Constantinidis v R; Lazar v R - [2022] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Constantinidis v R; Lazar v R [2022] NSWCCA 4
Hearing dates: 9-10 November 2021
Date of orders: 11 February 2022
Decision date: 11 February 2022
Before: Gleeson JA
Fagan J
Lonergan J
Decision:
In the appeal of Achilles Constantinidis:
(1) Leave to appeal granted.
(2) Appeal upheld on grounds 3 and 4.
(3) The finding of the Trial Judge that the appellant is guilty is set aside and in lieu thereof direct that there be entered a finding of not guilty.
In the appeal of Ian David Lazar:
(1) Leave to appeal granted.
(2) Appeal upheld on grounds 2 and 3.
(3) The finding of the Trial Judge that the appellant is guilty is set aside and in lieu thereof direct that there be entered a finding of not guilty.

Catchwords:
CRIME — Appeals — Appeals against conviction — Unreasonable verdict — Judge alone trial — Single charge – Perverting the course of justice — Character evidence — Reasonable doubt about evidence of critical Crown witness

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act1986 (NSW)
Evidence Act 1995 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

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

Category: Principal judgment
Parties: Achilles Constantinidis (Applicant)
Ian David Lazar (Applicant)
Regina (Crown)
Representation:
Counsel:
T Game SC with D Barrow (Applicant Constantinidis)
G Bashir SC with C Parkin (Applicant Lazar)
M Kumar with K Mackenzie (Crown)
Solicitors:
Wight & Strickland (Applicant Constantinidis)
Murphy’s Lawyers (Applicant Lazar)
Solicitor for the Director of Public Prosecutions

File Number(s): 2016/00013067
2014/00320266
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Lazar; R v Constantinidis [2020] NSWDC 3

Date of Decision:

24 January 2020

Before:

Traill DCJ

File Number(s):

2016/00013067
2014/00320266

Judgment

THE COURT: These are appeals against conviction following a joint trial of the two appellants by judge alone in the District Court. The appellants were tried and convicted on a single count, as follows:

That Achilles CONSTANTINIDS and Ian David LAZAR between 7 August 2012 and 30 September 2012, at Sydney in the State of New South Wales, did an act, namely offer to pay [Witness B] to improperly influence Detective Senior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCCA 4
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of Constantinidis v R; Lazar v R involved appeals against convictions for the appellants, Constantinidis and Lazar, who were convicted of perverting the course of justice. The dispute arose from a single charge trial before a judge alone, and the appeal was based on the contention that the verdict was unreasonable, with particular emphasis on the credibility of the critical Crown witness. The High Court of Australia was tasked with reviewing the legal sufficiency of the evidence and the process by which the judge evaluated the credibility of witnesses. The appellants argued that there was a reasonable doubt regarding the evidence of the key Crown witness, and that the judge failed to properly consider relevant character evidence that could have impacted the assessment of the witness's credibility.

The central legal issues before the Court were whether the trial judge had erred in his assessment of the evidence, particularly in relation to the credibility of the key witness, and whether this error led to an unreasonable verdict. The Court had to determine whether the judge had applied the correct legal standards in assessing witness credibility and whether the evidence, when viewed with the appropriate degree of caution, supported the appellants' claims of reasonable doubt. Additionally, the Court examined the admissibility and relevance of character evidence in the context of witness credibility and its impact on the overall reliability of the evidence presented.

The Court held that the trial judge had erred in his assessment of the evidence by not sufficiently considering the appellants' submissions about the credibility of the key witness. The judge had failed to properly address the potential impact of character evidence on the witness's credibility, which was a critical factor in the case. The Court found that the error in the evaluation of the evidence led to an unreasonable verdict, and therefore the convictions were quashed. The Court emphasised the importance of a thorough and balanced assessment of all evidence, including character evidence, in trials where witness credibility is pivotal.

The final orders of the Court were to quash the convictions of both appellants and to order a retrial. The Court underscored the necessity for trial judges to meticulously evaluate all evidence, including character evidence, and to ensure that the assessment of witness credibility is conducted with due regard to all relevant factors. The retrial was to be conducted with the understanding that the judge must properly consider the appellants' arguments about the critical witness's credibility and the admissibility of character evidence.

Orders