Lazaris v R
[2014] NSWCCA 163
•18 August 2014
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Lazaris v R [2014] NSWCCA 163 Hearing dates: 8 August 2014 Decision date: 18 August 2014 Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [4]Decision: (i) Leave to appeal upon ground 2 is refused;
(ii) Leave to appeal on ground 1 is granted;
(iii) The appeal is dismissed;
(iv) The applicant is to be returned to custody forthwith.
(v) Having regard to the period of custody served by the applicant between 16 August 2013 and 17 December 2013 the applicant's non-parole period will expire on 17 December 2015.
(vi) The applicant will be eligible for parole on 18 December 2015 and his sentence will expire on 17 February 2017.
Catchwords: CRIMINAL LAW - Offence of supplying prohibited drug - Trial before judge alone - Where Crown relied on circumstantial case - Where trial judge satisfied beyond reasonable doubt of applicant's guilt - Whether verdicts unreasonable or could not be supported by the evidence
EVIDENCE - Where hearsay representations admitted without objection - Where trial judge relied upon representations as evidence of the truth - Whether open to the trial judge to do so - Whether evidence admissible as an exception to the hearsay rule in any eventLegislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Drug (Misuse and Trafficking) Act 1985
Evidence Act 1995Cases Cited: ARS v R [2011] NSWCCA 266
Gonzales v R [2007] NSWCCA 32; (2007) 178 A Crim R 321
Libke v R [2007] HCA 30; (2007) 230 CLR 559
M v R (1994) 181 CLR 487
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Poniris v R [2014] NSWCCA 100
Gilham v R [2012] NSWCCA 131
R v Hillier (2007) 228 CLR 618
R v Masters (1992) 26 NSWLR 450
Rasic v R [2009] NSWCCA 202
SKA v R [2011] HCA 13; (2011) 243 CLR 400
W v R [2014] NSWCCA 110Category: Principal judgment Parties: Peter Lazaris - Applicant
Crown - RespondentRepresentation: Counsel:
P Lange - Applicant
S Dowling SC - Crown
Solicitors:
Aquila Lawyers - Applicant
S Kavanagh Solicitor for Public Prosecutions - Crown
File Number(s): 2011 / 209088 Publication restriction: Nil Decision under appeal
- Date of Decision:
- 2013-05-02 00:00:00
- Before:
- Huggett DCJ
Judgment
HOEBEN CJ at CL: I agree with Bellew J.
ADAMSON J: I have had the benefit of reading the draft reasons of Bellew J. I agree with the orders proposed. As to the first ground of appeal, I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I agree that it was open on the whole of that evidence for the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty of the three counts of supplying a prohibited drug, namely methylamphetamine, to Mr Poliopoulos contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985 (NSW).
As to the second ground, I agree for the reasons given by Bellew J that leave ought be refused under Rule 4 to rely on this ground.
BELLEW J: On 2 May 2013, following a three day trial before her Honour Judge Huggett sitting without a jury, the applicant was found guilty of three counts of supplying a prohibited drug, namely methylamphetamine, to Steve Poliopoulos ("Poliopoulos") contrary to s. 25(1) of the Drug (Misuse and Trafficking) Act 1985.
Having been found guilty, the applicant was convicted and sentenced to a non-parole period of 1 year and 8 months imprisonment commencing on 16 August 2013 and expiring on 15 April 2015, with a balance of term of 1 year and 2 months imprisonment expiring on 15 June 2016.
On 17 December 2013 the applicant was granted bail in this Court pending the hearing of his appeal. He was released on 17 December 2013 and has remained on bail until the present time.
The Crown case at trial was based upon a large volume of documentary evidence which was tendered without objection, along with short oral evidence from the officer in charge of the investigation. At the close of the Crown case her Honour rejected what was, in effect, an application for a verdict by direction, following which three witnesses were called in the defence case, namely the applicant's wife, Athanasia Lazaris, Janet Liu and John Raglione. I have referred to that evidence in more detail below.
The applicant now appeals against his conviction, on two grounds, namely that:
(i) the verdicts of guilty in relation to counts 1 to 3 were unreasonable or cannot be supported by the evidence; and
(ii) a miscarriage of justice arose as a result of her Honour taking into account the truth of the following representations, notwithstanding that those representations were hearsay, and thus inadmissible to prove the truth of their contents:
(a) "Peter" is, or was, living around the corner from Steve;
(b) "Peter" was married; and
(c) "Peter" previously operated an establishment called Touch of Class.
There is no application for leave to appeal against sentence.
The first ground of appeal does not involve a question of law alone. Accordingly, having regard to the provisions of s. 5(1) of the Criminal Appeal Act 1912, leave to appeal is required: Rasic v R [2009] NSWCCA 202 at [12] per Johnson J, Basten JA and R A Hulme J agreeing.
The evidence referred to in the second ground was not the subject of any objection at trial. Accordingly, leave to rely upon that ground is required having regard to Rule 4 of the Criminal Appeal Rules.
THE CROWN CASE
The Thai City brothel
The applicant and his wife lived at an address in Kingsgrove (T30 L5-9). They each spoke Greek (T45 L21-35). In about 2004, the applicant began working at a brothel known as "Touch of Class" (T30 L23). When that brothel closed down, the applicant and his wife decided to purchase the premises at 43 Albion Street, Surry Hills along with the business which operated from those premises which was known as "Thai City Brothel" ("Thai City"). The premises were a terrace house with a reception area and some rooms (T56 L27-37). They were purchased in the name of Acapulco Holdings Pty Limited ("Acapulco"), the secretary and sole director of which was the applicant (T31 L5; AB 342). The applicant's residential address was nominated as Acapulco's principal place of business (AB 342).
Thai City was managed by Janet Liu ("Liu") (T31 L10) who lived in a room at the premises (T32 L4-8; T54 L19-24; T55 L21-28). Liu was a director of Shicane Pty Limited ("Shicane") (T31 L10-30; T34 L32-50).
Shicane received the income generated by the business and paid rent for the premises to Acapulco (T55 L30-32). Liu was solely responsible for disbursing the income which was received (T31 L22-24; T55 L17-18). Each week, the applicant's wife would cash a cheque in the sum of $2000.00 drawn against Shicane's bank account, from which Liu, the applicant and the applicant's wife were each paid $500.00 (T34 L45 - T35 L21; T56 L4-18). According to the applicant's wife (T35 L23-26) the remaining $500.00 "was for the driver, paying him $100.00 per week during the week and then on the weekend because there would be more, obviously more cash, he'd be paid out of the cash from the weekend takings". Liu gave a similar account (T56 L20-25).
The applicant's wife worked at Thai City on Mondays, Tuesdays and Wednesdays as an "office clerk' or "bookkeeper" (T30 L11-12; T51 L19-20; T51 L44-48; T55 L48-50). Depending on the amount of work to be done, she would leave the premises no later than 1.00 pm each day (T70 L5-6).
The applicant worked at Thai City on Thursdays, Fridays and Saturdays (T35 L28-32; T55 L41-45). His role was described by his wife (T34 L34-36) as "the handyman" who "did the paperwork .... ordering stock and things like that". Liu described the applicant's role as one of general maintenance (T55 L43-46).
Notwithstanding these descriptions, police discovered business records and documents in the name of the applicant when they executed a search warrant at the premises (AB 147). Further, the business of Thai City extended to making accommodation arrangements for employees who had arrived from overseas to work (T40 L10-29). There was evidence of a booking made on 5 January 2011 which recorded the name of the applicant as the relevant contact, along with a telephone number 0450228673 (AB 338). The same telephone number was provided as the contact for a quotation for furniture to be provided to the Thai City premises (AB339; T41 L18). I have made further reference to that telephone number below.
In addition, space advertising Thai City was reserved in a publication called "Thai-Oz", giving the applicant's name and Thai City's address as the relevant contacts (AB340-341).
The employment of drivers at Thai City
Liu gave evidence (T59 L46) that apart from the applicant and his wife, "a driver" also worked at Thai City. In particular, she said (T59 L17-43):
A: Okay I have Zoran as a driver early 2011 and I know him from 2010 maybe the there's - around ...not transcribable..time actually around 2008 should be around the time I know him and then 2011 early he came to Thai City as a customer and I met him up and at the time I'm actually needing someone as a night manager because there's a pub just - its hard to say, there's a pub just near us that every afternoon the black guys are coming around the shop and they're making trouble for us. At the moment I cannot control it because there were all girls there so I approached Peter if he knows someone to be acting as a night manager for being security as well. And then at the very moment as well I come across Zoran, he press - he came to the door as a customer and I said you're here and knowing that he was the driver like the supervisor for the girl in Touch of Class I know that he's more than capable to do the job so I offered him to be around Thai City and that's when I had a drive and night manager.
Liu described Zoran's role as "the boss for the working girls" (T60 L49) and explained (T61 L2) "that he actually runs the girls for me". When asked whether she had ever heard Zoran called by any other name, Liu said (T61 L17-20):
"His other name is Peter, like everyone - everyone in Thai City uses another name. No one in Thai City uses their real name when they introduce themselves everyone that works there is using another name and Zoran uses Peter as his name.
When cross-examined about Zoran's hours of work, Liu explained (commencing at T65 L7) that he would come to the Thai City premises at about midday and would be there for about four hours (T66 L20-22). Having originally described Zoran as (inter alia) "the boss for the working girls" (T60 L49) Liu later described him variously as the "driver", "night manager", "security officer" (T66 L36-37) and "all rounder" (T67 L6). According to Liu, Zoran "disappeared" immediately following the execution of the search warrant on the Thai City premises (T63 L43).
Liu agreed (T68 L36) that the applicant's wife worked three days each week at Thai City. She also said (T68 L40) that the applicant's wife was present at the premises when Zoran was there on occasions. It is noteworthy that when giving evidence as to who worked at Thai City, the applicant's wife made reference to a "driver" (T32 L47). However, she was not asked, and gave no evidence, about a person called Zoran.
John Raglione ("Raglione") had been a friend of Poliopoulos for 40 years (T85 L45). He gave evidence that in 2011 when looking for work he went to Thai City where a person called "Zoran" employed him as a driver (T83 L11-13) and told him what his duties were (T83 L19-21). Raglione also gave evidence (T84 L26-37) that during the 6 months up to June 2011 Zoran supplied him with amphetamine for his own personal use.
When asked whether he had ever had a conversation with Zoran about his (i.e. Zoran's) name Raglione said (T85 L15-23):
"A: I don't know why but he wanted to be called something else over the phone even though - whenever he answered the phone he goes "Yes, it's me, Pete". So that's - he wanted to be called that so that's fine by me. I have no problems with that.
Q: Did he say anything to you about the name Pete?
A: Not really but most security people do have - tend to have different names or nicknames or reputation, whatever they call it."
Raglione also said (T86 L6-10) that he heard Zoran speak "a little bit of Greek" and "a little bit of Yugoslav".
The evidence of mobile telephones
The applicant was the subscriber of telephone service 0414700220 ("the 220 phone") (AB 155). Evidence was given by the applicant's wife (T43 L43 and following) that this phone had "come across" from the "Touch of Class" brothel at which the applicant previously worked.
Both the applicant's wife (T33 L15 and following; T44 L1-6; T48 L29-46) and Liu (commencing at T 56 L39) gave evidence that the 220 phone was one of three phones at the front desk of Thai City which were available for use by anyone at the premises, the other two being services which ended in the numbers 673 ("the 673 phone") and 888 ("the 888 phone"). The handsets referable to each of these numbers were not seized by police (T16 L1-3). Both the applicant's wife and Liu gave evidence that the handsets went missing following the execution of a search warrant (T52 L39 - T53 L1; T62 L30-39).
Poliopoulos subscribed to telephone service 0478034826 ("the 826 phone"). The "contacts" in Poliopoulos' phone recorded:
(i) the 673 phone under the name "Peter 2 Thai City";
(ii) the 888 phone under the name "Peter 1 Thai City new";
(iii) the number 928111098 (sic) under the name "Peter Thai office" (AB 352).
The telephone service 92811098 was the landline at Thai City.
The evidence of the Holden motor vehicle
Once the business of the brothel had been established following its purchase, there was a discussion between the applicant, his wife and Liu about buying a vehicle to provide transport for customers and staff (commencing at T36 L6; T58 L31-33). Subsequently, the applicant and his wife attended Suttons Motors ("Suttons") to purchase a Holden Caprice vehicle ("the Caprice") (T36 L45-49).
The nominated purchaser of the Caprice was Acapulco. Both the applicant's residential address, as well as the address of Thai City, were nominated on the purchase order (T37 L29-31). The 673 phone, along with the landline of Thai City and the landline connected to the applicant's residence, were also nominated as contacts (T37 L40-42; T30 L20; T38 L39). Insurance effected with Allianz Australia Insurance Limited nominated Acapulco as the insured party and Thai City's address was given as the contact address (AB 349 - 345).
The service history for the vehicle establishes that it was serviced at Suttons on various dates, including 16 June 2011 (AB 391).
Count 1
On 14 June 2011, a police undercover operative ("UCO") telephoned Poliopoulos and organised to purchase a quantity of methylamphetamine (AB 164-167). At 1.09 am on 15 June 2011, Poliopoulos (using the 826 phone) telephoned the 220 phone and spoke to a person who responded to the name "Peter". A conversation in the Greek language followed, in which Poliopoulos and Peter discussed "two bags" and their weight (AB 168-167). In the absence of any evidence of voice identification, the Crown relied upon circumstantial evidence to establish that the person Peter in that conversation (as well as a number of others) was the applicant.
The recording of the conversation was played to the applicant's wife in the course of her evidence in chief (T44 L26). She said that neither voice was that of the applicant (T44 L30 - T45 L2; T45 L6-35). It was also played to Liu (T63 L31) who said that the voice attributed to Peter was that of Zoran (T63 L33 - T64 L10). The recording was also played to Raglione who said that the voices were those of Zoran and Poliopoulos (T86 L38-42).
There were a number of other recordings between Poliopoulos and Peter. It was the Crown case that in each of those conversations the person nominated as Peter was in fact the applicant.
At 1:14am on 15 June 2011, Poliopoulos (using the 826 phone) telephoned the 220 phone and spoke with Peter. They discussed a white envelope and whether it contained any money, and again discussed the two bags and their weight. Later in the conversation, Peter said "my car will be inside Holden...at Rosebery" early the following day (AB 179). As noted at [31] there was evidence that the Caprice was serviced at Suttons on 16 June 2011, which was the day following this conversation (AB 391).
At 9:26am on 15 June 2011, Poliopoulos called the UCO on the 826 phone (AB 183). A short time later they met outside Poliopoulos' home before entering the garage where Poliopoulos gave the UCO 3.31 grams of methylamphetamine in exchange for $1,500.00 in cash.
At 6:37pm SMS messages were exchanged between the 826 phone and the 220 phone, in which Poliopoulos informed Peter that he had "some papers" for him. Peter responded by asking how long Poliopoulos would be, explaining that he had "waited all day .... office" (AB 185-187). At 6:44pm Poliopoulos (using the 826 phone) telephoned the 888 phone and spoke to Peter (AB 188-191). Because of difficulties with the reception Poliopoulos called again at 6:46pm and told Peter that he "had the money" and would "come by and give (him) that". Peter replied by telling Poliopoulos that he was "in the office" (AB195).
At 6:53pm Poliopoulos (using the 826 phone) called again and spoke with Peter. They discussed leaving something in an envelope, the applicant suggesting that it be left "with the, the lady.. .whoever's at reception" (AB 198-199).
Count 2
At 10:55am on 16 June 2011, the UCO telephoned Poliopoulos and arranged to purchase a further quantity of methylamphetamine (AB 217-226).
At 2:58am on 17 June 2011, the UCO received a SMS from mobile telephone number 0450634556 (the 556 phone) in which Poliopoulos advised that he had a "new number".
During the late morning of 17 June 2011, Poliopoulos sent a number of SMS messages to the 220 phone and the 826 phone attempting to make arrangements to meet with Peter. Responses were received from the 220 phone from "Cindy" (a person who was otherwise unidentified) advising Poliopoulos that Peter was asleep (AB 227-231).
Poliopoulos then called the UCO advising that he did not have the drugs and asking the UCO to meet with him so that they could travel to Surry Hills and collect them. The UCO collected Poliopoulos from his home at approximately 12:20pm on 17 June 2011. They arrived at Thai City at approximately 12:55pm. Poliopoulos entered the premises but returned soon afterwards, telling the UCO that his "associate" was not there and that he did not have the drugs.
At 2:04pm, a message was sent from the 888 phone to the 826 phone stating:
"Sorry mate i just wake".
At 2:14pm Poliopoulos (using the 826 phone) telephoned the 673 phone and spoke with Peter. Peter told Poliopoulos that he was "in the city". Poliopoulos responded by saying that they "went looking but couldn't find (him)". Poliopoulos then telephoned the UCO and organised to meet him at Ultimo.
At 2:19pm Poliopoulos (using the 826 phone) called the 673 phone. He spoke with Peter and they arranged to meet (at Peter's suggestion) at "the office" (AB 238-240). The UCO and Poliopoulos then met and drove together to the Thai City premises. Upon their arrival, the UCO gave Poliopoulos $4,500.00 in cash which Poliopoulos took with him into the premises. A short time later Poliopoulos returned and handed the UCO 10.5g of methylamphetamine.
Count 3
On 21 June 2011, the UCO contacted Poliopoulos and requested the supply of a further quantity of methylamphetamine. Poliopoulos then contacted Peter by SMS message and made arrangements to meet with him.
At 12:05pm on 22 June 2011, the UCO received an SMS message from the 556 phone advising that it was "all good for Friday".
At 1:35pm on 23 June 2011, the UCO sent an SMS to the 556 phone seeking to confirm the arrangements. A response was received from the 556 phone advising that it would be necessary to "meet at my place".
On the afternoon of 23 June 2011 a series of SMS messages passed between the 826 phone and the 220 phone in which Poliopoulos and Peter made arrangements to meet. At 6:02pm Poliopoulos used the 826 phone to call Peter on the 888 phone. Poliopoulos told Peter that he was "almost there" and that he wouldn't "be long". At approximately 6:25pm Poliopoulos entered Thai City and left at approximately 6:40pm. On both occasions he carried a backpack.
On the morning of the following day, 24 June 2011, the UCO and Poliopoulos arranged to meet. The UCO arrived at Poliopoulos' residence at 11:10am and went inside. He handed Poliopoulos an envelope which contained $10,500.00 in cash, in return for which Poliopoulos gave the UCO 28.1g of methylamphetamine.
The defence case
I have already noted aspects of the evidence given by the three witnesses who were called in the defence case.
Also tendered in the defence case was part of the transcript of the sentence proceedings of Poliopoulos (at AB 11 and following). It was evident from that transcript that a statement of agreed facts had been tendered following Poliopoulos entering a plea of guilty to a charge of supplying a prohibited drug on an ongoing basis. That statement of facts included references to "Peter Lazaris" as the person responsible for supplying Poliopoulos with amounts of methylamphetamine, which were then supplied to the UCO (at AB 21).
Notwithstanding the agreed facts, Poliopoulos asserted when giving evidence at his sentence proceedings (commencing at AB 47) that the methylamphetamine he supplied to the UCO had been provided to him "by a person called Zoron who went by the name of alias as Peter" and that Peter and Zoran were the same person (commencing at AB 21 L15). The existence of Zoran was not pursued in cross-examination. In light of the plea of guilty, it was not an issue in the sentence proceedings.
Her Honour's reasons
There was no dispute before her Honour that Poliopoulos had supplied the UCO with methylamphetamine on the three occasions in question, nor was there any dispute that Poliopoulos had obtained that methylamphetamine from a person who had identified himself as "Pete" or "Peter". Against that background, her Honour identified (at ROS 2-3 and again at ROS 11) the principal issue in the trial as being whether the Crown had established, beyond reasonable doubt, that the person Peter was in fact the applicant.
Ultimately, having undertaken (commencing at ROS 17) a lengthy review of the evidence, her Honour (commencing at ROS 32) made reference to 14 separate circumstances established by the evidence. She concluded that when taken together, those circumstances were capable of establishing, beyond reasonable doubt, that the person Peter was in fact the applicant. In reaching her conclusions, her Honour rejected the evidence of the applicant's wife, Liu and Raglione as to the identification of the voices in the recorded conversation of 15 June 2011.
The circumstances which were identified by her Honour as being capable of establishing the applicant's guilty were as follows (commencing at ROS 32):
(i) Poliopoulos obtained the methylamphetamine from a man called Peter and then supplied it to the UCO;
(ii) the same person supplied Poliopoulos on each occasion;
(iii) the person referred to as "Pete" or "Peter" in the communications was the same person, irrespective of what particular telephone service was being used;
(iv) the applicant had access to each of the 673, 888 and 220 phones;
(v) the applicant worked at Thai City on Wednesdays, Thursdays and Fridays, which corresponded with two of the days (17 and 23 June) on which Poliopoulos attended Thai City to obtain quantities of methylamphetamine which were then supplied to the UCO;
(vi) the applicant spoke Greek, and the recorded conversations between Peter and Poliopoulos were partly in Greek;
(vii) Peter referred to himself as "the boss";
(viii) Peter referred to being in the "office", which was to be construed as a reference to the Thai City premises;
(ix) Peter had referred to his car being serviced, in circumstances where the Caprice, which was owned by Acapulco, had been serviced at the relevant time;
(x) the applicant lived in the same suburb as Poliopoulos and Poliopoulos had referred, in a conversation with the UCO, to his supplier living around the corner from him and going home to his wife;
(xi) Poliopoulos had also referred, when speaking with the UCO, to his supplier previously operating a Touch of Class;
(xii) it was implausible that the applicant's wife would not have seen or met Zoran, given that she worked at Thai City several days each week;
(xiii) various contact entries in Poliopoulos' phone referred to Pete connected with Thai City; and
(xiv) Liu's evidence that she directed Zoran to take the Caprice to be serviced on the morning of 16 June 2011 should not be accepted.
It should be noted that the matters in (x) and (xi) above are the subject of ground 2.
Ground 1
The verdicts of guilty in relation to counts 1 to 3 were unreasonable or cannot be supported by the evidence
Submissions of the applicant
In support of this ground, counsel for the applicant before this Court relied upon the written submissions previously filed by trial counsel. The fundamental proposition advanced in those written submissions was that the circumstantial evidence relied upon by the Crown at trial was insufficient to exclude a rational hypothesis consistent with the applicant's innocence. That hypothesis was expressed in the following terms:
"... that the person Peter whose voice is recorded in the recorded conversations is not that of the Appellant (sic) but is the voice of the man named Zoran who used the alias Peter".
In advancing that proposition, the written submissions canvassed each of the individual circumstances relied upon by her Honour, and sought to advance, in each case, a competing inference. The competing inferences, and the propositions advanced, included the following:
(i) the role of the driver at Thai City fell to Zoran who was the "boss" of the employees of Thai City and had access to the 220 etc phones;
(ii) Zoran used the alias Peter when speaking on the telephone;
(iii) the fact that the 220 phone could be traced directly to the applicant, along with the fact that the 673 phone could be traced indirectly to him, was inconsistent with the activities of a drug dealer who would be expected to disguise his tracks;
(iv) Zoran also spoke Greek;
(v) there was no established motive for Raglione to give evidence which was untruthful;
(vi) Poliopoulos gave evidence on his sentence proceedings that he had been supplied by Zoran;
(vii) no drug related material was found when the applicant's premises were searched by police.
It will be apparent that the approach taken in the written submissions, at least in part, incorporated what was effectively an attempt to explain away every individual circumstance relied upon by the Crown. That approach is, in my view, an erroneous one. In Gilham v R [2012] NSWCCA 131 this Court (McClellan CJ at CL, Fullerton and Garling JJ) made reference (at [466]) to the necessity to consider a circumstantial case holistically, and said:
"Tortuous reasoning in order to explain away every individual circumstance as being consistent with innocence should not be engaged in: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA)."
Submissions of the Crown
The Crown submitted that her Honour's decision to reject the evidence of the applicant's wife, Liu and Raglione was soundly based, as was her decision to afford little weight to the evidence given by Poliopoulos in his sentence proceedings concerning the existence of the person Zoran.
The Crown submitted that when the evidence was viewed overall, it established a strong circumstantial case against the applicant. It was submitted that the hypothesis advanced on behalf of the applicant, apart from being based upon an erroneous approach, was not reasonable because it (inter alia):
(i) ignored, or was not consistent with available documentary evidence;
(ii) relied upon the evidence of Liu who was not credible; and
(iii) was advanced in the absence of any truly independent evidence of the existence of Zoran.
Consideration and conclusion
In considering this ground, this Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v R (1994) 181 CLR 487, the task of the court was expressed in this way (at 493):
"Where, notwithstanding as a matter of law there is evidence to sustain a verdict, the Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses."
These principles were recently reaffirmed by the majority of the High Court in SKA v R [2011] HCA 13; (2011) 243 CLR 400. Further, in order for a verdict to be unreasonable, it is not enough that a review of the evidence demonstrates that it was possible for tribunal of fact to reach a different conclusion: Libke v R [2007] HCA 30; (2007) 230 CLR 559 at [113] per Hayne J, Gleeson CJ and Heydon J agreeing.
These principles apply equally to an appeal following a trial before a judge sitting without a jury: W v R [2014] NSWCCA 110 at [151] per Bathurst CJ (Hoeben CJ at CL and Bellew J agreeing).
As I have previously outlined, the case against the applicant was a circumstantial one. In Gilham (supra) this Court (McClellan CJ at CL, Fullerton and Garling JJ) said (at [466]):
"The case against the applicant is a circumstantial one. As McClellan CJ at CL discussed in Wood v R [2012] NSWCCA 21 at [50]-[53], where a case is circumstantial "the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": quoting Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252.."
However, the Court went onto say (at [466]):
"However, a circumstantial case must be considered holistically. The court must weigh and consider the totality of the admissible evidence before reaching a conclusion, on the whole of the evidence, that it was open to the jury to be persuaded beyond reasonable doubt of guilt or, in the alternative, that a doubt persists such that it would be dangerous to allow the verdict of guilty to stand: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ)."
In my view, for a number of reasons, the totality of the evidence established a strong circumstantial case against the applicant. There is no basis upon which to conclude that it would be dangerous to allow the verdict to stand.
There was no evidence, other than that of Liu and Raglione, of Zoran's existence. In my view, and having had the benefit of seeing and hearing each of them give evidence, it was well open to her Honour to reject their evidence (as well as that of the applicant's wife) that it was not the applicant who was speaking to Poliopoulos in the conversation of 15 June 2011.
Liu's evidence was unsatisfactory in a number of respects. She initially gave evidence that Zoran was employed as a "driver" and "night manager" (T59 L32). She then described him (T60 L49) as "the boss for the working girls", a curious description given that her earlier evidence (T54 L23) was that she was the manager at Thai City. She later described Zoran (T67 L6) as "an all rounder" before describing him (T66 L41) as the "night manager" and (T67 L21) as the "security manager". Notwithstanding these various positions of responsibility which Zoran is said to have held at Thai City, Liu's evidence was that she could not remember his surname (T70 L23).
Liu also maintained that Zoran used the name, and was generally known as, Peter (T61 L17). This was explained on the basis that "no one at Thai City uses their real name" (T61 L18). Leaving aside the fact that Liu did not suggest that she was known by some other name, the inherent implausibility of her evidence in this regard is best demonstrated by her response to being asked about what would occur in the event that someone called Thai City asking for "Peter" (T61 L22 and following):
"... there was some moments that someone is calling the phone and when this particular person calls the phone the business phone they were looking for Peter. If Peter is not Peter the man sitting here if he's not around I will tell the people on the phone, I said he's not here and then - and then at the moment also that if he's around, if Peter Lazaris is around, and then I get a phone call looking for Peter I will pass the phone to him and as I pass the phone to him he will tell me that no, this person on the other line is not after him and after Peter told me that it's not him straight away Zoran will come on the phone and said, That's for me".
Liu also gave evidence about the hours which Zoran worked (commencing at T65 L6). She said (inter alia) that he would arrive at around lunchtime or earlier (T65 L29) but "only for a short time" (T65 L46) which she later clarified was "about four hours" (T66 L21). Such evidence would seem somewhat inconsistent with the level of attendance which might be expected from a "security manager", much less a "night manager".
It is also significant that according to Liu, there were occasions on which the applicant's wife was at Thai City at the same time as Zoran. The applicant's wife gave no evidence of knowing any such person. Her evidence was limited to the fact that "there was a driver" (T32 L48).
Liu also attempted to minimise the applicant's role at Thai City. Her description of him as essentially a "maintenance man" (T55 L41-46) was completely inconsistent with (inter alia) the evidence of his purchase of the Caprice, as well as other evidence from which an inference was available that he involved himself in aspects of the management of the business such as arranging accommodation for employees (AB 338) and arranging advertising (AB 340-341).
Like Liu, the applicant's wife also sought to downplay the role of the applicant at Thai City, describing him (T34 L34-36) as "just the handyman" .. who "did the paper work as well". For the reasons already expressed, such a description is inconsistent with other evidence of the applicant's role in the business. For obvious reasons, the applicant's wife had a motive to be untruthful in her evidence.
Raglione's evidence was that he was employed by Zoran as a driver at Thai City, but that he had also spoken to Liu about the position (T83 L1-5). Liu gave no evidence of ever having met Raglione, nor did she give any evidence about any driver other than Zoran.
According to Raglione he had been a friend of Poliopoulos for 40 years. They had lived together for some period. As previously noted, Poliopoulos gave evidence at his sentence proceedings that he was supplied the three quantities of methylamphetamine by a person called Zoran. Notwithstanding the obvious connection between himself, Poliopoulos and Zoran, Raglione claimed (T87 L20-22) that he was not aware of how it was that Poliopoulos and Zoran met. That evidence was, in my view, wholly implausible.
As the Crown pointed out in its submissions, the remaining evidence established that the person referred to as Peter whose voice was heard in the various recorded conversations:
(i) worked at Thai City;
(ii) referred to the Thai City premises as "the office";
(iii) told Poliopoulos when speaking to him on 15 June 2011 that he was taking "his car" to be serviced on the following day;
(iv) provided quantities of methylamphetamine at the Thai City premises on Friday 17 June and Thursday 23 June;
(v) used the 220, 888 and 673 phones to speak with Poliopoulos regarding the supply of prohibited drugs;
(vi) spoke Greek.
There is evidence that the applicant:
(i) was named Peter;
(ii) not only worked at Thai City, but owned it, along with the premises from which it operated;
(iii) was involved in various aspects of the conduct of the business of Thai City;
(iv) attended the Thai City premises each Thursday, Friday and Saturday;
(v) was the nominated subscriber of the 220 phone;
(vi) had access to the 888 and 673 phones;
(vii) owned, through Acapulco, the Caprice which was serviced at Suttons on 16 June 2011, that being consistent with the reference made in the conversation with Poliopoulos on 15 June 2011;
(viii) spoke Greek.
In my view all of these circumstances, along with those to which her Honour referred, were more than sufficient to exclude any reasonable hypothesis consistent with the applicant's innocence.
Ground 1 should be dismissed.
Ground 2
A miscarriage arose as a result of her Honour taking into account the truth of the following representations, notwithstanding that those representations were hearsay, and thus inadmissible to prove the truth of the contents:
"Peter" is or was living around the corner from (Poliopoulos);
"Peter" was married; and
"Peter" previously operated an establishment called Touch of Class.
The evidence
On 17 June 2011 a conversation was recorded between Poliopoulos and the UCO which included the following (AB 263):
"Poliopoulos: "Cause, I put it away here last night. He said to me I'll take it in the car and I'm going home to my wife tonight.
UCO: Yeah.
Poliopoulos: He lives around the corner from me. You understand?
UCO: Yeah. Yeah. Yeah."
On 17 June 2011 a further conversation was recorded between Poliopoulos and the UCO which included the following (AB 271-272):
"Poliopoulos: Your (sic) not going past Sydenham or Marrickville?
UCO: Nar. I'm going that way.
Poliopoulos: Alright.
UCO: Sorry. A bit of a rush. How long have you had that? That place?
Poliopoulos: Um. I've had it for about nine months.
UCO: Nine months.
Poliopoulos: Since I've been back. He use (sic) to run the touch of class. My partner.
The highlighted passages in each case are those relevant to this ground.
Her Honour's reasons
In respect of the first conversation, her Honour concluded (at ROS 26):
"The evidence establishes beyond reasonable doubt that the accused Peter Lazaras' (sic) home was at .... Kingsgrove, Steve lived at ... Kingsgrove. Those addresses are close to one another in that they are in the same suburb. The evidence further establishes beyond reasonable doubt that the accused had a wife. The evidence establishes beyond reasonable doubt that the arrangement Steve had with the undercover was that the undercover was to collect the methylamphetamine from Steve's home address that day around noon. The evidence establishes beyond reasonable doubt that this was not able to occur because the person Peter had not attended Steve's home to provide him with the methylamphetamine for the on supply to the undercover."
In respect of the second conversation her Honour concluded (at ROS 27):
"In this recording Steve refers to his partner and says he used to run the Touch of Class (at page 7). I am satisfied beyond reasonable doubt that what Steve was referring to here was his partner in the drug supply business and significantly he identifies that person as previously running Touch of Class. The evidence before me establishes beyond reasonable doubt that the accused previously ran a Touch of Class."
Submissions of the applicant
The applicant submitted that although the statements in question were hearsay and thus inadmissible to prove the truth of their contents, her Honour had used their truth to support her conclusion that the Crown had established its case. It was submitted, by reference to particular passages of her Honour's reasons, that her Honour had placed considerable significance on this evidence in reaching her conclusions.
Counsel for the applicant acknowledged that no objection had been taken to the evidence when it was tendered. However, he pointed out that it had not been submitted by the Crown at trial that the evidence should be used in the way in which her Honour did.
Counsel also relied upon the fact that her Honour did not indicate that she intended to use the evidence in that way. It was submitted that had her Honour so indicated, counsel for the applicant would have been in position to deal with the issue, and make submissions as to how the evidence could be used.
Submissions of the Crown
The Crown submitted that because the issue raised by this ground was not raised at the trial, the applicant required leave pursuant to r. 4 of the Criminal Appeal Rules. The Crown also submitted that the evidence was, in any event, admissible on one of two bases.
Firstly, the Crown submitted that the evidence was admissible on the basis that the statements in question were made by Poliopoulos in furtherance of a joint criminal enterprise between he and the applicant to supply drugs. I should say immediately that I am unable to accept that submission. In order for evidence to be admissible on that basis, the relevant statement(s) must be made in furtherance of the joint criminal enterprise, as opposed to being in the nature of a narrative of some fact or event: R v Masters (1992) 26 NSWLR 450 at 461. In my view, each of the statements in question clearly fell into the latter category.
Alternatively, it was submitted that had objection been taken it would have been open to the Crown to rely upon s. 65 of the Evidence Act 1995 NSW ("the Act") in support of the admissibility of the evidence.
Consideration and conclusion
Because no issue was raised at trial concerning the evidence which is the subject of this ground, leave is required having regard to Rule 4 of the Criminal Appeal Rules. The principles governing a grant of leave under that rule are well established: Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297; ARS v R [2011] NSWCCA 266 at [148] per Bathurst CJ, James and Johnson JJ agreeing.
For the reasons set out below, I would refuse leave to rely on this ground.
Section 59 of the Act is in the following terms:
59 The hearsay rule--exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation
The statements in question were clearly hearsay. However, the words "not admissible" in s. 59(1) mean "not admissible over objection": Gonzales v R [2007] NSWCCA 32; (2007) 178 A Crim R 321 at [22] per Giles JA, Howie and Fullerton JJ agreeing. In the present case, no objection was taken to the evidence when it was tendered, and counsel for the applicant before this Court made it clear that he did not wish to amend the grounds of appeal to assert incompetence of trial counsel on the basis of the failure to object to the evidence.
Further, in light of the other evidence which was available for her Honour to consider, this was not a case where the admission of the evidence gave rise to a manifest danger of unfair prejudice. Accordingly, this was not a case where there was any obligation on the trial judge to reject the evidence of her own motion: Poniris v R [2014] NSWCCA 100 at [39]-[50] per Macfarlan JA, Adamson and Bellew JJ agreeing.
In any event, even if objection had been taken, it would have been open to the Crown to call the UCO to give evidence of the relevant conversations with Poliopoulos. In that event, the statements in question (all of which were made by Poliopoulos) would have been admissible pursuant to s. 65(2)(c) of the Act which creates an exception to the hearsay rule which is in the following terms:
65 Exception: criminal proceedings if maker not available
This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was:
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
Bearing in mind the provisions of s. 65(2)(c):
(i) Poliopoulos was the person who made the representations and was not available (s. 65(1));
(ii) the UCO heard the representations, and was thus in a position to give evidence of them (s. 65(2)); and
(iii) the representations were made in circumstances which made it highly probable that they were reliable (s. 65(2)(c)).
Finally, even if it were concluded that the evidence was wrongly admitted and ought not to have been considered by her Honour, I am not satisfied in the circumstances that any miscarriage of justice arose which resulting in the applicant losing a real chance of acquittal.
When the reasons of the trial judge are read as a whole, it is evident that her Honour did not ascribe the degree of primacy to the evidence which counsel for the applicant suggested was the case. The evidence formed what was a relatively small part of a far greater circumstantial case, which was considered by her Honour in some considerable detail.
Even in the absence of the evidence which is the subject of this ground, there remained a considerable body of evidence which, in my view, was sufficient to exclude any reasonable alternative hypothesis, and thus establish the applicant's guilt. In particular, the evidence which is the subject of this ground does not bear on my analysis in [79]-[80] above.
ORDERS
The applicant spent a short period in custody between being arrested and granted bail in respect of the charges which are the subject of this appeal. The applicant was sentenced as set out in [5] above and was taken into custody on 16 August 2013. Her Honour expressly had regard to the earlier period of custody
The applicant was then released on bail on 17 December 2013 pending his appeal, and he has remained on bail since that time. It follows that between 16 August 2013 and 17 December 2013, the applicant served 4 months and 1 day of the non-parole period of 1 year and 8 months which was imposed. That must be reflected in the orders of this Court.
In these circumstances I propose the following orders:
(i) Leave to rely upon ground 2 is refused.
(ii) Leave to appeal on ground 1 is granted.
(iii) The appeal is dismissed.
(iv) The applicant is to be returned to custody forthwith.
(v) Having regard to the period of custody served by the applicant between 16 August 2013 and 17 December 2013 the applicant's non-parole period will expire on 17 December 2015.
(vi) He will be eligible for parole on 18 December 2015 and his sentence will expire on 17 February 2017.
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Decision last updated: 18 August 2014
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