Anile v The Queen
[2018] VSCA 235
•17 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0218
| JOHN ANILE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 and 21 August 2018 |
| DATE OF ORDERS | 21 August 2018 |
| DATE OF REASONS | 17 September 2018 |
| MEDIUM NEUTRAL CITATION | [2018] VSCA 235 |
| JUDGMENT APPEALED FROM | DPP v Anile (Unreported, County Court of Victoria, Judge Coish, 16 June 2017 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Appellant convicted of money laundering and obtaining financial advantage by deception — Prosecution failure to disclose relevant material which was potentially exculpatory or capable of having assisted defence case — Improper cross-examination by prosecutor — Incompetence of defence counsel in manner trial conducted— Judge’s charge — Inappropriate unreliable witness warning — Aggregate of errors giving rise to miscarriage of justice — Appeal allowed — New trial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr S Gillespie-Jones with Ms E McKinnon | Ressan Lawyers |
| For the Respondent | Ms D Piekusis with Ms J Croxford | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
WEINBERG JA:
Introduction
It has been said that the central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law.[1] Another way of putting this is that an accused person has the right not to be tried unfairly. In the present case, far too many things went wrong in the appellant’s trial for this Court to conclude that his trial was not unacceptably unfair. In our view, an aggregate of defects — including the objectively unfair tactics of the prosecutor, the incompetence of defence counsel in the manner in which he conducted the trial, the judge’s failure to rein-in improper cross-examination, and the significant misdirection of the jury in a particular respect — combined to effect a substantial miscarriage of justice. Quite separately, the conviction on charge 2, for obtaining financial advantage by deception, was unsupported by the evidence in light of the way in which that charge was particularised and framed. The appellant’s convictions for money laundering and obtaining financial advantage by deception cannot be permitted to stand.
[1]See Jago v District Court of NSW (1989) 168 CLR 23, 56–7 (Deane J) (‘Jago’). It has also been observed that a criminal defendant ‘is entitled to a fair trial but not a perfect one’: US v Lutwak, 344 US 604, 619 (1953). See also Jago, 49 (Brennan J); Dietrich v The Queen (1992) 177 CLR 292, 362 (Gaudron J); R v Dupas (No 3) (2009) 28 VR 380, 422 [158] (fn 93) (Ashley JA), 430–31 [188] (Weinberg JA); Romolo v The Queen [2016] NSWCCA 240 [28] (Button J); Packard (a Pseudonym) v The Queen [2018] VSCA 45 [112]–[114] (Priest JA).
As a result, at the conclusion of the hearing of the appellant’s application for leave to appeal against conviction in this Court, we made orders granting leave to appeal, allowed the appeal, set aside the convictions, and ordered a new trial. We indicated that we would later give reasons for making those orders. These are the reasons.
Overview
Throughout May and June 2017, the appellant stood trial in the County Court on one charge of money laundering[2] (charge 1) and one charge of obtaining financial advantage by deception[3] (charge 2).
[2]Crimes (Confiscation of Profits) Act 1986 s 41Q. The maximum penalty for that offence is 10 years’ imprisonment.
[3]Crimes Act 1958 s 82(1). The maximum penalty for that offence is 10 years’ imprisonment.
On 16 June 2017, the jury convicted the appellant of both charges. On 30 June 2017, he was sentenced to a term of five years’ imprisonment, with a non-parole period of three years.[4]
[4]The judge imposed a sentence of five years’ imprisonment on charge 1, and six months’ imprisonment on charge 2, the sentence on charge 2 being wholly concurrent with that imposed on charge 1.
In essence, the prosecution case was that the appellant — then a practising solicitor based in Williamstown — purchased land on Kororoit Creek Road, Williamstown for the purpose of developing it. He purchased it from brothers Michael and Loukis Georgiou, the Contract of Sale being dated 9 August 1994. It was alleged that the purchase was used to ‘launder’ the sum of $400,000 in cash given to the appellant by Pasquale (‘Percy’) Lanciana, and that, through a failure to declare the cash component of the purchase, the appellant avoided paying stamp duty totalling $14,888. At that time, the appellant and Lanciana were good friends though, as will be seen, they later fell out.
It should be noted that originally, the prosecution case against the appellant was framed on the basis that the $400,000 in cash that was paid for the land at Kororoit Creek Road was part of the proceeds of a 1994 robbery of an Armaguard vehicle in Richmond to which Lanciana had been party. However, by the time the case came on for trial, the prosecution had amended the charge so that it alleged that the $400,000 cash was the proceeds of crime, without specifying any link to that particular robbery.
There was no dispute at trial that the appellant negotiated the purchase of the land from the Georgiou brothers, or that the stated purchase price in the Contract of Sale was $555,000. The prosecution alleged, however, that the actual purchase price was $955,000, and that the sum of $400,000 obtained from Lanciana was paid to the Georgious in cash by the appellant in several instalments.
The defence case was that Lanciana had given the appellant $200,000, obtained from legitimate sources, that sum being paid to the Georgious, in cash, as a fee for services. There was only one cash payment and it was of $200,000, not $400,000. Special Condition 10 of the Contract of Sale provided for the subdivision of the subject land to take place prior to settlement, a fee of $60 per square metre being payable for the privilege of subdivision.[5] The area of the land prior to subdivision multiplied by $60 equalled the contract price of $555,000 plus $200,000, which the appellant paid to the vendors on 9 August 1994 when the contract of sale was entered into. Thus, so the defence contended, the $200,000 was both justified and disclosed by Special Condition 10. Moreover, expert evidence led by the defence was that the $200,000 in excess of the contract price, if paid for the provision of additional services, was not dutiable.
[5]The Contract of Sale recorded the purchaser to be, ‘JOHN ANILE and/or Nominee’. On 4 October 1994, Anile Residential Pty Ltd was incorporated. The appellant was a Director and 50 per cent shareholder of that company. The nomination clause was exercised in favour of the company which subsequently, after subdivision, sold the various properties to a number of individual purchasers.
Grounds of Appeal
Ultimately, the appellant relied on eight grounds of appeal as follows:[6]
[6]Ground 3 was abandoned, and ground 1 was amended during the hearing as indicated. Leave was granted to the appellant’s counsel in the course of the hearing to add grounds 8 and 9.
1A.A miscarriage of justice occurred by the prosecution failing to disclose:
(a)the recorded covert conversations of Lanciana stating that the applicant did not know from whence the money said to be laundered came;
(ba) documents evidencing that the purchasers of the subdivided lots were in possession prior to 9 August 1995; and
(c) statutory declarations, both draft and executed, for the sale of the subdivided lots sworn by Michael Georgiou swearing that the head contract for the sale of each lot was signed on 9 August 1994 with a purchase price of $555,000, the property was subdivided and the price in the attached schedule was adequate for the property transferred.
The above documentation being fresh evidence or new evidence.
2. A miscarriage of justice occurred in cross-examination by the prosecutor asking questions without sufficient basis for doing so:
(a) of Lanciana:
(i)shooting his wife;
(ii)killing a debtor; and
(iii)committing an armed robbery.
(b) of Adele Anile as to whether her husband was having a sexual relationship with his friend Jinny Sharp; and
(c) of the applicant forging a receipt.
3. A miscarriage of justice occurred by the admission of credit evidence in the cross-examination of the applicant and Lanciana.4. A miscarriage of justice occurred in cross-examination of the applicant by the prosecutor in:
(a) misleading the witness and the court;
(b) asking offensive questions;
(c)making ‘editorial comments;’
(d)cutting off answers before they were completed;
(e)framing questions resting on controversial assumptions; and
(f)asking argumentative questions.
5.The conviction on charge 2 was unreasonable.
6.The learned trial judge erred in his directions on charge 2:
(a)directing the jury that the applicant must have obtained the financial advantage for himself when it was undisputed that a corporation had the liability to pay stamp duty; and
(b)directing that notwithstanding that the corporation obtained the benefit of the reduced stamp duty, failed to direct that it must be proved that the applicant obtained the financial advantage from the corporation.
7.A miscarriage of justice occurred as a result of an accumulation of errors.
8. A substantial miscarriage of justice occurred by the learned trial judge giving an unreliable witness warning for the witness Lanciana when there were good reasons for not doing so:
(a)the direction had the effect of undermining the defence case by discrediting the only witness who could be called to give evidence as to the source of the funds;
(b)there was a danger that the direction could be applied adversely to the applicant as the direction assumes that the applicant is criminally concerned;
(c)there was a danger that the presumption of innocence could be undermined; and
(d)there was a danger that the direction would endorse the prosecution case.
9. A substantial miscarriage of justice occurred as the result of the incompetent manner in which counsel conducted the trial.
We have determined that a number of the errors or defects embodied in the grounds of appeal lead inexorably to the conclusion that the appellant’s trial miscarried.
So that the issues in the trial and on the appeal might be understood, however, it is necessary at the outset to say a little more about the evidence led below.
Evidence in the prosecution case
Evidence concerning the negotiations for purchase of the land in Kororoit Creek Road, and the payment of $400,000 in cash, was given as part of the prosecution case by Michael and Loukis Georgiou.
Michael Georgiou
Michael Georgiou, who was the recipient of a certificate under s 128 of the Evidence Act 2008 protecting him against self-incrimination, gave evidence that in the early 1990s, he and his brother Loukis were joint directors and shareholders of Larnaca Holdings Pty Ltd (‘Larnaca’). That company was principally involved in property development. Larnaca had purchased the land at Kororoit Creek Road. He said that he could ‘not really’ remember when it was bought or how much it had cost, although he recollected that it was $700,000 or $750,000.
The property was held for ‘three or four years — two or three years’ before it was sold. The witness said that they were approached by an agent who told them that ‘he had somebody interested in buying the property’. They then met the appellant, who was a solicitor in Williamstown. Michael Georgiou thought that ‘the price on the contract was $555,000’, consisting of a $5000 deposit and a balance of $550,000. He said that ‘there was a big cash consideration’. When he made his statement to police, he believed it to have been $250,000, but later ‘worked out’ that ‘it would’ve been more like $400,000’. The ‘final sale price’ of the Kororoit Creek Road property ’would’ve been $955,000’. Mr Georgiou then identified a Contract of Sale for the land, dated 9 August 1994, signed by his brother on behalf of Larnaca.
At that first meeting at Loukis Georgiou’s home, a man had turned up with a briefcase containing $50,000 in cash. Michael Georgiou later identified Lanciana’s photograph from a police photoboard as the man with the briefcase. That $50,000 was the first payment ‘in reduction of the purchase price’. The way that they ‘structured’ the contract was that it was a blank contract prepared by the solicitors, with ‘the actual purchase price’ included, and then ‘each time cash was received the purchase price was altered’ and ‘reduced according to the amount that was received’ until it ‘got down to $555,000’. Michael Georgiou said that the ‘original contract which kept being amended’ was retained by the brothers, with the appellant also retaining one copy for himself.
Loukis Georgiou
Loukis Georgiou also gave evidence with the protection of a s 128 certificate. He thought that he and his brother originally paid ‘under’ $200,000 for the Kororoit Creek Road property, but acknowledged that he was not sure of that figure. In 1994 they had sold the property to the appellant. Negotiations took place at an estate agent’s office in Northcote, and the negotiated price was ‘about nine or 950, a million or something like that’. The prosecutor showed the witness the Contract of Sale indicating a purchase price of $555,000, but Loukis Georgiou said that the actual price was around the $900,000 mark. He said there was an additional contract which contained the actual purchase price. There was a cash component which was ‘something like’ the difference between $555,000 and $900,000. When cash payments were made, they would alter that contract’s purchase price downward. There ‘were three or four [payments] altogether’. He had received some of the cash payments, including on an occasion at the appellant’s home when he collected what ‘might’ve been $100,000 something’.
In cross-examination, Loukis Georgiou identified his signature on a receipt dated 9 August 1994, which was in the following terms: ‘9/8/94. Received from John Anile re 1–3 Walter Street, Williamstown, $200,000 [signature] Loukas [sic.] Georgiou’.
Witness U[7]
[7]Witness U’s identity was the subject of a suppression order at the trial.
Witness U met the appellant through Lanciana in the early 1990s. After many years, and at the request of Victoria Police, he arranged to meet the appellant at a café. Between January and October 2013, he regularly conversed with the appellant whilst wearing a covert recording device that the police had provided. The prosecution relied heavily on the recorded conversations between the two men to show that the appellant had, as alleged, paid the Georgious $400,000 in cash in 1994, knowing that it had been obtained by Lanciana through criminal activity.
Witness U gave evidence that he became involved in the Kororoit Creek Road development with Lanciana in early 1997. He believed that the appellant’s involvement in the development had come to an end at about that time, an event in which he had no involvement. He took over the appellant’s half share in the development, and by May 1997 he and Lanciana each had a 50 per cent share. The development consisted of 31 land subdivisions with various single and double-storey townhouses being built. Witness U said that his relationship with Lanciana had started well, but turned sour in mid to late 2002. From early 2003 until the end of 2011, he and Lanciana were constantly involved in civil litigation.
Witness U said that in late 2012, he was contacted by Victoria Police in relation to certain unspecified property developments and business dealings. Primarily because of his previous history with Lanciana, he agreed to assist the police in the investigation that they were conducting.
All of the meetings he had with the appellant were at the instigation of Victoria Police. He would never go to a meeting without wearing a recording device. Recordings of conversations between Witness U and the appellant during 2013, including on 30 January, 7 February, 7, 9 and 25 March, 1 May, 14 June, 12 July, 1 and 26 August, and 3 October, were played to the jury. Witness U commented upon certain aspects of those recordings. It is not practical, having regard to their length, to set out the conversations in detail.
One excerpt will, however, suffice to provide some of the flavour of much of what the recorded conversations contain. On 30 January 2013, the appellant told Witness U:
We paid $955,000 for the block. When we bought the block we did a deal with some – two really nice Cypriot guys who owned the block [in] Doncaster. Anyway, negotiated a deal, 955,000 for the whole lot. … We had a contract for 555,000 … and 400,000 cash. … Which came from Percy. … 400 cash, right? Let me put it this way, they did something that gave them a lot of cash, you can join the dots if you want … Well, you join the dots, I’m not gunna say … but you join the dots.
Other evidence in the prosecution case included that of a stamp duty assessor from the State revenue Office, Barry Emsley. He gave evidence from which the prosecution invited the jury to infer that the stamp duty avoided through not declaring the $400,000 cash component of the purchase price had been $14,888.
Evidence in the defence case
The appellant
The appellant had practised as a solicitor for 35 years, and considered himself to be an expert in property matters. He estimated that, prior to 1994, he had developed half a dozen properties, ‘maybe a few more’. With respect to the purchase of the Kororoit Creek Road property, the appellant said ‘this transaction [is] very different to any one of us buying or selling a home … because it’s a land developer [scil, development?] contract’ and ‘it’s a far more complex contract as far as that's concerned’.
The appellant said that Lanciana had been ‘a very close friend’ in 1994. Prior to the actual purchase of the property, Lanciana had contacted him and told him that he had heard that the property had been rezoned from industrial to residential. The appellant did some research and was satisfied that, despite the land having previously been a rubbish tip, it could be built on. He wanted to develop it, and he invited Lanciana ‘to become part of the project … because he found it, and he said he had $200,000 to contribute to it’.
The appellant said that he had arranged, through an estate agent, for a meeting with the vendors of the property. He attended a meeting with the Georgious — whom he had not previously known — at an estate agent’s office in Sydney Road, Coburg. Before he went to the meeting and negotiated with the Georgious, he obtained a land tax certificate, which he regarded as a good indicator of the value of the property. The land tax valuation was $594,000.
The appellant managed to negotiate a contract price around that figure. He then negotiated ‘an extra amount’ of $200,000 payable to the vendors for ‘other matters’. This ‘extra money’ was to enable him to take possession of the property immediately, rather than at settlement, so as to subdivide it. The appellant said,
… you’ve actually got to put into a vacant land, vacant block, you’ve got to put the roads in, you’ve got to put the power, the gas, the water, the electricity. You’ve actually got to physically put the infrastructure in. So I’m saying to a vendor can I pay you so much and I’ll pay you this extra amount but you need to let me go in and deal with your property.
When the appellant asked Lanciana where he got the cash from, he was told that part of it had come from the sale of rare comic books and the rest from ‘anyone who had a heartbeat’, signifying that the money had been borrowed from various other individuals.
The appellant gave evidence that he had drafted Special Condition 10 of the Contract of Sale. It provided for an amount of $60 per square metre payable for ‘additional services’. That ‘extra amount of money is not … part of the purchase price’, it is for ‘additional services which is not part of the purchase price’. The $200,000 was for these ‘additional services’. It had therefore not attracted stamp duty, since it was ‘not dutiable unless it’s part of the purchase price’. He said that ‘an amount of money for additional services is never dutiable’.
Having obtained a copy of the Contract of Sale — including Special Condition 10 — the appellant went to Loukis Georgiou’s home to sign it. The appellant said that it was ‘nonsense’ to suggest that Lanciana had attended the meeting. Before the meeting, however, Lanciana had given him a bag with the cash in it. It was then that he asked Lanciana where the money had come from and was told by him that it had come from the sale of some valuable comics, and loans from various individuals. At that time, Lanciana was his friend, so he had no reason to doubt that what he was told was true. At Loukis Georgiou’s house, the contracts were signed and a receipt for the $200,000 cash was prepared. All of the handwriting on the receipt, the appellant said, was his, except for Loukis Georgiou’s signature.
The appellant’s evidence was that the receipt for $200,000 was later provided to his accountant, John Papazisis. The cash, which had been paid to the Georgious, was treated as a company expense, and was declared for taxation purposes. It was treated in the accounts as a contribution by Lanciana to the company, because it was Lanciana’s money.
After development of the land was underway, Lanciana went to prison for his involvement in a substantial cannabis growing enterprise. During that time, difficulties arose between him and the appellant. Lanciana wrongly accused the appellant of stealing money and materials from the Kororoit Creek Project, and harassed and threatened him from gaol. As a result, the appellant quit the project on 9 April 1997, at which point Witness U took over the appellant’s interest.
The appellant said that he was angry about the way in which he had been forced out of the development. It was a multi-million dollar project which he had anticipated would set him and his family up for life. He had devoted two years to the project at the expense of his solicitor’s practice. His attitude towards Witness U was that he was a ‘vulture’ who had ‘swooped in to take over the project’. The appellant said, ‘he stole my project’. He was angry ‘in equal parts’ with Lanciana and Witness U.
When Witness U came to the appellant’s café on 30 January 2013, the appellant was curious as to why, after all this time, he wanted to talk to him. Witness U indicated that he wanted the appellant’s help. The appellant said that he was never going to help Witness U, but had played along with him so that he could ‘drop the hammer on him’, and thereby gain a measure of revenge.
Witness U kept coming back to the café to speak with him. According to the appellant, the ‘more he came back the more desperate [the appellant] thought he was and the more pleasure [he] got out of it’. Towards the end of the conversations, however, the appellant began to suspect that Witness U was going to the police and passing on to them the ‘nonsense’ that he had been feeding him. The appellant ‘tried to do a bit of back pedalling’, but realised it was ‘too late’. What he had said to Witness U was ‘crap’.
The appellant’s evidence was that the figure of $400,000 that he mentioned to Witness U was simply him ‘bullshitting’. There was no reason why he picked that particular figure, it could have been any amount. The real cash component had always been $200,000. To the appellant’s mind, there ‘was nothing illegal’ in the manner in which Lanciana had obtained that money. Even to this day, he still did not believe that the money had come from an illegal source.
After his arrest, the appellant begged police to obtain an expert opinion on stamp duty. He said that he told the police repeatedly that there had been no underpayment of stamp duty, and had explained to them how stamp duty law worked. The suggestion that he had hidden the $200,000 cash betrayed a misunderstanding of contract law. He had not defrauded the stamp duty office. In fact, he had done the opposite, having fully disclosed the payment of that sum. He said that stamp duty on a purchase was calculated by the vendor’s solicitor, having regard to the whole contract. The reason why the $200,000 in cash paid to the vendor had not been included for stamp duty purposes was because that sum was not dutiable.
In response to the allegation that he had laundered $400,000 for Lanciana, the appellant insisted that the amount had been $200,000 and he maintained that it had not been laundered. He said that the sum paid in cash had been fully documented. He had given the vendors $200,000 in cash, asked for a receipt, and obtained one. That payment had, implicitly at least, been declared in the contract.
In cross-examination, the appellant was asked about the receipt for $200,000 that he claimed had been signed by Loukis Georgiou at the time the cash was handed over. It will be recalled that Georgiou himself had acknowledged that the document bore his signature. Nonetheless, the cross-examination went as follows:
Q: And you whip out or you prepare a handwritten note on the night at the house?
A: Yes.
Q: How many deals have you done involving either $200,000 or $400,000 cash back in August of 1994?
A: None.
Q: And that’s all you got in terms of that exchange of the $200,000?
A: Yes. Well what else could I have?
Q: Someone else didn’t sign Loukis Georgiou's name on that document did they?
A: No, Loukis Georgiou signed it, the second brother that gave evidence.
Q: Are you sure about that?
A: Yes I was there. I wrote it, he signed it.
Also in cross-examination, the appellant was asked about Lanciana’s previous conviction on a drug matter, in respect of which the appellant had represented Lanciana. The appellant had described him as ‘simply a house sitter’ who had been taken advantage of by others. The prosecutor challenged the appellant regarding that evidence, noting that Lanciana had been described by the judge who sentenced him as ‘a willing and important participant in the team’ concerning the cultivation of cannabis.
However, the prosecutor went on to put to the appellant, specifically, that the cannabis crop had an estimated street value of $2.295 million. This led to an exchange between them whereby the prosecutor suggested that the appellant had misled the jury by suggesting that Lanciana had been involved in a much smaller criminal enterprise than was, in fact, the case.
During the course of this series of questions, the prosecutor had in his possession a copy of the judgment of the Court of Appeal, dated February 1996, concerning Lanciana’s appeal against his drug conviction.[8] The cross-examination of the appellant on this topic was extremely detailed, running over several pages of transcript. The prosecutor referred specifically to the findings of the Court of Appeal in that matter. In particular, he referred to an observation by the trial judge who had dealt with Lanciana, ‘when Mr Lanciana, your very close friend, your client was sentenced’. The reference to Mr Lanciana having been the appellant’s ‘very close friend’ was gratuitous. It seems to have been intended, by innuendo, to smear the appellant through his past association with Lanciana.
[8]R v Lanciana (1996) 84 A Crim R 268.
It was at this point that defence counsel finally, and for the first time, took objection to the prosecutor’s cross-examination of the appellant. The objection was put on the basis of lack of relevance. However, the trial judge overruled it. The prosecutor then confirmed with the appellant something that had already been openly announced in court, namely that Lanciana was to be called to give evidence for the defence.
David Ogilvie
David Ogilvie gave evidence as to the principles governing stamp duty, as applicable in 1994. His evidence was that stamp duty was not payable on additional services of the kind contemplated by Special Condition 10, such as for early access to the property so that subdivision could commence at once.
Adele Anile
Mrs Anile said that she and the appellant had been married for some 28 years. She gave evidence that on an unspecified occasion, police had attended at her home. She invited them in and they had had a discussion. They did not have a search warrant, but she had offered to show them around. When they approached the study, she told them to be careful as there were some kittens inside that were ill with ringworm. The police officers had a cursory look through some drawers and files, and had then moved on to the next room.
Subsequently on 17 March 2014, well after the appellant had first been arrested, police had attended her home with a search warrant. They had come at 6.00 am when both herself and the appellant had been asleep. They searched the house, arrested the appellant a second time, and took him to the police station.
Mrs Anile also gave evidence as to how she came across some documents which later became significant in the defence case. She described the layout of their home in Williamstown. The study was a room at the front of the house. Over the years, the room had barely been used, and had never been used as a study. It had become a ‘junk’ room.
About 11 years ago, she had begun doing animal rescue work. She had started using the study to house sick and injured wildlife. Apart from the animals that were kept there, the room contained books, a computer, piles of paperwork, a chair, two filing cabinets, a lamp and some magazines. It was very messy.
Six months before giving evidence in the trial, Mrs Anile and her husband had prepared their home for sale. Between January and April 2017, she had begun clearing out the study. She found old house plans, and her daughter’s old school reports in a folder. Intent on keeping the documents to show her husband, she put them to one side. She did not really look at them, save by way of a cursory glance. She did not add or remove any documents.
Later that night, when the appellant arrived home, she gave him the folder of documents. He had said to her, ‘it’s really good that you found this’. He told her that the documents related to the building plans for the Kororoit Creek Road project, and that he had not been able to locate them by his own searches.
Mrs Anile recalled that at about the time of that project, she had overheard her husband speaking with Percy Lanciana while he was visiting their house. They were sitting at the dining table and she was either in the kitchen, or seated on the couch. She recalled them having discussed Lanciana bringing money over for the Kororoit Creek transaction. Specifically, she recalled a sum of around $200,000 having been discussed.
The witness explained that things ‘went really downhill’ in relation to that project. By that stage, Lanciana was in prison. She was frightened because people were calling their house at all hours of the day and night.
Eventually, the appellant came home one night and told her that he was no longer involved in the Kororoit Creek Road project. She said that he was ‘really, really upset’. When she asked him why he had quit the project, he had said ‘I was made an offer that I couldn’t refuse’. When she asked what he meant, he had told her that he was referring to the movie, The Godfather, in that he had been made an offer that he ‘either accepted … or else’.
In cross-examination, Mrs Anile was shown a file. She said that she did not recognise the yellow folder, but that it had her hand writing on it. She confirmed that it was the file that she had found in the study of her home.
The front of the file said ‘Elizabeth Terrace’.[9] She knew by the time that she found the file that her husband had been charged in relation to dealings with that property. She maintained that she had not looked closely at the file because she thought it contained nothing more than building plans and receipts.
[9]Elizabeth Terrace was another name used to describe the Kororoit Creek Project.
Also in cross-examination, Mrs Anile was asked a series of questions about a lady by the name of Jeanette (‘Jinny’) Sharp. Those particular questions form the basis of ground 2(b) of this application. We shall return to them when we deal specifically with that ground.
Percy Lanciana
Percy Lanciana was the next witness to give evidence on behalf of the defence. Counsel for the appellant had requested that he be called by the prosecution, but that request had been denied.
Before summarising Lanciana’s evidence in-chief, it is necessary to set out a number of background matters that give context to the grounds of appeal. Lanciana had previously been called to give evidence on behalf of the defence in committal proceedings in February 2015. He had been cross-examined at some length on that occasion by counsel for the prosecution. In November 2016 after the appellant’s committal, but well before his trial, Lanciana was charged with having committed an armed robbery upon an Armaguard van in 1994, in Richmond. He had also been charged with money laundering, it being alleged that he had used the proceeds of that armed robbery in order to acquire his share of the Kororoit Creek Project. In other words, the cash paid over to the Georgiou brothers by the appellant was said, in the case against Lanciana, to have been part of the proceeds of that robbery.
The following background matters relate to the grounds concerning prosecutorial non-disclosure, improper cross-examination of defence witnesses, alleged incompetence of counsel, and errors said to have been made in the judge’s charge.
First, it will be recalled that the prosecution had amended the indictment against the appellant. It was no longer contended that the $400,000 cash, said to have been paid to the Georgious, could be linked to the Armaguard robbery. The case was opened to the jury on the basis that the cash was the proceeds of unspecified, but serious, criminal activity.
Secondly, as indicated, Lanciana had given evidence in favour of the appellant at the committal hearing in February 2015. He had not, by that stage, been charged with the 1994 robbery, or money laundering. He was not so charged until November 2016.
By the time of the appellant’s trial, Lanciana was relevantly ‘an associated accused’ within the meaning of that expression in the Evidence Act 2008. However, he was to be tried on the charge of money laundering separately from the appellant. Indeed, the charges against Lanciana were listed for a committal hearing in October 2017, several months after the appellant’s trial.
Thirdly, defence counsel had sought to persuade the prosecutor that it was the Crown’s duty to call Lanciana as a witness in the appellant’s trial. The prosecutor, having legitimately formed the view that Lanciana was an untruthful witness, declined to call him. That left the choice as to whether to call Lanciana as a defence witness with the appellant.
Fourthly, and not surprisingly, Lanciana strongly objected to giving evidence in the appellant’s trial. He indicated, through counsel, that if called he would claim the privilege against self-incrimination. Self-evidently, in the circumstances, there were reasonable grounds for that objection.
It was therefore necessary for the trial judge to determine whether, pursuant to s 128(4) of the Evidence Act 2008, Lanciana should be required, in the interests of justice, to give evidence. Of course, the quid pro quo of his being called as a witness was that he would be given a certificate which would prevent any answers that he might give from being used against him in subsequent proceedings.
Fifthly, the trial judge having heard argument on this issue, ruled that it was ‘in the interests of justice’ for Lanciana to be compelled to give evidence on behalf of the defence, should they want him called. His Honour described Lanciana’s evidence as ‘very important’, so far as the defence case was concerned, no doubt meaning potentially important if he were to be believed. Lanciana had by this stage provided the defence with a written statement dated 7 April 2015, in which he gave an account of events that was broadly similar to that of the appellant, and was to that extent potentially exculpatory.
Sixthly, the trial judge noted that the decision on the part of the defence to call Lanciana had apparently been made at a very late stage. It seems that the defence may have been vacillating as to whether to risk calling him, right up until the moment the defence announced its course to the jury.
Seventhly, in his ruling, the trial judge noted that the defence had, at one stage, foreshadowed the possibility of seeking to tender a transcript of Lanciana’s evidence given at committal rather than calling him as a witness in the trial. This was on the basis that, having regard to Lanciana’s position, now facing trial himself, he was relevantly ‘unavailable’ to give evidence for the defence in the appellant’s trial. As his Honour observed, that matter had not been determined. However, the prosecution had made it clear that it would oppose any such tender.
Eighthly, after Lanciana had been charged in November 2016, it emerged that there were in existence a significant number of transcripts of conversations between himself and a woman designated as Witness O. These conversations had been covertly recorded by that woman throughout much of 2016. This was all done at the behest of the police. The transcripts had been available to the prosecution in the appellant’s trial from shortly after November 2016. So too, had been a Summary of Evidence, which ran for some 56 pages and contained a summary of the transcripts.[10]
[10]It was expressly conceded before this Court by counsel for the respondent that this material had been available to the prosecution in the appellant’s trial for the best part of six months, from about November 2016. Neither the transcripts, nor the summary, were disclosed to the defence until well after the prosecution case had closed, as will be seen when we deal with the non-disclosure ground of appeal.
Ninthly, the first intimation that defence counsel was given that material of that kind existed was during the course of the appellant’s evidence. A copy of the 56 page Summary of Evidence was emailed to him by the solicitor for the prosecution at 5.26 pm on the night of 30 May 2017. Earlier that day, the prosecution case had closed, and an unsuccessful no case submission had been made. At that point, defence counsel had identified the witnesses who would be called on behalf of the appellant, including specifically Lanciana.
Regrettably, although defence counsel became aware of the email at approximately 10.56 pm that night, he did not read it. He merely forwarded it to his instructing solicitors, who did not read it either. In an affidavit filed in this Court, defence counsel indicated that he was focused on the defence case at the time, and was also concerned about the appellant’s health. The appellant had had a heart attack during the course of the trial several weeks earlier.
Tenthly, when the prosecutor first mentioned the Summary of Evidence in court, he informed the trial judge that it would be sufficient for his purposes if his Honour looked only at pages 54–56 of that document.[11] He intimated that there was nothing else of any particular relevance in the material.
[11]These were not the critical pages of the Summary of Evidence, so far as its potential exculpatory effects were concerned.
It was submitted before this Court that defence counsel may well have taken what the prosecutor had said as an indication that there was no need for him to read the entirety of the Summary of Evidence, still less to seek out the actual transcripts of the discussions between Lanciana and Witness O on which the summary was based.
It follows from the fact that defence counsel did not, at any stage, read the Summary of Evidence that he did not seek to make use of those parts of it that might have been of some assistance to the defence. For example, Lanciana was never asked in-chief about his having repeatedly told Witness O (at a time when he could not have been aware that he was being secretly recorded), that the appellant had been unaware of the source of the cash provided to him in 1994. Nor did the defence become aware, from the Summary of Evidence, of the other documents to which reference is made in ground 1A(ba) and (c).
Turning then to Lanciana’s evidence in-chief, he made it clear that had become good friends with the appellant in the early 1990s. He said that in 1994 he became interested in purchasing the Kororoit Creek Road property, having become aware that the land was to be rezoned to residential (previously it had been industrial or commercial). He asked the appellant to look into the property and get back to him about it. The appellant had carried out some preliminary investigation and had then made contact with the owners. According to Lanciana, he did not at any stage actually meet the owners.
Lanciana’s evidence was that the appellant had told him that the vendors wanted Lanciana’s contribution, which was to be $200,000,in cash. Lanciana was concerned about what paying that amount in cash would mean for him. However, he told the appellant that he would make the payment in that form, so long as he would be provided with a receipt from the vendors for the $200,000 cash.
Lanciana said that the $200,000 that he contributed to the purchase came from several sources, all of them lawful. He claimed that Witness U had given him $30,000 cash. His brother-in-law had given him just under $100,000, and another individual, whom he named, had also provided him with some cash. He said that he had an interest in rare comic books at the time, some of which were ‘quite valuable’.
Lanciana’s evidence was that he had been open and truthful with the appellant regarding the source of the cash. He said that the appellant would have had no reason at that time to doubt him. He gave the cash to the appellant on the day that the appellant went to Loukis Georgiou’s premises and signed the contract, which would have been 9 August 1994. The money was in some sort of bag which he took to the appellant’s office earlier that day. He said that he did not accompany the appellant when he went to sign the contract.
Lanciana acknowledged, in evidence in-chief, that he had been convicted in 1995 of trafficking in cannabis and theft. He further acknowledged that the appellant had acted as his solicitor in relation to those matters. His recollection was that he had been arrested in either 1992 or 1993, and that the appellant had become aware of the drug matters shortly after his arrest. Hence, the appellant knew about the charges Lanciana was facing when the idea of purchasing the property first arose.
It was Lanciana’s evidence that he and the appellant had a falling out in 1996. The appellant had visited him in prison for the purpose of discussing issues in relation to the Kororoit Creek Road development. Lanciana had been getting reports from plumbers working on the site that things were not going well there, and he was concerned. He asked the appellant to withdraw from the project, and their partnership was terminated during that visit. Ultimately, Lanciana received the appellant’s interest in Anile Residential Pty Ltd. Witness U had no entitlement to any interest in the venture, but he had somehow become involved, claiming a half share. According to Lanciana, this was just another example of Witness U’s many lies. To this point, Lanciana’s evidence might have been regarded, if he were to be believed, as being of some assistance to the defence.
Lanciana was cross-examined by the prosecutor. That cross-examination forms the basis of ground 2(a), aspects of ground 7, and also of ground 9 of this appeal. We will set out the key passages to which objection is now taken when we come to deal with those grounds of appeal. However, one thing can be said for certain. The decision to call Lanciana turned out to be a complete disaster so far as the defence was concerned.
Peter Russo
Peter Russo was an Australian lawyer called by the defence. He was not formally an accredited specialist in conveyancing, but had done a lot of work, including teaching, in that area. He had known the appellant since university, when they attended college together. He had also had professional dealings with him over the years.
Mr Russo was shown the contract of sale for the Kororoit Creek property. He agreed that the price shown was $555,000, including a deposit of $5000. He interpreted Special Condition 10 as providing for an additional payment in consideration of the property being subdivided. He summarised the effect of that condition as follows:
… it basically says that if the purchaser obtains a plan of subdivision…the vendor, agrees to give [the purchaser] at any time, following approval of that plan … it would enable him … upon paying the vendor an amount of $60 for a square metre … it will basically permit him to … subdivide or split up the land into separate Titles.
Mr Russo acknowledged that that arrangement was not explicitly conditioned upon the subdivision actually being approved. He later accepted that the ‘trigger’ for the operation of the condition was the approval of the Registrar of Land Titles to a plan of subdivision.
In terms of the $200,000 cash payment being reflected in Special Condition 10, Mr Russo said that the payment of that sum was tied to the opportunity to subdivide. It was the sum of the square metreage multiplied by $60. According to the contract, if the subdivision did not go ahead, the $200,000 would not change hands, although in this case it already had.
In terms of the effect of the condition upon the payment of stamp duty, the witness said that any sum advanced pursuant to that condition was for additional services over and above the sale price. According to the legislation in 1994, stamp duty was not payable on monies paid for such services.
The witness said that his view was supported by the opinion of the ‘State Revenue Office specialist’, meaning Mr Ogilvie. He said that ‘the law of stamp duty changed more often than you change your socks’. He said that the State Revenue Office would have noted Special Condition 10, understood its meaning, and dealt with it accordingly.
Under cross-examination, the witness agreed that the square metreage (12,140 m²) multiplied by $60 was approximately $728,000. He agreed that he could not get to a sum of precisely $200,000, on top of the contract price, in accordance with Special Condition 10.
The witness said that a month or so prior to the trial, he had met with the appellant and Mr Ogilvie. He said that they had discussed the transaction as a whole and particularly, the contract. The witness said that he had done so in order to ‘brush up’ on his knowledge and clarify certain matters, such as the amount of money that had been paid.
The witness also said that, prior to the trial, he had learned of a receipt for $200,000, dated 9 August 1994, which was the date the contract was signed. The prosecutor suggested to the witness that when the $200,000 cash was paid on that day, Special Condition 10 could not have already been triggered. The witness agreed.
Mr Russo said that although there was no explicit reference to additional services in Special Condition 10, that was clearly to be implied.
In re-examination, defence counsel asked the witness to add the cash payment ($200,000) and the contract price ($555,000). The total was $755,000. If that were divided by the square metreage (12,140 m²), the figure would be about $62, which was close to the $60 figure mentioned in the condition.
John Papazisis
John Papazisis, who had been the appellant’s accountant since 1994, including when the Kororoit Creek property was purchased, also gave evidence. Mr Papazisis said that he knew that Lanciana was a partner in the project. He recalled that the appellant and Lanciana had come to his office and advised him that they had purchased a property which they wished to develop. They told him that a component of the purchase price had been the sum of $200,000 in cash, for which they had a receipt. They proposed to set up a company to manage the project. They wanted the cash payment to be included in the accounts. The money was to be reported to the Australian Taxation Office as an expense.
Mr Papazisis said that, in 1994, the appellant had been a man of means. He had been a successful solicitor and property developer.
At a later stage, he remembered the appellant having come to his office looking dishevelled and distressed. The appellant told him that he had been forced to terminate his involvement in the project. He had made it clear that he hated Lanciana. He also told Mr Papazisis that Witness U had taken over his interest in the project against his will.
According to Mr Papazisis, the appellant obviously disliked Witness U. In his evidence, Mr Papazisis said that he was worried at the time about the appellant being under a lot of strain, and experiencing anxiety and depression. He testified as to the appellant’s good character.
Other character evidence in the defence case was given by a number of witnesses, including a then Queen’s Counsel. Their evidence spoke of the appellant’s general reputation for honesty.
Ground 1A — Prosecution failure to disclose
This ground can be broken up into three separate parts. Far and away the most important is the contention that the Crown failed in its duty by not making full and timely disclosure of the recorded covert conversations between Lanciana and Witness O, which it will be recalled had been in the possession of the prosecution since about November 2016.
There had been subpoenas issued on behalf of the defence in both February and April 2015 calling for the production of documents, including audio recordings of the very kind involved in the conversations between Lanciana and Witness O. However, as we have said, those conversations did not take place until 2016. They were not, therefore, directly caught by the subpoenas.
The other documents which form the basis of grounds 1A(ba) and 1A(c), and which it is now said ought to have been disclosed, are of less significance. They do include, however, the statutory declarations made by Michael Georgiou, which were embedded within the documents that the police had seized.
There were a vast number of documents in the possession of the police, more than 17,000 it would seem. We were also told that at various stages there were discussions between the defence and representatives of the Attorney-General as regards other documents that might be relevant to the defence over which public interest immunity would be claimed. At the time of these discussions, they would not have included the covert recordings of the conversation between Lanciana and Witness O since these had not yet taken place. Moreover, those conversations would have been the subject of a claim for public interest immunity throughout most of 2016 because they concerned an ongoing police investigation. Once Lanciana was charged, however, any claim of public interest immunity could no longer be maintained
We have already outlined how disclosure of the Summary of Evidence concerning Lanciana and Witness O ultimately took place. Defence counsel has sworn an affidavit in which he outlined the circumstances under which that summary was emailed to him on 30 May 2017.
On the late afternoon of 31 May 2017, the prosecutor applied to the judge, in the absence of the jury, for leave to cross-examine the appellant regarding the charges that had been laid against Lanciana. These charges, of course, included armed robbery and money laundering. In doing so, the prosecutor referred to those charges, but did not produce the actual charge sheets.
Those charge sheets were not made available until on or after 5 June 2017. It must be remembered that the prosecution had earlier sought and obtained leave to amend its opening to remove any reference to the Armaguard robbery as being the designated source of the cash used to purchase the Kororoit Creek property.
According to defence counsel, in his affidavit, the withdrawal of the allegation concerning that robbery as the source of the cash made it unlikely, in his mind, that the issue would arise in the cross-examination of Lanciana. It also made whatever might be contained in the Summary of Evidence, in the case against Lanciana, seem to him to be less relevant. In those circumstances, he decided that it would be sufficient for his purposes if he were simply provided with a copy of the charges laid against Lanciana, and nothing more.
According to defence counsel his views regarding that matter were fortified by the fact that the prosecutor, when referring to the Summary of Evidence on 31 May 2017, said to the trial judge,
… now your Honour doesn’t have to read all of it. In essence there is one page that sets out or two pages that set out the nature of those allegations.
Moreover, the prosecutor informed the trial judge that the argument that was being conducted regarding leave for cross-examination was about the armed robbery alone. That was despite the fact that there was a money laundering charge in existence against Lanciana in relation to ‘the very transaction that Mr Anile ha[d] been accused [of]’. His Honour then enquired, ‘but what we’re dealing with is, armed robbery, June 1994?’. The prosecutor answered ‘yes’.
As previously indicated, the trial judge ruled against the prosecutor’s application to cross-examine the appellant in relation to the charge of armed robbery that had been brought against Lanciana. In these circumstances, defence counsel deposed in his affidavit, that he did not consider it necessary to read any of the remaining parts of the Summary of Evidence.
Defence counsel said that he was unaware throughout the trial of any of the documents referred to at pages 27–30 of that summary. These were the very documents that pertained to the Kororoit Creek project and were potentially of real importance in the trial. He only saw those documents after the appellant had been convicted. At that point, he learned for the first time that both Michael Georgiou and his brother Loukis had departed from what the prosecutor had intimated they would say in his opening. Defence counsel discovered that in their earlier statements, they had referred to two separate contracts, one being in an amount of $900,000 with the possibility of it having been backdated.
Accordingly, defence counsel said that he had not sought, prior to trial, to obtain copies of additional contracts from the prosecution, though the statements suggested that they had existed.
In addition, defence counsel knew nothing of the statutory declarations sworn by Michael Georgiou referring to a single contract in the amount of $555,000. These statutory declarations, the existence of which would have become clear had defence counsel read the relevant parts of the Summary of Evidence, could have been utilised in the cross-examination of the both Michael and Loukis Georgiou.
Finally, and most importantly, defence counsel said he was unaware throughout the trial of the documents set out at pages 46, 47, 49, 51 and 52 of the Summary of Evidence. He knew nothing of any conversations involving Lanciana and Witness O until after verdict. He deposed:
Had I known of those matters, I would have applied to discharge the jury [and] to begin the trial again. I would have run the trial differently.
The Summary of Evidence to which defence counsel referred is, as we have previously said, a 56 page document. It sets out in some detail what was known as ‘Operation Tideland’. This was an investigation that had begun in 2012 and was said to be ongoing. It targeted an organised crime syndicate that was alleged to have been responsible for murders, armed robberies, and other very serious crimes, including money laundering. It referred to the use of telephone intercepts and listening devices. It identified Lanciana as having been involved in the Armaguard robbery in 1994.
The Summary of Evidence noted that Lanciana had previously been married to Maryanna Lanciana, who had been shot dead in July 1984. It noted also that no one had been charged with her murder. It went on to say that Lanciana had paid very little tax between 1998 and 2012, that he did not appear to have a regular income, and that he had not lodged a tax return for at least seven out of those 15 years.
The Summary of Evidence went on to describe the main features of the Armaguard robbery, and the investigation that had taken place in relation to it. It specifically linked the robbery to the appellant’s purchase of the Kororoit Creek land, alleging that $400,000 in cash (being proceeds of the robbery), had been paid to the vendors in addition to the designated contract price of $555,000. This particular event was described as a combination of money laundering and avoidance of stamp duty.
The Summary of Evidence then contained a lengthy discussion of a statement which had been obtained from a Witness T, who was involved in the Armaguard robbery, and who had decided in 2012 to turn against his co-offenders.
It seems that in the course of this investigation into Lanciana and others, the police also examined the appellant’s activities in 1994. It was in these circumstances that, on 30 January 2013, Witness U was sent out to meet with the appellant at his café. As indicated, that conversation and all subsequent conversations between them were covertly recorded.
The Summary of Evidence also contained a series of extracts from the recorded conversations, both those involving the appellant and Witness U, and those between Lanciana and Witness O. No mention is made in any of these extracts of the Armaguard robbery as such. Nonetheless, the appellant made it clear on a number of occasions that he had a fair idea of where the money may have come from. He acknowledged having paid $955,000, including $400,000 in cash, which ‘came from Percy’. He invited Witness U to ‘join the dots’.
This particular conversation, and a number of others of a similar nature, were no doubt potentially very damaging to the appellant if played before the jury. At the same time, however, there were other statements made by Lanciana which might have cast doubt upon whether the appellant really had any idea, in 1994, of where the cash came from or whether he was simply, as he claimed years later, ‘bullshitting’.
Some of the material contained in the Summary of Evidence might conceivably have assisted the defence. For example, the appellant spoke about having completed the sub-division and of having sold all the buildings by the time they were ready to settle. He claimed that it was only at that point that things started to go wrong, when Lanciana’s friends, who were plumbers, became involved, and essentially took charge of the entire project.
The appellant made it clear to Witness U that he would never say where the cash came from. He said that he feared what might be done to him if he told anyone what he knew. At one point, he seemed to imply that the cash may have been the proceeds of drug offences, though that was never pressed. At another point, he said that Lanciana had obtained a large amount of money in around 1992, that being well before the Armaguard robbery.
The prosecutor replied by saying that he wanted ‘a little bit more’ than the unreliability direction then being mooted. Indeed, he went on to say that had Lanciana completed his evidence, the judge would still have given that particular unreliability direction. He repeated that he was seeking more than that — a strong comment, or further direction.
The trial judge replied that he would not be making a comment of the kind sought. He said, ‘I’m going to give a direction in the standard form, and I’m going to emphasise the factors that I have just emphasised’. In other words, he made it clear that he would be giving an unreliability direction, of the standard kind, on its own. The prosecutor was content with that.
Defence counsel, when asked whether he wanted to say anything about the giving of such a direction, responded that he did not think he could usefully argue against it. He added that he was content with such a direction being given.
During the course of the prosecutor’s closing address, he reminded the jury that he had not been able to complete his cross-examination of Lanciana. He told them that he would have wanted to put to him a number of additional matters that would have gone to his credit. He described Lanciana as someone directly concerned with the money laundering charge, labelling him ‘criminally concerned in this offending’. He went on to say:
And what that means is that his Honour will give you a direction about Mr Lanciana’s evidence and his Honour will ask you to or warn you that his evidence may be unreliable for a number of reasons.
The prosecutor then identified some of these reasons. First, Lanciana was ‘criminally concerned’. Next, the prosecutor had been denied the opportunity to cross-examine him fully. This meant, according to the prosecutor, that the trial judge would warn the jury of the need to exercise caution in determining whether to accept Lanciana’s evidence at all.
In the course of his charge to the jury, the judge did precisely what he had previously intimated he would do. He gave a standard unreliability direction, specifically geared to Lanciana. Indeed, in the course of giving that direction, he told the jury that they should look for any supporting evidence led in the trial that they accepted. He defined supporting evidence as evidence which came from a source independent of Lanciana. In that regard, he referred to the evidence of the appellant, and the signed receipt for $200,000. To adapt the language traditionally used at common law, he invited the jury to look for corroboration of Lanciana’s testimony notwithstanding that, as given, it was exculpatory of the appellant.
The application to add ground 8 as a ground of appeal was made during the course of oral argument. The fact that the unreliability direction may have undermined the defence case, to some degree, by discrediting the only witness who had been called to give direct evidence as to the source of the funds, was perhaps not anticipated. Plainly, the trial judge believed that by giving this direction, he was acting in some way more favourably to the appellant than would have been the case had he acceded to what the prosecutor had asked him to do.
Of course, Lanciana was significantly discredited in any event. However, that is not to the point if the direction itself that was given should not have formed any part of the trial judge’s charge.
The other particulars of ground 8, as now drafted, also need to be taken into account. The written submissions in support of that ground make the point clearly:
The direction as to unreliability in being criminally concerned was immediately followed by a bad character direction, directions as to lack of cross-examination, then a return to the unreliability direction, then a direction on supporting evidence, and then directions as to the incomplete evidence. This was followed by a direction on the applicant’s lies.
Percy Lanciana provided the central theme in the prosecutor’s address (Lanciana was ‘a dishonest crook’) … following his cross-examination ‘your very close friend’… leaving the overwhelming flavour of guilt by associations. This compounding effect prevented a fair trial.
The rationale for what used to be called, at common law, the ‘accomplice warning’ is perfectly clear. The warning had to be given in order to protect the accused from false evidence being given by a witness capable of being viewed as an accomplice. Such a witness was likely to be motivated by a desire falsely to minimise his or her own role in the offending, and to maximise the role played by the accused. That said, we have never previously come across a case where an accomplice warning was given in respect of a defence witness who gave wholly exculpatory evidence.
In our view, the trial judge, though acting with the best of intentions, fell into error when he determined to give an unreliable witness direction in respect of Lanciana. Whatever the jury may have made of that witness’ evidence (and it was hardly likely to have given it any great credence), the appellant should not have had to overcome the additional hurdle of having the jury told to look for supporting evidence before acting upon anything that Lanciana said.
Balance of ground 9 — Incompetent manner in which trial was conducted
We have already expressed disapproval of the fact that defence counsel took no objection whatsoever to any of the improper questions asked by the prosecutor in cross-examination of key defence witnesses. We have also noted that rather than objecting, as he ought to have done, to a ‘criminally concerned’ witness direction, defence counsel specifically said that he was content for that direction to be given. That, too, was an error.
Perhaps the worst aspect of the conduct of the trial from a defence perspective was defence counsel’s failure to at least peruse the Summary of Evidence, that was emailed to him on the night of 30 May 2017. Of course, that document should have been provided well before the trial. However, it was still received in sufficient time to reconsider the decision to call Lanciana. It should have been obvious to defence counsel that, having regard to Lanciana’s centrality in the events surrounding these charges, it was essential that he give the most careful consideration to whether or not to risk calling him as a witness for the defence.
Of course hindsight is a wonderful thing. Nonetheless we cannot avoid thinking that had defence counsel read the Summary of Evidence, and given it proper attention, Lanciana would never have been called. It would have been blindingly obvious from that document that, under cross-examination, Lanciana could do immense harm to the defence case, as in fact, though for different reasons, he did.
We have some sympathy for the position in which defence counsel found himself. This was a difficult trial, and we suspect that the appellant may have been a difficult client. There was also the fact that the appellant had suffered a serious heart condition shortly before he began to give evidence. Defence counsel had to deal with a number of complex issues, as well as a large body of documentation. We are also cognisant of what the prosecutor said to the judge when he suggested that his Honour need only read pages 54 -56 of the Summary of Evidence in order to get the flavour of what the document contained. Regrettably, that statement was made in a particular context, but had the potential to be misunderstood, as it seems to have been.
Nonetheless, it is not imposing too heavy a burden upon counsel to expect them to read documents sent to them by the prosecution which, on their face, look as though they may have a significant bearing upon the conduct of the trial.
We accept that incompetence in the manner in which a trial was conducted is not, of itself, a sufficient basis for concluding that a miscarriage of justice had occurred.
In R v Birks[43] Gleeson CJ set out the relevant principles as follows:
1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[44]
[43](1990) 19 NSWLR 677.
[44]Ibid 685.
In Nudd v The Queen [45] Gummow and Hayne JJ said:
[A]n appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?[46]
[45](2006) 225 ALR 161.
[46]Ibid [25].
Of course, for a trial to be fair it is not necessary that every tactical decision of counsel turns out to have been carefully considered or wise. It is not the role of this Court to investigate such decisions in order to determine whether they were made with the fullest possible examination of all relevant considerations. Often decisions are made in the course of a trial that turn out to be ill advised in retrospect. That does not make them wrong or imprudent at the time that they were made. Nor does it make the client necessarily a victim of unfairness.[47]
[47]TKWJ v The Queen (2002) 212 CLR 124.
In this case defence counsel failed, in several important respects, to conduct the trial as he ought to have done. It is unnecessary for us to determine whether these failings, had they stood alone, would have been sufficient to vitiate these convictions. It is sufficient simply to say that when combined with the prosecution’s failure to disclose, the improper questions asked of defence witnesses, the failure to take exception to that part of the charge that constituted an accomplice warning in relation to Lanciana, and the deficiency in the particularisation of charge 2, too much went wrong in this trial to allow the convictions to stand.
Ground 7 — Aggregate of defects
At the very least, therefore, this is one of those rare cases where ground 7,
alleging that an aggregate of defects gave rise to a miscarriage of justice should succeed.[48]
[48]See R v Kotzmann [1999] 2 VR 123 as to aggregation of defects amounting to miscarriage of justice.
Conclusion
For these reasons we concluded at the end of the oral hearing in this matter, that the appellant’s convictions could not be permitted to stand, and made orders accordingly.
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