SOLICITORS:
50795 and 50798 of 2013:
Pikes & Verekers (Prosecutor)
Jordan Djundja (Defendant)
50796 of 2013:
Pikes & Verekers (Prosecutor)
N/A (Defendant)
File Number(s): 50795/13, 50796/13, 50798/13
[2]
EX TEMPORE Judgment
I am dealing with motions by two of the three defendants to vacate the trial dates or for alternative or further relief relating to the prosecutor's evidence and disclosure of documents.
This is the first day of a scheduled three weeks trial of three defendants on charges of demolishing the southern façade of a disused two to three storey brick building at 1-13 Parramatta Road, Annandale, in a heritage conservation area, otherwise than in accordance with a development consent. The consent was for redevelopment for the purpose of a mixed residential and commercial building and, on the prosecution case, required the majority of that façade to be retained. The defendants are Mr Bill Gertos, his company Geitonia Pty Ltd, and GRC Projects Pty Ltd which the prosecutor alleges Mr Gertos controlled at the relevant time even though he had by then ceased to be the director and shareholder. Geitonia was the land owner and developer and, the prosecutor says, Mr Gertos' alter ego. GRC was Geitonia's project manager and was represented by Mr Foong Takounlao. The trial of GRC, which is in liquidation, is proceeding ex parte. GRC engaged the demolisher Global Demolitions Group Pty Ltd, which acted through the brothers John Loukis and Sozo Loukis. The structural engineer on the project was Mr Andro (Andrew) Cutuk. The Loukis brothers and Mr Cutuk but not Mr Foong are witnesses for the prosecution.
At a pre-trial directions hearing two weeks ago, on 9 February 2015, Mr Gertos and Geitonia gave notice that they intended to rely on a defence of necessity based on the state of disrepair of the façade, and pressed for the prosecutor to call Mr Foong as a witness so that they could cross-examine him. The prosecutor indicated that he did not intend to call Mr Foong given the nature of words attributed to him in evidence from others and his role and that he could add nothing to the evidence of Mr Loukis and Mr Cutuk. Today the prosecutor adds as the main reason that he has judged Mr Foong to be an unreliable witness.
After 9 February the prosecutor served additional evidence mainly addressing the defence of necessity and gave disclosure of further relevant documents in the prosecutor's possession; and filed Further Supplementary Notices under s 247E of the Criminal Procedure Act 1986 that identify such evidence and documents.
When the proceedings were called on for hearing this morning, Mr Gertos and Geitonia each sought and obtained leave to file in Court an identical notice of motion which (as amended) prays for orders vacating the trial dates, alternatively that the Court call Mr Foong and a Mr Vince Nesci to give evidence and that evidence served by the prosecutor after 9 February 2015 not be admitted, and further that the prosecutor disclose certain documents. I proceeded to hear the motions instanter. The substantive motions (as amended) are in the following terms:
1. That the hearing of the prosecution of Bill Gertos and Geitonia Pty Ltd set to commence on 23 February 2015 be vacated and that the matter be adjourned to a date to be fixed by this honourable Court.
2. In the alternative to order 1 above, that this honourable Court order Foong Takounlao and Vince Nesci to give evidence in these proceedings.
3. In the alternative to order 1 above, that all evidence served by the Prosecutor after 9 February 2015 not be admitted into evidence.
4. That the Prosecutor provide full disclosure of all documents, notes, records, correspondence and memorandums relating to immunisation from prosecution granted to John and Sozo Loukis by the Prosecutor including but not limited to disclosure of any person who made such a decision and the authority of that person to make such decision.
5. That the Prosecutor discover all documents relating to the decision taken by the Prosecutor to issue a notice of intention to cross examine the prosecution witness Andrew Cutuk pursuant s 38 of the Evidence Act.
A supporting affidavit of the defendants' solicitor, Mr James Jordan, expresses grave concerns as to prejudice to the defendants in relation to being able to properly defend the proceedings arising from the matters addressed in the motions.
As prayer 1 is predicated upon the Court taking an adverse view against the prosecutor of the matters raised in prayers 2 to 5, I will first consider prayers 2 to 5.
[3]
PRAYER 2: COURT ORDER THAT FOONG AND NESCI GIVE EVIDENCE
Prayer 2 is for an order that the Court order Foong Takounlao and Vince Nesci to give evidence in these proceedings. Mr Jordan's affidavit asserts that each is "obviously a material witness", that there are many references to them in the prosecution's case material, and that both were intimately involved in events relating to the demolition of the southern façade. The prosecutor does not propose to call either. As noted earlier, Mr Foong represented the defendant GRC, the builder and project manager. Mr Vince Nesci was GRC's site manager.
The duty of a prosecutor in relation to the calling of witnesses and the absence of power in a court to direct the prosecutor to call a witness were addressed in Whitehorn v The Queen [1983] HCA 42, (1983) 152 CLR 657 by Deane and Dawson JJ who held, as stated in the headnote:
(I) The prosecution should call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, those witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged notwithstanding that they may 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. If the number of witnesses available for the proof of a matter is such that in the circumstances it would be unnecessary to call them all, a selection may be made.
(2) In a criminal trial the judge has no power to direct the prosecution to call a particular witness.
See also R v Lipton [2011] NSWCCA 247, (2011) 82 NSWLR 123 at [75]
The principles were expanded and enumerated in the unanimous decision of the High Court in The Queen v Apostilides (1984) 154 CLR 563 at 575 (and repeated in the headnote):
1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
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.
See also the consideration of these principles in R v Kneebone [1999] NSWCCA 279 at [49]-[53] and [101]-[102] and Australian Securities and Investment Commission v Hellicar [2012] HCA 17, (2012) 286 ALR 501.
As permitted by principle 2, I questioned the prosecutor in order to determine the reasons which led him to decline to call Mr Foong and Mr Nesci, but I am not called upon to adjudicate the sufficiency of those reasons. 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. As for Mr Nesci, the prosecutor's reasons for not calling him were these. The defendants' concern about the prosecutor not calling Mr Nesci was not communicated to the prosecutor until the affidavit of Mr Jordan was served today. The prosecutor says that until then, the prosecution did not know the surname of the "Vince" who is referred to in the prosecution evidence, that his involvement comprised giving directions to the demolisher as to how to do its job and was dramatically less than others, that the prosecutor has not seen any writing emanating from him, and that there is nothing to indicate that he was involved in the decision-making process or could add anything to the existing evidence.
It is clear from principle 3 in Apostilides that the Court cannot direct the prosecutor to call Mr Toong or Mr Nesci. The defendants' motions originally sought such a direction but, in light of that principle, were amended. The defendants submit that the circumstances concerning Mr Foong and Mr Nesci constitute "exceptional circumstances" such that under principle 5 the Court should call them. I am unable to accept that the circumstances are "most exceptional" such that I should call either of them.
Accordingly, I decline to make the order sought in prayer 2.
[4]
PRAYER 3: PROSECUTOR'S EVIDENCE AFTER 9 FEBRUARY NOT TO BE ADMITTED
Prayer 3 is for an order that all evidence served by the prosecutor after 9 February 2015 not be admitted into evidence. That was the date of the pre-trial directions hearing referred to earlier. This evidence mainly concerns the defence of necessity that the defendants identified for the first time on that occasion.
The prosecution evidence served after 9 February is listed in annexure A to the affidavit of Mr Jordan, in items 11, 12 (part), 13 (part) and 16.
Item 11 comprises the prosecutor's Further Supplementary Notice under s 247E served on 10 February 2014 with ASIC documents concerning Mr Bill Gertos. It is said by the prosecutor, without dispute, that they contain details of a summary in an affidavit of a Mr Betts served by the prosecutor at the beginning of the proceedings. I cannot see any prejudice to the defendants such that I should accede to the motion to exclude that evidence.
Item 12 insofar as it relates to evidence that the prosecutor proposes to adduce, is a small part of the total documents described in Item 12, which otherwise concerns disclosure of documents. Such evidence consists of nine emails received by the prosecution witness Mr Cutuk, six from the defendant Mr Bill Gertos and three from a Ms Jana Kegler who it is said worked for Mr Gertos. These emails were earlier overlooked by the prosecutor and were identified after 9 February as a result of a request by the defendants' solicitors to produce documents of that character. Given their provenance, I cannot see any prejudice to the defendants, and none has been identified, in permitting the prosecutor to rely upon these emails.
Item 13 is the prosecutor's Further Supplementary Notice under s 247E of the Criminal Procedure Act served on 12 February 2015 covering the following:
1. Hoarding approval documents. This is said by the prosecutor to be responsive to the defence of necessity flagged on 9 February 2015, to which I will return.
2. An emergency order regarding structural stability. It is only intended to tender some photographs relating to this item, the balance being only by way of disclosure. I can see no objection to the prosecutor putting the photographs into evidence.
3. Emails from Bill Gertos and Geitonia. These are the emails with which I have previously dealt under Item 12.
4. ASIC documents. These are the documents with which I have previously dealt under Item 11.
5. New statements of the brothers Sozo Loukis and John Loukis. These are one page affidavits (copies of which appear at pages 32 and 33 of Mr Jordan's affidavit). The prosecutor says they are put forward to supplement written evidence of those prosecution witnesses in order to combat the defence of necessity flagged by the defendants at the pre-trail hearing on 9 February 2015, to which I will return.
6. Further emails received by Andrew Cutuk. These are emails in Item 12 with which I have previously dealt.
Item 16 is the final expert report of a structural engineer, Mr Bruce Delprado, served on 16 February 2015 on the defendants (a copy is attached to Mr Jordan's affidavit at pages 40 and following). A draft was served on 13 February 2015. His evidence is mainly directed to the defence of necessity. He says that there was no imminent danger to the public and, even if there was, there were options other than immediate demolition. He also explains and comments on plans for the hoarding erected to secure the safety of the public on the footpath.
I return to the prosecutor's evidence relating to the defence of necessity served since 9 February 2015 when the defendants first flagged it.
The defence of necessity was addressed in Mattar v R [2012] NSWCCA 98 at [7]:
The common law defence or excuse of necessity operates in circumstances that bear upon an accused person in such a way as to induce him or her to offend in order to avoid even more dire consequences. The accused bears the evidentiary onus of raising the evidentiary basis of the defence but the Crown bears the legal onus of negativing the defence to the criminal standard: Taiapa v R [2009] HCA 53; (2009) 240 CLR 95. The three elements of the defence are:
1. that the criminal act was done in order to avoid the infliction of irreparable evil on the accused, or others that he or she was bound to protect;
2. that the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril; and
3. that the acts performed to avoid that peril were not disproportionate to the peril to be avoided: R v Loughnan [1981] VR 443 at [448]; R v Rogers (1996) 86 A Crim R 542.
The prosecutor submits that the defence of necessity was not reasonably foreseeable before the defendants gave notice of it at the pre-trial directions hearing on 9 February and therefore the prosecutor was entitled to subsequently adduce evidence relating to that defence: The Queen v Chin (1985) 157 CLR 671. In that case Dawson J, with whom Mason J agreed, said at 684-685:
The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula.
See also State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 at 490; and Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 at [112]-[113].
Chin was a case which addressed the more extreme situation at trial where a prosecutor seeks to call evidence in reply after the close of the defence case. It was in that context that it was held that the prosecutor is entitled to do so if the evidence relates to a situation that was not reasonably foreseeable. Whether the rule is as rigorous before the trial even commences, as in this case, may be open to question.
The defendants submit that the defence of necessity was reasonably foreseeable. They refer to the affidavit evidence of prosecution witnesses Mr Betts filed in October 2013 at p 635, Mr Vogt of March 2013 at [4] and [6] and Mr Cutuk of 21 October 2013 at p 32; and to a site instruction from Mr Cutuk of 25 October 2011 directing that the external walls be demolished immediately, which is among documents marked MFI-1 produced by the defendants today comprising Mr Cutuk's site diary and some loose documents. The prosecutor submits that this evidence does not come anywhere near satisfying the necessary elements of the defence of necessity specified in Mattar, and additionally points out that the defendant only recently provided the prosecutor with a copy of the site instruction. The prosecutor says he is not in a position to characterise this document or the diary as reliable evidence. I am inclined to think that the defence of necessity was not reasonably foreseeable prior to 9 February.
In any case, I consider that the statutory case management scheme applicable to prosecutions in this Court since 2012 under Division 2A of the Criminal Procedure Act 1986 gives the Court a discretion to grant leave to rely on such evidence, which, if necessary, I would grant: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 (Biscoe J). The specific discretionary consideration that has been identified is prejudice to the defendants arising from the lateness of service of expert evidence addressing the necessity defence. As proposed by the prosecutor, this potential prejudice should be avoided by relegating the evidence of the prosecutor's expert to the end of the prosecutor's case, by which time the defendants should have had a reasonable opportunity to obtain and consider their own expert advice, if they wish to do so, before cross-examining. Given that the prosecution was able to obtain and serve a draft of expert evidence within a few days after the pre-trial directions hearing on 9 February, it is likely the defendants will be able to do likewise or obtain expert advice comfortably within this timeframe. The defendants also submit that the lateness of service of such evidence is in a general way prejudicial to the defendants in making forensic decisions, and that this distinguishes this case from a similar case arising at an earlier stage of proceedings under the statutory case management procedures. I cannot see any prejudice sufficient to make the order sought in prayer 3 given the regime proposed above.
Accordingly, I decline to make the order sought in prayer 3.
[5]
PRAYER 4: DISCLOSURE OF DOCUMENTS RE IMMUNISATION OF LOUKIS FROM PROSECUTION
Prayer 4 is for disclosure of documents related to the immunisation from prosecution of the brothers John Loukis and Sozo Loukis. The prosecutor has produced letters of comfort, as they have been called, addressed to them. The prosecutor wishes to check to ensure that there are no other documents answering the description in prayer 4. I am prepared to proceed upon the basis that if there are any such other documents, they will be produced by the prosecutor voluntarily tomorrow, and that no order as proposed in prayer 4 is required at this stage.
[6]
PRAYER 5: DISCOVERY OF DOCUMENTS RE PROSECUTOR'S INTENTION TO CROSS-EXAMINE CUTUK
Prayer 5 requires the prosecutor to discover all documents relating to the decision taken by the prosecutor to issue a notice of intention to cross-examine the prosecution witness Andrew Cutuk pursuant to s 38 of the Evidence Act. The prosecutor says that there are no such documents. Given that response, I do not propose at this stage to make any order in terms of prayer 5.
[7]
PRAYER 1: VACATING THE HEARING
It follows from the rulings that I have made in relation to prayers 2 and 5 that I do not see any basis for vacating the hearing dates as sought in prayer 1.
[8]
order
Accordingly, the notices of motion filed by the defendants Bill Gertos and Geitonia Pty Ltd on 23 February 2015 are dismissed.
[9]
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: 06 March 2015