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Court of Criminal Appeal 11 February 2022

Constantinidis v R; Lazar v R

[2022] NSWCCA 4

Public order & justice offences

Citation: Constantinidis v R; Lazar v R [2022] NSWCCA 4
Court: Court of Criminal Appeal, NSW
Date: 11 February 2022
Judges: Gleeson JA, Fagan J, Lonergan J

Background

Two appellants were jointly tried and convicted in the District Court by a judge alone on a single count of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW). The charge alleged that, between August and September 2012, the appellants offered to pay a police informant (referred to throughout as Witness B) to improperly influence a detective who was investigating a seized gold bar potentially linked to stolen goods or proceeds of crime.

The Crown's case rested substantially on the evidence of Witness B, who claimed that each appellant separately asked him to deter or prevent the detective from pursuing his investigation. Witness B acknowledged he accepted payments totalling approximately $99,000 from one appellant but conceded he never actually took any steps to interfere with the detective's conduct. The detective's investigation was ultimately wound up following a conversation with an officer from the Fraud Squad, a matter the Crown expressly accepted had nothing to do with Witness B.

The trial judge convicted both appellants. Neither had been sentenced at the time of the appeal. Both sought leave to appeal against conviction, with the primary grounds centring on whether the verdicts were unreasonable and whether the trial judge erred in her assessment of character evidence.

  • Whether the verdicts of guilty were unreasonable, or could not be supported having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge erred in her treatment of character evidence adduced by the appellants
  • Whether (in the case of one appellant) the trial should be regarded as a nullity by reason of an issue going to fitness to be tried
  • Whether, if a nullity ground was made out, the Court of Criminal Appeal could nonetheless proceed to determine the unreasonable verdict ground and direct entry of a not guilty finding

Decision

The Court of Criminal Appeal upheld the appeals on the grounds of unreasonable verdict. The court found that Witness B was the critical Crown witness and that the evidence he gave was so beset by inconsistency, implausibility, and contradiction with other evidence that the trial judge could not have been satisfied of guilt beyond reasonable doubt on the basis of his account.

On the character evidence grounds, the court also found error in the trial judge's approach. Properly assessed, the character evidence adduced by the appellants was capable of generating a reasonable doubt and should have been weighed in their favour in that way. The trial judge's reasons disclosed she had not applied this standard correctly.

Regarding the fitness-to-be-tried ground raised by one appellant, the court declined to resolve it. Because the unreasonable verdict ground had already succeeded and a not guilty finding was to be entered, there was no utility in embarking on the factually voluminous and complex fitness question. The court noted that, even if a nullity had been established, the proper outcome would still have been an acquittal rather than a retrial.

The court confirmed that where an unreasonable verdict ground is upheld under s 6(1) of the Criminal Appeal Act, the appropriate order is to set aside the finding of guilty and direct entry of a finding of not guilty under s 6(2), rather than to order a retrial.

Orders Made

For each appellant:

  • Leave to appeal granted
  • Appeal upheld (on grounds 3 and 4 for Constantinidis; grounds 2 and 3 for Lazar)
  • The District Court's finding of guilty set aside
  • A finding of not guilty entered in lieu thereof

Key Takeaways

  • An unreasonable verdict ground under s 6(1) of the Criminal Appeal Act 1912 (NSW) requires the appellate court to assess whether, on the whole of the evidence, it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt. Where the critical Crown witness's evidence is so internally inconsistent and implausible that this standard cannot be met, a verdict of guilty cannot stand.
  • Character evidence adduced by a defendant must be assessed for its capacity to generate a reasonable doubt about guilt. Failure to apply that standard when weighing character evidence constitutes a legal error in a judge-alone trial.
  • Where multiple grounds of appeal are pressed, the Court of Criminal Appeal may decline to determine a ground that raises no additional utility once a successful ground has resolved the appeal outcome. The fitness-to-be-tried ground here was left undecided because the not guilty direction rendered it moot.
  • Under ss 6(2) and 8(1) of the Criminal Appeal Act 1912 (NSW), where an unreasonable verdict is established, the court directs entry of a not guilty finding rather than ordering a retrial. A retrial is not available as an alternative outcome on this ground.
  • The fact that the very conduct alleged to have been the purpose of a perverting-the-course-of-justice scheme (inducing a detective to close an investigation) occurred independently of any act by the alleged intermediary did not, of itself, defeat the charge, but it remained a relevant consideration in assessing the overall credibility and reliability of the Crown case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Doney v The Queen [1990] HCA 51; (1990) 171 CLR 20
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v Andrews [1982] 2 NSWLR 116
- R v Do [2004] NSWCCA 137
- R v Lazar; R v Constantinidis [2020] NSWDC 3
- R v Murphy (1985) 4 NSWLR 42
- R v Stalder [1981] 2 NSWLR 9
- Swansson v R [2007] NSWCCA 67
- The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35