Citation: R v Lazar; R v Constantinidis [2020] NSWDC 3
Court: District Court of New South Wales
Date: 24 January 2020
Judge: Traill DCJ
Background
Two accused stood trial on a single charge of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The indictment alleged that between August and September 2012, the accused offered to pay an intermediary (referred to throughout as "Witness B") to improperly influence a named detective in connection with a police investigation.
The broader factual context involved a gold bar that had been seized during a police investigation. One accused was said to have been desperate to recover the gold bar due to its monetary value, and payments were alleged to have been made to Witness B for his role in removing the detective from the investigation.
The trial proceeded without a jury. Both accused had elected a judge-alone trial under s 132(1) of the Criminal Procedure Act 1986 (NSW), meaning Traill DCJ made all findings of fact and determined the verdicts.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that each accused did an act (offering or making payment to Witness B) with intent to pervert the course of justice under s 319 of the Crimes Act 1900
- Whether the accused participated in a joint criminal enterprise to commit that offence
- The reliability and sufficiency of Witness B's evidence as the primary witness, and whether independent corroborating material supported his account
Decision
Traill DCJ applied the standard principles governing judge-alone trials, including the requirement under Fleming v The Queen (1998) 197 CLR 250 to expose the full chain of reasoning from legal principles to factual findings. His Honour reminded himself of the presumption of innocence, the Crown's burden of proof beyond reasonable doubt, and the need to avoid caprice or irrationality.
Because the Crown's case relied heavily on Witness B, Traill DCJ gave himself a "Murray direction," meaning he scrutinised Witness B's evidence with particular care and looked for independent corroboration. The court found Witness B's evidence unsatisfactory in several respects, including uncertainty about timing and amounts of payment, and acknowledged a strong suspicion of other dealings beyond legitimate business. However, those matters were not before the court and no findings were made about them.
On the specific charge, Traill DCJ accepted Witness B's evidence that one accused discussed payment with him, and that the other accused did in fact pay him cash for his involvement in removing the detective from the investigation. Despite reservations about the precise amount and timing of the payment, the court was satisfied beyond reasonable doubt that both elements of the offence were established.
The court further found that both accused acted in concert as part of a joint criminal enterprise. Each had the requisite intent to pervert the course of justice, and both were equally guilty regardless of the particular part each played in the arrangement.
Orders Made
- Both accused found guilty of the offence as charged.
Key Takeaways
- The District Court confirmed that the offence of perverting the course of justice extends to acts done with intent to frustrate or deflect judicial proceedings that the accused contemplates may possibly be instituted, following R v Beckett (2015) 325 ALR 385.
- Under the joint criminal enterprise doctrine, an agreement need not be express or formed at any particular time before the offence; its existence may be inferred from the surrounding circumstances, and all participants are equally guilty regardless of their individual role.
- A conviction does not require proof that the act actually perverted the course of justice; proof of the intent to do so is sufficient.
- Where a Crown case depends substantially on a single witness, a Murray direction requires that witness's evidence to be scrutinised with great care, including by examining whether independent evidence (such as telephone intercepts) provides general corroboration.
- In a judge-alone trial, the judge must explicitly set out the applicable principles of law, the findings of fact, and the reasoning that links them, consistent with the requirements established in Fleming v The Queen.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health Act 2007 (NSW)
Cases
- R v Beckett (2015) 325 ALR 385; [2015] HCA 38
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250