 21 August 2012

1. [27]

   The evidence of Ms A concerning the events of 8 August 2012 has been summarised above. Call Charge Records (“CCRs”) relating to Constantinidis’ landline, apparently connected to his home at Windsor, showed that during August 2012 Constantinidis made and received many calls to and from numbers other than Lazar’s mobile, including a mobile number used by Witness B. The CCRs established the number of each counterparty and the duration of each connection. The Crown tendered evidence of the names of the subscribers of most of the other numbers, thereby identifying the person to whom Constantinidis spoke. However, there was no evidence of what was said during Constantinidis’ phone calls with persons other than Lazar.

2. [28]

   In particular there was no evidence of what was said between Constantinidis and Witness B in any of their phone calls. Although Witness B gave evidence in the Crown case, the Crown did not adduce from him evidence of what was said between him and Constantinidis on the phone, even during calls that took place at times close to events that the Crown alleged were very significant to its case. The prosecutor did not ask Witness B whether he could recall what was said, or even the subject matter in general terms, during any of his phone calls with Constantinidis. There was no basis in the evidence of surrounding events for inferring what may have been said in these calls.

3. [29]

   On 9 August 2012 (Thursday) at 13:53 Lazar called DSC Roberts following earlier brief contacts. Lazar said that Mr Y owed him $250,000, which had been outstanding for four years. By means that do not appear from the evidence, DSC Roberts had already been informed that Lazar claimed he had given the gold bar to Mr Y to sell, on the basis that Mr Y would “take a bit of a cut and give [Lazar] back the rest”. DSC Roberts expressed scepticism about that explanation. He said that the circumstances of the gold bar would be “investigated to the nth degree”, that it would be up to two years before Lazar would get the gold bar back and that Lazar should call the next morning to make a time when he could meet the detective to provide a truthful explanation.

4. [30]

   At 14:15 Lazar was advised by his solicitor, Mr Rahal, by phone that he was not obliged to make a statement to police about the gold bar but that unless he did he would not get the item back.

5. [31]

   At 15:43 Lazar sent an email to DSC Roberts, which included the following:

6. [32]

   At 20:49 Lazar spoke by phone with Senior Constable Thew, one of the officers who had intercepted the car in which Mr Y was travelling on the preceding evening and who had seized the gold bar. Lazar told the Senior Constable that the gold bar belonged to a company, of which he was the sole director, and that it was “ultimately” his. Lazar said that he gave the gold bar to Mr Y to sell. Senior Constable Thew said that before the gold bar could be returned, police would need a statement from Lazar explaining his ownership and confirming that he had handed the item to Mr Y.

7. [33]

   10 August 2012 (Friday) at 10:45 Lazar commenced a phone conversation with Mr Rahal by saying “obviously everything’s recorded and I don’t really care. You’re my lawyer so it’s […] privileged, so it’s confidential”. Lazar said he had checked and was satisfied that the gold bar was not stolen. Mr Rahal advised that police enquiries could only be directed to that issue and that when those inquiries were complete and police concluded that the bar was not stolen, they would have to return it.

8. [34]

   At 11:29 DSC Roberts phoned and requested that documents relevant to the gold bar should be sent to him and that Lazar should meet with him during the following week (commencing Monday 13 August). Lazar agreed, on the basis that the detective would contact him on either the Tuesday or the Thursday to make a specific time.

9. [35]

   On 16 August 2012 (Thursday) at 10:04 Lazar arranged to meet DSC Roberts at North Sydney Police Station at 10:30am the next day to provide a statement. Lazar told the detective that Mr Y had tried to give him the gold bar in part discharge of his debt; that Lazar had told Mr Y that he would only credit $35,000 towards the debt in respect of the gold and that Lazar then gave it back to Mr Y to sell for whatever he could get for it, with the proceeds to be paid to Lazar in reduction of the debt.

10. [36]

    In a series of calls at 13:51, 18:43 and 19:30, Constantinidis instructed Lazar not to attend the meeting with DSC Roberts that had been arranged for the next morning and to have Mr Rahal phone the officer to say that it would take place in the following week (commencing Monday, 20 August). Lazar instructed Mr Rahal to that effect in a phone call at 22:57.

11. [37]

    On 17 August 2012 (Friday) at 7:12 Lazar called Constantinidis and said that he had received advice from a barrister that he was likely to be charged in connection with the gold bar. Lazar expressed great anxiety about this and said that he was shaking. Constantinidis said he did not consider it likely that a charge would be laid and endeavoured to reassure Lazar.

12. [38]

    At 8:10 Mr Rahal informed Lazar that he had notified DSC Roberts that the interview would not proceed that day. Mr Rahal said he had told the detective that Lazar and himself were examining “the issues” and that no statement would be made “until we’re in a position to answer any questions you may have”. Mr Rahal reported that DSC Roberts had said:

13. [39]

    At 10:22 DSC Roberts rang Lazar and said, “it looks to me like you’re stuffing me around”. He estimated that taking Lazar’s statement would require only half an hour. He said:

14. [40]

    At 10:25, in a conversation with another solicitor, who apparently worked with Mr Rahal, Lazar related the conversation that he had just concluded with DSC Roberts and said, “he’s bullying me all the usual story”.

15. [41]

    A series of intercepted phone calls over the weekend of 18 and 19 August 2012 showed that Lazar was moving his possessions into a new residence and that he was under stress and in an emotional state as a result of the disorder of the move and the lack of anyone to assist him. He was apparently receiving personal messages from a female named Nikki with whom he had recently terminated a relationship and he was distressed about the circumstances of the break-up.

16. [42]

    On 20 August 2012 (Monday) at 13:14 Lazar called Constantinidis and complained that he was required to provide a statement, saying he just wanted to “give documentation and to squash it”. He complained that the detective did not answer his call. Constantinidis said:

17. [43]

    At 22:09 Lazar sent an SMS text to Mr Rahal concerning the meeting with DSC Roberts that was scheduled for the following morning:

18. [44]

    On 21 August 2012 at 7:10, Mr Rahal warned Lazar, by SMS text, not to cancel the appointment for provision of a statement. The message was in these terms:

19. [45]

    At 7:51 Lazar called Constantinidis and informed him of the instructions he had given Mr Rahal. Lazar said that Mr Rahal expected DSC Roberts to charge him “just out of spite”. Constantinidis said:

20. [46]

    In this and many other calls, both earlier and later, Constantinidis spoke in a guarded fashion consistent with a belief that his phone calls with Lazar may have been intercepted. He referred to information that he was receiving, concerning DSC Roberts’ investigation, from unnamed parties whom he designated only as “them”, “they”, “him” and “he”. In the extracts quoted here, those references are emphasised in bold.

21. [47]

    At 8:20 on 21 August 2012 Mr Rahal reported to Lazar that he had spoken to DSC Roberts, who reiterated that “as long as he gives a statement, he’s a witness”. Mr Rahal repeated his warning to Lazar that he expected a charge to be laid.

22. [48]

    At 8:21 Lazar phoned Constantinidis and passed on what Mr Rahal had just told him. Constantinidis said:

23. [49]

    At 9:21 Constantinidis updated Lazar in the following terms:

24. [50]

    At 9:42 DSC Roberts phoned to check that Lazar was “on the way in” to provide his statement. Lazar confirmed that he would meet the detective at 10:30.

25. [51]

    At 10:09 Constantinidis called Lazar and the following conversation took place:

26. [52]

    At 10:17 Lazar called Constantinidis and the following conversation took place:

27. [53]

    At 11:12 Lazar called Constantinidis, who reported to him as follows:

28. [54]

    At 11:36 Mr Rahal reported to Lazar, following his meeting with DSC Roberts, at which Mr Rahal had handed over documents. Mr Rahal said:

29. [55]

    At 11:57 DSC Roberts called Lazar, who rambled about his poor mental state, his inability to “think straight” or give a proper account of things. DSC Roberts proposed that he “let the meds wear off” and that in “a couple of hours” the detective would come to Lazar’s office and take a statement. Lazar was at times crying during this phone call. Towards its conclusion DSC Roberts made these statements:

30. [56]

    At 12:03 Lazar phoned Constantinidis and informed him of this most recent call from the detective. Constantinidis said that the call should not have occurred while Lazar was “under medication” and that it would be grounds for making a complaint to the detective’s superior.

31. [57]

    At 14:58 Lazar phoned DSC Roberts and at the same time sent him by email a letter from Northside Clinic concerning Lazar’s mental condition. Lazar delivered a monologue about his mental state, his medication and his recently-terminated personal relationship. DSC Roberts made superficially sympathetic responses and, at the end of the call, secured Lazar’s agreement to provide a statement the next morning.

32. [58]

    At 16:18 Constantinidis informed Lazar of the following:

33. [59]

    At 21:40 Constantinidis and Lazar had a conversation that included the following:

34. [60]

    Having summarised the sequence of intercepted calls up to the late evening of Monday, 21 August 2012 it is now necessary to turn to the evidence of Witness B. He suggested that an alleged meeting between himself and Constantinidis took place early on the morning of Tuesday 22 August, prior to a phone call at 7:39am that day that was referred to in the trial as “the McGillicuddy call”.

Witness B’s evidence

1. [61]

   Witness B gave evidence that he had known Constantinidis since about 2006-2008 and that from some time after their first meeting he had carried out debt collecting and other unspecified personal tasks for him. Her Honour accepted this part of his evidence. It was open to her to do so.

2. [62]

   Witness B said that in 2012, on a date that he could not specify even as to the month, Constantinidis rang and asked him to come to Constantinidis’ house at Windsor. B went to the house accompanied by his wife, Witness D. He had a conversation with Constantinidis, for which D was not present, as follows:

3. [63]

   Witness B said that Constantinidis specified what he wanted done in relation to DSC Roberts:

4. [64]

   Witness B gave the following evidence about reference to money during the conversation:

5. [65]

   At the conclusion of Witness B’s evidence in chief, the prosecutor made the following statement with reference to the above evidence, at the request of Constantinidis’ counsel:

6. [66]

   The date and time at which Witness B claimed this conversation took place were approximated in his further evidence to the effect that, after leaving Constantinidis’ house, “I think it was on the same day”, he made a call to Lazar in which he disguised his voice and introduced himself as “Detective Sergeant Superintendent McGillicuddy”. That call was intercepted. It commenced at 7:39 on 22 August 2012 (Wednesday). It is apparent from Lazar’s participation in the conversation that he did not recognise the voice of the caller as that of Witness B and the learned trial judge expressly so found: see [438] and [440] of her Honour’s judgment quoted at [77] below.

7. [67]

   In the McGillicuddy call Witness B posed as a senior police officer who was aware that Lazar was being pursued for a statement in relation to the gold bar investigation. Witness B/McGillicuddy conveyed to Lazar that, through intermediary contacts, he had learned of Lazar’s situation and that, as a senior officer, he was working from within the police force to protect Lazar’s interests. His statements to that effect included the following:

8. [68]

   Early in the call Witness B/McGillicuddy referred to “one of the officers at Chatswood [who] has been giving you a hard time” but Lazar corrected him that it was “Roberts from Leichardt”. Witness B/McGillicuddy then sought to assure Lazar that senior officers would rein in DSC Roberts. The following are examples of those assurances:

9. [69]

   Witness B/McGillicuddy purported to advise Lazar that no charge could be laid against him:

10. [70]

    In this call Witness B, posing as a senior police officer, strongly advised Lazar not to provide a statement to DSC Roberts, in the following passages:

11. [71]

    Witness B/McGillicuddy gave instructions to Lazar as to what he should do if he was pursued any further by DSC Roberts, as follows:

12. [72]

    Witness B/McGillicuddy obtained confirmation from Lazar that Mr Rahal had been present when DSC Roberts made “threats”. He said that Mr Rahal “has to come in and become a witness” and “I will send you a lawyer in particular that will help you. That will take orders from me”.

13. [73]

    Witness B said in chief that when he first met Constantinidis in the period 2006-2008, he already knew Lazar “briefly”. Whether this meant that he had known Lazar for only a short time or had not had a great deal to do with him, or both, was not asked. In re-examination he claimed to have first met Lazar in 2002, in the visiting area of Lithgow Correctional Centre when Witness B was receiving a visit from a family member and Lazar was visiting a fellow inmate, who introduced them.

14. [74]

    Witness B claimed that for seven or eight years up to 2012 he had worked for Lazar and was paid by an entity of Lazar’s called Commercial Mortgage Trade. He said that his job was “personal bodyguard” but “it was mainly through [Constantinidis] that I worked […] and then later on […] he wanted me to work direct for him”. This vague and unsatisfactory evidence was not clarified by any further questions in chief. No evidence was adduced to explain what was meant by working for Lazar as a bodyguard, or in any other capacity, “through” Constantinidis. The witness was not asked to give any timeframe or duration that might clarify what he meant by saying that he “mainly” worked in this fashion. He was not asked to give a period of time for “later on” or to say whether the fact that Lazar “wanted [him] to work directly for him” ever translated into actuality or, if so whether this resulted in regular or extended contact with Lazar. No doubt Witness B was inarticulate and gave many imprecise answers. The prosecutor’s failure to go back over such answers to obtain clarification left many aspects of his evidence in a state that did not convey any definite meaning.

15. [75]

    In cross-examination Witness B agreed that he had commenced to occupy a rented flat in Porter Street, Ryde, in about January 2013 and that he had remained living there for about six months. It was established that he had made a statement to police on 6 February 2018 in which he recounted a conversation with Lazar that took place on the balcony of the flat. According to the statement, that conversation “would have been in the first couple of weeks that I met him”, the effect of that being that he did not meet Lazar until, at the earliest, December 2012. Witness B could offer no reconciliation of the conflict between his evidence in the trial and this prior statement.

16. [76]

    In re-examination the Crown prosecutor led from Witness B that he had done “work for Ian Lazar before the gold bullion” and that “that work involved spending time with him face-to-face”. The only purported particulars of such “work” that were adduced from the witness were that on one occasion, unspecified as to a date, he and Lazar and “three of my boys” drove around Sydney together looking “in several places” for a person whom Lazar was trying to locate.

17. [77]

    Her Honour drew the following conclusions about the degree of association between Lazar and Witness B up to the period that was relevant to the charge:

18. [78]

    Witness B said that he spoke to Lazar “at some point about the gold bar situation”. He said that this occurred at a cafe with outdoor seating on either Walker Street or Berry Street, North Sydney, near Lazar’s office. He recounted the conversation as follows:

19. [79]

    Witness B said that prior to this meeting, on an earlier unspecified occasion, he had told Lazar:

20. [80]

    Witness B said that he “ended up picking up - I think it was somewhere around 49,000 or 50 something thousands dollars off [Lazar] at one stage”. With respect to the circumstances and place of payment he said this:

21. [81]

    Witness B said that on a second occasion he “picked up - I think, about the same amount […] for this job”. He said the second payment was in cash but he could not recall where he received it. He appeared to have intended by this evidence that the second payment was also from Lazar.

22. [82]

    Witness B gave this evidence of a further meeting:

Witness B’s background, police statements

1. [83]

   Witness B was 37 years old in August 2012 and 44 when he gave evidence. He had a long record of offences of violence, possession and use of offensive weapons and knives, serious traffic offences, possession and supply of drugs and offences of dishonesty. He had served several relatively short terms of imprisonment. On his own admission at the trial he had used illicit drugs extensively over several years, including smoking heroin from 2012 and injecting it, at the rate of between 0.5 and 1 g daily, from 2015 until he commenced a period in custody in 2017. He had also used ice frequently up until late 2017.

2. [84]

   Defence counsel did not tender the statements Witness B had made to police or any part of them. Nor was the Crown formally requested to concede that the statements contained the particular passages upon which defence counsel’s questioning was based. Instead, counsel put to Witness B that certain things were contained in or omitted from his police statements and asked him to agree the dates upon which the statements were made. The witness did not purport to recall the contents or dates of his statements but the Crown prosecutor did not protest that any of what defence counsel put was inaccurate. All parties proceeded upon the basis, which her Honour evidently accepted, that the matters put by counsel to the witness were factual.

3. [85]

   On 27 November 2014 Witness B made his first statement concerning an alleged request from Lazar and an offer of payment, for him to influence DSC Roberts. At that time Witness B was on bail with respect to charges of driving whilst disqualified and failing to stop in response to a police pursuit, committed on 11 July 2014. The particulars of those charges were serious. His statement was made under inducement. When those charges were dealt with at Parramatta Local Court on 11 December 2015, he relied upon the assistance that he had given to police, constituted by his statement of 27 November 2014, in reduction of penalty.

4. [86]

   On 17 March 2015 the witness made a second police statement. At that date he was still awaiting sentence on the drive while disqualified and police pursuit charges and was also facing a charge of custody of a knife in a public place, committed on 24 February 2015. The latter charge was dealt with at Burwood Local Court on 17 September 2015, when Witness B was given a suspended sentence.

5. [87]

   On 25 May 2015 Witness B made a third statement concerning the charge that is under consideration on this appeal and on 11 December 2015 he made a fourth statement on the same subject. The first time he asserted that Constantinidis had requested him to influence DSC Roberts was in the third statement made six months after he commenced purporting to co-operate with police about the alleged interference with DSC Roberts. In his first two statements Witness B only alleged that Lazar had approached him.

Witness D’s evidence

1. [88]

   Witness D gave evidence that she accompanied Witness B, her husband, to Constantinidis’ house at Windsor on one occasion in 2012 but she could not be sure of the date or the month. She said that she heard some conversation between Witness B and Constantinidis in the corridor of the house as they walked towards an office. After that she was asked to remain outside the office while the two men entered into discussion. The limit of what she claimed to have heard was as follows:

2. [89]

   Witness D also said that she later overheard Witness B making a phone call in which he disguised his voice in a “sort of broken English and like a Pommy accent and American”. She could not recall when that was but said “2013, I think” and then “maybe a week” after the visit to Constantinidis at Windsor. She was permitted to look at a statement she had made on 18 January 2018, five and a half years after the alleged events. Having read the statement she claimed to recall more of what she had heard her husband say in the phone call, as follows:

3. [90]

   Taken at its highest Witness D’s evidence in chief provided no support for Witness B’s evidence that Constantinidis requested him to interfere in DSC Roberts’ investigation. If Witness D had been accepted as reliable, the fragments of conversation that she claimed to have heard would at best have been some evidence that the investigation was on one occasion discussed between the two men but it would be incapable of establishing when this took place or whether Witness B was asked to do anything about DSC Roberts. Witness D’s evidence of a phone call in which her husband put on an accent added nothing because the date, time and content of the McGillicuddy call were objectively established by the uncontested intercept. The identity of Witness B as the caller was established by voice comparison and was not in contest.

4. [91]

   It might have been thought unnecessary for defence counsel to cross-examine Witness D but they did, leading to the disclosure that in her statement of 18 January 2018 she had not mentioned the name of a police officer who was spoken about between Constantinidis and Witness B. She had first given the name “Roberts” in a second statement made on 7 August 2019, in the middle of the trial, after Witness B had given evidence and just one day before she gave evidence herself.

5. [92]

   The learned trial judge made the following findings concerning the evidence of Witness D:

Phone communications after the McGillicuddy call

1. [93]

   On 22 August 2012 (Wednesday) at 7:55, soon after Lazar had taken the McGillicuddy call and before he had reported it to Constantinidis, DSC Roberts phoned him and said that he would attend Lazar’s office and take his statement that morning. Lazar said that he would rather go to the detective’s office and that he would ring him back in about 40 minutes.

2. [94]

   At 7:55 Lazar phoned Constantinidis to tell him about the McGillicuddy call and to advise that DSC Roberts had phoned and was still persistent and threatening about obtaining a statement.

3. [95]

   At 8:05 Mr Rahal phoned Lazar, who complained that DSC Roberts was still demanding a statement. Mr Rahal repeated his earlier advice that, if a statement was not provided, a charge would be laid.

4. [96]

   At 8:11 Constantinidis told Lazar the following, referring to DSC Roberts as “the other clown”:

5. [97]

   At 8:19 Constantinidis gave the following further instructions and reassurance to Lazar:

6. [98]

   These statements by Constantinidis to Lazar at 8:19 on 22 August are consistent with being references to the McGillicuddy call. They are consistent with Constantinidis having known that Witness B had pretended to be a senior officer giving assurance to Lazar, to the effect that he did not need to cooperate with DSC Roberts. Constantinidis’ advice to Lazar was also consistent with him having bona fide information from other police that they were going to intervene to stop the DSC Roberts’ investigation.

7. [99]

   At 8:26 and 8:35 there were two further, similar calls, in which Constantinidis urged Lazar that he was not obliged to make a statement and that he should just “sit tight” and put DSC Roberts off. At 8:38 Lazar phoned DSC Roberts to say that he would not come in to make a statement until his solicitor could be present.

8. [100]

   At 8:55 in a conversation between the appellants, Constantinidis said:

9. [101]

   At 9:51 Lazar phoned DSC Roberts and requested him to commence drafting a statement based on information that Lazar proceeded to give over the phone. The detective agreed. Lazar gave an account of what he knew about the gold bar. DSC Roberts asked questions to draw out the evidence. He said that from the information supplied he would type out a statement containing “some basics” in order to save time later on in completing the document.

10. [102]

    At 10:26 Lazar called Constantinidis. Lazar did not disclose that he had just spoken to the detective and provided the substance of a statement concerning the gold bar. Constantinidis said that Lazar should ring Mr Alexander, another solicitor, because “they” wanted Mr Rahal to be a witness “to this threat [from DSC Roberts] and everything else”. Constantinidis said this:

11. [103]

    At 12:06 there was another call between the appellants in which Constantinidis reiterated that “they” wanted Lazar to lodge a formal complaint against DSC Roberts. He said:

12. [104]

    After Lazar voiced complaint during this conversation, about the strain he was under, Constantinidis said the following:

13. [105]

    At 21:20 Lazar phoned Constantinidis and the following exchange took place:

14. [106]

    On 23 August 2012 (Thursday) at 8:55 Constantinidis told Lazar:

15. [107]

    At 21:04 Constantinidis told Lazar:

Cessation of DSC Roberts’ investigation

1. [108]

   According to DSC Roberts’ statement tendered in the Crown case, on 22 August 2012 he “suspended the investigation into the gold bar, [Mr Y], Ian Lazar and related matters” as a result of “communications I had with Detective Sergeant John Floros from Fraud and Cybercrime Squad”. DSC Roberts said that he believed those communications “are a matter of Public Interest Immunity”.

The trial judge’s conclusions

1. [109]

   The learned trial judge’s principal conclusions, leading to the finding that each appellant was guilty, are encapsulated in the following paragraphs of her reasons:

2. [110]

   In the case against Constantinidis, her Honour’s acceptance of Witness B’s evidence about a request to interfere with the gold bar investigation rested heavily upon her view that support could be drawn from the CCRs and the McGillicuddy call, as follows:

3. [111]

   With respect, the inference from the CCRs in the first part of [433] is unsound because of the deficiency of the evidence that was recognised by her Honour in [434]. There was no evidence of what was said between Constantinidis and Witness B in any of their calls, not only because Constantinidis’ landline to which the CCRs relate was not intercepted but also because the Crown did not attempt to adduce evidence from Witness B as to the content, or even the subject matter, of the conversations. This has been referred to earlier in these reasons, at [27]-[28] above. Without evidence of what was said in the phone communications between Constantinidis and Witness B, the inference that they confirmed that Constantinidis “did speak to Witness B and ask for his assistance in removing Detective Roberts from the gold bar investigation, with the intention of perverting the course of justice” was not available.

4. [112]

   The last sentence of [433] commences with one of her Honour’s ultimate conclusions, adopting Witness B’s evidence: “I find Constantinidis spoke to Witness B to get him to speak to Police officers”. The second part of the sentence, that “Witness B was either providing Constantinidis with information that he was making up, or was getting information from some unknown person or persons”, is speculative. There was no evidentiary foundation for either of those alternatives. There was no evidence that Witness B provided information, real or invented, to Constantinidis. The CCRs were not evidence that that occurred as they proved only the time and duration of the telecommunications. The Crown could not properly have invited her Honour to infer, in support of its case, that information was passed to Constantinidis in these calls when it had not even asked Witness B whether he had a recollection of what they said to each other over the phone, at any relevant time.

5. [113]

   At [433], her Honour made a finding in these terms:

6. [114]

   The effect of the McGillicuddy call was to delude Lazar into the belief that action was being taken by a ranking police officer to call off the gold bar investigation. The clear purpose of this play-acting by Witness B was to calm Lazar down, including by giving him apparently authoritative assurances that he could not be charged and that he was not obliged to provide a statement. The call was not open to the interpretation that it amounted to Witness B implementing Constantinidis’ alleged request that influence be exerted upon DSC Roberts. The McGillicuddy call was of a different character altogether from what Witness B said he was asked to do. It was therefore not a circumstance that could support the drawing of an inference that any such request had been made. Contrary to the express findings of her Honour at [412] and [415], the McGillicuddy call was incapable of corroborating Witness B’s direct evidence regarding a conversation with Constantinidis at Windsor.

7. [115]

   The call supports an inference of a reasonable possibility consistent with the innocence of both appellants, namely, that Constantinidis requested Witness B to do no more than mislead Lazar in the manner that he in fact did; that is, to pose as a supportive senior officer and to reassure Lazar in order to stiffen his resolve not to make a statement about the gold bar. Neither defence counsel put to Witness B that Constantinidis asked him to make such a fake call. It was nevertheless a reasonable possibility, open on the Crown’s evidence and capable of explaining the McGillicuddy call consistently with the appellants not having made any request to Witness B to corrupt DSC Roberts. Counsel for Lazar would not have been privy to any instructions from which this construction of events could have been put to Witness B. Both appellants were entitled to have this reasonable possibility recognised as an available inference from, or a construction of, the Crown’s evidence. They were under no obligation to prove it affirmatively or to put it to any Crown witness.

8. [116]

   The intercepted conversations between the appellants prior to the McGillicuddy call showed that Lazar was rapidly decompensating under the pressure of DSC Roberts’ forceful pursuit of his inquiries. They also showed that Constantinidis was anxious for Lazar not to cooperate with the detective, at least for the time being. In the conversation with Lazar on 21 August at 8:21 Constantinidis promised to “get someone to ring you direct”: see [48] above. As considered in more detail below, we perceive a further reasonable possibility, also open on the evidence, that at this time Constantinidis was actually speaking to police other than DSC Roberts, who were aware of the detective’s zeal and were concerned that some other operation of their own might be jeopardised by DSC Roberts’ probing. Notwithstanding that Constantinidis may have had such a “back channel” of communication with other police, who for legitimate reasons wanted DSC Roberts to desist, he may not have been able to get an officer to phone Lazar direct, to settle him down. It is a reasonably possible inference that, as a substitute, Constantinidis sought to calm Lazar by briefing Witness B to pose as a senior policeman offering reassurance.

9. [117]

   At [414] her Honour accepted Witness B’s evidence that he was informed by Constantinidis of the investigation being carried out concerning the gold bar, the pressure that DSC Roberts was applying to secure a statement from Lazar and the involvement of Mr Rahal in advising Lazar. It was open to her Honour to accept that part of Witness B’s evidence, however, it went no distance at all towards corroborating Witness B’s claim that he was requested to influence the detective. On the other hand, the conclusion that Constantinidis briefed Witness B on the situation supports the alternative hypothesis that Constantinidis requested Witness B to make the McGillicuddy call.

10. [118]

    It might appear an extreme measure for Constantinidis to have recruited Witness B to reassure Lazar in the bizarre fashion that was adopted. However, this is not a far-fetched or fanciful possibility given the level of Constantinidis’ anxiety that Lazar should not cooperate with DSC Roberts. The intercepted conversations demonstrate Constantinidis’ high level of concern and are consistent with a mixture of reasons for it. One reason was that Constantinidis was genuinely alarmed about Lazar’s legal rights being abrogated, fearing that if Lazar should speak to police he would compromise his defence to any charge that might be laid. Secondly, Constantinidis’ words suggest concern for Lazar’s mental stability, probably with an element of self-interest in that the two of them evidently had substantial business dealings together and it would reasonably have appeared to Contantinidis that Lazar was verging upon a mental collapse that would render him unable to complete pending transactions. Lazar expressly claimed that he was reaching such a crisis, which he attributed to the stress of DSC Roberts’ inquiries. This may have been what Contantinidis was referring to when he said “You’re gonna crack. You fuckin’ crack and it’s fucked for everyone”: see [104] above. Thirdly, as considered below, it is reasonably possible that Constantinidis was cooperating with other police in relation to a separate investigation that might be disrupted if Lazar should provide a statement concerning the gold bar.

11. [119]

    On 22 August at 7:55, not long after the McGillicuddy call, Lazar recounted to Constantinidis what “McGillicuddy” had said, although he could not recall the name of the caller. Lazar’s description of the call showed that he believed it to have been genuine, as her Honour found. Lazar told Constantinidis that the person who called him “sounded like he was Indian”, to which Constantinidis replied:

12. [120]

    As earlier noted at [97]-[98], Constantinidis’ statements to Lazar at 8:19 on 22 August similarly supported the reasonable possibility that Constantinidis had caused Witness B to phone Lazar pretending to be a senior police officer and that Constantinidis was in receipt of genuine information from other police that they were going to intervene to stop the detective’s investigation.

13. [121]

    In the numerous intercepted conversations between the appellants that followed the McGillicuddy call, there is no evidence that Constantinidis believed the call was genuine. All of Constantinidis’ conduct was at least equally consistent with him having recognised Lazar’s description of the McGillicuddy call as Witness B pretending to be a senior officer. It was all consistent with Constantinidis having requested Witness B to carry out that deception in order to calm Lazar down.

14. [122]

    An alternative explanation of the McGillicuddy call was advanced by counsel for Constantinidis on the appeal, namely, that Witness B gleaned some knowledge of Lazar’s conflict with DSC Roberts from conversations with Constantinidis and that he acted on his own initiative, without reference to Constantinidis, when he phoned Lazar in the guise of a senior police officer to give false assurance. That possibility had less support in the evidence but it was open to be inferred, in the alternative. As an available construction of the McGillicuddy call in the surrounding circumstances, this possibility, again, negated the call as a source of support for Witness B’s allegations.

15. [123]

    In summary, the McGillicuddy call was not consistent with the alleged request to Witness B that he should interfere with DSC Roberts. It could not be characterised as the execution or part performance of that request. The call did not support Witness B’s evidence that such a request had been made to him. On the contrary, the McGillicuddy call gave rise to a strong inference of a possibility that Constantinidis requested Witness B to do something quite different from what was charged; something no more serious than deluding his nervous business associate in order to reassure him.

16. [124]

    In the case against Lazar, her Honour found at [441] that by 21 and 22 August 2012 he was under a considerable amount of stress induced by several ongoing events in his life, that he perceived that DSC Roberts intended to charge him and that he “wanted the gold bar returned because he was desperate for money”. At [442] her Honour found that the two appellants “had a very close personal and business relationship”. Each of those findings was open. However, her Honour then proceeded to make this further finding (emphasis added):

17. [125]

    There was no evidentiary foundation, including in the testimony of Witness B, for a sequence of events that commenced with Lazar having “enlisted” Constantinidis to help him get DSC Roberts “taken off the case”. There was no intercepted conversation between the appellants that could be so characterised. Witness B gave no evidence of any particular order in which there occurred the alleged conversation with Constantinidis, the alleged conversation with Lazar and the alleged payments from Lazar. In the following answers he explicitly said that he could not give the order of events:

18. [126]

    In his answer quoted at [82] above, Witness B purported to give a relative time frame for some of the events he described but did so in terms that further discredited his account. The effect of that answer was that the request from Lazar to interfere with DSC Roberts was followed by payment on a date of which he was uncertain and that “about a week or about a week and a half after I had taken the money off him” there was a “follow-up” conversation wherein Witness B enquired of Lazar what was going on. He said that on the next day after that, Lazar learned that DSC Roberts had ceased his investigation. The last-mentioned event was fixed by objective evidence at 23 August 2012. On this sequence given by Witness B, Lazar must have requested him to interfere with the gold bar investigation no later than 15 August, which would be irreconcilable with the content of the intercepted conversations that took place between the appellants in the period 15 to 22 August.

19. [127]

    The omission by Witness B from his first two police statements of any mention of a request from Constantinidis that he should interfere with DSC Roberts (see [87] above) made it particularly important to Witness B’s credibility that he should be able to place that conversation in sequence or progression with the alleged North Sydney conversation with Lazar and the payments that he claimed to have received. His inability to commit to an order of events necessarily cast doubt upon the entirety of his account given at trial, so far as it affected both accused.

20. [128]

    The only temporal relationship given by Witness B was that the McGillicuddy call followed his conversation at Windsor with Constantinidis, he believed on the same day. Any endeavour to infer what must have been the sequence of his alleged conversations with the appellants would involve circular reasoning from the starting point of assuming that there were such conversations, which was the entire question in the case.

21. [129]

    There was also no evidence for her Honour’s conclusion (at [445]) that the first conversation Witness B claimed to have had with Lazar, concerning the gold bar and DSC Roberts, took place on 21 or 22 August 2012. Witness B gave no direct evidence of either of those dates and there was no circumstantial evidence, or any other form of supporting evidence, that any such conversation had occurred, let alone when.

22. [130]

    The inability of Witness B to ascribe a sequence to the events that he recounted was a substantial reason for doubting his veracity. It was not recognised as such in her Honour’s reasons.

23. [131]

    If the conversation with Constantinidis came first and if, as Witness B said, the McGillicuddy call followed on the same day, then having regard to the time of the McGillicuddy call, the conversation with Constantinidis must have taken place before 7:39am on 21 August 2012. There would have been no interval in which Witness B could have met with Lazar at North Sydney, more than 50 km distant from Windsor, in between the alleged meeting with Constantinidis and the McGillicuddy call. Therefore, a North Sydney meeting with Lazar after the alleged Windsor meeting with Constantinidis would have to have taken place post the McGillicuddy call. In that case, the request that Witness B said Lazar made to him at North Sydney would have made no sense. It is contrary to common sense that Lazar would have offered to pay B to influence and/or intimidate DSC Roberts after he had received assurances, in the McGillicuddy call, from someone whom he believed was a senior police officer, to the effect that steps had already been taken to contain the detective and that there was no basis for him to be charged and that he was under no obligation to make a statement.

24. [132]

    On the other hand, if the North Sydney meeting with Lazar took place first, it would be improbable, on her Honour’s findings, that Lazar would not have recognised the voice of Detective Sergeant Superintendent McGillicuddy as that of Witness B, with whom he had so recently discussed, in person, interference with the gold bar investigation. Indeed, the fact that Lazar did not realise, either before or after the call, that the voice of McGillicuddy was that of Witness B, made it improbable that Lazar had a face-to-face conversation at North Sydney, as described by Witness B, at any time proximate to the McGillicuddy call.

25. [133]

    The internal conflicts in Witness B’s evidence about the extent of his contact with Lazar in 2012 and earlier were directly relevant to the probability or otherwise of the Crown’s central allegation, based upon Witness B’s evidence, that Lazar requested him to influence DSC Roberts improperly. Witness B’s account of that request, set out at [78] above, was given in the context of Witness B claiming that he had worked as Lazar’s personal bodyguard for seven or eight years beforehand. On her Honour’s findings (quoted at [77] above), which were the most favourable to the Crown that were reasonably available on the evidence, there was no such context. Logically, this detracted from the likelihood of Lazar having taken Witness B into his confidence and entrusted him to carry out a serious offence on Lazar’s behalf. Her Honour’s reasons do not refer to this consideration.

26. [134]

    Witness B’s evidence concerning receipt of payments from Lazar, like his evidence of the alleged critical conversations with both appellants, was afflicted with discrepancies that contribute to our sense of reasonable doubt about his testimony. The alleged instruction from Lazar to “make sure you let them know it’s from me”, referring to the payment of $49,000 or $50,000 (see [81] above), is discordant with Witness B’s narrative. He did not give evidence that Lazar had directed that the money or any part of it was to be passed on to any other person. The alleged instruction to “let them know it is from me” would have been appropriate if Lazar was requesting that a bribe be paid using his funds and if he wanted the recipient to know who the benefactor was. But Witness B did not suggest that he was asked to pay a bribe with Lazar’s money.

27. [135]

    Witness B’s acknowledgement in cross-examination that he only commenced to reside in the Ryde unit in January 2013 obviously cast doubt upon his purported specific recollection of having received a first payment from Lazar by way of a “stack of money” thrown to him in the corridor of that building. In re-examination the Crown reminded him that in his first statement to police about this matter, made on 27 November 2014, he had said that he received the first amount of money at Lazar’s office. Witness B endeavoured to explain this inconsistency on the basis that when he gave evidence about receiving payment at the Ryde apartment, on an earlier day of the trial, he had been adversely affected by medication, including buprenorphine, in a daily dose of 20 mg, Lyrica and Panadeine Forte. On the earlier day of the trial it was recorded in the transcript that Witness B fell asleep while the McGillicuddy call was being played back to the Court and that his speech was slurred. The use of medication does not remove the doubt concerning Witness B’s credit and reliability that, in our assessment, is contributed to by his purported memory of having been thrown “a stack of money” at the Ryde unit at a time when he did not reside there.

28. [136]

    Her Honour’s conclusion (at [445]) that Lazar first “enlisted” Constantinidis and that the latter then requested Witness B to influence DSC Roberts, before Lazar spoke to Witness B on the subject, is reflected in another part of her Honour’s reasons where it was concluded that Lazar and Witness B were not closely acquainted in August 2012. The relevant paragraph is as follows:

29. [137]

    There was no evidence to support her Honour’s conclusion that Lazar went “through the accused Constantinidis to speak to” Witness B. This reasoning involved an assumption by her Honour that Witness B’s alleged conversation with Constantinidis came first, which was unsupported by evidence as already noted. Further, the proposition is inconsistent with Witness B’s description of two nearly identical conversations, one with each of the appellants. He did not testify that either of the conversations included reference to, or built upon, the other.

30. [138]

    As Witness B described the alleged requests from Constantinidis and Lazar, each of them spoke to him in closely similar terms on separate occasions and neither of them made any reference to what had been said, or would be said, by the other. The appellants were both prolific users of the phone. They spoke to each other by that means many times each day and at all hours of the night. They conversed using some phone services that were not intercepted. If they agreed upon a joint criminal enterprise to pay Witness B to influence DSC Roberts, it would be common sense that they would have resolved which one of them was to speak with him. If they both spoke to him in furtherance of such an enterprise, it would seem improbable that the second one to meet with B would not have been informed by his alleged co-offender of what the other had already said but would proceed to make a request of B in the same terms as if the other conversation had not taken place.

31. [139]

    It is also against common sense that Witness B would not have reacted to the second request, for example by saying that Constantinidis (or Lazar, as the case may be) had already engaged him to interfere with DSC Roberts and that he had agreed to do so. Witness B’s account of two replica conversations is unnatural and not plausible. This is another ground for our sense of reasonable doubt about Witness B’s evidence that is not dealt with in her Honour’s reasons.

32. [140]

    In the call at 7:51 on 21 August 2012 (quoted at [45] above) and in subsequent calls throughout that day (see [49]-[53] and [58]-[59]), Constantinidis repeatedly claimed to Lazar that certain unnamed people were being kept informed of DSC Roberts’ persistence in seeking a statement from him. The references to these unnamed people conveyed that they were in a position of authority over DSC Roberts, that they disapproved of his conduct and that they were taking, or proposed to take, action to stop him. These claims were expressed in such terms that, if Constantinidis was speaking truthfully and if he was not engaging in an elaborate deception of Lazar, there arose a strong inference that “they” and “them” with whom Constantinidis was in communication were police officers engaged on an operation that was at risk of being compromised if DSC Roberts should continue probing in relation to the gold bar. There was no basis in the intercepted phone calls, or in any other evidence, for concluding definitively that Constantinidis’ was inventing these police contacts when he spoke of them in his numerous calls with Lazar.

33. [141]

    The telephone intercept evidence thus left open the reasonable possibility that Constantinidis was actually in direct or indirect communication with officers who were legitimately engaged upon police business. The possibility that Constantinidis was receiving information from such other officers, in particular that they proposed to curb DSC Roberts’ actions, gained circumstantial support from the fact that, on 22 August 2012, Detective Sergeant Floros (“DS Floros”) of the Fraud Squad had “communications” with DSC Roberts that resulted in the investigation of the gold bar being suspended: see [108] above. As public interest immunity was claimed in respect of the Floros-Roberts communications and no evidence of their content was adduced, the Crown case was incapable of excluding the reasonable possibility that DS Floros and/or officers working with him were the people to whom Constantinidis referred in his conversations with Lazar on 21 August 2012 and who, for proper reasons, were concerned about the gold bar investigation and ultimately directed that it should cease. Constantinidis’ calls to Lazar quoted at [100], [102]-[103] and [105]-[107] are all consistent with and tend to support this inference.

34. [142]

    This reasonable possibility was inconsistent with the Crown’s allegation that Constantinidis joined with Lazar in a criminal enterprise to have Witness B influence DSC Roberts improperly, through his superiors or by physical violence. The Crown’s own evidence, in the intercepted calls of 21 August 2012, showed that it was at least reasonably possible that, far from engaging Witness B to exert improper influence, Constantinidis had inside information that DSC Roberts’ inquiries were going to be suspended because they conflicted with other lawful police activities. This reasonable possibility was inconsistent with the charge that Constantinidis and Lazar engaged a person whom her Honour found to be a well-known stand over man with a long criminal record, to blunder in and either break DSC Roberts’ legs or his arm or approach unspecified “high up people” to “sack” him or otherwise intervene. Her Honour did not consider this available construction of the intercepted conversations or the reasonable possibility that flowed from it.

Conclusion on the unreasonable verdict grounds

1. [143]

   The above considerations in combination give rise to a reasonable doubt on the part of this Court about the truthfulness and accuracy of Witness B’s evidence against both Lazar and Constantinidis, and hence a reasonable doubt about their guilt. Her Honour’s immersion in the detail and atmosphere of the trial did not confer upon her an advantage from which she would have been able to dispel this doubt, arising as it does largely from the application of logic to inherent conflicts and improbabilities in Witness B’s evidence. The evidence independent of Witness B exhibited no capacity to support his allegations in any respect. Indeed, some of the circumstantial evidence gave rise to inferences of fact that affirmatively support the reasonable possibility of innocence of both appellants. The inefficacy of the circumstantial evidence to corroborate Witness B and its tendency to suggest possible innocent explanations was not recognised by the learned trial judge. Her Honour’s reasons do not reveal any way in which the points we have discussed above might be reconciled with Witness B’s evidence. Certainly they were not expressly resolved in the judgment.

2. [144]

   For the above reasons, Constantinidis’ ground 4 and Lazar’s ground 3 must be upheld. The findings of guilt against each of the appellants must be set aside and their convictions quashed.

Constantinidis’ ground 1 – failure to direct an acquittal

1. [145]

   In view of our conclusion on the unreasonable verdict ground in Constantinidis’ appeal, his ground 1 concerning failure to direct an acquittal at the conclusion of the Crown case need not be considered in any detail. If it were necessary to resolve this ground we would not uphold it. There was some evidence, from Witness B, that, if accepted, would support findings of conversations between Witness B and each of the appellants from which it could be inferred that they had reached an understanding to pay Witness B to interfere with the gold bar investigation.

2. [146]

   Taking that evidence at its highest, as required upon consideration of an application for a directed verdict (see Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at [17]), the acts of each appellant in furtherance of this joint criminal enterprise would be attributed to the other. That would include attribution to Lazar of Constantinidis’ alleged instruction to Witness B at Windsor. It would also include attribution to Constantinidis of Lazar’s alleged payment of money to Witness B. The Crown case thus included some evidence capable of supporting each element of the offence charged. The deficiency of the Crown case was of a different kind, namely, weakness and lack of credibility of the critical witness coupled with incapacity of the whole of the circumstances proved by the Crown to exclude a reasonable hypothesis consistent with innocence.

Constantinidis’ ground 3/ Lazar’s ground 2 – s 165 of the Evidence Act and good character

1. [147]

   Section 165 of the Evidence Act, as follows, is relevant to Constantinidis’ appeal ground 3 and Lazar’s ground 2:

2. [148]

   On the Crown case, Witness B was alleged to have been criminally concerned in Lazar’s alleged act of paying him to influence DSC Roberts improperly, pursuant to an alleged joint criminal enterprise between Lazar and Constantinidis. The only paragraphs of the judgment in which her Honour considered the requirement of a warning under s 165 were the following:

3. [149]

   Section 165 is expressed as applicable to all classes of evidence that “may be unreliable”, not limited to evidence of the kinds listed in pars (a)-(g). As referred to at [349] of her Honour’s judgment, counsel for Constantinidis nominated several considerations that are not mentioned in s 165(1) but that he submitted required caution in the assessment of Witness B’s evidence. Each of those matters was adequately addressed in her Honour’s reasons at [42], [43], [348], [353] and [369]-[376]. Hence, this appeal ground is only concerned with whether her Honour adequately heeded and dealt with a warning on the basis specified in s 165(1)(d), namely, that Witness B was involved in the alleged offence.

4. [150]

   Only counsel for Constantinidis requested her Honour to heed a warning under s 165(1)(d). However, once her Honour had determined that it was appropriate to do so, both appellants were entitled to the benefit of the warning. Section 133 of the Criminal Procedure Act 1986 (NSW) is in these terms:

5. [151]

   The effect of s 133(3) of the Criminal Procedure Act is that her Honour was required to heed warnings or cautions in the nature of those listed in s 165(2) of the Evidence Act, so far as applicable to the case, unless there were “good reasons” for not doing so. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 the High Court considered the then applicable provisions for judge alone trials, which included a section in precisely the same terms as the current s 133. The Court considered the operation of s 6(1) of the Criminal Appeal Act in relation to the requirement that a judge sitting alone should provide reasons. For ease of reference, s 6(1) is reproduced, as follows:

6. [152]

   The judgment of the High Court in Fleming v The Queen includes the following statements that are relevant to the grounds of appeal in the present case concerning s 165 of the Evidence Act. In these extracts we have omitted citations and substituted reference to ss 132 and 133 of the Criminal Procedure Act, in place of their Honours’ reference to the equivalent sections as they were then numbered:

7. [153]

   According to [349], [360] and [361] of the reasons, her Honour accepted that s 165(1)(d) of the Evidence Act was engaged. The basis in fact for that conclusion was not stated. More importantly, her Honour’s reasons did not identify, for the purposes of s 165(2) of the Evidence Act, the respects in which Witness B’s evidence might be unreliable or the matters that might cause it to be so. Because the appellants could not be found guilty unless her Honour accepted beyond reasonable doubt that Witness B’s evidence was truthful and accurate, s 133(2) and (3) obliged the learned trial judge to expose the reasoning by which she overcame the caution under s 165 of the Evidence Act, which she acknowledged was applicable, and arrived at a finding guilt. No such reasoning is to be found in the judgment. Her Honour did not satisfy the requirements laid down at [33] of the High Court’s decision in Fleming v The Queen. An error of law is thereby established.

8. [154]

   Although the relevant ground in each appeal must be upheld on this basis, the error is of no consequence in the ultimate disposition of these appeals because we have found that Witness B’s evidence was not, in all the circumstances, acceptable beyond reasonable doubt and her Honour ought to have recognised a reasonable possibility that neither of the appellants was guilty. Indeed, there was never any significant utility to the appellants in requesting the judge to heed a warning under s 165(1)(d) of the Evidence Act. That provision is usually invoked where the accused accepts that a crime has been committed, denies his or her own complicity and asserts that a Crown witness was himself or herself a perpetrator of the crime and has implicated the accused only in order to minimise the witness’ own role and/or to obtain a discount on sentence. This was not such a case.

9. [155]

   Here, each of the appellants challenged Witness B’s evidence against them on the basis that he had fabricated alleged requests from them that he should interfere with the gold bar investigation. The appellants’ case was that there were no such requests and, therefore, no crime committed by anyone and no events in which, applying the words of s 165(1)(d) of the Evidence Act, Witness B “might reasonably be supposed to have been criminally concerned”. In pursuit of that defence, Witness B was thoroughly and effectively challenged on grounds that did not involve any suggestion that he ought be disbelieved because he was himself involved in the crime that the Crown had called him to prove. The appellants’ consistent position was that that no such crime had been committed by anyone, including Witness B.

Character evidence

1. [156]

   Her Honour dealt with the good character of the appellants in the following paragraph of her reasons:

2. [157]

   As her Honour was evidently satisfied of the appellants’ good character, she ought in this case to have considered whether this made it unlikely that they would have committed the offence of attempting to interfere with a police investigation: Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; R v Stalder [1981] 2 NSWLR 9; R v Andrews [1982] 2 NSWLR 116. The other aspect of good character that a tribunal of fact may consider is whether it enhances the credibility of any explanation that the accused may have given for the alleged circumstances: R v Murphy (1985) 4 NSWLR 42; R v Do [2004] NSWCCA 137. That did not arise in the present case because neither of the appellants gave evidence at trial and there was no evidence that either of them had offered any explanation to police beforehand.

3. [158]

   Her Honour’s statement that she gave herself a good character direction was not elaborated by any indication of how significant she thought the character of the appellants was in assessing the totality of the evidence. The judgment contains no reasoning as to why her Honour concluded beyond reasonable doubt that, notwithstanding their good character, the appellants had committed the offence. The reasons thus fell short of the requirements of s 133 of the Criminal Procedure Act, as those requirements have been explained in Fleming v The Queen.

4. [159]

   Character was, in this case, potentially a significant consideration. Prima facie, it might be thought improbable that two men aged 41 and 57 respectively, with no relevant prior convictions, when faced with a police inquiry as to whether a gold bar in which one of them was interested might be stolen or might be the proceeds of crime, should respond by requesting a man with an extensive criminal record, including for offences of violence and unlawful possession of knives, to break the legs and arm of the investigating officer. It might be thought unlikely that two such men such as the appellants would believe – and pay nearly $100,000 in the belief – that a person of Witness B’s ilk would really have influence over senior police officers, such that he would be able to cause them to have a Detective Senior Constable dismissed, merely at Witness B’s request.

5. [160]

   Witness B’s character and his performance in making statements to police and in giving evidence were not impressive, as her Honour recognised at [376]-[377]. There was some basis in the evidence for viewing him as a fantasist. Her Honour provided no reasoning to explain why she nevertheless felt able to discount the favourable implications that arose from the appellants’ good character to the point of accepting Witness B as truthful and accurate, beyond reasonable doubt.

6. [161]

   In other circumstances, the upholding appeal grounds concerning a good character direction might result in an order for a new trial. In this appeal, because the Court has concluded that the findings of guilt were “unreasonable, or cannot be supported, having regard to the evidence”, the principal significance of the appellants’ good character is that it supplies another strand of improbability, contributing to the Court’s reasonable doubt about the convictions. Because her Honour did not undertake any reasoned reconciliation between the appellants’ uncontested good character and her conclusion that they had joined in the alleged offence of gross dishonesty, the Court can be satisfied that her Honour did not resolve this basis of reasonable doubt, from her position as trial judge. The doubt that this Court feels regarding the convictions remains a doubt that her Honour ought also to have perceived.

7. [162]

   Constantinidis’ ground 3 and Lazar’s ground 2 are upheld.

Lazar’s ground 1 – fitness to stand trial

1. [163]

   Consistently with the formulation of Lazar’s ground 1, he did not contend in argument on the appeal that this Court should find affirmatively that he was unfit to stand trial. It was contended that this Court should uphold the ground and quash the conviction unless satisfied that no reasonable tribunal of fact in the position of the learned judge could have found him unfit. In Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Hayne J explained the test to be applied in such a case, as follows (citations omitted):

2. [164]

   At an early stage of argument on the present appeal it was submitted that if the Court was persuaded on Lazar’s ground 1 then the trial should be regarded as a nullity. It was further submitted that Lazar’s grounds 2 and 3 were “an alternative”, apparently intending that they need not be considered if ground 1 should be upheld. However, if ground 1 were upheld it would not follow that the trial was a nullity. Rather, a miscarriage of justice would be established, requiring that the conviction be quashed and that consideration be given as to whether new trial should be ordered.

3. [165]

   In Eastman v The Queen, Hayne J set out the position in the following passages:

4. [166]

   At a later stage of the hearing, counsel for Lazar accepted that, even if the trial should be held to have been a nullity, it would be open to this Court to resolve the appeal upon any other ground that would support quashing the finding of guilt and would also result in the Court directing that a finding of not guilty be entered: Swansson v R [2007] NSWCCA 67 at [74] (Spigelman CJ), [94] (McClellan CJ at CL) and [119] (Sully J). It is certainly open to the Court to proceed to determination of Lazar’s grounds 2 and 3 in circumstances where, even if ground 1 were upheld, it would have no special status or significance as a ground that could result in the trial being regarded as a nullity. As the Court has upheld ground 3 (unreasonable verdict), the appropriate order pursuant to s 6(2) of the Criminal Appeal Act is that a finding of not guilty be entered. It follows that there would be no procedural or substantive benefit to Lazar from having ground 1 determined, either in priority to ground 3 or in addition. Ground 1 raises factual issues of considerable volume and complexity. There would be no utility, from any point of view, in the Court embarking upon substantive consideration of it.

Orders

1. [167]

   The grounds of appeal involve questions of fact. The appellants therefore require leave to appeal pursuant to s 5(1) of the Criminal Appeal Act. In the appeal of Achilles Constantinidis the orders of the Court are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal upheld on grounds 3 and 4.

   3. (3)

      The finding of the Trial Judge that the appellant is guilty is set aside and in lieu thereof direct that there be entered a finding of not guilty.

2. [168]

   In the appeal of Ian David Lazar the orders of the court are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal upheld on grounds 2 and 3.

   3. (3)

      The finding of the Trial Judge that the appellant is guilty is set aside and in lieu thereof direct that there be entered a finding of not guilty.