Nikolaidis v R - [2008] NSWCCA 323

No judgment structure available for this case.

Reported Decision: 191 A Crim R 556

New South Wales

Court of Criminal Appeal

CITATION: Nikolaidis v R [2008] NSWCCA 323

HEARING DATE(S): 30 July 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 111; Hislop J at 225

DECISION: 1. Appeal against conviction dismissed
2. Leave granted to appeal against sentence
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to give proper or adequate instruction regarding the nature and scope of elements of offence of making false instrument - Crimes Act 1900 s 300, s 305 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross examine and manner and form of cross examination in relation to certain issues - Evidence Act 1995 s 104, s 112, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint - Evidence Act 1995 s 108, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons

LEGISLATION CITED: Crimes Act 1900
Legal Profession Act 1987 (repealed)
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: DPP v Hamman (NSWCCA, 1 December 1998, unreported)
Law Society of NSW v Carol Foreman (1994) 34 NSWLR 408
Leung v R (2003) 144 A Crim R 441
More v R (1988) 86 Cr App R 234
R v BD (1997) 94 A Crim R 131 at 140-141
R v Bragias (1997) 92 A Crim R 330
R v Campbell (1985) 80 Cr App Rep 150
R v Ceylan (2002) 4 VR 208
R v Garcia (1988) 87 Cr App Rep 175
R v Hovan [2005] NSWCCA 179
R v Kukunoski (NSWCCA, 17 August 1989, unreported)
R v Marvin (NSWCCA, 1 November 1995, unreported)
R v Ondhia [1998] 2 Cr App R 150
R v Pont (2001) 121 A Crim R 302
R v Smith (2000) 114 A Crim R 8.
R v Stalder [1981] 2 NSWLR 9
R v Tobierre [1986] 1 All ER 346
R v Vincent Cofini (NSWCCA, 4 March 1997, unreported).
R v Zorad (1990) 19 NSWLR 91

PARTIES: Leon Nikolaidis (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/3505

COUNSEL: R Richter QC/P Lowe (Appellant)
L M B Lamprati SC (Crown)

SOLICITORS: Carny's Lawyers (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0372

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 16 November 2007

2007/3505

McCLELLAN CJ at CL
SIMPSON J
HISLOP J
WEDNESDAY 17 DECEMBER 2008

NIKOLAIDIS, Leon v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of a single count under s 300(1) of the Crimes Act 1900 as follows:

“Between 31 October 1996 and 17 February 1998 at Sydney in the State of New South Wales did make a false instrument, namely a letter addressed to John Preston dated 19 April 1984 with the intention of using it, namely to induce another person to accept the instrument as genuine and because of that acceptance to so [sic] do some act to the prejudice of John Preston.”

2 Although four grounds of appeal were raised by the Notice of Appeal only three grounds were pursued at the hearing. They are:

Ground 1: a substantial miscarriage of justice was occasioned by the failure of the trial judge to give proper or adequate instruction regarding the nature and scope of s 300(1) of the Crimes Act 1900.

Ground 2: a substantial miscarriage of justice was occasioned by the decision of the trial judge to grant leave to cross-examine, and the manner and form of cross-examination by the Crown prosecutor in relation to the following issues:

a. the issue of an alleged misappropriation of an amount of $5,000 said to have been taken by the appellant from Mr Preston;

b. the contention on the part of the Crown that the appellant concealed the whereabouts of Ms Burden, a potential witness, from the Crown.

Ground 3: a substantial miscarriage of justice was occasioned by the failure of the Crown to obtain leave pursuant to s 108(3) of the

Evidence Act

1995 regarding the adducing of evidence of complaint by Ms Moffatt to Ms Middleton, and in that evidence being admitted in the trial.

3 I shall consider each ground but before doing so indicate that I have read the reasons for judgment of Simpson J in draft.

Relevant facts

4 The appellant is a solicitor and a partner in the firm founded by his father. In 1984 Mr John Preston placed his legal affairs in the hands of the appellant after he received a bankruptcy notice. At the same time he also retained the appellant in relation to a large dispute he had with his previous legal representatives, Strong Brown & Co. Over the years there were other matters in which the appellant acted.

5 In 1984 Mr Preston agreed with the appellant that the latter would act for him and his companies at a charge out rate of $85 per hour. During the next 8 years the appellant increased his charge out rate from time to time. By 1992 the appellant was charging at a rate of $200 per hour.

6 The professional relationship came to an apparently acrimonious end in 1992. There was a dispute over the return of Mr Preston’s files. The appellant claimed that a significant sum for fees was outstanding. Mr Preston engaged a firm of solicitors to take action to recover his files and in 1993 commenced proceedings in the Supreme Court seeking orders for delivery of bills of costs in a number of matters, a reference to taxation in respect of those matters, delivery up of files, and the taking of accounts.

7 Subsequently, the claim for the taking of accounts was abandoned. However, the assessment of costs was pursued. In November 1996 the appellant filed an application for the assessment of his costs under the Legal Profession Act 1987 (repealed). Mr Hattersley was appointed as a costs assessor. He wrote to the appellant and indicated that because he was required to make an assessment of costs for work done prior to 30 June 1993 (when solicitors’ fees were regulated by the Supreme Court scale of costs) and before he could accept an assessment which included a charge out rate of $200 per hour “you must seek to rely on a specific written agreement between you and your client.” Mr Hattersley sought copies of any documents which could sustain a charge out rate of $200 per hour.

8 Mr Zwar was the solicitor in the appellant’s firm who assisted the appellant in relation to these matters. He was tasked with the responsibility of collecting the firm’s files so that Mr Hattersley could carry out his assessment. When carrying out his tasks Mr Zwar located a carbon copy, on green paper, of a letter purporting to be the terms of engagement between the appellant and Mr Preston. That letter became Ex 1A at the trial.

9 The prosecutor alleged that Ex 1A was created on the appellant’s instructions years after its notional date and was not a true copy of a letter which had been created in the ordinary way bearing the date 19 April 1984. Mr Zwar gave evidence that after he found the copy letter he spoke with the appellant who said: “Well, I always thought there was a letter somewhere.”

10 Mr Hattersley gave evidence at the appellant’s trial. He said that he found the copy letter when he attended at the appellant’s premises to read the relevant files. He took a copy of the letter and later corresponded with both Mr Preston and the appellant in relation to it. He gave evidence that until he had himself discovered the document no-one had drawn it to his attention and he had not been advised that it existed. Mr Hattersley formed the view that the letter was capable of leading to the conclusion that Mr Preston rather than his companies were liable for the professional fees. He raised this with Mr Preston who rejected the suggestion. Mr Hattersley did not resolve the matter and he later suspended his assessment. He advised the Supreme Court accordingly.

A conversation between Ms Moffatt and Ms Middleton

11 Ms Jan Moffatt was employed by the appellant’s firm from February 1994 to 20 July 2001. She was the appellant’s secretary. She was granted a certificate pursuant to s 128 of the Evidence Act 1995. The trial judge gave a direction to the jury pursuant to s 165 with respect to the possible unreliability of her evidence.

12 Ms Moffatt said that sometime between November 1996 and June 1998 the appellant had told her that he had a letter on tape for her to type. She said that she was told that the letter was to be done in final form on a typewriter. She said that the appellant gave her some superseded firm letterhead on white paper and some green copy paper. She said that she originally typed the document that she transcribed from the tape into her word processor and saved it to her hard drive. She then printed the document and gave it to the appellant for him to check. She said that the appellant settled the letter and told her to type it in final form on the typewriter and in the same format as a carbon copy of a Preston letter that he had given her. She said that she typed the letter on a Canon electric typewriter. She then took the completed letter to the appellant who took it from her. She observed him tear up the original letter. She identified Ex 1A as the copy of the letter.

13 Ms Moffatt said that she had typed the initials “LN:SMB” at the top of the letter. She said that the initial “LN” stood for the appellant but Ms Moffatt did not know of any typist with the initials “SMB”. She said that she did not see a green copy of the document until a few months later when she saw it on a file. She could not recall which file it was on.

14 Ms Moffatt said that she remembered preparing Ex 1A between about November 1996 and June 1998. She said that she was able to recall the earlier date because when she prepared the document she was wearing a particular orange suit which she said she specifically recalled buying in November 1996. She said that she typed the document before she moved her position in the office, which occurred in mid 1998.

15 Ms Moffatt’s credit was challenged. It was suggested to her that she was concerned that when she left the appellant’s employment she was not given her full entitlements. It was put to her that in a conversation on 9 October 2001 she had made veiled threats against the appellant including that she would give information to Mr Preston which could be used to harm the appellant. She denied the conversation.

The evidence of Tracy Middleton

16 Ms Tracy Middleton was a “salaried partner” with the appellant’s firm from 1 July 1998 to 11 August 1999. She gave evidence that in November 1998, being some months after the latest date on which Ms Moffatt claims to have been directed to prepare Ex 1A, she had a conversation with Ms Moffatt. She gave the following account of that conversation:

“Jan came into my office and shut the door, sat down, and she had tears in her eyes and I said to her ‘what’s wrong with you?’ And she said to me, ‘what would happen to me if I was told to create a document and back date it?’ And I said to her, ‘well, you’re not going to do it’, and she said, ‘well, what if I have done?’ And I said ‘well, what would happen to me’ is what she said to me and I said, ‘well, you wouldn’t – the person who told you to do it would be the one who would be in trouble’.”

17 When Ms Moffatt gave evidence she said that she did not recall whether she had a specific conversation with Ms Middleton. The following exchange occurred:

CONOMOS: I object to it in that form.

HIS HONOUR: I understand that.

CONOMOS: I object to it.

CROWN PROSECUTOR:

The appellant’s evidence

18 The appellant gave evidence at his trial. He said that he never asked Ms Moffatt to prepare Ex 1A and could not remember it being prepared. When cross-examined he accepted that he must have had the letter prepared and agreed that he had issued it. However, he denied that he had the copy letter created during the period 1996 to 1998 to assist him in the costs assessment.

The evidence of Ms Sybil Burden

19 Ms Sybil Mary Burden gave evidence that she had worked for the appellant although she could not remember the precise period of her employment. She said that her initials were “SMB”. She could not recall whether she had prepared Ex 1A. She did not recall working on a Preston matter.

20 She said that the style and formatting of the letter could have been her own and said “I probably did type the letter, but I cannot recall.”

Ground One

21 The trial judge gave both written and oral directions to the jury in relation to the elements of the offence under s 300(1). The written directions which were discussed by his Honour with counsel before they were given to the jury included the following:

Elements

The Crown must prove each and every one of these matters beyond reasonable doubt before the jury could find the accused guilty of the charge:

Legal directions: Terms used

Instrument:

Made

False

An instrument is false if it purports or is put forward:

(a) to have been made in the form in which it is made by a person who did not in fact make it in that form, or

(c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms, or

(g) to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered, or

Intent

A person intends an event if they decide to bring it about by their act or omission. If they foresee an event as the inevitable consequence of their act or omission, they intend to bring about that result even if it was not the purpose of what he or she did.

Induce

The Crown does not have to prove that the accused intended to induce a particular person to do the particular act.

Prejudice

An act or omission is to a person’s prejudice if a financial advantage will be obtained from that person. That advantage can be otherwise than by way of remuneration.

That may be the result of a person having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with the person’s performance of a duty.”

22 In the course of his oral directions the trial judge said of the elements of the offence:

“Those elements are: Firstly, that it was the accused; secondly, who made the false instrument, and I have given you a definition of what ‘made’ means in this circumstance. An instrument includes any document, whether of formal or informal character. The term ‘made’ has the meaning that a person is treated as having made the false instrument if it alters the instrument to make it false in any respect.

The third element is that with the intent of the accused or another person would use, and here the Crown relies on it being another person.

Fourthly, would use the false instrument to induce another person-here Mr Hattersley-next, to accept the instrument as genuine.

Seventh, [sic] because of that acceptance to do or not to do some act: here the Crown alleges the act of the cost assessment.

Eight, [sic] to the prejudice of the victim-he is said to be, by the Crown, Mr Preston.

Now ‘falsity’, as I have set out in the document, can come within a number of matters. An instrument is false if it purports or is put forward

(a) To have been made in the form in which it is made by a person who did not in fact make it in that form; or

(c) To have been made in the terms in which it is made by a person who did not in fact make it in that terms; [sic]

or

(g) To have been made or altered on a date upon which or a place in which or in circumstances which it was not in fact made.

‘Intent’, as I have defined it there under heading D on the bottom of the page, going over to the second page, a person intends an event if they decide to bring it about by their act or omission. If they foresee an event, person foresees an event as the inevitable consequence of his or her act or omission. He or she intends to bring about that result even if it was not the purpose of what he or she did.

Here importantly also, and it is not in the written document, the intent must be established as being in existence at the time specified in the indictment. In other words, here the date specified is between 31 October 1996 and 17 February 1998.

You will recall the evidence of Mr Preston on which the Crown relies to establish the opening point and a closing point of those dates specified in the indictment. So the intent must be established as existing at the time.

‘Induce’ is a legal term but ‘induce’ has its ordinary meaning. The Crown does not have to prove the accused intended to induce a particular person to do the particular act.

‘Prejudice’ you may well think is self-explanatory but again I need to spell that out. That the act or omission is to a person’s prejudice if a financial advantage would be obtained from that person, and that advantage can be otherwise than by way of remuneration and that may be the result of a person having accepted a false instrument as genuine or a copy of a false instrument as a copy of a genuine one in connection with a person’s performance of a duty.”

Ground 1 – Misdirection?

23 The appellant makes various complaints under this ground of appeal. It was submitted that there was a misdirection with respect to the elements of the offence; that the evidence may support a different offence of “using” a false instrument, not “making” as charged; and that the evidence may support an offence in relation to a copy of a document provided by s 301 but not the offence as charged.

24 The appellant submitted that a reading of the totality of the trial judge’s directions to the jury indicates that he regarded Mr Preston as the victim of the false instrument whereas the person nominated as the person who was being induced to accept the instrument as genuine was Mr Hattersley. He submitted the statute speaks of inducing “the victim” to the prejudice of the “victim or another person.” Because Mr Preston was never deceived by Ex 1A, nor did he accept that it was genuine, it was submitted that the prosecution must fail.

25 If, as the appellant submitted, the jury would have understood his Honour’s reference to “another person” to be a reference to Mr Preston, to the exclusion of Mr Hattersley, a problem may have arisen. It was obvious that, in the ordinary sense, Mr Preston was the intended victim. It was no doubt for this reason that his Honour referred to Mr Preston as “the victim” when he gave his oral directions. But, in the course of those directions his Honour also correctly, identified that the Crown asserted that it was Mr Hattersley who the appellant intended to induce to accept the instrument as genuine.

26 In his opening address the Crown Prosecutor told the jury that the Crown case would be that the appellant used the instrument for the purpose of “inducing another person”, a “cost assessor”, to accept the instrument as genuine. Mr Hattersley was later named as the costs assessor.

27 In his closing address the Crown Prosecutor referred to document Ex 1A as “being produced” during the cost assessment process, to induce “another person, being the cost assessor”, to accept it as genuine and thereby act on it so that the accused would gain some financial advantage by a costs assessment in his favour. He referred to the “false instrument” as being produced to “induce the cost assessor to rely on it to the prejudice of Mr Preston”. The Crown Prosecutor submitted that the file with Ex 1A on it was set up for Mr Hattersley to find.

28 The trial judge made comments in a similar vein in the summing up. His Honour referred to the need for the “false instrument” to induce another person, in this case Mr Hattersley, to accept it as genuine and rely on it to the prejudice of the victim, Mr Preston. His Honour referred to the need for the Crown to prove that the false instrument was made with the intent that it would be used by Mr Hattersley to make a cost assessment to the financial prejudice of Mr Preston.

29 The appellant’s submission extracted only part of the written direction. The opening paragraph under the heading “charge” was in the following terms:

“Charge

That Leon Nikolaidis between 31 October, 1996 and 17 February, 1998 at Sydney in the State of New South Wales did make false instrument, namely, a letter addressed to John Preston dated 19 April 1984, with the intention of using it, namely, to induce another person to accept the instrument as genuine and because of that acceptance to so do some act to the prejudice of John Preston.”

30 From the complete written directions, the submissions of counsel, together with his Honour’s remarks, the elements which the Crown was intending to prove must have been abundantly clear to all participants in the trial. The blemish pointed out in the appellant’s submission was not the subject of comment by anyone. The very experienced trial counsel who appeared for the appellant sought no redirection. I would refuse leave to raise this issue.

31 The appellant also complained that his Honour’s written direction with respect to intent was erroneous in so far as his Honour told the jury that a person may intend to bring about a result even if it was “not the purpose of their act”. It was submitted that this direction was wrong, it being necessary for the relevant act to have been done with the purpose/intention prohibited by the section.

32 It is clear from his Honour’s oral directions that his Honour provided the jury with appropriate assistance. His Honour told them that the offence required proof of a “double intention.” The jury must be satisfied that the appellant intended to induce another person to (a) accept the instrument as genuine and (b) because of that acceptance, to do or not do some act to the prejudice of that person or another. His Honour carefully directed the jury as to the elements of the offence. He said:

“Fourthly, would use the false instrument to induce another person – here Mr Hattersley – next, to accept the instrument as genuine.

Seventh, [sic] because of that acceptance to do or not to do some act; here the Crown alleges the act of the cost assessment.

Eight, [sic] to the prejudice of the victim – he is said to be, by the Crown, Mr Preston.”

33 The additional words in the written direction referred to in [31] above were unnecessary and may in some circumstances have been confusing. The distinction between the intention of the actor and the purposes for which they act may give rise to subtle and relevant distinctions. However, in the present case, the only conceivable purpose in creating the false document could have been to induce Mr Hattersley to rely on it to the ultimate prejudice of Mr Preston. The issue for the jury was whether the appellant had created a false instrument. If he had done so his intention was plain. I would refuse leave to raise this issue.

The false instrument

34 The appellant submitted that because Ex 1A was a carbon copy of an original letter it was not a “false instrument” within the meaning of the section. The submission accepted that although the original letter may have been false the copy was a true copy of that original document. It was submitted that a document is only relevantly false if it “tells a lie about itself” (see R v Ceylan (2002) 4 VR 208 at [18]; More v R (1988) 86 Cr App R 234) and because Ex 1A only purported to be a copy of another document there was no relevant “lie”.

35 The appellant emphasised that s 300 of the Crimes Act makes it an offence to make a false instrument with the relevant intent. However, s 301 makes it an offence, with the relevant intent, to make a copy of an instrument which a person knows to be a false instrument. Because Ex 1A was a copy of a letter, which was allegedly false, but not an original it was submitted the appellant could not have been indicted on an offence against s 300 but only an offence against s 301.

36 There is a fundamental problem with the appellant’s submission. Although Ex 1A is a copy document the Crown case was that the appellant’s intention was to create such a document, ie a copy document, by directing Ms Moffatt to type both an original and at the same time create the copy. Although Ex 1A is a copy of a false instrument, it is itself a false instrument. It was created, the Crown alleged, so that the file would include a copy letter evidencing the terms of the appellant’s retainer. His purpose was to create a false “copy letter” not a copy of a false letter.

37 The present case is similar to the circumstances in R v Ondhia [1998] 2 Cr App R 150 where the accused created false bills of lading and submitted facsimile copies of them to a supplier. He was charged pursuant to the Forgery and Counterfeiting Act 1981 (UK) which provided in s 1 that “A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.” The prosecution alleged that the false instrument was the facsimile copy.

38 In that case the accused’s submission was to similar effect as that of the present appellant. The Court of Appeal of England and Wales rejected the argument pointing out that the focus of the section is on the intention of the accused at the time the document was made. The Court found that at the time the original document was made the accused had intended that a facsimile of it would go to the supplier who would treat it as a duplicate of the false original.

39 Although I would grant leave to raise this issue in my opinion the appellant’s argument must be rejected. The Crown case was that at the time Ms Moffatt typed the original document the appellant intended that she would create a carbon copy (Ex 1A) which would be placed on the file with the intention that Mr Hattersley would treat it as a true copy of a letter which had been sent to Mr Preston. Accordingly, if the jury accepted Ms Moffatt’s evidence the carbon copy was itself a false instrument within the meaning of s 300.

Making or using?

40 The appellant submitted that rather than the appellant it was Ms Moffatt who made the instrument. Although it was accepted that if Ms Moffatt was an innocent agent the appellant would be the maker of the document, it was submitted that, because she admitted lying to the investigator and sought and was granted a certificate pursuant to s 128 of the Evidence Act in respect of her evidence, she was not an innocent agent. Accordingly, it was submitted, the document was Ms Moffatt’s document. The appellant may have used it but, so it was submitted, could not be prosecuted for “making” the document.

41 To my mind the appellant’s submission is at odds with the known facts. On Ms Moffatt’s account she was called into the appellant’s office and told that he had a letter on tape for her to type. She was his secretary and was obliged to take direction from her employer. She originally typed the document as a draft on a computer and took the draft to the appellant. The appellant then made some changes and “settled” the letter. She was then directed to type the letter in final form using a typewriter and old letterhead and green paper for the copy. She did as she was instructed.

42 It is true that the evidence indicates that Ms Moffatt came to have considerable doubts about the appropriateness of the task she had performed. But she undertook that task as an employee. The evidence indicated that she questioned the appellant and asked him “why are you writing to John Preston now? You don’t act for him anymore.” She also expressed her concerns to Ms Middleton. She prudently sought to protect her position at the trial by seeking the s 128 certificate. However, none of these actions indicate that, as against the appellant, she was the maker of the instrument. It was never suggested at the trial, either to Ms Moffatt or to the jury that she was the maker of the instrument. I would refuse leave to raise this issue under Rule 4 of the Criminal Appeal Rules.

The trial judge’s directions with respect to the “false instrument”

43 The written directions with respect to “Prejudice” include a reference to both acceptance of a false instrument as genuine or “a copy of a false instrument as a copy of a genuine one.” The latter concept is relevant to an offence under s 301 where a copy is made of a false instrument with the intention that it be accepted as a copy of a genuine instrument.

44 Being a direction relevant only to an offence against s 301 it was submitted that his Honour misdirected the jury as to the appropriate meaning of “induce” and “prejudice.” However, the appellant’s submissions were framed with reference to written directions which, although prepared in draft were not given to the jury. The document given to the jury was appropriate in relation to “induce”, the appellant’s complaint being in respect of “prejudice”. Because the appellant was not charged with an offence under s 301 it was submitted that it was erroneous to direct the jury that they could return a conviction by a process of reasoning which was not relevant to a charge under s 300.

45 The trial judge provided the written directions to the jury and explained in his summing up the elements of the offence in a manner consistent with the written document. I have already included his Honour’s explanation of “prejudice” at [21].

46 During the course of his summing up his Honour never returned to the detail of the written document and made no further reference to the statements in it in relation to “prejudice.” Significantly no complaint was made by defence counsel, who was greatly experienced in criminal practice.

47 The explanation for any lack of complaint is made apparent from a review of the addresses of counsel and the summing up of the trial judge. The essential issue at the trial did not relate to the intention of the appellant in creating the instrument. If as the Crown alleged the appellant had created a false instrument, being a copy letter which he had then placed into an old file, his intention was obvious. The intention was to induce Mr Hattersley to accept the copy letter as a genuine document so that he would rule in the appellant’s favour in respect of the allowable billing rate. The only question of any significance was whether the jury were persuaded that the appellant directed that the copy letter be created between 1996 and 1998 or whether it was created in the ordinary course of business in April 1984.

48 It was no doubt because the issues were confined in this manner that defence counsel at the trial raised no concerns that the written direction included matters only relevant to an offence against s 301. I would refuse leave to raise this ground of appeal.

49 I agree with Simpson J’s analysis and conclusion in relation to the issue to which she gives the sub-heading “Prejudice”.

50 In the ultimate I would grant leave to raise only one issue under this ground of the appeal and would reject that ground.

Ground 2(a)

51 The appellant did not raise his character during the trial. In fact his counsel indicated to the trial judge prior to him giving evidence that he would not be seeking a good character direction.

52 When Mr Preston gave evidence he referred to proceedings which were heard by Bell J referred to as the “Down to Earth Spring Water” case. When cross-examined Mr Preston said that in that case “Mr Nikolaidis lied in court.” Shortly thereafter he added “[Bell J] found that Mr Nikolaidis had no instructions at all from any directors to drop our claim without telling us.”

53 The claim made by Mr Preston that the appellant had “lied” was not supported by the findings of Bell J.

54 During the trial the prosecutor was granted leave to cross-examine Mr Zwar regarding matters raised for the first time in his evidence. An application was made pursuant to s 38 of the Evidence Act and, although defence counsel objected, leave was granted. One of the issues which the Crown Prosecutor indicated he proposed to raise was an allegation by Mr Preston that the appellant had misappropriated $5,000 from him.

55 The Crown Prosecutor obtained evidence from Mr Zwar that there had been a complaint to the Law Society that the appellant had misappropriated the $5,000. He was asked about inspections by Law Society investigators in relation to various allegations. It was submitted before this Court that the raising of these matters at the trial gave rise to an unfair inference which could be drawn by the jury that the allegation was soundly based because an investigation had been carried out. The cross-examination covered other matters of the appellant’s professional practice including the state of his files, the keeping of accounts, charge out rates from 1984 onwards, complaints made to the Law Society, the taking of accounts, the process of assessment of costs and whether debtor ledgers were missing. The cross-examination occupies 90 pages of trial transcript.

56 It was submitted that the cross-examination went further than should have been allowed and caused the trial to miscarry. It was submitted that it reflected a departure from the necessary restraint required of a crown prosecutor whose purpose must be the attaining of justice and not merely the securing of convictions. It was submitted that the trial went “out of hand” in the manner envisaged by Street CJ in R v Stalder [1981] 2 NSWLR 9 and was sidetracked by collateral issues. The appellant emphasised that the trial judge referred to the alleged misappropriation on 7 occasions during the summing-up. It was submitted that his Honour made matters worse when he said:

“All the evidence about the $5,000 … are matters for you to determine.”

57 It was submitted that the ultimate effect of this cross-examination was to raise as an issue that the appellant was of bad character. It was submitted that the cross-examination constituted a sustained attack on the appellant’s bona fides and fitness to practice as a solicitor and was not justified under s 112 of the Evidence Act because the good character of the appellant had not been raised by the defence and leave had not been sought to do so. It was further submitted that the evidence adduced in cross-examination of the Crown witnesses did not tend to prove that such a witness had a tendency to be untruthful as contemplated by s 104(4)(b) of the Evidence Act such as would permit the Crown Prosecutor to cross-examine on matters relevant to the credibility of the appellant without first seeking leave pursuant to s 112(2).

58 Although Mr Zwar was called by the Crown, a perusal of his transcript suggests that his evidence was in some respects favourable to the appellant. When granting the application pursuant to s 38 of the Evidence Act the trial judge observed that, although it would be inappropriate to conclude that Mr Zwar was in the appellant’s camp, it was apparent that he was giving evidence which was favourable to the appellant “not just on this matter but on a number of other matters relating to Ms Moffat and Mr Preston.”

59 In his evidence in chief when he was asked by the Crown about the file on which Ex 1A was found - referred to as the “Citicorp file” - Mr Zwar volunteered that he had some involvement with Citicorp in relation to an allegation by Mr Preston that the appellant had stolen $5,000. Defence counsel did not intervene when the answer was given. When asked by the prosecutor whether he had cause to go to the file Mr Zwar again referred to the matter of the alleged missing $5,000. Instead of merely indicating that he had cause to go to the file he said that he did this “to try and deal with the issue of the missing $5,000.” Again no intervention was made by defence counsel.

60 Subsequently, in the course of his cross-examination of Mr Zwar defence counsel raised the matter himself. His apparent purpose was to discredit Mr Preston. He put to Mr Zwar that Mr Preston had made a “litany of complaints” against the appellant’s firm, that Mr Zwar had dealt with the litany of complaints and that the Law Society had become involved and sent investigators to the firm, who had gone through the firm like “a packet of salts”. It was further put to him that a qualified accountant had established that the allegation in relation to the $5,000 was baseless. It was put that the allegation of the “pinching” of the $5,000 had proved, after investigation, to be “a fantasy” and that “there was no basis for it.” Later in response to a leading question from defence counsel Mr Zwar agreed that Mr Preston was “pretty good at making threats” by answering “very good.”

61 From these exchanges it would seem that defence counsel was content to have the issues raised in Mr Zwar’s evidence before the jury. His tactic is apparent and could have been effective. The defence sought to use the evidence that Mr Preston had repeatedly complained about the appellant’s integrity, but the complaints were shown to be without foundation to discredit Mr Preston in a manner which would effectively bolster the appellant’s integrity, making it less likely that he had committed the alleged offence.

62 Although the pursuit of these issues by the Crown took an excessive length of time I do not believe it caused the trial to miscarry. The appellant obtained the benefit of evidence vindicating his position which was to his advantage. I would refuse leave to raise this ground of appeal.

Ground 2(b)

63 During the course of the trial an issue arose with respect to the appellant’s knowledge of the whereabouts of Ms Sybil Burden who was a potential Crown witness at the appellant’s previous trial in May 2005. Ms Burden was a former employee of the appellant’s firm.

64 Evidence was led that the appellant had given at his former trial in relation to this issue. That evidence was:

…

65 It was put to the appellant at his later trial that when he gave evidence on this issue he lied. The prosecutor put to him: it was a “straight out lie you told the court.” The appellant responded indicating that the answers he had given at his previous trial were truthful. He said that he had contacted Ms Burden in about April 2002 but was unable to ascertain which law firm she then worked for. He said that he was not then aware of Ms Burden’s home address or telephone number. The appellant said that after he had spoken with Ms Burden on the phone he tried to reconnect with her but she had left her employment and could not be located. The Crown Prosecutor put to him that he did not mention these matters when he gave evidence on the prior occasion. The appellant replied that he was not asked. The prosecutor then put to the appellant that this was “another of those fine distinctions” between the meaning of locate and contact and that he was “trying to be a bit deceptive with the court”.

66 This cross-examination of the appellant was not objected to by trial counsel. It was submitted on the appeal that the whole subject of cross-examination “on this issue was fraught with difficulty and the Crown Prosecutor seeking to suggest that the appellant having lied on oath in the previous trial was, in the circumstances, highly prejudicial. The state of the evidence did not support such a proposition and was devoid of any merit, particularly so when the character of the appellant was not being put in issue.”

67 I am not persuaded that the appellant’s criticism of this line of cross-examination was justified. It was apparent from his evidence that the appellant was able to contact Ms Burden by telephone and had done so. It was also apparent that he had sent her a facsimile. In cross-examination he suggested that being able to “locate her” meant that he did not know where she was. The prosecutor’s assertion that this evidence involved “a fine distinction” and was a “bit deceptive” was not inappropriate.

68 Ms Burden was a significant witness. She said that the first occasion on which she spoke to a police officer about the letter was when she was contacted in March 2006 by Detective Winter. Detective Winter said that he first became involved in the investigation in 2002 and had sought to locate Ms Burden. However, he had been given the name Sybil Burton or Sybil Barton. When he was given the correct name he was able to successfully locate her. She was working with Holman Webb, a firm of city solicitors.

69 It was apparent that Ms Burden’s evidence may have been unfavourable to the appellant. As it happened this was not the case. However, there was reason for the appellant to fear the evidence which she might give and in the circumstances the suggestion that he had been untruthful in relation to his efforts to find her was legitimate. I would refuse leave to raise this ground of appeal.

Ground 3

70 The evidence of “complaint” by Ms Moffatt to Ms Middleton was led by the Crown without objection. That “complaint” was made in about November 1998 which was two years after the earlier date alleged in the indictment and some 9 months after the latter date. When she gave evidence Ms Moffatt did not recall the terms of the complaint that she made to Ms Middleton. I have included the relevant evidence at [16] above.

71 It was submitted by the appellant that the evidence of this belated “complaint” would have provided in the mind of the jury a significant evidentiary link in the mosaic of the evidence led by the Crown as to who was responsible, if not the appellant, for the creation of the document. It was submitted that the evidence of Ms Middleton would have buttressed the credibility of the evidence given by Ms Moffatt. In these circumstances it was submitted that the evidence should not have been led or, in the alternative, leave of the Court pursuant to s 108(3) of the Evidence Act, incorporating the provisions of s 192, should have been obtained prior to leading this evidence. It was further submitted that the evidence of Ms Middleton was objectionable by reference to the span of dates on the indictment as it fell well outside the last date referred to.

72 It was submitted that, if the issue had been considered at the trial, some of the considerations raised by s 192 of the Evidence Act would have required rejection of the evidence. It was submitted that the evidence was properly categorised as evidence of a prior consistent statement rather than as evidence of a belated complaint. Being hearsay and, so it was submitted, not “fresh” it was submitted the evidence should have been rejected (s 59(1) and s 66(2)). It was further submitted that none of the exceptions to the credibility rule provided by s 108 of the Evidence Act were engaged so as to justify the admission of the evidence.

73 As I have related when Ms Moffatt gave evidence she said that she had been instructed by the appellant to prepare Ex 1A. She said that she had typed the letter some time between November 1996 and June 1998. She recalled stressful circumstances surrounding a conversation with Ms Middleton but was unable to recall any details.

74 Ms Moffatt was cross-examined. It was suggested to her by defence counsel that the allegation she made in respect of the appellant was false. Read as a whole her cross-examination did more than challenge Ms Moffatt’s account of the alleged events. There can be no doubt that an allegation of deliberate fabrication was made.

75 The following question was put to Ms Moffatt by defence counsel:

76 Ms Moffatt was asked about her dealings with Mr Preston. She was also asked about a telephone call with the appellant where it was suggested she had asked him to repay the mortgage on her home and it was put to her that she had told the appellant she had been speaking with Mr Preston and that the things she was able to tell Mr Preston “would do you some harm”:

‘$100,000 may not mean a lot to you, but it means a lot to me. You owe me that. I’ve worked hard as a hard-working secretary and it’s the least that you could do in view of the time and effort that I’ve put in. I think you should know that I’ve been talking to Mr Preston and others. I can tell Mr Preston a lot of things about you that would do you some harm. You know that Mr Preston wants to see you struck off and in gaol and I can tell him what he needs, what he wants to hear. Think about that and let me know.’

77 Ms Moffatt was also cross-examined with respect to conversations which were alleged to have occurred between her and George Voulgaropoulos (who gave evidence under the name of George Garrop). Mr Voulgaropoulos worked at the appellant’s firm as an IT specialist between July 1996 and January 2007. The following exchange occurred:

78 The essential thrust of the cross-examination was that Ms Moffatt had fabricated her account of the events in the hope of extracting a financial benefit from the appellant.

79 Section 108(3) of the Evidence Act provides that notwithstanding the credibility rule evidence of a prior consistent statement of a witness is admissible “with the leave of the court if”:

“(b) it is … suggested (either expressly or by implication) that evidence given by the witness has been fabricated … (whether deliberately or otherwise) …”

80 The question of leave to admit Ms Middleton’s evidence was not raised by either party at the trial. Her evidence occupies one page of transcript and defence counsel did not ask one question of her. Ultimately he sought to use Ms Middleton’s evidence to the appellant’s advantage. When addressing the jury counsel said of Ms Middleton’s evidence, clearly accepting it, that its significance was that in that conversation Ms Moffatt did not give Ms Middleton “any specifics”. Having left the conversation unchallenged the jury were being asked to conclude that although Ms Moffatt spoke to Ms Middleton this was in furtherance of her fabricated account of the relevant events.

81 The Crown submitted that the evidence was tendered pursuant to s 108(3). It was submitted that if leave had been sought at the trial it would inevitably have been granted. It was submitted that when Ms Moffatt was cross-examined counsel suggested that her evidence was fabricated and that she had effectively sought to blackmail the appellant. Although it was not suggested to her in terms that she had fabricated her evidence this was the only inference available.

82 It was submitted by the appellant that the evidence would have been rejected because it did not amount to a prior consistent statement. It was submitted that because of the lack of specificity and particularity in Ms Middleton’s evidence there was a question as to whether her account was consistent with the evidence of Ms Moffatt. It was submitted that Ms Moffatt may have been speaking about some other document.

83 In my judgment the appellant’s submission should be rejected. The account Ms Middleton gives of Ms Moffatt telling her of her concern about being asked to prepare a false document is consistent with the sequence of events in respect of which Ms Moffatt gave evidence. Although a particular document was not identified the sequence of events described is such that it may be inferred that if the jury accepted Ms Middleton’s evidence she was recounting a conversation with Ms Moffatt which related to Ex 1A.

84 With respect to the criteria provided by s 192 of the Evidence Act it is plain that Ms Middleton’s evidence was short. There is no suggestion at the trial that the receipt of the evidence was unfair. The appellant’s counsel did not object to it and I cannot ascertain any basis upon which unfairness could now be suggested. The significance of the evidence was high, in that Ms Moffatt was the critical Crown witness who was subjected to a very significant challenge. If Ms Middleton’s evidence was accepted it was supportive of Ms Moffatt.

85 It was submitted that considerations arising under s 135 and s 137 would lead to the exclusion of the evidence. It was submitted that because the conversation allegedly occurred sometime after the period in which it is alleged the offence was committed its probative value would be diminished (see Leung v R (2003) 144 A Crim R 441 at [82]-[83]). It was further submitted that a prior consistent statement may not answer the suggestion of fabrication (see R v BD (1997) 94 A Crim R 131 at 140-141). It was further submitted that a consideration relevant to the grant of leave would be the fact that Ms Moffatt could not give evidence of the content of the discussion (see Leung at [86]).

86 In my judgment these matters would not have led to the exclusion of the evidence if leave had been sought. Although the alleged conversation occurred sometime after the offence the concerns of Ms Moffatt were such that the primary events were likely to be impressed upon her memory. If it occurred the request made by the appellant was entirely unusual, enhancing the reliability of Ms Moffatt’s account. Although by the time of the trial she did not recall the detail of the conversation with Ms Middleton this was not surprising. Although that conversation would have been memorable so far as Ms Middleton was concerned (it would have been an extraordinary occasion) it would have been but one of a series of apparently traumatic events for Ms Moffatt.

87 Accordingly I am satisfied that if the prosecution had sought leave to lead Ms Middleton’s evidence at the trial that leave would have been granted. The fact that her evidence was admitted without objection has not occasioned a miscarriage of justice. I would refuse leave to raise this ground of appeal.

88 For these reasons in my opinion the appeal against conviction should be dismissed.

Sentence

89 The appellant was sentenced to a non-parole period of 12 months with a balance of term of 12 months. The maximum penalty for the offence is 10 years imprisonment.

90 I have already set out the details of the offence. The appellant was convicted on the fourth occasion the matter went to trial. The first two trials were not completed for different reasons. The third trial took place in February 2006 when the jury was unable to agree.

91 The sentencing judge found that the offence involved a direction by the appellant to a trusted employee to prepare a false document. He permitted the letter to be used with the expectation that it would induce Mr Hattersley to award costs at a higher level. His Honour found that this was a serious attempt to subvert the Supreme Court costs assessment process. His Honour found that the offence involved considerable planning and that Ms Moffatt suffered considerable distress by reason of the position in which the appellant had placed her.

92 It was submitted by the appellant’s counsel to the sentencing judge that the offender had involved himself in a single act of criminality, a stupid isolated act which would inevitably be discovered. His Honour rejected this submission finding that the appellant engaged in a continuous course of conduct with the ultimate intention that it would deceive Mr Hattersley. His Honour concluded that the criminality was within the mid-range of objective seriousness and gravity.

93 The appellant had no prior convictions and the sentencing judge was mindful of the evidence of his good character. Because the appellant denied the offence his Honour found there was no evidence of remorse and nothing which would indicate any prospects of rehabilitation.

94 His Honour referred to various decisions where professional persons had been sentenced for a breach of trust. These authorities recognise that a solicitor, accountant or company director who abuses a position of trust must be sentenced so that other professional persons will be deterred from similar conduct (R v Pont (2001) 121 A Crim R 302 at [46]-[55]; R v Smith (2000) 114 A Crim R 8). When a professional abuses a position of trust they diminish public confidence in the entire profession.

95 His Honour considered a number of decisions where solicitors had wrongly taken money from their clients. When this occurs a gaol sentence is common: see Pont and R v Marvin (NSWCCA, 1 November 1995, unreported).

96 The principles to which his Honour referred are undoubted. A professional person, such as a solicitor is placed in a special position of trust. When that trust is abused the standing of the entire profession is compromised. Offences committed by professional persons in these circumstances merit sentences calculated to ensure that other professional persons will be left in no doubt as to the serious consequences that will follow (Pont at [47]).

97 The appellant was aged 52 at the time of sentencing and is now 53 years of age. He is married with two children. He was admitted as a legal practitioner in 1975 and became a partner in his father’s law firm in 1984.

98 Evidence was given by a number of persons who confirmed his professional expertise and in their experience his appropriate regard to the standards of personal and professional conduct expected of a solicitor.

99 His Honour accepted that the appellant should be sentenced as a person of prior good character but because of an absence of remorse concluded that he would require a longer than normal period of supervision. His Honour was mindful of the fact that there is presently an application before the Legal Services Commission to have the appellant removed from the roll of legal practitioners. It is almost inevitable, as his Honour found, that as a result of his conviction the appellant will lose his capacity to practice as a solicitor.

100 The appellant submitted to this Court that by reason of the repetition in his Honour’s remarks of the fact that the appellant had not admitted his guilt his Honour has given inappropriate weight to that matter. It was submitted that a fair reading of his Honour’s remarks indicates that his Honour considered the failure to admit his guilt to be an aggravating feature of the offence rather than confining its relevance to the issues of remorse and contrition. It was submitted that this difficulty is most apparent in his Honour’s discussion of the significance of the decision in Law Society of NSW v Carol Foreman (1994) 34 NSWLR 408 where a solicitor had admitted her dishonesty. The sentencing judge remarked that “[here] Mr Nikolaidis still denies the offence.” With respect to the matter of acknowledgment of wrong doing his Honour stated that such was “a factor which is not present with Mr Nikolaidis.”

101 Although it is correct that his Honour emphasised the fact that the appellant has not accepted his guilt I do not believe he impermissibly allowed this fact to influence the sentence. His Honour recognised appropriately that this fact reflected a lack of remorse and contrition.

102 As I have related his Honour rejected the submission that the appellant engaged in a single act of criminality. The appellant submitted that this was an error. It must be remembered that the appellant’s criminal act was the creation of the document. He was not charged with the offence pursuant to s 300(2) of using the false instrument. The use of an instrument may involve, as his Honour found, persistent and repeated criminal acts.

103 Although there is some force in the appellant’s submission it was nevertheless appropriate for his Honour to consider the context in which the offence occurred. Although the act of creating the false document was a single act the fact that he involved other persons in his offending conduct and intended that the document would be used to deceive Mr Hattersley to the detriment of Mr Preston were all factors relevant to the objective criminality of his offence. By identifying these matters the sentencing judge did not commit any error.

104 With respect to the issue of rehabilitation as I have indicated, in the absence of remorse, his Honour was not prepared to accept that there were good prospects of rehabilitation. Because there is a strong likelihood that the appellant will lose his practicing certificate, and in light of the finding of prior good character it was submitted to this Court that it was most unlikely that the appellant would re-offend and accordingly had good prospects of rehabilitation. Although this submission must be accepted it is of minimal relevance. The fact that an opportunity to re-offend may not be available does not mean that the appellant has an insight into his offending behaviour.

105 The sentencing judge considered, as he was required to do, sentencing options other than a period of full time custody. He concluded that there was no option but to sentence the appellant to a period of full time imprisonment. His particular reasons for this conclusion are not apparent although it would seem that his Honour was guided by the decisions in R v Hovan [2005] NSWCCA 179 and R v Vincent Cofini (NSWCCA, 4 March 1997, unreported). Both these cases involved a solicitor obtaining funds to which they were not entitled. In Hovan the solicitor committed 3 offences: the first against s 178BB of the Crimes Act and a further 2 offences against s 300(1) and (2). The first offence involved an application for a loan which stated a false purpose and the latter two offences were committed whilst the offender was on bail for the first charge and in an attempt to avoid payment of the solicitor’s legal costs to a receiver appointed to his practice. In Cofini the solicitor committed three offences against s 300(2) and a further six offences were included on a Form 2. The solicitor purported to witness a signature of a fictitious individual as a guarantor on an indemnity document, the deception being practised on the St George Bank. The solicitor also changed the wording on a document signed by another solicitor and that document was submitted to the bank. In all, the bank acting on the documents lost $1.4 million.

106 In Hovan the solicitor was re-sentenced on the appeal to a fixed term of 6 months on the first charge and on the second and third to concurrent terms of 2½ years with a non-parole period of 12 months. In Cofini the solicitor was sentenced to concurrent terms of 2 years imprisonment with a minimum term of 1 year.

107 I have already referred to the decision in Foreman. In that case, which bears similarities to the present case, the solicitor altered an internal time sheet to show, falsely, that a cost agreement had been provided to a client. However, the solicitor was not prosecuted for a criminal offence although in civil proceedings was found guilty of professional misconduct, fined $20,000 and had her name removed from the roll of practising solicitors.

108 The offence which the appellant committed occurred approximately ten years ago. He was first charged on 6 August 2002 and by reason of the operation of the criminal justice system was not convicted until 22 August 2007. It is true, as the appellant submitted, that he has, for an unusually long time, been left in a position of uncertainty in circumstances which would undoubtedly have been stressful for him and his family. However, his Honour recognised these matters as relevant to the appropriate sentence: see DPP v Hamman (NSWCCA, 1 December 1998, unreported) and R v Kukunoski (NSWCCA, 17 August 1989, unreported); cf R v Bragias (1997) 92 A Crim R 330 per Grove J.

109 In my opinion the appellant’s conduct was a serious breach of the trust placed in him as a solicitor. By his dishonest conduct he intended to deceive Mr Hattersley to the detriment of Mr Preston. Whatever may have been the personal animosity between Mr Preston and the appellant and whatever be the true situation with respect to their commercial dealings his conduct requires the imposition of a term of imprisonment. The sentence imposed was within the appropriate range.

110 Although I would grant leave to appeal against the sentence that appeal should be dismissed.

Orders

111 SIMPSON J: I have read in draft the judgment of McClellan CJ at CL. I agree that the appeal against conviction ought to be dismissed. What follows are my reasons for coming to that view. I do not propose to restate the facts.

112 The final addresses were notable for their utter simplicity and the commendable (and realistic) economy with which they were presented. Trial defence counsel recognised, correctly, that only one issue existed for the jury to determine: that was whether the document exhibit 1A came into existence or was created as alleged by Ms Moffatt in her evidence. If the jury accepted that, then conviction of the appellant was inevitable.

113 Defence counsel’s final address is transcribed in less than 14 pages. That is because of the narrowness of the issue the jury had to decide. Counsel focused upon that issue. He concentrated his attention upon an attempt (which proved unsuccessful) to undermine the credibility of the Crown witnesses, especially Ms Moffatt and Mr Preston.

114 The same simplicity and economy were not present throughout the trial. Notwithstanding the narrowness of the issues and the simplicity with which they were, in this trial, put to the jury, this was the fourth time the appellant had been indicted on this charge. The first trial was aborted, on application by the Crown, because of a failure to issue subpoenae. Two juries were discharged without verdict because they were unable to agree.

115 In fact, the Crown case hinged on the evidence of Ms Moffatt, although some support for her evidence was given by expert document examiners, and by, for example, Ms Middleton. Ms Moffatt gave a detailed account of how the document was created, under clear and express instructions from the appellant. The appellant denied that he had given those instructions.

116 The charge was brought under s 300 of the Crimes Act 1900. That section is in the following terms:

“300. Making or using false instruments

(1) A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person:

(a) to accept the instrument as genuine, and

(b) because of that acceptance, to do or not do some act to that person’s, or to another person’s, prejudice,

(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:

(a) to accept the instrument as genuine, and

(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

117 The section contains within it some alternatives. It envisages that the false instrument might be used either by the person who makes it (person A) or by another person (person B); and that that person will use the instrument to induce a third person (person C) to accept it as genuine and act on it (positively or negatively) to the prejudice either of person C, or a fourth person (person D).

118 The charge against the appellant was formulated as follows:

“That Leon Nikolaidis between 31 October, 1996 and 17 February, 1998 at Sydney … did make false instrument, namely … with the intention of using it, namely, to induce another person to accept the instrument as genuine and because of that acceptance to so (sic) do some act to the prejudice of John Preston.”

119 As formulated, the charge imposed on the Crown the burden of proving that the appellant made the false instrument; and that he did so with the intention of using it himself to induce another person (Mr Hattersley) to act on it to the prejudice of Mr Preston.

120 If the jury were persuaded that the appellant had given the instructions to Ms Moffatt as she claimed, it was inevitable that they would infer that he had done so with the intention of using the resulting document (the false instrument) by placing it in one of the Preston files, where it would be found by Mr Hattersley, to induce Mr Hattersley to act on it (by giving a favourable costs assessment) to Mr Preston’s prejudice. It was this inevitability that trial counsel recognised, and he thus focused upon the fundamental fact – the credibility of Ms Moffatt’s evidence.

121 The grounds of appeal have been set out in the judgment of McClellan CJ at CL. It is unnecessary to repeat them.

Ground 1:

122 In the appellant’s written submissions ground 1 is divided into three strands, outlined as:

“(i) contended misdirection on the elements;

(ii) the evidence supports a different offence of using a false instrument, not making as charged; and

Crimes Act

123 The ground as it was argued concerns both the written and the oral directions. As effectively reframed in the written submission, the ground goes beyond any issue of directions (or “instruction”), and raises fundamental issues as to the adequacy of the evidence to support the charge on the indictment.

Directions

124 In the circumstances I have outlined above, there was hardly a need for the jury to be given written directions. I would not wish anything I am about to say to be interpreted as discouraging, in appropriate cases, the use of written directions. As criminal trials become increasingly complex, both as to legal and factual issues, written directions play a vital role in assisting juries to understand and recall the issues they have to determine. It is frequently too much to expect juries to absorb and recall and apply the complex directions they are given orally. They deserve the assistance they can obtain from written outlines of complex legal and factual issues.

125 But it is not every case that calls for that approach. This was a case that could well have been conducted without written directions. That is because of the simplicity of the trial and the narrowness of the issues actually litigated.

126 There would, however, have been no necessary error in giving the jury written directions. The difficulty in this case is that the directions given raised false issues, and were, in one respect, wrong.

127 I digress in order to deal with a misunderstanding that emerges from the appellant’s submissions in the appeal.

128 Two versions of written directions were before this Court. One is of two pages, one of three pages. I am satisfied that it is the two-page document that was the document given to the jury. Two circumstances persuade me of that. One is that the two-page document bears a “marked for identification” stamp. It is in fact marked for identification 22. The transcript shows (T712) that, after discussion with counsel about the written directions, the trial judge said:

“I will mark that document on the elements as an MFI exhibit so there is no mistake about that …”

129 The transcript does not then reveal the number given to the document; however, at p698 another document was marked for identification numbered 21, and at T737 another was marked for identification numbered 23. Secondly, at the conclusion of the summing up his Honour took the jury through the copies of the document that they had already been given. What he there said about the document is consistent with MFI 22, but not the three-page document: for example, he referred to lettering of the paragraphs, which exists on MFI 22 but not the three-page document; he referred to the direction on “intent” as appearing on the bottom of page one and going over to page two. That is true of MFI 22, but not of the three-page document, on which the direction on “intent” is complete on the first page. It is most likely that the three-page document was an initial draft (either of the judge, or proposed by the Crown) that underwent some revision before emerging as MFI 22. There are variations in content.

130 The submissions filed on behalf of the appellant proceeded on the basis that it was the three-page document that was before the jury. I am satisfied that that is a misconception. The written directions in MFI 22, and lengthy excerpts from the oral directions, are set out in the judgment of McClellan CJ at CL. I do not propose to repeat them all.

131 In MFI 22, under the heading “Elements”, the following appeared:

“The Crown must prove each and every one of these matters beyond reasonable doubt before the jury could find the accused guilty of the charge:

1. The accused

2. made a false instrument;

3. with intent that the accused or another person;

4. would use the false instrument;

5. to induce another person;

6. to accept the instrument as genuine; and

7. because of that acceptance, to do, or not do, some act;

8. to the prejudice of the victim (Preston).”

132 The item numbered 3. is unhelpful. The Crown case, as disclosed in the statement of the charge, was that it was the appellant who would use the false instrument. It was potentially confusing and misleading to include the reference to “or another person”. That was not the Crown case. The transcript records that, in elaborating orally on the direction, his Honour said:

and here the Crown relies on it being another person

133 MFI 22 contained the following explanation of “making a false instrument”:

B

Made

134 The oral direction was:

“(SU 12, AB 18 – 19) Those elements are: firstly, that it was the accused; secondly, who made the false instrument, and I have given you a definition of what ‘made’ means in this circumstance … The term ‘made’ has the meaning that a person is treated as having made the false instrument if it alters the instrument to make it false in any respect.”

135 The directions were irrelevant and did not bear upon any issue raised at the trial. No question of alteration of the document ever arose. The directions must have been confusing at best.

136 MFI 22 contained the following with respect to “intent”:

Intent

was not the purpose of what he or she did

137 Finally, MFI 22 included a direction on the meaning of “prejudice”, in the following terms:

Prejudice

An act or omission is to a person’s prejudice if a financial advantage will be obtained from that person. That advantage can be otherwise than by way of remuneration.

That may be the result of a person having accepted a false instrument as genuine, or a copy of a false instrument as a copy of a genuine one, in connection with the person’s performance of a duty.”

138 That, too, was the subject of specific submissions. I will return to it.

139 I turn now to the specific matters raised on behalf of the appellant under this ground.

140 The written submissions raised the following matters concerning the directions:

(a) “Intent”:

141 It is not easy to understand the complaint now made on behalf of the appellant. Submissions were made concerning the need for the Crown to prove “double intention”: see R v Campbell (1985) 80 Cr App Rep 150; R v Tobierre [1986] 1 All ER 346; R v Garcia (1988) 87 Cr App Rep 175. The “double intention” is the intention, firstly, to induce another person to accept the instrument as genuine; and secondly, that that person will act upon it to the prejudice of that or another (fourth) person, in this case Mr Preston. (The cases cited were cases decided under comparable, but not identical, English legislation. Here, because of the language of s 300, the Crown must prove a triple intention: an intention to make an instrument that is false; an intention that the maker or another person (person B) will use the false instrument; and an intention that another person (person C) will be induced to act to the prejudice of that person (person C) or another person (person D).) In his oral directions his Honour said:

that it was made by the accused with the intent that it would be used by Mr Hattersley, the costs assessor, to make a costs assessment and that that would be to the financial prejudice of Mr Preston

142 Indeed, in the written submissions, it was acknowledged that:

“It is clear from his Honour’s oral directions (as to the fourth and seventh (sic) elements) as well as his written aide memoir that the need to prove ‘double intention’ was brought to the attention of the jury …”

143 The submissions go on to complain of the concluding words of the written directions. Some contrast was drawn between “intention” and “purpose”. To my mind, there is little, if any, relevant difference between “intention” and “purpose”. But this was not a matter that concerned counsel for the appellant at trial, who had the opportunity to, and did, accede to the form of the document given to the jury. Although the direction would have been better without those concluding words, I do not see it as distracting the jury from their task. In the circumstances of this case, if the appellant was responsible for making the document, it is obvious that his purpose was, firstly, to induce Mr Hattersley to accept it as genuine, and, secondly that Mr Hattersley would act upon it to the prejudice of Mr Preston. That is what his Honour said in the oral direction. There is no substance in this complaint.

144 (b) “Inducement”

145 That construction is, in my opinion, plainly wrong. The victim of the offence is quite clearly and unarguably the person to whose prejudice the person induced is intended to act. In MFI 22 Mr Preston was correctly identified as the victim of the offence. The alternative written directions did contain an error in this respect; element 5 was said to be:

victim

(i) to accept the instrument as genuine; and

(ii) because of that acceptance, to do, or not do, some act to the prejudice of the victim or another person.” (italics added)

146 But I am satisfied that that direction did not go to the jury; if it had it would have been incorrect in the same way as the appellant’s submission is incorrect. There is no substance in this complaint.

147 I have already noted that the written directions concerning the meaning of “making” or “made” were superfluous. But that was not the point taken on appeal. The point now sought to be taken is that Ms Moffatt was the real “maker” of the false instrument, and therefore the (principal) offender, and that the appellant was, at most, an accessory to her offence, or, alternatively, guilty of an offence of using a false instrument, an offence for which provision is made by s 300(2). This is a ground, not of directions, but of the capacity of the evidence to support the charge. I will deal with it below.

148 Under ground 1, (although sitting uneasily with the formulation of the ground) a number of additional issues were raised.

(i) Making or using?

149 I agree with the approach taken by McClellan CJ at CL in respect of this aspect of the appeal. There is no substance in this complaint.

150 It was acknowledged that the appellant could have been guilty of the offence of making a false instrument if he were shown to have acted through an “innocent agent”, something Ms Moffatt was not (on the appellant’s argument) because she had lied to investigators from the Law Society, and had claimed and been granted a certificate under s 128 of the Evidence Act 1995.

151 I very much doubt that this latter consideration could have any bearing upon the determination of whether or not Ms Moffatt was or was not the perpetrator of the offence. However, it is unnecessary to decide that. The appellant opted to defend the charge on the basis of his denials of having been involved. He maintained that the copy letter was genuine, and that the original had been sent to Mr Preston.

152 It is best to reproduce part of the argument advanced on behalf of the appellant:

Arlidge & Parry on Fraud

One flaw in this argument is the assumption that the appellant could only be responsible for making the instrument if he provided false information to, or deceived, the person who performed the physical acts to make the instrument. There is no reason why his liability should be so limited. He would be equally guilty if he had the document made by, for example, threats, intimidation or bullying. It is no different where it is made, on his instructions, as employer. It is not the physical act or acts of bringing the document into existence that identifies the person who “makes” or “made” it; the person who “makes” a document is the person who is ultimately responsible for its coming into existence. In some circumstances, that may raise a question of fact for determination by the jury. In the present case, it did not. Both parties, and the judge, proceeded, correctly, on the basis that, if the document came into existence as described by Ms Moffatt, then the appellant was its “maker”. It is not now open to the appellant to depart from that position. There is no substance in this complaint.

(ii) Copy of false instrument?

153 It was also argued that the document which became exhibit 1A was not, within s 300, a false instrument, but was, within s 301, a copy of a false instrument. That is to misunderstand the manner in which the Crown case was put. The Crown case was that the appellant created a false document; the false document purported to be a copy of another (also false) document, the original letter. As the Crown presented its case, it was essential to the appellant’s plan and purpose, that the purported copy of an original document, said to have been sent to Mr Preston, be contained in the files. The “false instrument” was just that, a false copy of a (false) letter.

154 It is true that the indictment identified “a letter addressed to John Preston” as the false instrument. Precision would have required the false instrument to be identified as a copy of a letter. However, nobody, including the appellant, was misled in any way by this slight imprecision. There is no substance to this complaint.

(iii) Prejudice

155 A fourth matter was raised, somewhat half-heartedly. It concerned the directions given with respect to prejudice. I say half-hearted because, in the opening words of the submission, it was acknowledged that “scant attention was given to this issue at trial”. The criticism that is now made concerns that part of the direction that appears in the second paragraph and incorporates the notion of the person (the person to be induced, Mr Hattersley) having accepted as genuine a false instrument (or a copy thereof) “in connection with the person’s performance of a duty”. That direction was based upon s 305.

156 S 305 exhaustively defines when an act or omission is prejudicial. An act or omission is to a person’s prejudice if and only if it is one that (if it occurs)

(a) will result:

(ii) in the person’s being deprived of an opportunity to earn remuneration or greater remuneration, or

(iii) in the person’s being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration; or

(i) to earn remuneration or greater remuneration from the first mentioned person, or

(ii) to obtain a financial advantage from the first mentioned person otherwise than by way of remuneration; or

in connection with a person’s performance of a duty

157 Here, it is obvious, the prejudice relied upon by the Crown was that specified in s 305(b)(ii) – that is, it was the Crown’s case that Mr Hattersley’s reliance on the false instrument was intended to result in the appellant’s obtaining a financial advantage from Mr Preston otherwise than by way of remuneration. That is all that was needed to be said. The second paragraph of the direction was superfluous. But that is not the complaint that is now made. The argument that was put was that Mr Hattersley could not be said to have been performing a duty. That, so it was said, was because he was not an officer of the court and his performance of a duty as such was not in issue.

158 There is nothing in s 305(c) that requires the performance of the duty to be in the capacity of an officer of the court. Plainly, on the evidence, Mr Hattersley was performing a duty – he was assessing the costs due from Mr Preston to the appellant. He was doing that in accordance with the regime laid down under the relevant legislation. He was appointed by the Chief Justice of NSW. He was performing a duty. That being so, it was not incorrect to give the jury the second part of the direction. There is no substance in this complaint.

159 I would reject ground 1 of the appeal.

Ground 2

160 It is convenient to repeat this ground of appeal. It was formulated as follows.

A substantial miscarriage of justice was occasioned by the decision of the trial judge to grant leave to cross-examine, and the manner and form of cross-examination by the Crown prosecutor in relation to the following issues:

(a) The issue of an alleged misappropriation of an amount of $5,000 said to have been taken by the appellant from Mr Preston.

(b) The contention on the part of the Crown that the appellant concealed the whereabouts of Ms Burden, a potential witness, from the Crown.

161 So far as the ground concerns cross-examination on the issue of an alleged misappropriation of $5,000, it relates to the cross-examination of a witness, Mr Zwar, and also of the appellant, in relation to two specific issues, set out in the ground.

162 It is necessary to set out some history and background.

(a) evidence concerning alleged misappropriation of $5,000:

History and background

163 Michael Zwar was called by the Crown. He is a solicitor, a former employee and former partner of the appellant. He was employed in the firm M D Nikolaidis & Company in March 1991, became a partner in April 1992, and remained with the firm until May 1998. He became involved in some of the Preston matters. When Mr Preston terminated the firm’s services, he was asked (presumably by the appellant) to prepare bills in relation to all matters conducted on behalf of Mr Preston and his interests. It was Mr Zwar who initially found the letter exhibit 1A. He gave some evidence which I find rather curious. He said that when he found the document he left it in the file. When asked whether he had discussed it with Mr Hattersley, he said:

“Not initially. I knew it was in the file and I remember thinking to myself ‘I wonder how long it will take him to find it’, and I actually looked at my watch and had a private bet with myself it might take 15, 20 minutes. It took about half an hour before he walked into my room with the document.”

164 He also said that when he found the document he brought it (somewhat forcefully) to the appellant’s attention. He was annoyed, he said, because having access to it earlier would have made preparation of the bills easier. He said that when he showed it to the appellant, the appellant said:

“Well, I always thought there was a letter somewhere.”

165 He then gave evidence about some specific bills, which could be seen to have been prepared on the basis of a charging rate of $200 per hour. He identified a document (exhibit 3) which was a “Confirmation of Retainer” between Mr Preston and M D Nikolaidis & Company in relation to litigation between Down to Earth Spring Water Pty Ltd (one of Mr Preston’s companies) and the State of New South Wales. This document included an express agreement that the firm would bill the company at a rate of $200 per hour. Mr Zwar gave evidence of another document, an application by himself and the appellant (as partners) in the firm for referral of a bill to a costs assessor. (The transcript does not indicate the matter in respect of which this application was made, but Mr Zwar said that such an application was filed in respect of each of the separate matters the subject of dispute between the firm and Mr Preston, in essentially identical terms.)

166 Item 2(c) of that document is an express assertion that there existed no costs agreement between the solicitor and the client. The application was prepared by Mr Zwar.

167 All this evidence was given by Mr Zwar in chief, and represents, effectively, the sum total of his evidence in chief.

168 He was subjected to what can only be described as a friendly cross-examination. He outlined his own professional history and background and his association with the appellant and his firm, culminating in his becoming a partner.

169 He gave evidence in considerable detail about Mr Preston and his businesses, particularly one investment in a spring water business, in relation to the financing of which the State Bank took a mortgage over certain property.

170 He identified a number of eminent senior counsel who were briefed from time to time by the firm, even telling the jury (in answer to a direct question from counsel for the appellant) that one of them had subsequently become a judge of this Court.

171 It is difficult to see the relevance of much of this, other than as a transparent (though illegitimate) means of enhancing the appellant’s credibility and standing in the eyes of the jury, as an honourable, experienced, discerning (in his choice of and association with eminent counsel) and competent legal practitioner, and corroborating, in advance, the evidence it was anticipated that he would give.

172 Mr Zwar also spoke of the conduct of Mr Preston in refusing to pay bills and a “litany” (the word used by counsel for the appellant) of complaints made by Mr Preston to the Law Society concerning the firm, all of which, he said, were resolved in favour of the firm. He spoke of intensive investigation by the Law Society at the instigation of Mr Preston. He spoke of threats made by Mr Preston, for example, to present statements adverse to the appellant from former clients and former employees to the Law Society investigators. He spoke of multiple claims made by Mr Preston against the firm alleging professional negligence, each of which, he said, was resolved in favour of the firm. All of this was plainly designed to impact adversely on Mr Preston’s credibility in the eyes of the jury, and to portray him as a malicious, vindictive, disgruntled former client who would, and did, make repeated false accusations of the appellant.

173 Counsel for the appellant then introduced the matter the subject of the first part of this ground. He asked:

“ … At that time there was an allegation by Mr Preston that someone had misappropriated $5,000, wasn’t there?”

174 Mr Zwar affirmed this, and affirmed (repetitively) that Mr Preston alleged that $5,000 had been stolen. He said that accounting records did not show any evidence of that sum of money having been received by the firm, and that the allegation proved, after investigation, to have been “a fantasy”, and baseless. He said that the sum in question had been paid by bank cheque to another firm of solicitors. This was presented as a specific instance of the malicious and dishonest allegations made by Mr Preston against the appellant and the firm.

175 Mr Zwar was then asked this question:

“(T407) Did he say to you words to this effect:

‘Jan Moffatt told me today that if I don’t pay her $100,000 she’s going to ruin me’.

or words to that effect?”

176 “He” was a reference to the appellant. Mr Zwar’s answer was:

“Whether I ran into him in the Supreme Court or whether he telephoned me I can’t quite recollect, but I know that he told me that he’d been rung by Jan Moffatt and told him words to the effect that if he paid her mortgage then she would let the whole matter go.”

177 This evidence was elicited from Mr Zwar at a time before Ms Moffatt had given evidence, and, obviously, before the appellant gave evidence.

178 The trial judge interrupted to direct the jury that this evidence could not be used as evidence that Ms Moffatt had spoken to the appellant as was asserted, but only as evidence that the appellant had so reported to Mr Zwar.

179 Mr Zwar said that his response to this was to say to the appellant:

“Maybe Mr Preston’s got to her as well.”

180 He explained what he meant by this. He said that when Mr Preston made his complaints to the Law Society they were sometimes accompanied by statements from former employees of the firm and:

“… it appeared to me that Mr Preston had a habit of approaching former employees and clients of MD Nikolaidis & Co with a view to obtaining statements from them, and on some occasions he was successful in doing that.”

181 When asked to explain the phrase “got to her as well” he said:

“Well that’s a reference to the fact that Mr Preston seemed to make something approaching a career of chasing every former secretary or employee of MD Nikolaidis & Co who had left the firm.”

182 An attempt was then made to have Mr Zwar say that he believed Mr Preston “had a hand” in Ms Moffatt’s assertion about the creation of exhibit 1A. This attempt was rejected.

183 Mr Zwar also said that the appellant told him that, when confronted with the alleged approach by Ms Moffatt, he said:

“I told her where to get off.”

184 There had been an attempt on the part of counsel for the appellant to elicit from Mr Zwar evidence about another woman who had worked providing temporary secretarial services whose employment had been terminated because of alleged dishonesty, on information supplied by Ms Moffatt. This attempt also failed.

185 There was then this passage recorded in the transcript:

“So as to the suggestion that the accused directed Ms Moffatt to manufacture those file notes, do you agree or disagree with that proposition?

A. No, that’s just not right.

Q. It would be fair to describe that as a nonsense allegation?

A. I accept that. I had the entire carriage of all dealings with the Preston files once Mr Preston had left. Mr Nikolaidis did not, for obvious reasons, didn’t want to make himself involved with them. I had to deal with them. In the context of having the Law Society inspections and also the preparing of accounts, I wanted to make sure there was some integrity in the files and that any file notes would be capable of being read by the Law Society inspectors.”

186 No objection based on relevance was forthcoming from the Crown prosecutor. Yet the transcript of the cross-examination extends over 134 pages.

187 It was towards the end of this lengthy cross-examination that the Crown prosecutor placed on record his intention to make an application under s 38 of the Evidence Act 1995, something he had, apparently, earlier signified to counsel for the appellant.

188 S 38 is relevantly in the following terms:

“38. Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) …

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) …

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) …”

189 After hearing argument the trial judge granted leave to the Crown to question Mr Zwar as though cross-examining. His Honour referred only to that part of the evidence given by Mr Zwar in cross-examination in which he recounted that he had said to the appellant, of Ms Moffatt:

“I said maybe Mr Preston’s got to her as well.”

190 He held that:

“The clear implication of that evidence is to impugn the credit, motivation and evidence of Mr Preston and Ms Moffatt.”

191 He said that that evidence had not been given by Mr Zwar in any previous trial or statement and was raised, in this trial, for the first time. He expressed himself as being in no doubt that Mr Zwar was giving evidence that was favourable to the appellant (not only on that part of the evidence, but on a number of other matters relating both to Ms Moffatt and Mr Preston), and unfavourable to the Crown. While he held back from finding that Mr Zwar was:

“… in the camp of the accused”,

192 He then said that he considered it appropriate that the Crown be given leave to cross-examine:

“… particularly on those matters which are new either in evidence given in this trial compared to earlier trials, or not contained in other statements.”

193 He then specifically referred to the factors which s 192 of the Evidence Act requires to be taken into account when questions of leave are in issue. It is unnecessary to refer to what he there said in that respect.

194 The submissions put on behalf of the appellant were not easy to follow. At the outset, it was noted that, at the trial, the appellant did not seek to raise character, and made that clear at the commencement of the trial. The submissions went on to assert that, during the course of his evidence, Mr Preston claimed that, in previous civil proceedings in this Court between his company and the appellant’s firm, Bell J had found that the appellant lied in court, and that, shortly after, Mr Preston corrected that to assert that Bell J had found that the appellant had acted without instructions.

195 It was said that the claim that the appellant had lied in court “was completely and utterly unsubstantiated”; and it was observed that “strangely” no direction at the time was given [nor was one sought] concerning what Mr Preston had said. I find it difficult to see how these matters come within the ground of appeal as it is framed. If the remark made by Mr Preston had been perceived as particularly damaging, his counsel would, undoubtedly, have sought an immediate direction. It passed unnoticed.

196 The submissions then turned to the issue of the alleged misappropriation of $5,000. Not only was Mr Zwar cross-examined (by defence counsel as well as the Crown prosecutor) about this; so also was the appellant. The subject was introduced, in the first instance, by counsel for the appellant in cross-examination of Mr Zwar. It seems reasonably clear that the purpose of the cross-examination of Mr Zwar (by the appellant’s counsel), including that part of it that concerned the $5,000 allegation, was to portray Mr Preston as an unreasonable, biased and vengeful man, prepared to make wild, various and untrue allegations against the appellant and his firm. In the submissions the cross-examination of the appellant on this issue was described as “vigorous” and “extensive”. A fair reading of the cross-examination by the Crown prosecutor of Mr Zwar, and of the appellant, does not support that characterisation. The cross-examination does not suggest that the appellant had in fact stolen or misappropriated any money. As far as the purpose of the cross-examination can be discerned, it appears to have been to show that the appellant’s records were such that it may not have been unreasonable (even if it proved not to be the case) for Mr Preston to explore whether such a misappropriation had taken place.

197 Contrary to the appellant’s written submissions, the cross-examination was not, on my reading of it, “vigorous” or “extensive”. It was never put to him that the allegation of theft was proved or was true.

198 Since the subject of the $5,000 was first introduced by counsel for the appellant, and apparently for the purpose of showing Mr Preston to have been an unreliable witness, the appellant can hardly now complain that it was taken up by the Crown in order to explain or put in context what was said.

199 Reliance was placed upon the decision of Street CJ in R v Stalder [1981] 2 NSWLR 9. That was a case in which an accused person stood trial for murder. In the course of making an unsworn statement, a course then permitted by the Crimes Act, he made assertions that he was of a non-violent disposition. It was held that by doing so he had raised character, thus entitling the Crown to call evidence in rebuttal of his asserted good (non violent) character. His criminal history, which included two offences of armed robbery, was put in evidence. The argument there put to the Court was that, although it does not appear to have been disputed that admitting evidence in rebuttal of his claims of character was appropriate, nevertheless what was permitted to be proven was excessive.

200 Street CJ acknowledged authorities which may be stated as to the effect that, even where character evidence is permitted, a trial judge retains control and ought to exercise a discretion to maintain fairness in the extent to which such matters are raised.

201 The case is of no assistance to the appellant. The nature of the evidence there adduced was far beyond anything that was given in the present trial. Even so, Street CJ and Begg J held that no miscarriage of justice had occurred, and that it was within the trial judge’s discretion to permit the evidence to be given.

202 All that has happened here is that the issue of $5,000 allegedly “missing” was raised by the appellant’s counsel; it was explored, insofar as the transcript discloses, in a non-combative and non-assertive fashion by the Crown.

203 Criticism was also made of a number of references to this matter during the course of the summing up. Examination of the transcript of the summing up shows that this criticism is unwarranted. The issue was mentioned during the course of the judge’s review of evidence given by various witnesses, including Mr Zwar and the appellant, and in his review of counsel’s addresses. The summing up was, unfortunately, of a style that has long been out of favour, being a chronological summary of evidence given by successive witnesses. Such a summing up is not in accord with what is required: see R v Zorad (1990) 19 NSWLR 91 at 105. No particular emphasis was given to the issue of the $5,000.

(b) evidence concerning the absence of a potential witness:

204 The second matter the subject of this ground concerns the whereabouts of Ms Burden, a witness who had been a secretary employed in the appellant’s firm and whose initials were those that appeared on the letter exhibit 1A. The appellant had previously given evidence, in an earlier trial. In the present trial, he was cross-examined about the evidence he had then given concerning his knowledge of Ms Burden’s whereabouts; it was put to him that he had said that he had last seen her in about 1985, had tried to locate her, but was uncertain of the spelling of her surname. It was suggested to him that what he had previously said was not true.

205 The submission that was made was that cross-examination on this issue “was fraught with difficulty” and that a suggestion on the part of the Crown that the appellant had lied on oath in a previous trial was highly prejudicial. Counsel did not expand on this rather global submission.

206 Cross-examination is intended to be prejudicial. What is not permitted is cross-examination that is unfairly prejudicial. It was perfectly legitimate for the Crown to question the appellant about evidence he had previously given. There was no unfairness in the cross-examination.

207 I would reject ground 2 of the appeal.

Ground 3: the evidence of Tracey Middleton

208 Between 1998 and 1999 Ms Middleton was a salaried partner in the appellant’s firm. She gave evidence of a conversation with Ms Moffatt that, she said, took place in November 1998. Her evidence was that Ms Moffatt approached her in her office, with tears in her eyes, and asked what would happen to her if she were told to create a document and backdate it – and said that she had in fact done so.

209 Ms Middleton was not cross-examined.

210 This was evidence relevant only to the credibility of Ms Moffatt. It was therefore inadmissible under the credibility rule contained in s 102 of the Evidence Act, unless it came within one of the exceptions to that rule. It could only have been admissible under s 108(3). S 108 appears under the heading: “Exception: re-establishing credibility”. Subs (3) provides:

“108

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.”

211 It will be seen that the tender of evidence such as this requires leave. Before leave is given, one of the foundations for the admission under s 108(3) must be established: either that evidence of a prior inconsistent statement by the witness has been admitted; or that it has been or will be suggested that the evidence given by the witness has been fabricated or reconstructed or is the result of a suggestion.

212 Once the foundation is laid, whether leave is given is to be determined after consideration of the matters set out in s 192 of the Evidence Act.

213 It does not appear that leave was sought or granted. No objection was taken to the evidence. There has been no suggestion that defence counsel was not provided with a copy of Ms Middleton’s statement, or an outline of the evidence she was called to give, or was in any way taken by surprise by the calling of Ms Middleton.

214 Whether the foundation for admission of the evidence has been established depends upon analysis of the cross-examination directed to Ms Moffatt.

215 It was put directly to Ms Moffatt that she had not been required by the appellant to create the letter. She answered that she was requested, indeed instructed to do so.

216 The cross-examination then proceeded, in unmistakeable terms, to suggest that Ms Moffatt had fabricated the evidence. It was put to her, and accepted by her, that her financial circumstances were precarious and she was in need of money. It was put to her that on her leaving the employment of the appellant, she had unsuccessfully sought from him certain payments; and that, on a specified date in October 2001, she had telephoned the appellant with a request that he pay or give her $100,000; that this was accompanied by a scarcely veiled threat to provide information damaging to the appellant to Mr Preston – information sufficiently damaging to see the appellant imprisoned. It was put to her that, on another occasion, she had had a conversation with George Voulgaropoulos, an employee of the appellant’s firm, in which she had made detailed reference to the wealth of the appellant and his family; and that, in another conversation with Mr Voulgaropoulos, she had insinuated that she might benefit financially, in a substantial way, from the Preston dispute.

217 The only possible import of this cross-examination was a suggestion that Ms Moffatt had fabricated her evidence about the creation of the document. One clear suggestion was that her disaffection for the appellant stemmed from her perception of the way she had been treated by him on leaving the firm – that she believed that she had not been paid her “entitlements”. It was suggested that this provided her motive to fabricate evidence against the appellant.

218 Ms Moffatt left the firm in the middle of 2001. Any statement she had made prior to that date, consistent with her evidence about the creation of exhibit 1A, was therefore capable of rebutting the suggestion of fabrication. Ms Middleton’s evidence was that the conversation with her took place in 1999.

219 In these circumstances, the foundation under s 108(3)(b) for the admission of the evidence was laid.

220 It is true that, in the absence of any consideration of leave, the trial judge did not directly turn his attention to the provisions of s 192. S 192 requires the court to take into account the following:

“(a) the extent to which to [grant leave] would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to [grant leave] would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave … is sought, and

(d) the nature of the proceedings, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or give a direction in relation to the evidence.”

221 There is not one of these which would militate against the grant of leave to the Crown to adduce Ms Middleton’s evidence. Of course, the Crown ought to have sought leave. But it was open to defence counsel to object to the evidence when leave had not been sought. He did not do so. As can be seen from the transcript, her evidence was very short indeed; it occupies only one page of transcript. Given the nature of the cross-examination of Ms Moffatt, it could hardly be said to be unfair to the appellant to permit evidence that re-established, or tended to re-establish, Ms Moffatt’s credibility – evidence that, prior to the date of her asserted disaffection, she had made a statement, or acted in a way, consistent with the evidence said to have been fabricated. The evidence was important in the overall context of the trial which was a criminal prosecution of a serious charge. No question of adjournment arose.

222 Had leave been sought, inevitably, it would have been granted. The failure of the Crown to seek, and of the judge to grant, leave did not occasion any miscarriage of justice.

223 I would reject this ground of appeal. It follows that I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

224 For the reasons given by McClellan CJ at CL, I would grant leave to appeal against sentence but dismiss the appeal.

225 HISLOP J: I agree with the orders proposed by McClellan CJ at CL and the reasons of his Honour and Simpson J.

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Citations

Nikolaidis v R [2008] NSWCCA 323

Most Recent Citation

Niaros v The Queen [2013] VSCA 249

Cases Citing This Decision

9

Salmon v Albarran [2025] NSWCA 42

Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73

R v Hawkins (No 4) [2023] NSWSC 1496

Cases Cited

11

Statutory Material Cited

3

R v Redmond [2006] VSCA 75

R v Ceylan [2002] VSCA 53

David Harold Eastman v The Honourable Jeffrey Allan Miles [2006] ACTSC 57

CITATION:	Nikolaidis v R [2008] NSWCCA 323
HEARING DATE(S):	30 July 2008
JUDGMENT DATE:	17 December 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 111; Hislop J at 225
DECISION:	1. Appeal against conviction dismissed 2. Leave granted to appeal against sentence 3. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to give proper or adequate instruction regarding the nature and scope of elements of offence of making false instrument - Crimes Act 1900 s 300, s 305 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross examine and manner and form of cross examination in relation to certain issues - Evidence Act 1995 s 104, s 112, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint - Evidence Act 1995 s 108, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons
LEGISLATION CITED:	Crimes Act 1900 Legal Profession Act 1987 (repealed) Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	DPP v Hamman (NSWCCA, 1 December 1998, unreported) Law Society of NSW v Carol Foreman (1994) 34 NSWLR 408 Leung v R (2003) 144 A Crim R 441 More v R (1988) 86 Cr App R 234 R v BD (1997) 94 A Crim R 131 at 140-141 R v Bragias (1997) 92 A Crim R 330 R v Campbell (1985) 80 Cr App Rep 150 R v Ceylan (2002) 4 VR 208 R v Garcia (1988) 87 Cr App Rep 175 R v Hovan [2005] NSWCCA 179 R v Kukunoski (NSWCCA, 17 August 1989, unreported) R v Marvin (NSWCCA, 1 November 1995, unreported) R v Ondhia [1998] 2 Cr App R 150 R v Pont (2001) 121 A Crim R 302 R v Smith (2000) 114 A Crim R 8. R v Stalder [1981] 2 NSWLR 9 R v Tobierre [1986] 1 All ER 346 R v Vincent Cofini (NSWCCA, 4 March 1997, unreported). R v Zorad (1990) 19 NSWLR 91
PARTIES:	Leon Nikolaidis (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/3505
COUNSEL:	R Richter QC/P Lowe (Appellant) L M B Lamprati SC (Crown)
SOLICITORS:	Carny's Lawyers (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0372
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	16 November 2007