Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 | Case summary

Court of Criminal Appeal (NSW)|2016-05-25|Before: Price J, Garling J, Adams J, Biscoe J

File Number(s): 50795/13 50796/13 50798/13

Some findings by the judge

The judge recounted that a deferred commencement development consent was granted by the respondent on 6 December 2005 and became operational on 17 December 2007. The development consent required retention of the majority of the front southern façade. Further s 96 modification was granted by the respondent on 20 October 2011, on the application of Geitonia "per" Gertos (at [26]). His Honour stated that all the modifications were consistent with the development consent's requirement for the retention of the majority of the front southern façade.
His Honour said that during the trial, Geitonia and GRC tendered a copy of a construction contract between Geitonia, Steve Skintzis (described as 'the builder') and GRC dated 15 June 2011 and submitted that it was relevant to the relationship between them. The judge regarded that this contract was irrelevant, or at least not significant, because it was expressly concerned with only "construction" of the building and not with demolition.
The judge stated that the contractual negotiations for demolition were initiated by Foong who called John Loukis and said that he had a job for him to quote. They arranged to have a meeting on site. At the first site meeting, which the judge noted was highly likely to have been in the second half of September 2011, Foong said that the whole building had to come down except the front southern façade and the two side walls, which they were going to brace. He asked John Loukis to price the job.
Subsequently, John Loukis telephoned Foong and gave him a price of $160,000 or $170,000. Foong said the price was too high, but to leave it with him and he would "run it by Bill" and get back to him (at [62]).
At the second site meeting, Foong told John and George Loukis that there were changes; because of the cost factor, they were going to remove the outside walls by hand with minimal damage to the bricks and use "the same bricks on the same walls and rebuild them" (at [63]). Hand demolition was a more expensive job for Global than using machines, but at that stage John Loukis wanted the job. He asked what the price had to be. Foong said he could tell him roughly and gave a price of $120,000. John Loukis rejected that price.
A day or so later, John Loukis called Foong and offered him $140,000. Foong said he would get back to him. Subsequently, Foong telephoned John Loukis and said Gertos wanted a meeting with him and his father. They arranged to meet at a coffee shop two doors up from Gertos' office.
His Honour recounted that at the coffee shop meeting which occurred in the week of 3 October 2011, John and George Loukis, Foong and Nesci, GRC's site foreman, were in attendance. Gertos did the talking. He asked, "Are we going to demolish this thing or what?" He mainly spoke to George Loukis. They spoke about price. Gertos proposed a price of $130,000. Eventually, a price of $135,000 (before GST) was agreed. John and George Loukis shook Gertos' hand. The judge stated that this indicated "at least in part, a concluded agreement". Foong said he would email John Loukis a contract which he did in draft on 13 October 2011.
The draft contract named Global as the sub-contractor to GRC, specified a price of $135,000 and provided for a program of three weeks from 17 October 2011 to 5 November 2011. It included the confirmatory note: "This is to confirm the agreement reached with you to supply all labour, plant and equipment to complete the demolition and associated works in accordance with the Architectural drawings, structural drawings, specifications, Australian standards, BCA, work cover and local council requirements". Clause 11 provided: "Allow for hand demolition to the south, east and western façade, bricks are to be salvage [sic], for the purpose of rebuilding, contractor to ensure minimal damages [sic] to salvage bricks. The south, east and west walls are to be demolished to street level (Parramatta Road)."
John Loukis telephoned Foong and said that he required some changes to the draft contract. Foong said that would be fine, and to just delete the bits John Loukis did not want and to send the contract back to him. John Loukis did this after having highlighted the bits he wanted deleted.
The contract was signed by Sozo Loukis on behalf of Global and Foong on behalf of GRC on site on either Tuesday or Wednesday, 18 or 19 October 2011.
The judge found that John Loukis was an impressive, reliable and transparently honest witness. His Honour said that Sozo Loukis was also generally reliable and transparently honest, but his recollection did not seem to be as good as that of his brother. If there was any inconsistency between them, his Honour preferred the evidence of John Loukis.
The judge determined that Gertos was the guiding mind in the decision to demolish the front southern façade. GRC fell into line. His Honour found that at the coffee shop meeting, Gertos, on behalf of GRC, orally negotiated and agreed with John and George Loukis, on behalf of Global, to demolish the building including the front southern façade. The judge observed that earlier contractual negotiations were between Foong and John and George Loukis but Foong made it clear that he was subject to Gertos. The judge found that a written demolition contract between GRC and Global was executed on 18 or 19 October 2011 by Foong for GRC and Sozo Loukis for Global.
Demolition of the building commenced on 17 October 2011 with the removal of the roof and moved from the rear of the building. It included demolition by hand of the front southern façade except for the ground floor columns which were the Parramatta Road edge of north-south internal walls about six metres long forming the bays of the ground floor shops. Global "tiered" down those walls as directed: Leichhardt Council v Geitonia Pty Ltd (No 6) at [73].
Before Global went on site, steel braces bracing the front southern façade with each of the side walls were already in place.
During the demolition, there was a change to the scope of the works in an oral direction by Nesci and Foong made to John Loukis on site, which Global thereafter effected. They directed him to retain the brick columns (or walls) that were on the Parramatta Road end of the bays of the shops facing Parramatta Road, and to "tier" down the side perimeter walls and not to demolish the whole of them: Leichhardt Council v Geitonia Pty Ltd (No 6) at [80].
His Honour recounted that John Loukis argued with Foong and Nesci about this change because he was concerned that retention of the columns and "tiered" down walls made it dangerous to his employees who had to stand near them in order to demolish the front southern façade: Leichhardt Council v Geitonia Pty Ltd (No 6) at [81]. Relevantly to his concern, the limewater of the mortar between the bricks had been eaten away. This meant the bricks could be pushed over by hand.
The judge observed that John Loukis had testified that if they had not been required to demolish the front southern façade, the retention of the columns and "tiered" down walls would not have been a problem for him: Leichhardt Council v Geitonia Pty Ltd (No 6) at [81].
The judge also said that there was no doubt that the condition of the front southern façade was poor.
In 2008, Andro (Andrew) Cutuk was retained by Gertos as the structural engineer on the redevelopment project. He assessed and advised on the project and drafted (personally or by a structural engineer employee under his supervision) structural engineering demolition and construction plans for the redevelopment project, including those approved by the Council in the development consent and modification and in a construction certificate by an accredited certifier retained by Geitonia, Paul Ladogna.
In referring to Cutuk's affidavit evidence, the judge noted that Cutuk had deposed that on 18 October 2011 he told Foong to stop work because the front southern façade wall was not safe, it was leaning over, was substantially cracked and the brickwork was extremely deteriorated. Cutuk deposed that Foong told the demolishers to stop work and moved them to the rear of the building. The judge recounted that Cutuk had also formed the view that the front southern façade could not be preserved; at that stage the bracing of the internal walls of the front rooms at ground level was in place and Cutuk told Gertos what his opinion was.
On 19 October 2011, Cutuk wrote a report for Geitonia in which he said that the front southern façade walls had significantly deteriorated and were beyond repair. He continued: "Although the walls can be temporarily braced, they are not capable of being maintained as the permanent facade walls of the proposed building... We have recommended that the facade be removed and re-instated. The brickwork will have to be removed by hand and stored, to be re-used..."
The judge noted that Cutuk was not cross-examined, but stated that he accepted expert engineering evidence adduced at the trial by the prosecution that the front southern façade walls could have been repaired and were capable of being retained permanently. The judge said this showed that there were highly controversial aspects of Cutuk's report. His Honour concluded that Cutuk's recollection that he told Foong to stop work and that Foong told the demolishers to stop work and moved them to the rear of the building was faulty and should not be accepted. His Honour said that he accepted the competing evidence of John and Sozo Loukis that they were never made aware of any such stop order and that work did not stop.
On 19 October 2011, Foong emailed a copy of Cutuk's structural report to Ladogna.
On 20 October 2011, Ladogna sent an email to Foong advising that the structural report be provided to the Council for guidance as to whether a modification of the development consent under s 96 of the EPA Act would be required. The judge observed that Ladogna accurately stated: "The description in the development consent is very clear that the majority of the front and side facades were to be retained and repaired where necessary, [sic] This is a matter that has been discussed in length by this office, and I am sorry but we cannot approve the total removal of the facade without prior advice from Council."
On the same day, Foong emailed Ladogna stating that the structural report and demolition plans had been lodged with the Council and that for safety reasons demolition on the site had continued "strictly in accordance with the engineer's directions and demolition plans".
Earlier that day, a letter dated 20 October 2011 from Geitonia and signed by Gertos was hand-delivered to the Council. It was addressed to Iain Betts, a Council senior assessment officer who had previously been involved in assessing a Geitonia application to modify the development consent (which the judge noted coincidentally was approved by the Council on the same date). The letter stated: "We enclose herewith the following: • Structural Report 1-13 Parramatta Road, Annandale NSW Job No C10147 prepared by Cam Consulting Structural & Civil Engineers dated 19th October 2011. • Detailed Demolition Plans prepared by Cam Consulting Structural & Civil Engineers The above mentioned engineers have instructed us to hand demolish, the facades to a level outlined in the attached plans. The engineers have advised that the facades have structurally failed and pose a real danger to public safety. We have contacted our PCA Mr Paul Ladogna of Vic Lilli & Partners ([a phone number was given] and he has advised that he can not [sic] approve the removal of the facades with out [sic] prior advice from council. We note that contained within the approved documents councils [sic] has inserted controls dealing with the treatment of the facades which permits replacement of structural elements hence the facades. Based on the existing controls we intend to commence to salvage the original bricks and all other fixtures and fittings along with documenting the facades proportions & details and undertake to reinstate the facades in accordance with the above mentioned controls. Could you please contact the above mentioned PCA to discuss this matter. Should there be any other requirements by Council we must for fill [sic] to ensure compliance please contact us immediately."
As to this letter, the judge said that it was not an application of any kind known under the EPA Act to obtain approval to carry on the demolition of the front southern façade. Nor was any such approval under the EPA Act granted prior to its demolition. Consequently Betts, as a Council assessor, did not "assess" the letter when it came to his attention. Further, Cutuk's enclosed structural engineering report did not say that the facades posed a "real danger to public safety". The report said that the front southern façade walls had deteriorated beyond repair and, although they could be temporarily braced, they were not capable of being maintained permanently. It recommended that the front southern façade's brickwork be removed by hand and stored for reuse to reinstate and match the existing façade.
The judge noted that Betts took no action on the letter from Gertos. His Honour found that the letter dated 20 October 2011 from Gertos to Betts was disingenuous because it did not disclose that Gertos had agreed with Global for the demolition of the front southern façade in early October 2011, well before Cutuk's inspection of 18 October 2011, which was said to have been the occasion for Cutuk's report.
The judge found that there were admissions by Geitonia, through Gertos, in the 20 October 2011 letter to Betts imputing the intention to demolish and the conduct of the demolition directly to itself.
Demolition was completed on or about 7 November 2011.
His Honour recounted that on 7 November 2011, the Council commenced an investigation into a complaint that the front southern façade and the side walls had been demolished by interviewing Gertos twice. Paul Vogt, a Council compliance officer, was in charge of both interviews. Foong and Nesci were also present during the first interview. Gertos said to Vogt that the demolition happened under Global in accordance with the structural engineer's demolition plan. He said that they were "keeping the columns, façade columns and sound party walls" and that GRC had engaged Global for the demolition. Gertos said that "the certifier had sent notification saying it was being demolished and that he had not authorised the demolition" (at [96]). In response to Vogt's question as to whether Gertos believed the demolition was authorised, Gertos said (at [96]): "We are entitled to duplicate, restore or replace structural elements on the façade and side walls. No-one was aware of the state of the building. We are rebuilding it the same way in accordance with the consent. The structural details and demolition plans were sent to Council on 20 October 2011. It's costing triple the money to rebuild. The engineer said he couldn't retain it as it was structurally unstable. The parapet and brick had no mortar. There were cracks in the wall. The walls were pushing out. A s 96 was required to remove the mock roof. The structural engineer said that it was unsafe and could not be rebuilt. It will be totally replaced using the original bricks and windows. It is being restored if possible. The building was ready to fall over. The parapet had cracked away. There were four recorded fires and all structural beams had deviated. The main thing was that the façade had bowed out. Under the circumstances, we did not want to remove and rebuild the façade as it is more expensive and a time delay. We are hoping to finish in another five months, the rebuild."
The judge found that Gertos had made verbal admissions to Vogt (binding Geitonia) when he had asserted that: "We are entitled to duplicate, restore or replace structural elements on the façade and side walls" and continued to justify the demolition in terms indicating that he accepted responsibility for it.
Foong and John Loukis met in late November 2011, during which the judge found that three documents came into Loukis' possession that he had never seen before. His Honour found that the documents were a false GRC-Global contract, a false site instruction dated 25 October 2011, signed by Foong, and a chronology in Foong's handwriting with a false entry for 25 October 2011. His Honour concluded that the documents created the false impression that the demolition contract excluded demolition of the front southern façade, that on 25 October 2011 there was a site instruction for its demolition because of its then dangerous condition and that its demolition was consequential thereafter. His Honour observed that in fact the actual demolition contract entered into earlier on 17 or 18 October 2011 provided for the demolition of the front southern façade, as did the early October 2011 oral demolition agreement.
His Honour determined that prior to the coffee shop meeting, Geitonia per Gertos twice unsuccessfully attempted to obtain Council modification approval or construction certificate approval to plans that no longer provided for retention of the front southern façade.
His Honour recounted that the first attempt was made in the context of a 2011 modification application by Geitonia granted by the Council on 20 October 2011. The modification was for changes irrelevant to the retention of the front southern façade. The plans in support of the modification application omitted annotations requiring the retention of the majority of the front southern façade that had appeared on the approved development consent plans. The omission was picked up by the Council and amended plans were subsequently lodged that included annotations in the same or similar terms.
The second attempt was made in the context of a construction certificate application, issued on 21 September 2011, to which Gertos consented on behalf of the owner. Plans lodged in support of the application once again omitted notations on the approved development consent plans requiring retention of the majority of the front southern façade. The omission was noted by Ladogna, who issued the construction certificate, and was corrected at his request.
The judge found that Geitonia was directly liable for the conduct of Gertos, who was the embodiment of Geitonia and its sole director and shareholder, in carrying out development on the land contrary to the terms of the development consent where Geitonia was the owner of the land and the beneficiary of the development consent.
His Honour said that Geitonia was vicariously liable for the conduct of Global because Gertos negotiated and agreed with John and George Loukis for the demolition of the external walls by Global. This agreement was negotiated at least three weeks before Global demolished the front southern façade.
The judge determined that Gertos was separately liable for his own conduct in carrying out the demolition of the front southern façade contrary to the development consent. This liability was vicarious for the conduct of Global because at the coffee shop meeting, in the presence of GRC's project manager, he negotiated and orally agreed with John and George Loukis for the demolition of the external walls by Global.

The interlocutory proceedings

At the commencement of the trial, the appellants filed a notice of motion which sought, inter alia, an order that Foong and Nesci give evidence in the trial. The judge dismissed the motion: Leichhardt Council v Geitonia Pty Limited and Gertos [2015] NSWLEC 25. As to Foong, the judge said at [11]: "The prosecutor's main reason for not calling Mr Foong was that in the prosecutor's judgment his evidence would be unreliable because Mr Foong allegedly attempted in November 2011 to have Mr John Loukis construct false evidence from false documents including a new contract different from that actually signed. A prosecutor is not bound to call a witness whose evidence he judges to be unreliable: Whitehorn. Following the defendants' concerns communicated on 9 February to have Mr Foong give evidence, the prosecutor located an address and phone number for him and passed that information on to the defendants' solicitors. But Mr Foong has not responded to the prosecutor's attempts to confer with him, thus fuelling the prosecutor's judgment that his evidence would be unreliable."
The judge concluded that the Court did not have the power to direct the prosecutor to call Foong or Nesci. The judge identified the principle in R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 that it should only be in exceptional circumstances that the judge should call a person to give evidence - and held that exceptional circumstances did not, in this case, exist.

Ground 1: The prosecutor failed to discharge its responsibility to call all material witnesses in that the prosecutor did not call Foong and in the circumstances this caused a miscarriage of justice.

Appellants' submissions

The appellants submitted that the prosecutor failed to call a material witness at trial, namely Foong, and that this failure occasioned a miscarriage of justice. It was argued that Foong's evidence was necessary to provide a fair and proper factual basis upon which the judge could make his findings.
The appellants did not contend that the judge erred. Rather, the appellants submitted that the prosecutor departed from his duty in failing to call Foong as a witness at the trial. The appellants argued that the prosecutor did not suggest to the judge that Foong was not material, but rather that he was unreliable. This conveyed a tacit recognition by the prosecutor that Foong was a material witness - otherwise the question of Foong's unreliability would not have arisen.
The appellants relied upon the following: 1. Foong's testimony was necessary for the presentation of the relevant facts and issues, and was particularly important in relation to the facts underlying the question of whether Geitonia and Gertos were vicariously liable for the demolition of the wall and Cutuk's advice that the front southern façade was unsafe and should be demolished. Foong was at the epicentre of the events the subject of the evidence at trial and numerous references were made to Foong in the judgment. 2. Foong could have given evidence about the relationship between Geitonia, Gertos and GRC and their respective roles in relation to carrying out the redevelopment. Foong was GRC's representative who signed the agreement between GRC and Global which in its terms required the removal of the front southern façade. 3. Foong was heavily involved in the events leading up to the written demolition contract. 4. Various conversations and meetings took place without Gertos' involvement, including site meetings between John and George Loukis and Foong, in the first instance, and John and George Loukis, Foong and Nesci, in the second instance. Gertos was not present at either site meeting. 5. Telephone conversations that took place between Foong and John Loukis.
The appellants argued that the effect of the prosecutor's decision not to call Foong was twofold: first, the judge did not get a clear picture about the coffee shop meeting and second, Foong could have given contradictory evidence about Cutuk's stop work order, which the judge did not believe happened. Foong's evidence could have been relevant in determining who and which entity it was that instructed the demolition contractors to demolish the front southern façade.
The appellants submitted that the reason given by the prosecutor not to call Foong, that he was unreliable, was an error of judgment. The prosecutor could not have had anything more than a suspicion that Foong's evidence would be unreliable. The prosecutor did not attend a conference with Foong or obtain a statement from him. He had no objective basis for determining that Foong's evidence would be unreliable and could not have had more than a suspicion in the circumstances.
In oral submissions, the appellants agreed that the issue to be determined was whether the absence of Foong caused a miscarriage of justice. The appellants argued that if the Court was otherwise satisfied that Foong was a material witness, they could not be disadvantaged by reason of Foong neither being conferenced nor a proof of evidence having been taken by the prosecution from him. It was submitted that even if it was not known what Foong would have said, it was known he could have given relevant evidence about matters in respect of which findings have been made by the judge central to the convictions of the appellants, and that was enough to establish a miscarriage of justice.
The appellants contended that the prosecution's attempts to contact him were both belated and feeble. Subject to those qualifications, it was accepted that the prosecutor was unable to contact him between 9 and 23 February 2015. The appellants pointed out that it was never suggested that Foong was unavailable and their appeal should be approached on the premise that he was available.
Another submission was that at the time of the High Court's judgment in Apostilides, s 38 of the Evidence Act 1995 (NSW) did not exist. As a consequence of s 38, the obligation on a prosecutor to call a witness was stronger and there was logically less justification on a prosecutor's part to consider that a prospective witness was unreliable.

Respondent's submissions

The respondent submitted that the prosecutor did not breach his duty to call a material witness and there was no miscarriage of justice. The prosecutor obtained what he believed to be Foong's contact details and attempted to contact him; however, Foong did not respond to those attempts. Foong was not called as a witness for the prosecution because of the prosecutor's belief that he would be unreliable. The prosecutor's decision was based upon the affidavit evidence of John Loukis sworn 7 November 2012 to the effect that, at the time the Council commenced its investigations and had spoken to both Gertos and Foong, Foong had attempted to falsify documents: 1. Foong had telephoned John Loukis to say that he was having problems with the Council, and that John Loukis would receive a call from the Council about the demolition of the façade and that, "We have to look at each other's diaries to make sure they correspond with each other." 2. Foong approached John Loukis and asked him to adopt three documents which were not true documents: 1. A version of the demolition contract which was significantly different from the version as signed, and Foong asked him to give this contract to the Council if asked. 2. A site instruction to Global which John Loukis had never seen. 3. A script for diary entries which Foong asked John Loukis to make; such diary entries would have been falsified.
The respondent submitted that the prosecutor's belief as to Foong's unreliability was more than mere suspicion. Foong's conduct in trying to have John Loukis sign false documents comprised identifiable circumstances that went to the core of the case against the appellants - the instructions in relation to the demolition of the front southern façade. The active steps taken by Foong to mislead the Council on a crucial issue in the proceedings in order to avoid prosecution provided reasonable grounds to conclude that the witness was prima facie unreliable. The respondent submitted that this satisfied the Apostilides test that there must be identifiable circumstances clearly establishing unreliability. The respondent contended that Foong's conduct made it apparent that he would not tell the truth. It was reasonable in all of the circumstances for the prosecutor to not call Foong, coupled with the prosecutor's failed attempts to contact the witness. Further, the respondent argued that what Foong would have said if called as a witness was a matter of speculation, in light of his attempt to falsify the documents.
In relation to Foong's involvement in the demolition of the front southern façade, the respondent accepted that Foong was present or involved at most stages of the events; however, the respondent argued that there was still a large amount of evidence as to what occurred and as to who was liable for what occurred. Much of this evidence was documentary.
The respondent identified eight factors that were said to support a finding that there was no miscarriage of justice: 1. When faced with a miscarriage of justice by virtue of a witness not being called by the prosecutor, the court should examine what evidence that witness would in fact have been expected to give. The appellants submitted that this Court has no version of what was said and what occurred at the coffee shop meeting other than the evidence given by John Loukis. Accordingly, there was no evidence that anything Foong would have said would have elucidated any other particular matter or have assisted the appellants' case such that fairness required the prosecutor to call Foong. 2. The judge expressly took into account that although Foong was present at the coffee shop meeting he did not give evidence. 3. The judge found that John Loukis was an impressive, reliable and transparently honest witness. 4. The critical part of the coffee shop meeting was the agreement to demolish the building including the demolition by hand of the front southern façade and the price of the contract based on that mode of demolition. The sequence of events supported John Loukis' account that Gertos negotiated the price of the demolition contract at the coffee shop meeting. 5. John Loukis' evidence of what Gertos said at the coffee shop meeting was supported by the draft and signed written contract. 6. The fact that it was Gertos and Geitonia's decision to demolish the front southern façade was corroborated by Gertos' written and oral admissions to the Council, which were also corroborated by the demolition plans prepared by Cutuk and the fact that Gertos was Cutuk's client. 7. The judge accepted John Loukis' evidence that Foong did not take an active role in the coffee shop meeting and found that Foong's involvement was limited. The judge observed that there had been two unsuccessful attempts by the appellants to obtain Council modification approval or construction certificate approval to plans that no longer provided for retention of the front southern façade, prior to the coffee shop meeting.
In oral submissions, the respondent did not accept that Foong was a material witness. The respondent said that the test was whether Foong was an essential witness and argued that there was evidence proving the appellants were vicariously liable in admissions made of responsibility for the demolition.

Legal principles

The general principles concerning the responsibility of prosecutors to call witnesses in criminal trials are well established and were enunciated by the High Court in Apostilides at 575. These principles are not confined to Crown prosecutors but apply to those who prosecute criminal offences on behalf of Councils or other authorities. For the present appeal, it is only necessary to restate the sixth general principle: "… 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
The Court said at 577-578: "In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn (48) was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory." [Footnotes omitted.]
It is clear that the decision of a prosecutor not to call a material witness will not be justified because the prosecutor suspects the unreliability of the evidence: Apostilides at 576. A prosecutor should take appropriate steps, including where necessary to conference a witness, to be able to form an opinion of unreliability: R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 per Greg James J at [49].
The desirability for the prosecutor to interview a witness has been reinforced by the Victorian Court of Criminal Appeal in R v Shaw (1991) 57 A Crim R 425 where the assertion that an eye witness to a stabbing was unreliable based upon her inconsistent statements was rejected as the prosecutor did not see or speak to the witness.
On other hand, the Victorian Court of Appeal in Tien Tran v Magistrates' Court of Victoria [1998] VSC 337 rejected the appellant's argument that an eye witness to an alleged assault should have been called by the prosecutor. The prosecutor had spoken to the witness who told him that he did not care what he said as long as the appellant would get off. The Court concluded this was not merely suspicion of unreliability or prior inconsistency. The Court said that the prosecutor did not merely suspect that the witness was unreliable: he knew it. In R v O'Brien (1996) 66 SASR 396, Doyle CJ opined that there was no error of judgment by the prosecutor in not calling a material witness where he had proofed the witness and formed the opinion that the witness had a clear allegiance to the accused.
This is not to suggest that a prosecutor must always interview a witness to form an opinion of unreliability. Each case will depend upon its own circumstances. However, the prosecutor's decision must be based on "identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness": Kneebone per Smart AJ at [102]. Intuition, suspicion or scepticism will not suffice. The overriding principle is the prosecutor's obligation to present the case fairly and completely: Richardson v R (1974) 131 CLR 116; [1974] HCA 19; Subramaniam v R (2004) 79 ALJR 116; [2004] HCA 51.
It must be remembered that a decision of a prosecutor not to call a particular witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: Apostilides at 575. In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at 408 [153]: "… as this Court pointed out in Apostilides (180), the conclusion that a prosecutor has failed to call a witness who should have been called does not, of itself, require the further conclusion that the conviction recorded at that trial must be set aside. Rather, in the words of the common form criminal appeal statute, the question would be whether, having regard to the conduct of the trial as a whole, there was "on any other ground whatsoever a miscarriage of justice". If a prosecutor's failure to call a witness who should have been called occasioned a miscarriage of justice, the conviction entered at trial would be set aside and a new trial would be ordered." [Footnotes omitted.]

Consideration

As Senior Counsel for the respondent was the prosecutor at trial, it is common ground that in considering the first ground of appeal, this Court is confined to the material before the judge.
The prosecutor determined that Foong's evidence would be unreliable. He identified the attempts by Foong to have John Loukis construct false evidence from the documents that came into Loukis' possession when he met with Foong in late November 2011 as establishing the unreliability of Foong's evidence. These documents were a false GRC-Global contract, a false site instruction dated 25 October 2011 signed by Foong and a chronology in Foong's handwriting with a false entry for 25 October 2011 (see [44] above).
The prosecutor's decision was fortified by Foong's failure to respond to attempts by the respondent's solicitors to contact him between 9 and 13 February 2015. The solicitors had twice telephoned Foong leaving a voicemail message to call back and had written to him by letter. Investigators had provided the solicitors with Foong's personal information, including his residential address and telephone number.
Although the respondent did not argue before the judge that Foong was not a material witness, the respondent did not concede in this Court that he was. The respondent submitted that Foong was not necessary to the unfolding of the case for the prosecution as the evidence led by the Crown included the testimony of John Loukis and the verbal admissions made by Gertos to Vogt.
In my opinion, this argument lacks merit as Foong was a witness to many significant aspects of the case which include initial negotiations and site meetings between Foong and John Loukis, the coffee shop meeting and the contract signed on either 18 or 19 October 2011. He was potentially an important witness of fact. The possibility that Foong may have given evidence inconsistent with the prosecution case which could be established by other evidence does not mean that Foong was not a material witness. As was said in Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42 per Dawson J at 674: "Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief." [Emphasis added.]
The prosecutor's judgment that Foong's evidence would be unreliable was founded upon Foong's attempts in November 2011 to create false evidence. While the evidence that Foong had made these attempts was undoubtedly strong, this conduct had occurred more than three years before the trial. He had not been conferenced by the prosecution and the steps taken to contact him in February 2015 fell short of what could have appropriately been done, which included visiting Foong's home.
In these circumstances, what Foong would have said in 2015 about the important factual issues in the trial could only be a matter of speculation and the prosecutor's decision that Foong was unreliable could not amount to more than intuition or suspicion.
It would have been sufficient for the prosecutor to simply call Foong so that the appellants could cross-examine him and then, if necessary, be re-examined: Apostilides at 576; Kneebone at [102].
Another consideration is s 38 of the Evidence Act, which would have permitted the prosecutor, with the leave of the court, to question Foong as though he was being cross-examined about evidence given by him that was unfavourable to the prosecution or about a matter of which Foong may reasonably be supposed to have knowledge and about which it appeared to the court the witness was not, in examination-in-chief, making a genuine attempt to give evidence.
There was, in my view, an error of judgment by the prosecutor in not calling Foong. However, the question remains whether the failure to call Foong has resulted in a miscarriage of justice, which the appellants bear the evidentiary onus of establishing.
Accepting that Foong was potentially an important witness of fact, I turn to a consideration of the appellants' arguments about the disadvantage that they suffered at trial by Foong's absence. The foundation of the argument is that the prosecutorial duty of fairness obliged that he be called.
The principal submission was that Foong was present at the coffee shop meeting and could have given evidence as to what was said at that meeting. The conversations were not recorded and the appellants contended that small variations in the recollections of witnesses as to those conversations may have altered the judge's findings.
A further submission was that Foong might support Cutuk's evidence that he told Foong to stop work and that Foong told the demolishers to stop work, which the judge did not accept. The contention was that if Foong had testified, the judge may have preferred Cutuk's evidence rather than accepting the competing evidence of John and Sozo Loukis.
The judge's determination that at the coffee shop meeting, Gertos, on behalf of GRC, orally negotiated and agreed with John and George Loukis, on behalf of Global, to demolish the building including the front southern façade was crucial to his findings that Geitonia and Gertos were vicariously liable for the conduct of Gertos. His Honour's findings were mainly founded upon his acceptance of John Loukis' testimony who the judge described as an impressive, reliable and transparently honest witness. His Honour expressly took into account that, in making those findings, although on the evidence Foong was present, he had not given evidence.
As to the Cutuk evidence, his Honour accepted the testimony of John and Sozo Loukis that they were never made aware of a stop work order and that work did not stop.
The appellants contended that they should not be disadvantaged by Foong neither being conferenced nor a proof of evidence having been taken by him. The submission was that even if it was not known what Foong would have said, it was known he could have given evidence relevant to the findings made by the judge which was enough to establish a miscarriage of justice.
In Hellicar, the High Court drew attention to the distinction between the testimony that a witness (who was not called) was in fact likely to give and might theoretically give as being critical to a determination of fairness. The plurality said at 410 [160]: "The Court of Appeal proceeded on the footing that because Mr Robb had attended the February board meeting he "was potentially a very important witness of fact" (190) (emphasis added). So much may readily be accepted. But what was the evidence that Mr Robb was in fact likely to give about what was said or done at that meeting? What evidence Mr Robb was likely to have given, as distinct from what evidence he might theoretically have been in a position to give, is critical to any determination of what "fairness" required in this case." [Footnotes omitted.]
Foong has not been interviewed by the prosecution or the appellants nor has a proof of his evidence been taken by either party. There is simply no evidence as to the testimony that Foong would in fact be likely to give about the coffee shop meeting or any other aspect of the case. What he might say remains a matter of speculation. Any claim of disadvantage by the appellants in Foong not being called does not amount to more than a hypothesis.
Putting aside for the moment considerations that may have arisen from Foong's fraudulent conduct in November 2011, there is nothing to suppose that Foong would in fact have provided an account consistent with the appellants' case that would have been accepted by the judge.
John Loukis' evidence of what was said at the coffee shop meeting was supported by the terms of the draft contract forwarded by Foong to John Loukis on 13 October 2011 and signed five or six days later. Furthermore, evidence independent of Foong provides strong support for the judge's conclusion that Gertos was the guiding mind in the decision to demolish the front southern façade.
His Honour's findings that admissions had been made by Gertos in the 20 October 2011 letter to Betts and in the conversations with Vogt were not challenged on appeal nor were his findings that Gertos on two occasions prior to the coffee shop meeting had unsuccessfully attempted to obtain Council modification approval or construction certificate approval to plans that no longer provided for the retention of the front southern façade.
This evidence, viewed in combination with Foong's fraudulent conduct, points to the high likelihood that anything he might theoretically have said in support of the appellants' case would have been rejected by the judge. It is unnecessary to detail other aspects of the evidence that support this conclusion.
No disadvantage to the appellants has been demonstrated by Foong not being called. The prosecutor's decision did not occasion unfairness. I am not persuaded that there has been a miscarriage of justice.
It follows that Ground 1 of the appeal has not been made out.

Ground 2: The judge erred by finding that the development consent did not permit the demolition that occurred of the front southern façade.

The appellants accept that when the development consent was granted in 2007, the consent required the retention of the majority of the front southern façade. This is plainly the case as the description of the approved development includes the following: "Retention of part of the existing building, including the majority of its front and side facades, and the stepped front veranda cantilevered over the Parramatta Road footpath..."
Included in the Statement of Environmental Effects was the following: "The front building will be constructed within the shell of the existing row of Victorian shops." "The design approach is to retain the front façade, side walls and some of the internal dividing walls between the shops." "The traditional form of the front façade and shopfronts will be restored."
The Report on Geotechnical Investigation relevantly stated: "It is understood that the southern front wall and southern sections of both the eastern and western side walls will be maintained for the proposed development."
Condition 4 of the development consent provided that the development "shall be implemented in accordance with the details set out in the following table…" The plans detailed in the table, which referred to the restoration or maintenance of the front southern façade, included architectural plans by Mansions Pty Limited (Ex B).
The Advisory Statement in the development consent relevantly provided that should the front and side façade of the building that were nominated as being retained be demolished during the excavation and construction periods, the consent would be invalidated and a new development application was required.
The appellants' argument was that the position changed when Ladogna issued a construction certificate on 23 September 2011 which annexed a number of plans. One of the plans was "CSMP3 Rev D" dated 20 September 2011 and entitled Basement Demolition Plan. Notes 7 and 8 on that plan are: "7. Front facade & side walls to be inspected once scaffolding and hoarding in place. Where required in strict accordance with the engineers [sic] instructions. The structural elements are to be repaired, replaced and or duplicated as per the approved DA requirements. 8. If the [sic] any elements of the facade are to be removed and reinstated then these elements are to be hand removed, cleaned, labeled [sic] and stored to allow for reinstatement."
The appellants put to the judge that the development consent included the construction certificate which they argued permitted the demolition that occurred of the front southern façade. The judge accepted that a construction certificate and any approved plans and specifications issued with respect to it are taken to form part of the development consent (other than for the purposes of s 96 of the EPA Act): s 80(12) of the EPA Act. His Honour observed that a construction certificate issued by an accredited certifier is valid at least until set aside and, to the extent that there is an inconsistency between those plans and specifications and the plans and specifications approved in the development consent, the former must prevail: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 at [202] per Sackville AJA (McColl and Barrett JJA agreeing).
On the construction of a development consent, the judge said at [40]: "In construing a development consent, the ordinary rules of construction and principles of interpretation apply as with any other statutory instrument: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [97]-[99] following King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23, 71 CLR 184 and Cann's Pty Ltd v Commonwealth [1946] HCA 5, 71 CLR 210. Development consents are to be construed not as documents drafted with legal expertise, but to achieve practical results: Ko-Veda at [96]-[99] and [105] applying Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36], [40]. See also Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 at [57]-[58] (Biscoe J)."
The judge determined that the development consent (including the plans forming part of the construction certificate) did not permit the demolition of the front southern façade. In relation to notes 7 and 8 (CSMP3 Rev D), his Honour said at [51(c)]: "I do not accept the defendants' submission that Stage 3 notes 7 and 8 permit the demolition that occurred of the southern façade. Note 7 only permits replacement of structural elements, which would include the ground floor columns between the shop bays. Note 8 does not permit removal but only specifies what is to be done with elements of the façade that are otherwise permitted to be removed. The intent is clear that the most of the southern façade is to remain."
No complaint is made by the appellants as to the judge's statements of legal principle. His Honour correctly considered that the construction certificate issued by Ladogna with the annexed plans (including notes 7 and 8) formed part of the development consent. The focus of the complaint is that his Honour's construction of these notes was wrong.
The appellants submitted that note 7 contemplated that if Cutuk instructed any part of the front southern façade to be replaced, these instructions should be obeyed and that compliance with these instructions would not contravene the development consent.
The appellants said that note 8 reinforced their contention as it would be nonsensical if note 7 did not contemplate that Cutuk would give instructions to remove elements of the front southern façade.
The appellants contended that notes 7 and 8 could be reconciled with the terms of the original development consent. The harmonious construction of the instrument as a whole required that the majority of the front southern façade be retained, but this was subject to the inspections and instructions of Cutuk to ensure that working conditions on the development site remained safe both for workers and for members of the public. The appellants described the existing building and the front southern façade as being in a parlous state - the mortar between the bricks had been eaten away and the bricks were crumbling and could be pushed out by hand. There could be no doubt, it was said, that the workers and engineers on the site were concerned that the front southern façade wall had become unsafe.
Another contention was that the judge's reasoning implied that he had found that the façade's "structural elements" included the ground floor columns between the shop bays, but did not include the front walls itself. The appellants argued that the judge's findings were wrong and it was logical and conventional to regard the front wall as a structural element of the existing building as it was an element of the building which held up the floors and the roof.
In dealing with the appellants' argument, the judge was not confined to notes 7 and 8 (CSMP3 Rev D). His Honour's careful analysis included the development consent, Statement of Environmental Effects, architectural plans entitled "Façade Details" listed in condition 4 of the development consent and the construction certificate incorporating in annexure one, five revision plans marked CSMP. Notes 7 and 8 appear on CSMP3 Rev D.
His Honour observed that plan CSMP4 Rev C entitled "Basement Demolition and Excavation Plan" denoted (at [51(d)]): "… by reference to a light shaded area in the legend that the southern façade is part of what is "to remain". Walls that are to be demolished are identified by hatching."
CSMP3 Rev D has the title "Basement Demolition Plan" and it is evident that plans CSMP3 and 4 concern the same subject. CSMP3 bears the words "Extent of Existing Walls to be removed shown hatched - (Typical)". None of the front southern façade walls are among the walls on the plan that are hatched. The removal of those walls that are hatched on the plan is consistent with notes 3, 4 and 5 (Stage 3) CSMP3 Rev D which detail the order of their removal. The judge noted (at [51(c)]) that, "Note 6 states "Ensure engineer signs off on all bracing & if required extra bracing is to be provided as per engineers instructions".
Also annexed to the construction certificate was a Demolition Management, Procedure & Sequence Plan ('the report') prepared by CAM Consulting Engineers entitled "Demolition of an existing Building, Retention of Heritage Facade and Excavation of Basement". The engineers explained in the report that "a Demolition Management Plan (DMP) and a procedure and sequencing plan for the Demolition of part of the existing structure and the retention of the existing heritage portion of the building" had been prepared "to assist in the understanding of the procedure, risks and methodology in the demolition, retention and excavation of the existing and future commercial building."
Section 6 of the report entitled "Partial Demolition of the Existing Structure" provides assistance in understanding the methodology that is summarised by notes 1 to 9 (Stage 3) CSMP3 Rev D. Section 6 includes the following: "The proposed development will require the demolition of the existing structure with the retention of the front and side Heritage facades. … The existing heritage Items will require the current internal walls to remain as a brace for the construction of the new building. The internal existing structure will only be demolished once the side and front walls have been tied into the new structure." [Emphasis added.]
There is nothing in the report that refers to the front southern façade being demolished for safety reasons. Rather, the report states: "The proposal is to retain the existing heritage portion of the building's front and side facades, and the stepped front veranda cantilevered over the Parramatta Road footpath. Excavation will be carried out immediately adjacent to the Heritage portion of the existing building to avoid any damage or movement in this structure. Excavation of the remaining site will be carried out immediately adjacent to the remaining boundary on all sides. There are no common walls or boundary masonry fences shared with the neighbouring properties. Therefore we do not foresee any issues with the demolition, retention or excavation." [Emphasis added.]
Furthermore, notes 7 and 8 (CSMP3 Rev 7) do not refer at all to matters of safety.
When these notes are considered in the context of the development consent and the construction certificate as a whole, the respondent's submission that the purpose of the notes was to require the approved construction plans to be in conformity with the requirement of the development consent that the front southern façade be retained is to be accepted.
As to the appellants' argument that a structural element is an element of the building which holds up the floors and roof, there was no evidence before the judge that supports that contention.
When asked in cross-examination, "what does structural elements to be replaced mean or what did it mean to you?", Ladogna replied (Tcpt, p 299 (24)): "If there were any potential lintels which can be replaced without removal of a wall. There are means - so, yeah, any localised areas where it needed to be replaced."
During the concurrent evidence of Bruce Delprado, the respondent's expert engineer, and Marcus El Safty, the appellants' expert witness, neither Delprado nor El Safty were asked a question in terms of the appellants' submission.
The words "structural elements" in note 7 (CSMP3 Rev D) must be construed with regard to the development consent and the whole of the construction certificate.
In my opinion, it was open to the judge to conclude (see [105] above) that note 7 "only permits replacement of structural elements, which would include the ground floor columns between the shop bays."
In my opinion, the judge did not err in rejecting the appellants' submission that notes 7 and 8 (CSMP3 Rev D) permitted the demolition of the front southern façade.
There is another matter that should be mentioned. The judge did not accept the appellants' argument that the front southern façade was so unsafe that they had to pull it down immediately. In rejecting that argument, the judge said (at [160]): "The evidence of Mr Delprado, which I accept, included the following: (a) the southern façade did not pose an imminent danger to the public. Further, Mr Cutuk's statement that the walls can be temporarily braced implies that Mr Cutuk considered that the walls could be made safe, at least on a temporary basis. (b) While the items of deterioration listed by Mr Cutuk as justifying demolition might have justified demolition from a commercial aspect, all the deterioration depicted in the photographs had developed over a long period of time - likely decades - and would have been observable before the hoarding was erected. All the deterioration could have been remediated by applying standard techniques, which Mr Delprado detailed. (c) Even if the southern façade posed a danger to the public or was likely to become an imminent danger to the public, steps could have been taken to eliminate the danger, which he specified. (d) the structural integrity of the southern façade could not have been impacted by a high wind event. Much of El Safty's competing view as to risk of danger of collapse and harm to people was premised on a high wind event or an earthquake which, in Sydney, carried a risk of no more than 1:500 years. When considering whether it would occur on a particular day - say 20 or 21 October 2011 - the risk would reduce to 1:500 x 365, "a very low" risk. (e) The approved demolition plans aimed to stabilise the front façade by keeping in place the internal perpendicular (north/south) walls (about six metres long) of the front ground floor shops and bracing them so that they became a series of boxes which were stable in their own right. Mr Cutuk's photos taken on 18 October 2011 show that the demolition had not then reached those walls: they, their back (east/west) walls, and their required bracing were all still in place."
There was no challenge to the judge's acceptance of Delprado's evidence in this Court.
In my view, Ground 2 of the appeal has not been established.

Orders

Accordingly, I propose that the appeals be dismissed.
GARLING J: Price J has comprehensively recited the facts, the submissions of the parties and the applicable law. I agree with Price J's reasons with respect to Ground 2. I propose to deal separately with the question of Ground 1.
Mr Foong was a witness whose evidence was central to the unfolding of the events giving rise to criminal liability on the part of the appellants. He was present during events which were central to the prosecution case. He was the person through whom instructions given by the appellants were conveyed to the demolition subcontractors. It was he who was present on the site at all relevant times. He ought to have been called as a witness in the proceedings.
According to Biscoe J's judgment on the appellant's interlocutory motion for an order compelling Mr Foong to give evidence, which was heard on the first day of the trial, the prosecutor informed the Court that Mr Foong's evidence would be unreliable because he allegedly once attempted, about three years before the trial, to construct false evidence from false documents: Leichhardt Council v Geitonia Pty Ltd and Gertos [2015] NSWLEC 25 at [11].
In the course of the investigation prior to the commencement of the prosecution, Mr Foong was not spoken to, nor was a statement taken from him. The prosecutor did not speak to Mr Foong prior to informing the trial Judge that he had concluded that Mr Foong would be an unreliable witness. The prosecutor did not have a statement from Mr Foong, nor a proof of Mr Foong's evidence which would have enabled him to reach such a conclusion. The prosecutor did not even have the benefit of a statement from a third party, such as his instructing solicitor, as to what evidence Mr Foong might give if called. The sole basis for the prosecutor's conclusion was the untested allegation that Mr Foong had once attempted to construct false evidence.
In R v Armstrong [1998] 4 VR 533 at 537-538, the Victorian Court of Appeal (Charles and Batt JJA and Vincent AJA) said, in respect of a decision by a prosecutor not to call a witness because of a lack of reliability: "Although the prosecutor in the present matter did not expressly state that he was deeply suspicious of the reliability of the hitherto totally uncooperative Cunningham when informed by counsel that this person was prepared to make a statement, it would appear to be both clear from his manner of expression, and understandable in the circumstances, that this was the case. But, as the High Court has made clear in the passage from Apostilides set out above, the presence of such a suspicion would not, of itself, constitute an adequate basis for a refusal to call an eyewitness to a disputed event in the kind of circumstances presently under consideration. Still less could it provide a foundation for the point blank refusal of a prosecutor even to have the witness interviewed in the first place or, as happened here, to consider notes proffered by counsel for the applicant indicating the substance of the evidence which it was anticipated the witness would give, if called in the trial. … [The prosecutor] carried a heavy responsibility directed to ensuring that the trial was fair from all perspectives and that the value judgments which he made were based upon the 'overriding interests of justice'. That responsibility was not discharged by a point blank refusal to have the witness interviewed, or even to look at the notes setting out the substance of his version which were proffered by counsel."
As the High Court said in The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 576, when dealing with reasons for a prosecutor to decline to call a witness: "A refusal to call a witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of evidence."
In this case, the prosecutor did not have a soundly based suspicion that Mr Foong would not give evidence accurately or reliably. The prosecutor's suspicion that Mr Foong would give unreliable evidence, on account of an allegation that Mr Foong had once attempted to construct false evidence, was not an adequate basis to decline to call him in circumstances where the prosecutor did not know what evidence Mr Foong might give if called. The investigation prior to the commencement of the prosecution failed to establish what evidence Mr Foong might give if called.
Thus, the position in this case is that the prosecutor: 1. had no rational basis to conclude that Mr Foong would not give reliable or accurate evidence; 2. at best held a suspicion which was not soundly based, and which was in any event an inadequate basis for drawing any conclusion about the reliability of Mr Foong; 3. was informed at least two weeks prior to the trial that the appellants wanted Mr Foong to be called by the prosecution so that they could cross-examine him, a course which is ordinarily acceded to by prosecutors attending carefully to their obligations even though they may not wish to lead any evidence in chief from the witness; 4. was aware of the provisions of s 38 of the Evidence Act 1995, which enable the prosecutor to obtain leave from the Court to cross-examine a witness called by him in circumstances where the evidence given by that witness is unfavourable or inconsistent with a previous statement; 5. was aware of Mr Foong's residential location and contact details.
In light of the combination of these matters, I cannot, with respect, arrive at the conclusion which Price and N Adams JJ have reached, namely that the prosecutor made an error of judgment in deciding not to call Mr Foong. On the contrary, I have concluded that the only inference that can be drawn about the prosecutor's conduct is that he made a deliberate, tactical decision not to call Mr Foong in order to maximise his prospects of success in prosecuting the appellants on behalf of his client, Leichhardt Council. This conclusion is fortified by the absence of any evidence on appeal from the prosecutor seeking to justify the course which he took other than the statement he made to the trial Judge at trial. It is also strengthened by the fact that, as is apparent from the interlocutory proceedings, the prosecutor well knew what his obligations were.
The Council, which is the respondent on the appeal, submits that because the appellants have not put before the Court any account of the evidence which Mr Foong may have given at the trial, the Court cannot conclude that a miscarriage of justice has occurred.
In Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116 at [121]‑[122], the High Court did not restrict the basis upon which it could determine whether a miscarriage of justice occurred. It said: "Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call a particular witness, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice."
In considering Richardson and other authorities, the High Court expressed the test in this way in Apostilides at 575: "A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
The way in which a miscarriage of justice may be seen to have occurred in the conduct of a trial is not capable of precise definition. It will depend upon all of the circumstances surrounding a particular trial and the way in which the trial unfolded.
In Regina v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450, Smart AJ, with whom Spigelman CJ agreed, said at [102]: "(f) The prosecutor's judgment [that a witness is not reliable and trustworthy] must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. … … (h) Frequently, eyewitnesses will be close or have been close to the accused and possibly to the victim. That does not mean they should not be called by the Crown. It is where it is apparent that the eyewitness is so devoted to the accused and his cause that she will not tell the truth as to what happened, that the question of the Crown not calling that witness will arise."
Smart AJ observed (at [104]) that s 38 of the Evidence Act made an important change in the law because it "…remove[d] restrictions which had the effect, on occasions, of making important evidence unavailable and preventing the adequate testing of evidence". His Honour emphasised that a prosecutor, in determining whether to call a witness, would need to be mindful of the provisions of s 38 and the accused's desire for the witness to be called. Smart AJ also observed that a prosecutor would need to consider the alternative course of simply calling the witness and allowing the witness to be cross-examined by an accused.
None of these alternatives seem to have occurred to the prosecutor here. Smart AJ went on to say that, in circumstances where the prosecution's decision not to call a witness could not have been soundly based, it was open to the Court to conclude that a miscarriage of justice had occurred.
Greg James J (with whose reasons Spigelman CJ also agreed) concluded that there was a miscarriage of justice in this way: "61. I am of the view that by reason of the failure to call the witness, occasioned, as it appears to be, by a failure to adopt an appropriate course to enable proper consideration of any question of unreliability, a miscarriage has occurred. In my view, the supplementary grounds of appeal should be upheld."
In R v Wilson [1997] QCA 244, the majority (Fitzgerald P and Lee J) in a joint judgment concluded that there had been a miscarriage of justice in the trial in circumstances where a relevant witness had not been called. Their Honours said: "In our opinion, the course of the trial, and the jury's verdict which necessarily involved a conclusion that the appellant intended to kill [the victim] when he stabbed him, lead to the conclusion that a miscarriage occurred in this case. The jury was left to decide the appellant's guilt or innocence without a body of available evidence which was relevant to an essential element of the offence with which he was charged and which the prosecution had to prove beyond reasonable doubt."
In that case, the witness was a specialist psychiatrist whose evidence was relevant to the mental state of the accused at the time the offence was alleged to have occurred. The fact that the psychiatrist was available to give evidence if called by the accused did not displace the conclusion that a miscarriage of justice had occurred.
In his judgment at the conclusion of this case, Biscoe J concluded that Mr John Loukis, who gave evidence of meetings in the second half of September 2011 and early October 2011 which had been arranged by Mr Foong and which were critical to the issues at trial, was an "impressive, reliable and transparently honest witness". His Honour preferred his evidence to that of his brother where it was in conflict because his Honour thought that Mr John Loukis brother's recollection was not as good. Based largely upon Mr John Loukis' account of these meetings, his Honour concluded that the appellants were criminally liable.
The prosecutor did not call Mr Vince Nesci, another person who was present at the meetings to which I have referred, because, as he told the trial Judge on the first day of the trial during the hearing of the appellant's interlocutory motion, he was not aware of the full name of Mr Nesci until shortly before that date and that Mr Nesci's involvement in the events was dramatically less than the others. As well, the prosecutor informed the trial Judge that the appellants had only communicated their concern about Mr Nesci not being called on the first day of the trial, that he had not seen any writing emanating from Mr Nesci, and that there was nothing to indicate that Mr Nesci was involved in the decision-making process or could add anything to the existing evidence.
No appeal is brought with respect to the failure of the prosecution to call Mr Nesci.
I have concluded that the failure to call Mr Foong has given rise to a miscarriage of justice. The trial Judge's conclusions as to the acceptability of Mr John Loukis' evidence, and his impressiveness as a witness, were made when the state of the evidence on the critical meetings was incomplete. The trial Judge had no account of these meetings other than that given by Mr John Loukis. It is not possible to say that had Mr Foong been called to give evidence, no other conclusion would have been open to the trial Judge.
Unless the trial Judge accepted the evidence of Mr John Loukis, which underpinned the evidence of the contract referred to by Price J, then there was a real prospect that the applicants would be acquitted.
The failure to call Mr Foong means that the appellants have lost that prospect.
Accordingly, I have concluded that, in the circumstances of this trial, a miscarriage of justice occurred. Consequently, the appeal ought to be allowed and a new trial ordered.
N ADAMS J: I have had the benefit of reading the draft judgments of both Price and Garling JJ. I respectfully agree with the reasons of Price J in relation to both grounds and the orders that his Honour proposes, but I wish to add the following observations in relation to Ground 1.
The principles regarding a prosecutor's duty to call all material witnesses are well established in the decisions cited by Price J at [66] - [72]. These principles are reflected in Director of Public Prosecutions (DPP) Prosecution Guideline 26, which deals specifically with the duty to call witnesses: http:// www.odpp.nsw.gov.au /prosecution-guidelines. They are also reflected in rules 89 and 90 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (it is noted that the relevant professional rules guiding the prosecutor's obligation to call witnesses at the time of the first instance hearing in this matter were rules 88 and 88A of the New South Wales Barristers Rules 2014 (NSW)).
As Price J has observed at [66], the general principles concerning the prosecutorial duty to call all material witnesses at trial also apply to those who prosecute summary criminal offences on behalf of regulatory bodies and authorities such as the respondent.
During the hearing of the appeal senior counsel for the respondent informed the Court that, as far as he was aware, the respondent has not formulated any prosecutorial guidelines of its own but that he (as counsel) was bound by the relevant professional rules. The difficulty with this position is that whereas the professional rules apply to counsel appearing for the respondent they do not extend to the duty of the respondent itself who, as the prosecutor, had the role of investigating the matter and obtaining all relevant statements. No efforts were made even to contact the witness Mr Foong Takounlao (who was referred to as "Foong" both at first instance and during the hearing of appeal) until the week before the trial, three years after the relevant events, and no statement was ever taken from him. It is somewhat surprising that the respondent has neither produced its own prosecution guidelines nor implemented a practice of relying upon the DPP Prosecution Guidelines by way of analogy.
My second observation concerns the relevant test to be applied in matters such as this in order to assess whether a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) has occurred. I agree with Price J at [82] that it was an error of judgment by the prosecutor not to call Foong in this matter for the reasons stated by his Honour. I add that since the enactment of the Evidence Act 1995 (NSW) it has become increasingly uncommon for a prosecutor not to call a witness who is considered to be potentially unreliable. Instead, such witnesses are commonly called by the prosecution and then leave sought under s 38 of the Evidence Act to cross-examine them: see the observations by Smart J in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [104]. I note that the prosecutor in this matter did attempt to contact Foong, albeit at a late stage. When he met with no response he took no further steps to ensure his attendance at court: Leichhardt Council v Geitonia Pty Ltd and Gertos [2015] NSWLEC 25 at [11].
The conclusion that it was an error of judgment not to call Foong as a witness at the hearing is not the end of the matter. The question then is whether as a result of that error of judgment a miscarriage of justice occurred "having regard to the conduct of the trial as a whole": R v Apostilides (1984) 154 CLR 563 at 577.
During the hearing of the appeal senior counsel for the appellants was invited to identify the test that should be applied by the Court in order to address this question. He referred the Court to the decision of R v Jensen [2009] VSCA 266; (2009) 23 VR 591, which is a decision of the Victorian Court of Appeal allowing an appeal based on a miscarriage of justice caused by the failure of the Crown to call a witness. After citing the relevant test from R v Apostilides as being whether, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice (at [60]), the court (Nettle and Weinberg JJA and Hollingworth AJA) concluded (at [77]) that the failure to call the witness "deprived him of a chance of acquittal to which he was entitled."
In R v Jensen there was material before the appeal court outlining what evidence the missing witness could have given. It was by reference to that material that the appeal court was able to assess the question of whether the trial miscarried. Regrettably, no material was put before this Court by the appellant as to what evidence it was anticipated Foong would have given.
I have been unable to find any authorities directly addressing the question of how a miscarriage of justice is to be assessed on the basis of a missing material witness in circumstances where no proof of evidence has been obtained and it is not known what evidence the witness would have given. This is no doubt because it is uncommon for a prosecutor not to take a statement from a material witness. Although it occurred in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279, evidence from the witness in the form of an affidavit was before the Court on appeal so that it was possible to assess the impact that evidence could have had on the trial.
As set out in the reasons of Price J at [58] and [88], senior counsel for the appellants submitted that the appellants should not be disadvantaged by the fact that the prosecutor in this case failed to take a proof of evidence from Foong. Although there is some force to this submission, the fact remains that the evidentiary onus is on the appellants to establish a miscarriage of justice in this matter. As Biscoe J noted in the primary judgment, the prosecutor passed on the address and phone number for Foong to the appellants' solicitors: Leichhardt Council v Geitonia Pty Ltd and Gertos at [11]. There was no evidence placed before the Court on this appeal regarding any attempts on behalf of the appellants to contact Foong. Nor was there any evidence put before the Court that the appellants had requested the prosecution to do so and such request had been refused.
The appellants' contention on appeal is that Foong may have given evidence regarding what occurred at the coffee shop meeting that differed from the evidence given by John Loukis. John Loukis gave evidence that at the coffee shop meeting it was the appellant Mr Gertos who did the talking, negotiated the contract and the price and then shook hands with the Loukis brothers. The terms of this agreement negotiated by Mr Gertos were then contained in the contents of the draft contract subsequently forwarded to the Loukis brothers at Global by Foong. Foong was at that time the general manager of the project manager GRC Projects Pty Ltd ("GRC"), which was the co-defendant in the prosecution and controlled by Mr Gertos. GRC did not play any active role defending the charge against it as it was in liquidation by the time of the hearing. I can see no basis in the material before the court to draw an inference that Foong would have given evidence which assisted the appellants.
In addition to the evidence of John Loukis and the terms of the draft contract sent to him by Foong, the prosecution also relied upon admissions made by the appellant Mr Gertos and the fact that Mr Gertos had attempted unsuccessfully twice prior to the coffee shop meeting to obtain council approval to demolish the front southern façade.
Having considered all of the material relied upon by the appellants I agree with Price J's finding at [90] - [91] that there is no basis for this Court to conclude that Foong would in fact have given an account consistent with the appellants' case in this matter. This conclusion should not be taken as any statement of general principle that in every appeal involving a prosecutor's failure to take a proof of evidence from a potential witness the appellant will be unsuccessful unless he or she provides material to the Court at the hearing of the appeal setting out what evidence that witness might have given at the trial. My basis for agreeing with the orders proposed by Price J is that, in the context of the particular evidence adduced in the prosecution case at trial in this matter, the appellants have not discharged their onus of establishing that Foong would have given an account consistent with the appellants' case such that the failure to do so deprived them of a chance of acquittal to which they were entitled. 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: 24 August 2016

New South Wales Barristers Rules 2014(NSW)

Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council

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