Director of Public Prosecutions v Iliopoulos (Ruling No 5)
[2016] VSC 177
•5 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0172
S CR 2014 0162
S CR 2014 0171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVE ILIOPOULOS, VASILIS BARIAMIS AND PETER ILIOPOULOS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2016 |
DATE OF RULING: | 5 April 2016 |
CASE MAY BE CITED AS: | DPP v Iliopoulos & Ors (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 177 |
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CRIMINAL LAW – Evidence – Witnesses brought together by police to ‘brainstorm/workshop’ guilt of accused – Unreliability of evidence of witnesses – Unreliability direction – Evidence Act 2008 (Vic) s 165(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown and Mr P Kounnas | Acting Solicitor for Public Prosecutions |
| For the Accused Steve Iliopoulos | Mr M Dempsey | Lethbridges |
| For the Accused Vasilis Bariamis | Mr G Georgiou SC and Mr L Howson | Dribbin & Brown |
| For the Accused Peter Iliopoulos | Mr D Glynn | Theo Magazis & Associates |
HIS HONOUR:
Mr Howson who appears with Mr Georgiou of senior counsel for the accused Bill Bariamis, has requested that I give a direction to the jury under s 165 of the Evidence Act arising out of matters that were the subject of evidence by Detective John Lal who was the informant in this matter since early 2012.
It would appear that when Detective Lal interviewed a number of the bank witnesses, he told them of the elements of the charge that the police contemplated might be brought against persons responsible for the frauds on the bank, and he instructed those witnesses, not only as to the acts of particular persons that needed to be proven, but also their knowledge and intention.
Mr Lal then met with a number of witnesses from the bank, together rather than separately, and spoke to them about matters pertaining to the investigation. Of particular concern is a meeting that took place on 5 April 2013. On the previous day Mr Lal sent to the witnesses Barry Heib, Roslyn Ticknell‑Best, Gerrit Knauth and Susan Fiedler an email asking them to attend a meeting on the next day and stating as follows:
Cast your mind to why you think Bill (that is Bill Bariamis) knew what was going on at Viking or at least ought to have known. I want to brainstorm/workshop this part of the investigation and pull our collective knowledge together based on the facts that we have collected over the last 15 months.
Detective Lal also suggested that Brendan Barry‑Murphy and Malcolm Bull of the Commonwealth Bank might also attend.
On the next day the meeting was attended by Mr Heib, Ms Ticknell‑Best, Mr Knauth, Ms Fiedler, Mr Barry‑Murphy and Mr Bull. It was also attended by other members of the police. There are no notes of the meeting at all and the meeting lasted for two hours, during which all of those persons to whom I have referred were together. Detective Lal recorded on a whiteboard that which was stated by the witnesses.
Subsequent to that meeting at least three of those witnesses, Bull, Heib and Knauth made further statements to the police.
Each of the witnesses to whom I have referred, except for Ms Fiedler, have given evidence in the case relating to meetings, that they attended at which Mr Bill Bariamis was present, and they have also given evidence as to their perception of his role in the Viking Group of companies. Of particular relevance is that some of those witnesses, and in particular Bull, have given evidence relating to the apparent knowledge or familiarity of Mr Bariamis with matters pertaining to the financial circumstances of the Viking Group.
It has been submitted on behalf of Mr Bariamis that the method by which the evidence of those witnesses on that topic was collated and prepared carries with it at least four vices. In the first place the witnesses were not kept separate, and thus there is a real risk that their recollections were affected by what they have been told by other witnesses.
Secondly, it is of concern that the witnesses were joined together to pool their knowledge.
Thirdly, it is submitted that it is of concern that they did so in circumstances where they had been educated in the elements of the offence, and where they had been invited to brainstorm or workshop how to inculpate Bill Bariamis in the offence.
Fourthly, it is submitted that the evidence of those witnesses has been affected by the fact that there were no contemporaneous notes of what each of them said at the meetings in question, and in particular the crucial meeting of 5 April 2013. Thus there is no record of what they each then separately recollected, nor has the defence been in a position where it can effectively cross‑examine those witnesses on that topic.
The evidence to which I have referred does not fall within any of the categories set out in s.165. Thus, in order to attract a warning it must be evidence of a kind that may be unreliable. It is, I think, common ground that in approaching the question as to whether a warning should be given on the basis that the evidence is unreliable, I should adopt what is referred to as the narrower rather than the broader approach to that question, and it would seem that it was that approach that was adopted by the Court of Appeal in Young & Ors v R.[1] That approach replicates the approach of the common law, namely, that a judge should only give a jury a direction as to the potential unreliability of evidence where the judge has an apprehension that the jury itself might not fully appreciate the effect of the particular facts or circumstances of the case on the reliability of the witnesses.
[1][2015] VSCA 265; see also R v Kanaan [2006] NSWCCA 109, [122]–[126]; R v Stewart (2001) 52 NSWLR 301, 321-‘2 [98]–[101] (Howie J).
For reasons that I have outlined in argument, and which I shortly repeat, I consider that the evidence of each of the witnesses, as to their recollection of the meetings in question and their perceptions of Bill Bariamis’s role in the Viking Group of companies, may be unreliable, and is evidence of a kind that falls within s 165. In particular, I consider that the matters, which may affect the reliability of that evidence, are matters with which a jury might not be entirely familiar, and the jury might not fully appreciate their effect on the reliability of the witnesses’ evidence on that topic.
In particular, as I stated, it is of concern that not only were the witnesses not kept separate, but they were indeed brought together, particularly at the meeting on 5 April, to collaborate and pool their joint knowledge in relation to the topic of whether there was evidence that might inculpate Bill Bariamis in the offending alleged in this case. It is well understood by lawyers and by judges that it is most important that witnesses be kept separate so they do not pool their knowledge, but rather that the evidence that they give in court is the product of their own honest, actual and independent recollections of events and of circumstances that have occurred in the past. Where witnesses have been invited to join in a meeting in which they effectively combine their own recollections, there is a very real risk that their memories may thus become contaminated and the evidence that is heard in court is not the product of their own independent and actual recollections of the events which they relate.
While that proposition may seem self‑evident, nevertheless, courts and lawyers are familiar with the process by which witnesses are ordinarily kept separate by the police and in court in order to ensure that that type cross‑contamination not occur.
The second matter which is of real concern is that not only did Detective Lal instruct some of those witnesses in what was needed to prove the case against Bill Bariamis, but he then invited the witnesses to attend a meeting at which they would ‘brainstorm’ the question as to whether Bill Bariamis knew what was going on or ought to have known what was going on. In that way, Mr Lal converted the witnesses from being independent and objective witnesses of the truth in the matter to prosecutors in the case seeking to inculpate Bill Bariamis in the offending alleged.
Ordinarily police, lawyers and judges understand the importance of keeping witnesses independent of the case for which they are called to give evidence. Their objectivity and lack of bias is of great importance as to their memories and as to the accuracy of the evidence that they give. While, again, that may seem self‑evident, it has been the long experience of the law that where that type of protection has been compromised the evidence of witnesses may become unreliable in a manner not fully understood by a jury.
Finally, it is of concern that there were no notes taken of what would seem to be a very important meeting. Thus there is no record of what each person, who attended that meeting, independently recollected before their separate and independent recollections were pooled as one. Further, the defence has been deprived of the opportunity to compare what the witnesses said in this court with what they might have said at the meeting of 5 April.
In my view, the combined effect of those considerations is that the evidence given by the witnesses, as to the meetings attended by Bill Bariamis and as to their perceptions of Bill Bariamis’s role, may be unreliable in a manner which may not be fully appreciated by a jury in the absence of a direction to that effect by myself as the trial judge. In those circumstances, I intend to give the direction that is sought by the defence.
Mr Kounnas, who appears with Mr Brown for the prosecution, submitted that in the exercise of my discretion I should not give that direction. He noted that before the police convened the witnesses together, in any event they had the opportunity to speak together, and he also referred to the fact that there had been internal investigations at the bank about the substantial losses sustained by the bank as a result of the collapse of the Viking Group of companies. However, it might be one thing for the witnesses to be able to speak together in that type of environment, it is quite another matter for them to have been interviewed in the circumstances I have outlined in this ruling.
The second matter put by Mr Kounnas is that the direction that I intend to give may have the effect of badly damaging the credibility of the witnesses who have given evidence in this court. I have made it plain that the ruling that I shall give will be directed to one aspect of their evidence, namely, that which relates to their memories of the meetings they had with Mr Bariamis and their perceptions of his role. The third matter that Mr Kounnas relied on is that the various witnesses have in fact given different versions of the meetings they attended. That may be so, but nevertheless, it does not, I think, offset the difficulties involved and which have arisen from the matters to which I have already referred and which render the evidence of those witnesses unreliable in the respects I have discussed.
For those reasons I propose to give to the jury the direction that I have foreshadowed in this ruling and in the course of argument.
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