Constantinidis v R; Lazar v R

The nature of the Crown case

1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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: [290] The Crown submitted in respect of the elements of the offence that the act relied upon by the Crown was the paying of Witness B to improperly influence Detective Senior Constable David Roberts. The Crown relies on the direct evidence of Witness B that both accused instructed him to do "whatever it takes", including physical violence, or anything else intended to pervert the course of justice. It was submitted that the "course of justice" is the Police investigation by Detective Roberts that might lead to court proceedings in respect of the accused Lazar, in respect of Lazar having stolen goods, or might have led to a proceeds of crime charge not necessarily confined to Lazar. The Crown submits the Court would be satisfied beyond reasonable doubt there was an investigation into the origin of the gold bar, which comes within the definition of "course of justice", and the intention was to have Detective Roberts improperly cease the Police investigation into the seizure of the gold bar.
11. 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: It is the Crown case that the role of payment and offering to pay was made by Lazar. The Crown contended that Constantinidis knew that Lazar would offer or agree to pay Witness B to influence the detective and that Constantinidis agreed to and participated in a joint criminal enterprise pursuant to which Lazar would offer payment for that purpose.
12. At [21] of the trial judge's reasons her Honour noted, correctly, with respect, that: the only evidence in relation to the arrangement or offer to pay Witness B comes from Witness B himself. As the offer to pay Witness B was the act pleaded in the indictment and relied upon by the Crown as an essential element of the offence, her Honour could not find the charge proved to the criminal standard against either Lazar or Constantinidis unless she accepted beyond reasonable doubt the truthfulness and accuracy of Witness B's evidence that Lazar arranged to pay him for the purpose alleged. Her Honour could not find the charge proved against Constantinidis unless she also accepted beyond reasonable doubt the truthfulness and accuracy of Witness B's evidence about an alleged conversation at Windsor in which Constantinidis was said to have asked him to influence DSC Roberts. Witness B's evidence of that conversation was, if accepted, the only evidence capable of supporting an inference that Constantinidis knew of and agreed to an offer by Lazar to pay Witness B. Witness B's evidence was essential to the Crown case against each appellant.
13. 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. The following grounds of appeal were pressed by Constantinidis: 1. The trial judge erred in failing to uphold the appellant's application for a directed verdict. 3. The trial judge erred in failing to have proper regard to directions: (a) pursuant to s 165 of the Evidence Act 1995 as to why Witness B's evidence may be unreliable; (b) as to the significance of the appellant's good character. 4. The verdict of guilty is unreasonable and not supported by the evidence.
2. Lazar's grounds of appeal are as follows: 1. A miscarriage of justice occurred by reason of the fact that Mr Lazar may not have been fit to stand trial. 2. The trial judge erred in failing to have proper regard to directions: (a) pursuant to s 165 of the Evidence Act 1995 as to why Witness B's evidence may be unreliable; (b) as to the significance of the Mr Lazar's good character. 3. The verdict is unreasonable, or cannot be supported, having regard to the evidence.
3. 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. 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: 6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …".
2. 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: [12] […] It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen (1994) 181 CLR 487 at 494: It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
3. Gaegler J held as follows (citations omitted): [82] Under the first limb […] a trial judge's ultimate finding of guilt must be set aside on the same principle as a jury's verdict of guilt must be set aside. That is to occur if the Court of Criminal Appeal concludes on the whole of the evidence that it was not open to the relevant tribunal of fact, whether it be a jury or a trial judge, to be satisfied beyond reasonable doubt that the accused was guilty. The Court of Criminal Appeal will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own review of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt. [83] Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.
4. 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. 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. 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. 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. 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. 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.

9 August 2012 (Thursday)

1. 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.
2. 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.
3. At 15:43 Lazar sent an email to DSC Roberts, which included the following: From my point of view I am only interested in the money that this character [Mr Y] has owed various entities for 4 years […]. In terms of your request to me to make a statement in relation to the ownership of the gold bar in question I confirm that I will be making the necessary legal claims one has to make in order to recover my money. I have spoken to my lawyer on the basis that you require me to make a statement which I am happy to do but he is not available tomorrow. […]
4. 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.

10 August 2012 (Friday)

1. 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.
2. 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.

16 August 2012 (Thursday)

1. 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.
2. 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.

17 August 2012 (Friday)

1. 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.
2. 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: [Just] have another chat to your client we're not interested in him, we're not looking at him all we want is a statement. Mr Rahal told Lazar that he had "kept insisting it's not going to happen" but that DSC Roberts had said: Just speak to him again, you know we just want to continue our enquiries in relation to the other bloke. Mr Rahal described DSC Roberts as "pretty heavy-handed" and "so fuckin' persistent".
3. 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: [At] the moment mate as I said, […] I'm telling you that ah, I'm treating you as a witness mate but the longer you leave it the, the less likely you will be treated … and further: listen mate listen you know mate don't, don't stuff me around any further mate okay. Mate […] I'll give you up to Tuesday [21 August] mate, okay? Lazar agreed that Tuesday 21 August would be suitable and DSC Roberts warned him as follows: Okay, after Tuesday mate it's gonna be an interview not a statement.
4. 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".

18 and 19 August 2012 (weekend)

1. 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.

20 August 2012 (Monday)

1. 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: He doesn't have to answer your call, Ian. […] You're no different to five other investigations he's doing. […] You can't have your way. These are the authorities. You can only do what you can do.
2. At 22:09 Lazar sent an SMS text to Mr Rahal concerning the meeting with DSC Roberts that was scheduled for the following morning: See you at 9ish. I am on 8mg xannax and lithium. I am not fit to do a statement. You need to hand the paperwork over and ask for a draft statement. Medical certificate will confirm this. You need to tell him what happened with Nikki. I will provide statement shortly.

21 August 2012 (Tuesday)

1. 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: The cop will charge you out of spite Ian. […] If you are not there then he will find something to charge you with. You are better off just getting this thing out of the way. Despite that advice, in a phone call at 7:13 Lazar instructed Mr Rahal to meet with the detective alone, to provide him with relevant documents and to arrange deferral of the appointment to make a statement.
2. 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: I explained to them what you had said to me, that they would […] arrest you out of spite. I said "Can he just do that?" He said "No'". He said "He's got to […] get his charge sheet ready. […]".
3. 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.
4. 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.
5. At 8:21 Lazar phoned Constantinidis and passed on what Mr Rahal had just told him. Constantinidis said: Alright, I'll get someone to ring you direct. I'll ring them to ring you direct. The CCRs for Constantinidis' home phone show that immediately after this call, at 8:23, Constantinidis phoned Witness B and spoke to him for 7 minutes and 35 seconds. He then took a call for 26 seconds from another mobile number, which according to the evidence was registered to a former associate of Constantinidis but was used by himself. Then at 8:46 Constantinidis called Lazar and said: I've spoken to him and [...] He said to wait fifteen minutes.
6. At 9:21 Constantinidis updated Lazar in the following terms: Ah, the other guy just rang me. Apparently they're talking now, ah, so he said just wait for five minutes. Because I was […] pushing them for time. […] I only just rang them again because I said, you know, (unintelligible) - they said, "Just wait, (unintelligible) just talking at the moment". Apparently he told them that, you know, he has got a full day of commitments today, you know? He doesn't want to go to this other meeting.
7. 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.
8. At 10:09 Constantinidis called Lazar and the following conversation took place: C I've been asked to [ask] you specifically: did he ring you himself? L Yes, he did. […] C Mate, they just cannot believe he's been told not to contact you, right, and they cannot believe that he is. Like they're gonna, the guy's gonna fuckin' get fired. C He seems […] to have gone off the fuckin' rails. […] They've been there […] on Friday and had a look. So it's not as if there's […] something - […] unless he took information away from the station, took it home. […] L He probably did. C Yeah, but then he's in trouble. Big trouble.
9. At 10:17 Lazar called Constantinidis and the following conversation took place: C Mate, […] it's just, ah, preposterous. […] They said there is nothing […] that you can be charged with - not, not even obstruction. […] L […] why did the guy ring me again? C They don't know. […] they're obviously doing something from their end and […] he's obviously saying that he's not bothering you at all, 'cause they told him that he's not to contact you. But you don't want […] to fuck at that level, it doesn't matter who the fuck you are, let me tell you. I know it doesn't give you the comfort you want to hear but, you know. I've said to them, "Look, […] maybe he is just […] you guys go fuckin' get him in. Get him and say you want to talk to him". They can, as you know. You're better off talking to them and whatever and then they can say they're talking to you because of their, of their connection and their case. The conversation concluded with Constantinidis urging Lazar to obtain a comprehensive report from his medical practitioner concerning his mental condition.
10. At 11:12 Lazar called Constantinidis, who reported to him as follows: C I've spoken to them twice. Just hang in there. They're waiting for their, ah, senior to, ah, make contact and […] to instruct - I've actually asked for them to […] contact you themselves direct. So they said just wait until they - they're sorting something out, obviously.
11. 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: [He is] still adamant that he wants to, um, get something along the lines, a statement […]. And he did throw a comment saying that "I don't think Ian realises that somehow he's in the middle of something that really he has no idea about what it is, but it's not good". Well you're not involved, that's what he's suggesting. You're not involved, but you've been thrown into the middle of something, but you don't know what is. […] That's why he wants you to just […] give that statement. [Referring to loan and security documents that Mr Rahal had handed over on behalf of Lazar] effectively he says to me "I need your client to introduce these documents. […]". […] [In] no uncertain terms, the guy's made it very clear that if we don't offer some sort of a statement today, then he'll turn his views to looking into whether or not you do have an involvement in this. […] [If] you do not give him something as a witness, this bloke will spitefully take this matter to a different stage. In a phone call at 11:46 Lazar reported the above to Constantinidis.
12. 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: You know that I won't stop, mate. So look … let's just get it out of the way Ian […] 'cause at the moment you're dodging and weaving me, mate […] I know things are going on in your life, buddy, but I'm not gonna […] stop … The phone call ended with Lazar crying.
13. 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.
14. 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.
15. At 16:18 Constantinidis informed Lazar of the following: They're on the war path and something's being done this afternoon, right? That's all I can say to you now. Okay? So they're trying to address the issue.
16. At 21:40 Constantinidis and Lazar had a conversation that included the following: C I got a phone call also from … the people we were expecting; […] You might even get a phone call tonight […] just to ask you about the … intimidation and what [Mr Rahal] heard and whatever. I just said, "Don't take my fuckin' word for it". I said, "Hear it yourselves". […] Ah, so that's being contemplated at the moment. L Why are they so adamant to hear from me? C […] they're contemplating whether to get [Mr Rahal] to lodge a formal complaint. L Yeah, well what good would that do? C 'Cause they could bury this prick once and for good. […] L They don't like him? C No! What are you talking about? They are so annoyed. You can't behave like that, mate. L You can't. It's Gestapo tactics. C […] There's a difference between getting the facts and being fair and having like a vendetta about something […].
17. 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".

Association with Constantinidis

1. 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.

Conversation with Constantinidis at Windsor

1. 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: A He said to me that [Lazar] was in a bit of […] he's got dramas. He's […] going crazy. I said, "What, what's wrong?" He said, "A detective by the name of Roberts is giving him a hard time and […] we need to put a stop to it". So, yeah, he asked me if I knew […] any people high up. I said, yeah, I did and he said, "Can we sort it out?" I said, yeah, of course we could. Q […] did he tell you what trouble Ian was in? A Yeah. It had to do with the - the gold bar that was found with [Witness Y] in the car when they got pulled over. I think Ian put his hand up and said it was his.
2. Witness B said that Constantinidis specified what he wanted done in relation to DSC Roberts: A He told me, "Do whatever it takes. Break his legs, break his arm. Do whatever it takes, just get rid of him get him out of the way". Q Did he say anything else about what you could do? A Yeah, possibly get him sacked.
3. Witness B gave the following evidence about reference to money during the conversation: Q Did you have any conversation at that time with [Constantinidis] about money and whether the job would cost anything? A Yes. We - we did talk about money. There was […] money already owed for other jobs and, yeah, we did speak about money. Q You said money was owed for other jobs. A Yeah. Q You're talking about wages owed to you. A Wages, yep.
4. 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: On the instructions I have and what's in the [witness'] statement, it's not the Crown case that it was Mr Constantinidis that offered him or paid him any money for this.
5. 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.

The McGillicuddy call, at 7:39am, on 22 August 2012 (Wednesday)

1. 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: Mate um, mutual friends, if you know what I mean? We heard what's happening with you. Okay, I'm on your side and you think, and I think you know the team that works with us. […] That helped you out before, if you know what I'm talking about. [Y]ou've got some very, very, very powerful people on your side too. […] I don't want you to worry too much about it, okay? Um, we'll do whatever we can, whatever we can, right? Without making waves to attract any attention. We've got our ways, don't worry. We've got our ways. I want you to rest assure, we've got our ways and we'll take care, let me tell you something, I want you to relax, you're pretty sick. I want you to relax, okay?
2. 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: I know exactly (unintelligible) who you're talking about. [We] had a [word] with the wrong person last night. Not a problem. [U]nfortunately we spoke to the wrong person. But um, now that we've got the right person […] we'll deal with that finally. [We] had an appointment with, with the other fellow, um, yesterday and he never showed up. Now he, he was going to be reprimanded today. Now unfortunately, um, he's not going to be, because it was the wrong person.
3. Witness B/McGillicuddy purported to advise Lazar that no charge could be laid against him: I promise you this much. Let me tell you something and I want, I want you to understand this very clear. Um, there is no shadow of a doubt that he can't charge you for any reason. The word "can't" appeared as "can" in the transcript but this was corrected upon her Honour listening to the recording: [226].
4. 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: [If] he's threatened you and if he's threatened you today (unintelligible), you refuse to go. You do not go on any circumstance or any time at all. You refuse to go. Okay? Now, I don't want […] anyone to know that […] myself has rung you and told you the instructions, because you jeopardise my interests. When you say no, they cannot ask you […]. If […] you've been interviewed right? And the, the Detective says "Oh come on in Ian tell us what you know". You say, "Look, I'm not coming". […] you said it twice, that means there is a legal verbal agreement […] it's illegal for (unintelligible). So automatically that gets thrown out […].
5. Witness B/McGillicuddy gave instructions to Lazar as to what he should do if he was pursued any further by DSC Roberts, as follows: If he rings you today, if he rings you one more time, okay? I will call you, but actually you will call the Big Man, you know who I'm talking about. The Big Man will talk […] to my associate. Ah, which is a mutual friend of both of ours. Um, he will come and see me in person and then […] he will deal with swiftly and quietly and I promise you this much, you'll never hear from him again. Witness B said in evidence that "the Big Man" in this and other passages of the conversation was a reference to himself. He estimated his own weight at 160-170 kg and his height at six foot two inches. He said that "my associate" was a reference to Constantinidis and Lazar.
6. 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".

Association with Lazar

1. 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.
2. 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.
3. 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.
4. 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.
5. 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: [436] […] I cannot be satisfied beyond reasonable doubt that Witness B was in close physical connection with the accused Lazar prior to August 2012. He may have known Lazar and met him through Constantinidis prior to August 2012, but the evidence called on behalf of the Crown is not persuasive and does not suggest that Witness B was indeed working in the office with the accused Lazar in August 2012. One of the reasons their physical proximity may have been limited was because Lazar wanted to paint himself as a legitimate businessman, and did not want Witness B, who was a large standover man with criminal convictions, associated with him. Witness B referred to this in his evidence […]. [437] There is no dispute that as of early 2013, Lazar and Witness B knew each other, as both were charged with a criminal assault relating to an incident in a car park. It would seem that all charges were dropped against Witness B, and Lazar was charged with common assault. There are no telephone calls recorded in the 227 calls on Lazar's mobile phone between Lazar and Witness B. There is no independent evidence at all that Witness B was the bodyguard of Lazar in 2012. There is no independent evidence at all that he was seen in his office in 2012. There is evidence that Witness B and Constantinidis had a long relationship, and Lazar knew who Witness B was. [438] It is clear from the McGillicuddy call Lazar did not recognise his voice. The fact that Witness B's voice was not recognised by the accused Lazar on the McGillicuddy call supports the accused Lazar's contention that at the time of the call, Witness B did not know the accused Lazar as well as he purported. I listened to Witness B give evidence and also to the McGillicuddy phone call on a number of occasions. It seems to me that Witness B thinly disguised his voice. His voice was very hard to understand both on the call and in court, as he was slurring his words. However Witness B's voice in the McGillicuddy call was still recognisable as Witness B. I find that the reason Lazar did not recognise Witness B's voice during the McGillicuddy call is that although Lazar may have met him and had day-to-day business dealings with him, prior to August 2012, Lazar's main contact with Witness B was through Constantinidis. The phone call with Constantinidis on 16 August 2012 […], in which he refers to Witness D, at least indicates Lazar knew Witness B's wife in August 2012. I find that in August 2012, Witness B was not a full-time employee and did not work in Lazar's office. It was not until 2013 that I can be satisfied that Witness B and Lazar worked together in close physical proximity.

Meeting with Lazar at a North Sydney cafe

1. 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: A That [Mr Y] got pulled over in the car with two underworld figures from Melbourne and [Witness A] somewhere in North Sydney. I think they had a gold bar on them. […] [Mr Y] ended up with the - the bar. Police pulled them over and […] the bar was confiscated by the police. […] Ian said to me that its […] his bar and he wants me to go and he wants - he wants to actually get it back […] A […] Ian said to me: "He's put his hand up for the bar; the police have been hassling him. They want him to come and do a statement and he's trying to ignore them. Trying his best to keep away from them". He goes: "You know […] something's got to happen. […] we've got to get this copper either offside or do something about it". Q And what did you say? A I said: "No problem, what do you want me to do?" And he said to me basically similar things that [Constantinidis] said to me. A Okay. He said to me: "Do whatever it takes". […] "Whatever it takes. Break his leg. Maybe get a couple of guys from Bankstown." He said to me "Arabs basically" and then "Do […] What they have to do. He - he doesn't care." A I said "Yeah, sure, no problem. We sort it out." Q Was there anything said on the topic of involving other police officers? A Yes, he wanted me to speak to the supposed - well, the - the police that I was - supposedly had known. […] A He […] said to me: "Maybe, if you can speak to the coppers that I know to sort something out. Maybe kick him out of the job? Demote him." And I said: "Yeah, I can do that". Q Was there any discussion about payment for this job? A Yes, there was. […] I did tell him "It's Ian - yeah, we need - I need some sort - sort of payment" and I told him that "You're a bit behind on - on other issues, they're not going to act on it if I get somebody to front".
2. Witness B said that prior to this meeting, on an earlier unspecified occasion, he had told Lazar: "I've got some high - high profile people in the police force". He also gave evidence that this representation was not true. Why he would have made such a false claim on an earlier occasion and in what context he claimed to have done so were matters closely relevant to the credibility of this evidence but were not explored with the witness in any follow-up questions by the prosecutor.

Payments by Lazar

1. 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: It could have been at my unit in - Ryde, Putney. I had a unit there. I remember him coming over one particular time. And when I opened the door, he was walking into the corridor. And he threw me a stack of money just like that … I think that was the time. Witness B said that the payment was in cash, in a wad about 8 cm high and that when Lazar handed it over he said: "Make sure you let them know it's from me".
2. 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.

Follow-up meeting with Lazar

1. Witness B gave this evidence of a further meeting: [There] was a follow-up conversation. […] could have been in his office or at my - I'm not sure. I said - it was about a week or about a week and a half after I had taken the money off him. And I said, "So what's going on? Have you found anything?" I said, "Why didn't you just ring the police station and see what piece is still there?" So the next day, he come up to me and said to me - he winked at me. High-fived me and hugged me. He go, "Between - between you and my dad, we're untouchable". I said, "See?" He goes, "The copper" - which is Robert - "he's gone. They've moved him".

Witness B's background, police statements

1. 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. 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. 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. 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. 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. 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: [Constantinidis] started talking about - that he had a problem with the policeman […] I heard them talking about - related to the gold bar matter, and some problem with the policeman […] He said there was a gold bar, and problem, and the policeman who is investigating it [Constantinidis] said his name is Robinson - Roberts - Robertson, Dave - David, and that at that stage, I didn't listen, I went for a walk.
2. 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: [He] told him that he won't be having any more problems and..(not transcribable)..anymore, like he's - he won't be dealing with this case, like he won't be hearing from him - from him anymore and like he just apologised on behalf.
3. 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. 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. The learned trial judge made the following findings concerning the evidence of Witness D: [98] […] The statement made in 2018 does not mention the name Detective Roberts. In the 2018 statement, Witness D says after she left the room, "I didn't hear anything more". I find that evidence Witness D gave in respect of overhearing the accused Constantinidis speaking to her husband about Detective Roberts is not reliable or credible. In my view, Witness D's recent retrieval of memory which enabled her to identify Detective Senior Constable Roberts by name is a recent invention to assist her husband, as Witness B did not remember Roberts' name in his first statement. It is extremely unlikely that Witness D would remember Detective Senior Constable Roberts' name 7 years after hearing the name in an overheard conversation in circumstances where she did not know and had not met Detective Senior Constable Roberts, and had not mentioned his name before in her previous statements. [99] I also do not accept the evidence of Witness D in respect of the McGillicuddy call. I find that the witness was an unreliable witness, and her evidence does not lend support to the critical conversations alleged by Witness B with either the accused Constantinidis or Lazar. Naturally, the appellants do not seek to disturb those findings, which were open to her Honour.

22 August 2012 (Wednesday)

1. 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. 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. 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. At 8:11 Constantinidis told Lazar the following, referring to DSC Roberts as "the other clown": [The] other clown is just being hunted right now. You're not to do anything. You just stay, stay where you are, right? […] If he's [that is, DSC Roberts] fuckin' anywhere, even comes near you, that's all trying to be put, put to bed now. […] He is not to touch you. If he comes near you, he has to, you've got your rights. You do not say anything and you just say I'm pressing charges for, you know, for um, ah, I will press charges for um …
5. At 8:19 Constantinidis gave the following further instructions and reassurance to Lazar: [What] this guy's saying is you put your feet up for an hour and just watch the fuckin' TV. He said you do nothing. He said now that he's [that is, DSC Roberts] rung back, they're going to fuckin' well go and bloody well just pick him up and fuckin' you know, get to the fuckin' bottom of it because, you know this, is person that rang you, you don't fuck with. And that is what he's saying.
6. 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. 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. At 8:55 in a conversation between the appellants, Constantinidis said: I will do anything it fuckin' takes to take this prick [that is, DSC Roberts] down. You've got no idea. […] Mate it's preposterous. No one can talk to someone like that. You are going to lodge a complaint. You know they've gone out to brief another lawyer for you, because they want to use [Mr Rahal] as a witness. […] They want you to lodge a complaint. This, this guy's going to end up, well he's going to end up in Timbuktu. Mate you can't, you can't bloody well stick your thumb up at your chain of command.
9. 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. 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: The question is they don't want you to go, they do not want you to sign anything or go anywhere. Now the simple scenario is […] just wait another ten, fifteen minutes, right?
11. 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: Soon as you do that he can't come near you again. They're gonna fuck him […] I don't know what […] his fuckin' agenda is. That if he's not doing what he's fuckin' told […] it's just unheard of.
12. After Lazar voiced complaint during this conversation, about the strain he was under, Constantinidis said the following: You're gonna crack. You fuckin' crack and it's fucked for everyone. The context did not permit a definite conclusion as to whether Constantinidis was referring to the consequences of Lazar "cracking" for persons concerned with the gold bar or the consequences for Constantinidis and others who were involved in commercial transactions that the two appellants were endeavouring to conclude.
13. At 21:20 Lazar phoned Constantinidis and the following exchange took place: L I wish I understood the call this morning more than I did, 'cause I, truthfully I, didn't understand. It was quite early in the morning. And, ah, I sort of understood the, the conversation but […] I'm unclear actually who called me, 'cause I, I didn't catch the name. […] Okay, anyway, you were saying that there's further […] Meetings happening? C Right now. […] Today. And there's a final one at eleven-fifteen up the road […]

23 August 2012 (Thursday)

1. On 23 August 2012 (Thursday) at 8:55 Constantinidis told Lazar: They spoke to him yesterday very severely. […] They did. And then two or three times during the evening. So hopefully there's a different result completely.
2. At 21:04 Constantinidis told Lazar: [There] is absolutely nothing there. They have looked through it. There is absolutely nothing there that they [sic] he can even raise a finger towards you. […] And there is no way conceivable he reckons, no way conceivable he can even contemplate charging you. […] He said he might well just ask you to lodge a complaint. Seal this idiot's, you know, position once and for good. […] They know him back to front, […] and what he did and why he got fucking kicked out of Bankstown and Central Business Detective Unit and everything. He's been sent over there because he's on basically on Remand.

Cessation of DSC Roberts' investigation

1. 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. 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: [446] Despite the unreliability of Witness B's evidence, I am satisfied beyond reasonable doubt that both accused asked Witness B to assist in getting Detective Senior Constable Roberts taken off the gold bar case either by getting him transferred or making a complaint, and doing whatever it takes. [447] I find both accused spoke to Witness B and asked him to speak to high-ranked Police, and put improper pressure on Detective Senior Constable Roberts, and if that did not work to recruit others to physically harm Detective Senior Constable Roberts. I find both accused acted together in a Joint Criminal Enterprise. Based on my assessment of all the evidence, I am satisfied to a point of actual persuasion beyond reasonable doubt that both accused had an intention to pervert the course of justice. [448] The particular act to pervert the course of justice relied upon by the Crown is an "offer" to pay Witness B. The Crown opened its case that there was actual payment of money by Lazar to Witness B. […] [449] I cannot be satisfied beyond reasonable doubt of the exact amount of payment by Lazar to Witness B for the gold bar job. […] [450] The indictment refers to an "offer" to pay Witness B, although the Crown opened and ran its case on actual payment. The Crown cannot say when exactly the cash payment was made. I accept Witness B's evidence when he said he spoke to Constantinidis about money, and I accept his evidence that he was paid cash by Lazar at some stage, and the money included money for the gold bar job. I am satisfied beyond reasonable doubt that the accused Constantinidis discussed payment with Witness B, and that the accused Lazar did in fact pay Witness B some money for his involvement in removing Detective Roberts from the investigation. I cannot however be certain of the precise amount Witness B was paid or the timing of the payment. [451 I am therefore satisfied beyond reasonable doubt in respect of both elements of the offence.

The case against Constantinidis: misplaced findings of support for Witness B

1. 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: [433] Overall, there are almost 100 phone calls between Constantinidis and Witness B between 18 August and 25 August. Given the timing of the calls, the correlation of those calls with the telephone intercepts, and the fact that Witness B's calls at times interrupted Constantinidis' calls with Lazar, I find 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. There can be no reasonable explanation for the McGillicuddy call other than that Witness B rang Lazar to assure him that something was being done to address his concerns in relation to Detective Roberts. I find Constantinidis spoke to Witness B to get him to speak to Police officers, and Witness B was either providing Constantinidis with information that he was making up, or was getting information from some unknown person or persons. [434] Witness B did not give evidence as to the contents of these telephone calls with Constantinidis, in particular the calls which overlapped with the telephone intercepts and the McGillicuddy call. The Crown case is deficient in this regard. Independent evidence does however point to Witness B and Constantinidis being in very close contact at the precise time of the McGillicuddy call. Despite the deficiencies in the evidence and the unreliability of Witness B, I find that the telephone intercepts and CCRs paint a compelling picture that the conversations between Witness B and Constantinidis related to Detective Roberts and having him taken off the case.
2. 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.
3. 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.

Possible explanation of the McGillicuddy call

1. At [433], her Honour made a finding in these terms: there can be no reasonable explanation for the McGillicuddy call other than that Witness B rang Lazar to assure him that something was being done to address his concerns in relation to Detective Roberts. Her Honour relied upon that finding as support for Witness B's evidence about his alleged conversation with Constantinidis at Windsor. With respect, there was no logical or inferential connection between Witness B's spurious conduct in making the McGillicuddy call to Lazar and a supposed request from Constantinidis that Witness B should interfere with the gold bar investigation by approaching DSC Roberts' superiors or by inflicting physical harm on him.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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: Indian name, I think he's a prosecutor. Lazar had not said that the person who phoned him had an Indian name. This response lent support to the reasonable possibility that Constantinidis knew the McGillicuddy call was a pretence by Witness B and that he was trying to add credibility to the deception.
8. 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.
9. 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.
10. 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.
11. 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.

The case against Lazar

1. 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): [445] I find that Lazar wanted Detective Senior Constable Roberts taken off his case, and enlisted the accused Constantinidis to help him. I find the accused Constantinidis then enlisted Witness B. I accept Witness B's evidence that Lazar also spoke to him about the gold bar matter and Detective Roberts. This was most likely on 21 or 22 August 2012.
2. 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: Q Now, you've given evidence here about speaking to [Constantinidis] and about making the phone call when you've pretended you're McGillicuddy - and about the conversation with Ian Lazar. A Yep. Q Are you able to tell us which order those things happened in? Especially, I'm talking about - with Ian Lazar, do you know where in the scheme of things, at what time you spoke to him? Was it before or after the phone call? For the first time about this, about what he wanted you to do. A […] You mean the phone call that I made? Q Yes. A I'm not too sure.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

Reasonable doubt regarding Witness B's evidence against both appellants

1. 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: [440] […] If Lazar had known Witness B so well at the time, not only would he have recognised his voice, he would not have needed to go through the accused Constantinidis to speak to him. He could have spoken to him at his workplace.
2. 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.
3. 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.
4. 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.

An additional source of reasonable doubt in the case against each appellant

1. 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.
2. 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.
3. 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. 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. 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. 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. 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

Direction regarding unreliable evidence

1. Section 165 of the Evidence Act, as follows, is relevant to Constantinidis' appeal ground 3 and Lazar's ground 2: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence - (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (2) If there is a jury and a party so requests, the judge is to - (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information.
2. 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: [349] [Counsel for Constantinidis] submitted that the Court should give a s 165 warning, on the basis that Witness B might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, but also on the basis that there is further need for caution in determining whether to accept his evidence arising from (1) his motive to lie; (2) his obvious animosity towards Constantinidis; (3) his criminal record (his lack of respect for the law reflects his attitude towards telling the truth); (4) his history of substance abuse; (5) his lack of recall; and (6) the nature of his evidence being a story that is easy to make up. I accept this submission and have given myself a 165 warning in terms as set out above. [360] This is also a case in which a s 165 warning is required. In doing so, a Judge must properly formulate the warnings and principles that are applied. In this case, I accept the Defence submissions. The Crown has also submitted that a s 165 warning should be given in respect of Witness B. I accept the submissions of both Defence Counsel that the factors set out by [Counsel for Constantinidis] above are the matters which I should take into account. [361] In respect of the 165 direction, I give myself a direction that the evidence of Witness B may be unreliable, as Witness B is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. I find that he clearly was, and he has been given an undertaking by the Attorney General. I warn myself that Witness B's evidence may be unreliable, and warn myself of the need for caution in determining whether to accept the evidence and the weight to be given to it.
3. 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. 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: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
5. 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(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
6. 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: [24] […] First, [s 133] in any particular case of a trial by judge alone may attract the operation of one or more of the limbs of s 6(1) of the Criminal Appeal Act. In all these cases, there will then be the question of the operation of the proviso. […] [27] Fourthly, whilst they are differently framed, the requirements of [s 133(2) and (3)] are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of [s 133]. [28] Fifthly, whilst [s 133(2)], when specifying that which a "judgment" must include, does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of [s 133(2)] be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. […] [31] Finally, there may be a breach of [s 133(3)] with respect to the requirement to take a warning into account. The present appeal is put as such a case. [Section 133(3)] is framed in a fashion which differs from that of [s 133(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. [Section 133(2)] requires the inclusion of principles of law applied and of factual findings relied upon, whilst [s 133(3)] obliges the judge to take the particular warning into account. [32] The obligation imposed by [s 133(3)] "to take the warning into account" is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in [s 133(2)], namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of [s 133(2)]. The judge is obliged by [s 133(3)] to take the warning into account and in doing so the judge applies a principle of law. [33] The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by [s 133(3)] that the warning be taken into account.
7. 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. 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. 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. Her Honour dealt with the good character of the appellants in the following paragraph of her reasons: [363] Both accused have asked for a good character direction and have led evidence from the Officer in Charge that each accused is of good character and have no relevant prior convictions. The accused did not call any other character witnesses. The Crown did not seek to adduce evidence of bad character. I give myself a good character direction.
2. 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. 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. 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. 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. 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.

Conclusion on these grounds

1. Constantinidis' ground 3 and Lazar's ground 2 are upheld.

Lazar's ground 1 - fitness to stand trial

1. 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): [319] […] [T]here is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is […] there is a miscarriage of justice if there is a real and substantial question to be considered about the accused's fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court and in intermediate appellate courts in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused's fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside. See also Gaudron J at [87].
2. 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. In Eastman v The Queen, Hayne J set out the position in the following passages: [320] A conclusion by a Court of Criminal Appeal that an accused may not have been fit to plead or stand trial requires the court to quash the conviction. There has been a trial where the accused may not have been fit and that is a miscarriage of justice. But the further question which then arises is, what consequential order should be made? If the appellate court were affirmatively persuaded that the material before it demonstrated that the accused was not fit, not only would the conviction be set aside, the appellate court would make such order as the trial judge should have made on such a finding. If, however, as would ordinarily be the case, the appellate court could not reach that affirmative conclusion, it would set aside the conviction and order a retrial, thus allowing the statutorily prescribed tribunal to determine the issue of fitness. This was what was done by this Court in Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 and it is what has often been done by intermediate courts in cases where it was said that the trial judge should have concluded that there was a case for investigation of the accused's fitness. [321] In this respect the question of fitness does not differ from many cases which come before a Court of Criminal Appeal. In some cases of miscarriage of justice, the court will set aside the conviction and order a new trial; in others, it will set aside the conviction and order the entry of a verdict of acquittal. There is no reason to say of cases where fitness to plead first emerges as an issue on appeal that a Court of Criminal Appeal must itself try that issue to finality and decide whether unfitness is demonstrated. Ordering a retrial or directing an acquittal are the only alternatives under ss 6(2) and 8(1) of the Criminal Appeal Act: The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 at [76]-[83] (Kiefel CJ and Keane J).
4. 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. 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. Leave to appeal granted. 2. Appeal upheld on grounds 3 and 4. 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. In the appeal of Ian David Lazar the orders of the court are: 1. Leave to appeal granted. 2. Appeal upheld on grounds 2 and 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.

Amendments 21 February 2022 - SC removed 21 February 2022 - D Barrow added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2022