R v Lazar; R v Constantinidis

[2020] NSWDC 3

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Lazar; R v Constantinidis [2020] NSWDC 3
Hearing dates:	22 – 23, 25, 30 July 2019, 1, 5, 6 – 9, 12 – 14 August 2019.
Date of orders:	24 January 2020
Decision date:	24 January 2020
Jurisdiction:	Criminal
Before:	Traill DCJ
Decision:	See: [451]
Catchwords:	CRIMINAL LAW – judge alone trial – act with intent to pervert the course of justice – joint criminal enterprise – offer to pay
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	R v Beckett (2015) 325 ALR 385 Fleming v The Queen (1998) 197 CLR 250
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Regina (Crown) Ian Lazar (Accused) Achilles Constantinidis (Accused)
Representation:	Counsel: Ms Wilkins SC (Crown) Mr Brewer (Accused) Mr Vasic (Accused) Mr Hill (Commissioner of Police)
File Number(s):	2014/00320266 - R v Ian David LAZAR; 2016/00013067 - R v Achilles CONSTANTINIDIS
Publication restriction:	Restricted – names of some witnesses restricted, portions redacted

Judge Alone Trial

Judgment

The Accused

1. On 22 July 2019, Achilles Constantinidis and Ian David Lazar (together, “the accused”) pleaded not guilty to a charge of intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900.

The Indictment

2. The indictment is as follows: between 7 August 2012 and 30 September 2012, at Sydney in the state of New South Wales, [the accused] did an act, namely offer to pay [Witness B] to improperly influence Detective Senior Constable David Roberts in respect of an investigation, with intent thereby to pervert the course of justice.

Elements of the Offence

3. There are two elements in relation to the offence.

1. The accused did an act or made an omission

2. With intent in any way to pervert the course of justice

4. The definition of pervert the course of justice includes obstructing, preventing, perverting, or defeating the course of justice or the administration of the law. The meaning of “perverting the course of justice” was considered in R v Beckett (2015) 325 ALR 385; 90 ALJR 1; (2015) HCA 38, where it was held that it extends to actions done with the “intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted” (at [7]). The offence is made out if the accused did an act or made an omission intending at the time in any way to obstruct, pervert, prevent, or defeat the course of justice.

5. The act the Crown relies upon is an offer to pay Witness B to improperly influence Detective Senior Constable David Roberts in respect of an investigation. The Crown does not have to prove that the act relied upon did in fact pervert the course of justice, however the Crown does have to prove an intention to do so.

Definition of Joint Criminal Enterprise

6. The Crown also relies on the doctrine of Joint Criminal Enterprise in respect of both the accused.

7. A Joint Criminal Enterprise exists where two persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or both of them.

8. The circumstances in which two persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed.

9. It does not matter whether the agreed crime is committed by only one of the participants in the Joint Criminal Enterprise, or whether they both played an active part in committing that crime. Both of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each accused in its commission.

10. The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients that make up that crime was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that he or she was a participant in the commission of that crime as part of a Joint Criminal Enterprise with one or more persons.

Judge Alone Trial

11. On 7 February 2019 the Court ordered, pursuant to s 132(1) of the Criminal Procedure Act 1986, that the accused be tried by Judge Alone.

12. Pursuant to section 132 of the Criminal Procedure Act 1986, a Judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of the jury. The judgment of the Court in such a case must include the principles of law that I as the Judge apply and the findings of fact on which I rely.

13. In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 the High Court stated that it is necessary for the Judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that they have reached.

14. I am required, as the trial Judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law.

General directions

15. In compliance with subsections 133(2) and (3) of the Criminal Procedure Act 1986, I remind myself of the principles of law to be applied. I now set out those principles.

Beyond reasonable doubt

16. Having brought the charge it is the Crown who bears the onus of proving the charge. The high standard to which such a charge must be proved is the standard of beyond reasonable doubt.

Presumption of innocence

17. In addition to the fundamental principle that the Crown must prove the charge beyond reasonable doubt, it is necessary to bear in mind a number of other principles. Each accused is presumed by law to be innocent of the charge brought against him unless and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proved beyond reasonable doubt.

18. If the evidence fails to satisfy the Court beyond reasonable doubt of any or all of the elements of a particular offence charged then the presumption of innocence continues and a verdict of not guilty on that count must be returned.

19. If there is an explanation consistent with the innocence of both the accused of the charge, or if the Court is unable in the circumstances to determine whether a particular element has been proved, then the accused must be found not guilty accordingly. The evidence before the Court must be approached with an open and unbiased mind. The Court must proceed logically and rationally without acting capriciously.

20. It is necessary to bring into account in assessing the evidence the common sense of the Court, and to deliver any verdict according to the evidence. It is necessary to recall that the accused do not have the burden of adducing any evidence. They do not have to disprove the Crown case, it is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be.

Murray direction

21. In this case, the Crown relies largely on the evidence of Witness B. There is also evidence from other witnesses and telephone intercepts, however, the only evidence in relation to the arrangement or offer to pay Witness B comes from Witness B himself. It is therefore necessary to scrutinise the evidence of Witness B with great care. I accept it is necessary to be extremely careful in assessing the evidence of Witness B in order to prove the case to the required standard, beyond reasonable doubt. I give myself a Murray direction in respect of Witness B. I would also assess his evidence to enquire whether there is any independent evidence to support his evidence generally, such as from the other independent witnesses, telephone intercepts, and CCRs.

Witnesses

22. It is for me to assess any witness who has given evidence in the trial and decide whether the evidence of the witnesses is reliable. I note that the reliability of any witness’s evidence depends upon two quite different but sometimes overlapping considerations: one is the witness’s honesty and the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.

23. I have heard the submissions of the Crown; and of Mr Brewer and Mr Vasic, Counsel for the accused. I have considered all the submissions and given them such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

24. I note that as the tribunal of fact I am expected to use my qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

25. I acknowledge that I have very important matters to decide in this case, important not only to the accused, but also to the community. I must, as the judge of the facts, act impartially and dispassionately. I must not let sympathy or emotion sway my judgment.

26. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the witnesses called in the trial and the exhibits placed before me. I will refer to significant portions of the evidence central to the issues that have arisen in the trial and set out the evidence the Crown relies upon in proof of each element of the counts in the course of giving these reasons for judgment.

27. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of the witness. I may if I think fit, accept part and reject part of the witness’s evidence.

Inferences

28. I remind myself that I may, in my role as Judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference adverse to the accused from proven facts if such an inference is the only reasonable inference that can be properly drawn from the proven facts. In a criminal trial, I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

29. Where knowledge or intention is to be inferred from the evidence, I must be satisfied that the conclusion as to the accused’s knowledge or intention is the only rational inference available.

Burden of proof

30. This is a criminal trial and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove their innocence but for the Crown to prove their guilt and to prove it beyond reasonable doubt. I warn myself that suspicion, nor even grave suspicion, is not a substitute for proof beyond reasonable doubt.

31. It is, and always has been, a critical part of our system of justice that persons tried in these courts are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of a charge beyond reasonable doubt, then the accused must be found "not guilty" of the charge.

32. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and in both the accuseds’ case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and both counsel for the accused in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

33. I remind myself that it is vitally important that I clearly understand that both the accused must be found "not guilty" if their guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, if I have a reasonable doubt in respect of that matter, the accused are entitled to the benefit of that doubt and I must find them “not guilty”.

Accused did not give evidence

34. Both accused did not give evidence in the trial, though a number of exhibits were admitted in the accused’s case. There are a number of important principles I must keep in mind about the fact that the accused did not give evidence in the witness box in response to the Crown case.

35. An accused person may always, by giving evidence or calling other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or an explanation for a part of the Crown case, but there is no obligation on him or her to do so.

36. Although an accused person may give evidence in relation to the whole or any part of the Crown case, he or she may equally elect to give no such evidence, nor call any other evidence in that regard. He or she is entitled to say nothing at all and have the Crown prove his or her guilt. I direct myself that as a matter of law, the silence of the accused in court and their election not to give evidence cannot be used against them.

37. The election of the accused not to give evidence about aspects of the Crown's case does not constitute an admission by them and no such conclusion can be drawn from that fact. Nor must such an election be used by me to fill in gaps in the evidence led by the Crown, if I perceive there to be gaps, nor to bolster a Crown case if, in my assessment, the Crown case is weak. A defective Crown case gets no better simply because an accused person does not give evidence.

38. It is of fundamental importance that I bear in mind throughout my deliberations that the accused do not have to prove anything. Each accused is entitled to the presumption of innocence.

39. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge.

Evidence called at trial

40. When considering my verdict, I have reviewed the entirety of the transcript of the witnesses called at trial, re-listened to the entirety of the recordings from the listening devices [Exhibit H], and reviewed all exhibits. The following is a summary of the evidence the Crown relies upon. If I do not refer to any specific evidence or telephone intercept it does not mean that I have not taken it into account.

Witness B

41. Prior to the calling of Witness B, Mr Hill on behalf of the Commissioner of Police made an application, which was supported by the Crown, that a number of Crown witnesses have their names suppressed. In a separate Judgment dated 25 July 2019 (and published but restricted), I determined that a number of the Crown witnesses would be referred to by letters of the alphabet. [Annexed is an index of the names of witnesses and their corresponding substituted letters.]

42. Witness B was the most important witness called in the trial. It was on his and his wife's evidence, together with the telephone intercepts, that the Crown sought to prove the elements of the offence by demonstrating that the accused offered to pay and did pay Witness B to improperly influence Detective Senior Constable David Roberts in an investigation, with intent thereby to pervert the course of justice. Witness B was given an undertaking by the Attorney General under s 33 of the Criminal Procedure Act 1986, which states if he cooperates with the criminal proceedings against the accused, and if his evidence is the truth, the Attorney General undertakes that the evidence which Witness B gives, the fact that he does, and the evidence tendered as a result, will not be used in proceedings against him, except in respect of falsity of his evidence [Exhibit A].

43. The Crown also tendered a criminal history of Witness B [Exhibit B]. Witness B has a very lengthy criminal history dating from July 1991. He has convictions for supply prohibited drug, possess prohibited weapon, stalk/intimidate and with intent to cause physical or mental harm, a number of traffic matters, Police pursuit, custody of knife in public place, larceny, destroy/damage property, dishonestly obtain property by deception, aggravated assault with intent, driving armed with weapon, and numerous other convictions.

44. Witness B made an induced statement to the Police offering them assistance. He stated that the reason he offered assistance to Police is that the accused borrowed money on his wife's house. He said, “We had no idea we had fraudulent documents. We ended up losing it. We ended up on the street so that was my motivation" [T 84.30 – 35]. He said, “we basically lost everything.”

45. Witness B said he met Constantinidis in about 2007 or 2008. He said he did everything for him, including debt collecting, and personal errands - if Constantinidis needed something, he would get it for him.

46. The evidence Witness B gave in relation to the charge is critical. I will refer to it in some detail.

Conversation with Constantinidis at Winsdor

47. Witness B said he spoke to Constantinidis in 2012 at his house at Windsor. Witness B said the accused rang him and told him to come over to his house to see him. Witness B went with his wife. The following questions and answers are important in relation to the alleged request to Witness B made by each accused to pervert the course of justice. I will set them out verbatim:

Q. I want to ask you about some events in August of 2012. Did you speak to Al in relation to anything to do with a gold bar in 2012?

A. Yes, I did.

Q. Do you know what month it was?

A. No, I don't. I don't know what month it was.

Q. Where were you when you spoke to him?

A. At his house.

Q. And

A. Windsor. At Windsor.

Q. How did you come to be at his house?

A. He rang me and told me to come over and see him so I - I went.

Q. Did you go there with anyone?

A. Yeah. I always had someone. Yep.

Q. Who did you go with this time?

A. [Witness D]. She's my wife.

Q. Was she present during your conversation with Al?

A. No.

Q. Can you tell us what Al said and what you said during that conversation?

A. He said to me that Ian Lazar was in a bit of a - he's - he's got dramas. He's - he's going crazy. I said, "What, what's wrong?" He said, "A Detective by the name of Roberts is giving him a hard time and, yeah, someone - we need to put a stop to it." So, yeah, he asked me if I knew any - any people high up. I said, yeah, I did and he said, "Can we sort it out?" I said, yeah, of course we could.

Q. Just pausing there, did he tell you what trouble Ian was in?

A. Yeah. It had to do with the - the gold bar that was found with [Y] in the car when they got pulled over. I think Ian put his hand up and said it was his.

Q. So he asked if you knew anybody high up, and what did you say?

A. Yeah, I did.

Q. What did he say about that?

A. He was pretty pleased. He said - well, we mentioned Police, you know..(not transcribable)..and he goes, "Do you know any people high up in the" - you know, basically in the Police force - that meant Police force - and I said, "Yeah, I - I do," and, yeah, that's where it started from. Yeah.

CROWN PROSECUTOR: Could we just put on the record, your Honour, that the witness was then tapping his left shoulder with two fingers when he said, "that meant the Police force"?

Q. How did you know that meant the Police force?

A. It was something that we've - we - that we had sort of come up with so we don't talk in case the place was bugged. 'Cause they were very paranoid.

Q. Was there any conversation specifically about what he wanted you to do in relation to Roberts?

A. Yeah, so - yes. Yes.

Q. What did he say?

A. He told me, "Do whatever it takes. Break his legs, break his arm. Do whatever it takes, just get rid of him. Get him out of the way."

Q. Did he say anything else about what you could do?

A. Yeah, possibly get him sacked.

Q. I'm sorry?

A. Possibly get him sacked.

Q. Get him‑‑

A. Sacked.

Q. Did you actually have any high up contacts in the Police force at that time?

A. No, I never.

Q. Have you ever had any high up contacts in the Police force?

A. No, I never.

Q. Were you intending to follow his request and do something to Roberts?

A. Nup. Not at all.

Q. Did you have any conversation at that time with Al about money and whether the job would cost anything?

A. Yes. We - we did talk about money. There was - there was money already owed for other jobs and, yeah, we did speak about money.

Q. You said money was owed for other jobs.

A. Yeah.

Q. You're talking about wages owed to you.

A. Wages, yep.

Q. After you'd had that conversation with Al, did you telephone Ian Lazar?

A. Can you repeat that, sorry?

[T 85 – 86] (Emphasis added)

McGillicuddy phone call

48. Witness B said in relation to the phone call he made to Lazar (referred to as the McGillicuddy call) that he had disguised his voice. I summarise the contents of the McGillicuddy call later in my judgment.

49. It is important to note that when Witness B gave evidence in court on 25 July 2019, he was slurring his words. He said he'd been on Lyrica medication. In fact, he fell asleep during the playing of Exhibit C (the McGillicuddy call) [T 89.16]. In court his evidence was difficult to understand. Witness B said that he was trying to disguise his voice, saying, “I would lower the tone of my voice. I - I will try whatever I - I thought that would be right… I think at the end, some sort of English accent but I don't know if it worked or not.” [T 91.11 – 21]. In my view his evidence in court on 25 July 2019 sounded remarkably similar to his voice in Exhibit C (the McGillicuddy call), which I remarked at the time, when the recording was played in court.

Conversation with Lazar in North Sydney

50. Witness B said that after the McGillicuddy phone call, he spoke to the accused Lazar in Walker Street or Berry Street in North Sydney, next to his unit. The conversation with the accused Lazar is important so I will set it out in full. This conversation can only be on 22 August, as by the morning of 23 August, Detective Roberts was taken off the case.

51. Witness B said:

“That [Y] got pulled over in the car with two underworld figures from Melbourne and [Witness A] somewhere in North Sydney. I think they had a gold bar on them. Apparently it was thrown too - they were in the car and [Y] ended up with the - with the bar. Police pulled them over and - and - and that - and the cop - the - the cop - the - the bar was confiscated by the Police." [T 94.40 – 47].

52. The accused Lazar told him it was his gold bar and he wanted to get it back. Witness B said in court at T 95.22:

Q. So tell us what Ian said

A. Ian said to me: "He's put his hand up for the bar; the Police have been hassling him. They want him to come and do a statement and he's trying to ignore him. Trying his best to keep away from them." He goes: "You know - it's got to - something's - something's got to happen. It's got - you know - something's got to happen, we've - we've got to get this copper either offside or do something about it."

Q. And what did you say?

A. I said: "No problem, what do you want me to do?" And he said to me basically similar things that Al said to me.

…

[T 95.37]

A. Okay. He said to me: "Do whatever it takes." He - he - "Whatever it takes. Break his leg. Maybe get a couple of guys from Bankstown." He said to me "Arabs basically" and then "Do - do - do what they have to do. He - he doesn't care."

Q. And what did you say?

A. I said "Yeah, sure, no problem. We sort it out."

…

[T 96.17]

Q. What, if anything, did Ian say about involving any other Police officers?

A. He - he said to me: "Maybe, if you can speak to the coppers that I know to sort something out. Maybe kick him out of the job? Demote him." And I said: "Yeah, I can do that."

Q. Was there any discussion about payment for this job?

A. Yes, there was. I did tell him - well, I did - I did tell him "It's Ian - yeah, we need - I need some sort - sort of payment" and I told him that "You're a bit behind on - on other issues, they're not going to act on it if I get somebody to front." I don't know what particular day it was but I ended up picking up - I think it was somewhere around 49,000 or 50 something thousand dollars off him at one stage. Yeah, on the other - there was another time I picked up - I think, about the same amount of—

…

[T 96.38]

Q. So you had two separate payments?

A. Yes.

Q. Who gave you the money? Who handed it over to you?

A. Ian.

Q. And when he handed over the first lot of money, did he say anything that?

A. Yeah, he said, "Make sure you let them know it's from me."

53. 53 ­­­Witness B said he got the first lot of money at his unit in Ryde, Putney. He remembers the accused coming over one particular time. He opened the door and Lazar was walking down the corridor and threw a stack of money at Witness B [T 97.10 – 15].

Q. Where were you when you got the second wad of money?

A. I can't really recall. Yeah. I'll - I'll - I'll be lying if I tell you. I can't really recall.

Q. And what form was it in?

A. Cash.

[T 97.16 – 18] (Emphasis added)

At this point, Witness B indicated that the bundle had been approximately 8cm high.

54. Witness B said he had a discussion with the accused Lazar before meeting him in the coffee shop about whether he had connections with the Police. He said, “I said to him, "Of course it is. I've got some high - high profile people in the Police force." Witness B then said that what he had told Lazar was not true. He said after the meeting at the club coffee shop, where he discussed the gold bar issue with Lazar, there was a follow-up conversation. Witness B described the conversation as follows [T 98.36 – 45]:

Q. This issue of the gold bar and the problems he was having

A. Yeah, there was - there was - obviously, there was - there was a follow up conversation. He said to me - I don’t whether - whether - well, could have been in his office or at my - I'm not sure. I said - it was about a week or about a week and a half after I had taken the money off him. And I said, "So what's going on? Have you found anything?" I said, "Why didn’t you just ring the Police station and see what Police is still there?" So the next day, he come up to me and said to me - he winked at me. He high fived me and hugged me. He go, "Between - between you and my dad, we're untouchable." I said, "See?" He goes, "The copper" - which is Roberts - "he's gone. They’ve moved him."

(Emphasis added)

55. Witness B was unable to say what order the conversations with the accused Lazar were in.

56. Witness B said he thinks he made the McGillicuddy call the same day he spoke to the accused Contantinidis [T 87.38]. There is no dispute between the parties that the McGillicuddy call was made on 22 August 2012 at 7:39 am. Later in his evidence, Witness B said he was not sure when he had the conversation with Lazar, and whether it was before or after the McGillicuddy call [T 99.5].

57. Witness B said that the accused Lazar used the phrase “in the courts”, “every time we spoke about something sinister”, and that “in the courts” meant “basically a drama. You got to sort it out" [T 99.29].

58. Witness B said his job with Lazar was as a personal bodyguard and that he first met Lazar in 2008 and had known him for seven or eight years before the gold bar incident in 2012. Witness B said that he worked for Lazar mainly through the accused Contantinidis, and that “I think they came up with some of sort agreement that I work direct with Ian.” [T 103.27].

59. Witness B also stated that he received a letter of comfort from the Police in relation to a serious driving offence.

Cross-examination

60. In cross-examination by Mr Vasic, on behalf of the accused Constantinidis, Witness B was asked about a criminal matter he had in the Local Court on 25 November 2013, in which Witness B was discharged under section 32 of the Mental Health Act 2007. Witness B accepted that he told a psychologist that he had been left with a memory impairment after undergoing a particular operation in May 2010 and being denied oxygen to the brain. Witness B said he was stabbed 42 times, and the oxygen loss was during the blood transfusions. Witness B said he was in a coma for three months. He said that no doctor actually said that he had suffered from oxygen loss, however a nurse told him it was possible. He denied having a memory impairment.

61. Witness B also admitted to being a user of drugs, in particular OxyContin. He admitted to taking OxyContin during 2013, but said he was not taking it during 2014 [T 113.50].

62. Witness B made an induced statement to the Police on 27 November 2014 in relation to the gold bar. He said his main motivation for providing the statement was that the accused Lazar “ripped off” his wife, Witness D, of $225,000. It was suggested to him that he had not mentioned the accused Constantinidis doing anything to him in that statement, he said,

“Al and Ian done it together, I know that for a fact. I know that for a fact, they ripped me off, all right? They conned me and my wife in, yeah? And me and my wife signed a statement, just that one piece of paper, to - for a - to withdraw a caveat that they think we had on it. There was no caveat on there and they ripped us off, very simple, very simple. I hate what they've done. I don't hate them, I hate what they've done. They left us homeless.”

[T 107.10 – 17]

63. Witness B agreed that there was nothing in paragraph 5 of the statement referring to the accused Constantinidis, however he said, “But Al had something to do with it…. Because it started with Al, Al is the one that had the documents, he's the one that had the paper, he's the one that started it” [T 117.19 - 39]. During the course of giving evidence, Witness B got very emotional and upset, and spoke directly to the accused Constantinidis in court. He agreed that he was upset with both the accused. He said on a number of occasions that the accused had left “us homeless, both of them took our money" [T 118.30].

64. Witness B agreed that in his statement of the 27 November 2014 he said, "My daily routine was to attend Ian's North Sydney office between 10:00 am and 12:00 pm each day. During one of the conversations I had with Ian, he told me that a person known as [Y] was in a car with [Witness X] and two other guys. Ian and I had a conversation with him about the gold bar, and I said to Ian ‘Was it yours?’, to which Ian replied ‘Yes, it was, he owed it to me’” [T 119.17]. At paragraph 37 of that same statement, Witness B said, "Ian told me there was a Policeman trying to get a statement from him about the gold bar. Ian did tell me the name of the Policeman but I can't remember his name now”. Witness B agreed that was in his statement. This is important as at the time of making the statement on 27 November 2014, Witness B could not remember the name of Detective Senior Constable David Roberts. However during the course of the trial his wife, Witness D, remembered the name Detective Roberts mentioned in a conversation she overheard between Constantinidis and Witness B, and provided an additional statement to the Police. I will refer to the credibility and reliability of Witness D and her statement later in my Judgment.

65. Witness B was referred to his statement and read paragraph 37 of the statement aloud in Court:

“Ian did tell me the name of the Policeman but I can't remember his name now. Ian told me this Policeman kept ringing him religiously every day and Ian needed to go into the Police station. Ian was worried about having to go and speak to Police. Ian said to me 'Do you know somebody that can help us?' I said, 'Yes. So he said, 'Do you have any high contacts?' I said, 'Yes. Do you know - what do they want done?'”

66. Paragraph 40 of the statement says, “I got back to Ian about a week later because I saw a pot of gold sitting there" [T 121.10]. Witness B agreed that there was nothing in the statement about the accused Constantinidis approaching him. Witness B says “That's what it says. But he had everything to do with it. He's the one that spoke to me at his house in Windsor. He knows it. He knows it.” [T 122.1].

67. Witness B made a further statement to Police on 17 March 2015. Witness B agreed that on 11 July 2014 he was pulled over for a random breath test but failed to stop, drove at speeds up to 185 km/h, collided with two cars, and was disqualified from holding or obtaining a driver's license. He was on bail in relation to that matter when he spoke to Police on 27 November 2014. He was still on bail for that matter when he spoke to the Police again on 17 March 2015. In the statement of 17 March 2015, he agreed that he had said in mid to late January 2015 that he had started to get “hassled a lot by Police”. He said, “In February there was one incident and four times in March this year. When I say hassled by Police, I have been stopped at gun point where the roads were blocked off and there have been heavily armed Police. I've been asked by Police if I am carrying a firearm or if I have there is a firearm in the car” [T 125.20 – 27].

68. In cross-examination by Mr Vasic, Witness B said he believed that the Police block had been orchestrated by Constantinidis as their mothers live five houses away from each other, and he was visiting his mother and coming to deliver milk when the Police blocked off the streets and told him and his wife to get out of the car at gunpoint. He said he continued to blame Constantinidis for this, saying “I believe that Ian Lazar and Al Constantinidis are behind this because what I have made a statement to Police about” [T 126.5]. It was suggested to Witness B by Mr Vasic that that was his motive in providing a statement. Witness B said his motive was that both accused had robbed him and his wife and left them homeless. In an outburst in court he spoke directly to the accused Constantinidis and said, “That’s my motive. I was warm to them. I was warm to both of them for - I'm sorry he is loyal, and I used to call you Dad, Al, remember? That's the Dad you were to me. You robbed us”. [T 126.15]. It was clear from his words and his actions in court that Witness B felt a great deal of animosity towards both accused and blamed them both for the loss of his wife’s house.

69. Witness B admitted that he was charged on the 24 February 2015 with possessing or having in his custody a knife in a public place, and shortly after that he made the statement dated 25 May 2015. He did not recall asking for a letter of assistance from the Police in relation to that offence.

70. Witness B agreed in cross-examination that the first occasion he spoke to Police about his conversation with the accused Constantinidis regarding the gold bar was on 25 May 2015 [T 137]. Witness B agreed that at around the same time, he was involved in Supreme Court litigation in respect of his wife's property. It was suggested to Witness B that at that time there was a negotiated settlement with the National Australia Bank for a mortgage of $100,000. It was suggested to Witness B that he had demanded $100,000 from the accused Constantinidis, which Witness B denied, saying, “why would I demand that much? They owed me in excess of $1 million, that was owed to me.” [T 138.42]. He agreed that he was demanding money almost every week from both accused, and again he said that the accused Constantinidis robbed him. He said Constantinidis owed him and his wife, he said, “yes I blame him, he did it" [T 139.30]. Witness B clearly blamed both the accused for the situation that he and his wife were in in respect of his wife’s house. He agreed that was the case at the time of making a statement in 2015 to the Police. He stated, “I had a few problem[s] with him. He owed me money plus they borrowed money on [Witness D]’s house. That's the issues I have” [T 141.10 – 11]. Further, when questioned “Was it the case that at that time you believed that Mr Constantinidis had forged some sort of signature?”, Witness B answered, “I still believe it.” [T 141.13 – 15]. Witness B became very animated when speaking about the loan on his wife's house and was adamant that he and his wife had not signed anything, and that it was both the accused that obtained the loan.

71. Witness B admitted that in his statement of the 27 November 2014 he did not mention to Police that the accused Constantinidis had anything to do with the $225,000 loan to Witness D. In respect of the conversations in relation to Detective Senior Constable Roberts, Witness B agreed he did not mention tapping on the shoulder, did not mention breaking legs and arms, and did not mention “just get rid of him” or “get him out of the way”. He agreed that was not in his statement. Witness B said the accused Constantinidis said “fix it whichever way you can".

72. Witness B was cross-examined about driving away with Constantinidis’ Lexus car on 31 January 2014, and in April 2014 going with his wife to Constantinidis’ house and banging on the front door. He said that at the time of making a statement to Police on 25 May 2015, both accused owed him $800,000 [T 145.12 – 16]. On 31 March 2015, Witness B was charged with larceny and a malicious damage offence. On 11 December 2015, he went to Parramatta Local Court and on that date he made another statement to Police and obtained a letter of assistance in support of his sentence proceedings. It was suggested to Witness B that he had never had a conversation with the accused Constantinidis in respect of Detective Senior Constable Roberts. Witness B denied that suggestion.

73. Mr Brewer vigorously cross-examined Witness B. Mr Brewer took Witness B through his prior convictions, and suggested he was a stand over man, to which Witness B replied, “if you say so” [T 151.31].

74. An issue that arose in cross-examination was the time period that Witness B had known the accused Lazar. It was suggested to Witness B that he had met the accused Lazar late in 2012. Witness B said that he first met Lazar 7 or 8 years prior to 2012. Witness B agreed that he decided to inform on the accused Lazar, as he had something to do with stealing his wife's house [T 152.25]. Witness B did, however, agree in cross-examination that he and his wife had never lived in the house, saying, “we had no money to live”, and agreed that was different to the scenario of being thrown into the street [T 155.5 - 12]. It was suggested to Witness B that the first time he met the accused Lazar was an occasion where there was an altercation over a car park in 2013, which he denied [T 157.26].

75. It was suggested to Witness B that at no time did the accused Lazar have a conversation with him about the gold bar, which he denied [T 162]. Witness B said at the time of the McGillicuddy call he had known the accused and had been employed by him for five years [between 2007 until the end of 2013]. He said, “[o]n and off, yeah. But it was mainly through.. Al.” [T 164.43].

66. In cross-examination Mr Brewer read portions of Witness B's statement dated 27 November 2014 regarding the conversation with the accused Lazar. Witness B agreed he said in his statement that, “Ian said to me, 'Do you know somebody that can help us?' and I said, 'Like, who?' and he said, 'Do you have any high contacts?' and I said, 'Yeah, I do. What do you want done?'" Witness B recounted that Lazar said, “He said, 'Can you tell your people to speak to the higher Police officer to talk to the Policeman who's ringing him to tell him to lay off or can I point out to you and you might have to ring the Police station and see if he's there and wait for him and maybe the boys could sort him out?'” [T 166.1 – 10]. Witness B agreed that is what he told the Police and he agreed that he understood that “he wanted to have the Police officer banished”.

67. Mr Brewer carefully took Witness B through his Police statements and pointed out the inconsistencies between what he said in court in examination-in-chief, his previous seven statements, and his evidence in two Committals. It was submitted that there were many inconsistencies, and during the trial was the first time the witness had said anything about Detective Senior Constable Roberts’ “legs being broken”, and “arranging boys from Bankstown” who were “Arabs”. When it was put to him that he hadn't mentioned those matters in his statements, Witness B said, “There was a lot of other - there was a lot of other occasions where I had done certain things for him and, you know, Arabs from Bankstown and - and stuff like that was mentioned so it wasn't the first time.” [T 169.25 – 30]. Mr Brewer put to Witness B that he had slipped up when he said those things and the witness said, “I remember clearly he told me to do whatever it takes, break legs, do whatever it takes to stop Mr Roberts, the copper” [T 169.50]. Witness B said he was sure he put in the statement about breaking legs and he said both the accused said that to him. Witness B said, “Al said it to me and he said it to me” and pointed at the accused Lazar [T 170.24].

68. It was suggested to Witness B that Exhibit E (being the Payroll Advice) was a false document and Witness B did not work for the accused Lazar. Witness B denied both suggestions. Exhibit E states that Witness B was on an annual salary of $143,130 from Commercial Mortgage Trade. The dates of the Payroll Advice were from 21 September 2013 to 15 November 2013.

69. Witness B was asked about being involved with the accused Lazar in 2013 when he was charged with assault, and it was again suggested to him that that was the first time Lazar and Witness B actually met. This was denied. Witness B agreed he was charged in relation to the 2013 assault, but he could not recall what he was charged with. Witness B was charged at the time with assault occasioning actual bodily harm in the company of Lazar, but the charges were withdrawn on 21 October 2013. Witness B also agreed that Lazar paid for his legal representation. It was suggested to Witness B that from that point on in 2013 he was associated with Lazar. Witness B denied this and said his association with Lazar was well before that date.

70. Mr Brewer drew Witness B’s attention to a statement he made on 8 February 2018, in particular paragraph 5, where Witness B said “Ian had come over to our apartment and it was evening. [Witness D] was also there." He agreed that it was his apartment in Porter Street, Ryde, which he rented in early 2013. He said, “All three of us were out on the balcony. This would have been within the first couple of weeks that I met him. I believe I was making Ian feel safe because of the connections with Police and in Ian's words he felt untouchable because of my connections and his father's connections. Ian told me that his father has coppers and judges in his pocket.” [T 176.20 – 29] (Emphasis added). It was suggested to the witness that he had met the accused Lazar in a coffee shop, where he was introduced as “Harry” in about November 2012 [T 177.13]. He denied this. Then he was asked: “Why did you say it to the Officer in Charge of this case on 6 February 2018? Why would you be saying that?” (referring to the meeting on his balcony in January 2013, being in the first couple of weeks that they met), Witness B replied:

“A. Why? Because initially I was - I wasn't - they wanted to keep the meetings between me and Ian scarce. He didn't want anybody with a criminal record around him so I'd have to work through Al before I got to work with Ian”

[T 177.17 - 21]

By the time this statement of 8 February 2018 was made, Witness B had made his induced statement in 2014. So there was no need to tell the Police he had only just met Lazar a couple of weeks earlier. He had no need to protect Lazar in 2018 and minimise his connection with him, as 4 years earlier he had given the induced statement setting out all his criminal activities with the accused Lazar. If this evidence is accepted then it is inconsistent with Witness B’s contention that he was working in Lazar’s office between 10:00 am – 12:00 pm each day in 2012.

81. Mr Brewer also cross-examined Witness B in relation to a statement he made to Constable Brookes from Sydney Police in respect of the assaults he was charged with, together with the accused Lazar. In a statement made on 4 January 2013, Witness B told Constable Brookes that he had only known the accused Lazar for a couple of months.

Re-examination

82. In re-examination, the Crown asked Witness B about being paid the sum of $200,000. He said he was paid by a solicitor of the accused Lazar. Witness B said that it was for odd jobs and for folders that he gave to the Police [T 187.45], and that one of those jobs was the gold bar incident, which occurred in August 2012 [T 188.5]. Witness B said the first amount of money he received was in Lazar's office, and he explained that he had said it was at Ryde in evidence in chief because when he first gave evidence in Court on 25 July 2019, he was dosed with morphine 20mg Lyrica, and Panadol Forte, was drugged out, and fell asleep. He was asked by the Court whether he had had any Lyrica on the day of re-examination whilst giving evidence, and he said he had not, just Buprenorphine.

83. Witness B was re-examined on the issue of how long he had known Lazar prior to the gold bar incident. Witness B said he had known Lazar since 2002. On 27 November 2014, Witness B made a statement to Police and said, “The first time I met Lazar was in Lithgow Correctional Centre. I was in the visitor's room with another inmate, and I was introduced to Lazar. Lazar was visiting Ralph Quinlan at the time” [paragraph 8]. He said this was in 2002.

84. Witness B said he did a job for Lazar involving locating an owner of property in Thailand. He referred to that job in his statement of 27 November 2014. Witness B said he had given a number of folders to Police, relating to jobs he had done prior to the gold bar case and one of them involved the property in Thailand. He said that the accused Lazar had given him those documents, and that the job relating to the property in Thailand was a couple of months or a month before the gold bar job [T 457.37]. Those documents were marked Exhibit Q.

Witness D

85. The Crown also relies on the evidence of Witness B's wife. A non-publication order was also made in respect of her name and I have given her the pseudonym Witness D. Witness D was called to give evidence on 8 August 2019. She said that she first met the accused Constantinidis in about 2012 or at the end of 2011.

Visiting Constantinidis at his home in Windsor

86. In 2012, Witness D said she visited the accused Constantinidis’ home at Winsdor with her husband, Witness B. She said she went with her husband to his back office, and there the accused Constantinidis and her husband had a conversation. She said that at the time, the accused Constantinidis was in a panic, and was talking about a problem with a Policeman. She said that her husband then told her to go out of the room. She said she went outside and sat at the back of the office on a veranda, and heard them talking about a gold bar and a problem with a Police officer. She said she heard the name of the Police officer as “Robinson - Roberts - Robertson, Dave - David”. She said that at that stage of the conversation she decided to go for a walk [T 368.30]. During examination-in-chief, I was having trouble hearing her evidence and asked her to speak up. She said, “Dave Robertson or Roberts, it was, I know Dave Robertson, that's what I heard it as.” [T 368.40 - 45]. She said she did not hear the accused Constantinidis say anything else, as she went for a walk.

87. In cross-examination Witness D was asked about the conversation she allegedly overhead between Constantinidis and her husband. She said she made a statement on 7 August 2019, after the trial had commenced and the day before giving her evidence. She said in that statement, “I wish to add to my statement. In paragraph 4, I mentioned that Witness B had a conversation with Big Al at his place in Windsor. I believe this conversation took place prior to Witness B calling Ian Lazar”. [T 374.31 – 34].

McGillicuddy call

88. Witness D also gave evidence about a further conversation (the McGillicuddy call) she overheard with her husband after their visit to the accused Constantinidis. She said it was maybe a month after and in 2013, but she could “not recall right now” [T 369.7]. She said she was at home at the time, and was in and out of the dining room. In respect of the McGillicuddy conversation, she said “It wasn't so much what he was saying, it was because of the accent he was trying to put on, it was like a - it was stupid, like, his sort of broken English and like a Pommy accent and American and I was like, "What?" That sort of stopped me and yeah, it was just weird and I listened for a little bit and then he - I was laughing a little and he told me to get out.” [T 369.37 – 41].

89. She was asked, “Did you hear anything at all of the conversation?”, she answered “He said, "You won't be having any more problems… and he said the guy's name and that's when I laughed and he went, “Out".” [T 369.43 – 45]. She said she made a statement in relation to the McGillicuddy conversation on 18 January 2018, six years after the conversation. She further said that she heard her husband say to the accused Lazar that “he won't be dealing with this case, like he won't be hearing from him - from him anymore and like he just apologised on behalf.” [T 371.17 – 19]. She said she was unsure of the year of the conversation, but “it would be 2013” [T 372.36].

Cross-examination

90. The witness, whilst giving evidence, became very distressed. She was asked in cross-examination:

Q. How did you come to make a statement? [referring to the statement of 7 August 2019]

A. Because - I don't know. I can't answer you that. I don't know. I'd rather not answer.

Q. Sorry, you'd rather not answer?

A. Yeah, because right now I'm, like, I don't know. I can't tell you why I wrote - I don't know. I just - I thought that's what you have to do and refresh things, because I'm reading stuff I have to go over things and sign, I don't know, to say that I made that statement. I'd rather not answer, to be honest. I don't know.

…

A: My husband told me. You'd have to ask him who contacted him.

[T 377]

91. Following a discussion with Counsel while Witness D was outside the courtroom, Witness D came back to the witness box and said she could not give any further evidence as she had personal issues. The witness seemed to be slurring a lot, and at times incomprehensible [T 378.15; T 350.18, T 380.49]. The Court was informed by the Crown that the witness was not on medication, rather that her bottom row of teeth were rotten and her top row of teeth were implants, and she had learnt to talk the way she did out of self-consciousness. Further, the Court was informed that it was an anniversary of a family bereavement involving her former husband, and she was too distressed to continue her evidence [T 381]. The Court adjourned to allow the witness time to compose herself and come back the next day.

92. The Court was informed by the Crown on Friday, 9 August, when the Police had attended to pick Witness D up to come to court that morning, that she had injuries to her hands and feet, she was bleeding, and needed immediate medical attention. The Court is uncertain as to the cause of her injuries. She was unable to continue her evidence until Monday, 12 August.

93. In cross-examination Witness D said that whilst the name of Detective Senior Constable Roberts did not appear in her statement of 18 January 2018, she did say the name Roberts to the Police officer who took her first statement. She said, “I told back on the original statement and I have no idea why they didn't put it in”. She was adamant that she said the name Roberts in her first statement. Mr Vasic cross-examined her as follows:

Q. Well, I suggest that nowhere in your statement dated 18 January 2018 is there any reference to the name of the Police officer. What do you say to that?

A. Well, I did tell them back then. I did.

Q. And I suggest that you didn't tell any Police officer the name.

A. But I did back then.

Q. Did you told Detective Schusler just on 7 August 2019 the first name of the Police officer?

A. I told back on the original statement and I have no idea why they didn't put it in.

Q. You told him the first name as well back in the original statement you--

A. I told him - yeah, I told him, yeah, both - like, his name, yeah.

Q. Okay. Just last week did you tell Detective Schusler, who was the officer taking a statement, the first name of the Police officer?

A. I'm not sure if I told him, but I said his name, yeah.

Q. But what, sorry?

A. I did say his name, yes.

Q. His first--

A. Full name, yeah.

Q. First and last name?

A. Yes.

Q. And have a look at your statement. Where does his first name appear?

A. Obviously it's not here, but I did say his name.

Q. It's not there.

A. Yeah.

Q. So the Police officer that you say--

A. Well, it's a typo error, isn't it, because I did say his name.

Q. Okay. So, that must be a mistake by the Police officer, not by you?

A. Well, it must be because so is the date. I never said a date.

Q. Did you know David Roberts?

A. No, I didn't.

Q. A Police officer - more specifically, a Police officer by the name of David Roberts?

A. I didn't, obviously, no.

Q. Did you interact with the Police officer by the name of David Roberts in 2000?

A. My ex-husband did, yeah, not me.

[T 409]

94. In respect to the property Witness D owned with her ex-husband in Bass Hill, Witness D was extremely reluctant to answer any questions. She said she owned the property with her ex-husband. Her ex-husband died and she wanted to sell the property. There was a dispute with the bank, and it seems that both accused then became involved. This no doubt forms the crux of the animosity between the two accused and Witness B and Witness D.

95. Witness D was cross-examined at length in relation to the dealings of the property. She was a very evasive witness. It was abundantly clear that she blamed both accused for the loss of the house, and for referring her to a secondary mortgage lender. I accept there was a great deal of animosity between Witness B and Witness D towards each accused relating to the house and other moneys allegedly owed to Witness B.

96. In cross-examination by Mr Brewer, Witness D agreed that she had a criminal record relating to drugs, shop lifting, and possessing a prohibited weapon. She also agreed she had made an induced statement to the Police. She said she first met the accused Lazar on the day that her husband Witness B and the accused Lazar had a fight in the foyer at Berry Street, North Sydney, on 4 January 2013.

Findings in relation to Witness D

97. The statement of 7 August 2019 was the first time Witness D recorded the name Dave Roberts, which I was informed by the Crown was the reason the further statement dated 7 August 2019 was taken. In the statement, Witness D stated that she had overheard a conversation between the accused Constantinidis and her husband Witness B, and that she now recalled the name of the Police officer. In evidence-in-chief, she said the wrong name, saying Robinson and Robertson. Witness B said he could not recall the name of the Police officer in his induced statement of 2014. The conversation with Constantinidis was purported to have occurred in August 2012. Witness B said that he made the McGillicuddy call shortly after, if not the same day, he had the conversation with the accused Constantinidis. This conversation between Constantinidis and Witness B is crucial to the Crown case. The Crown informed the Court that she and her solicitor had had a telephone conference with Witness D on the previous Friday in the middle of the trial, and Witness D had mentioned the name Roberts during the conference. The Crown then asked the Officer in Charge to take a further statement from Witness D. The Crown informed the Court that the witness “didn’t seem to be on the ball” [T 378.24]. The Crown said that because of the frame of mind the witness was in, she asked the officers to give her a couple of days to wait to see if she had anything else she wanted to say about the matter [T 378.25 – 30].

98. The name of Detective Roberts was clearly an important factor in the case and if Witness D had told the Police officer who took her first statement the name Detective Roberts, the Police would have recorded the name in her statement. Witness D also changed her evidence in cross-examination and said, “I heard it the first time down the hallway, just the name of it. And then I heard the full thing - full name when I was sitting out in the porch.” [T 408.48 – 49]. In the statement she made to Police on 7 August 2019, she said “I was interested in the conversation with big Al for two reasons. The first is I knew a Police officer named David Roberts who I interacted with back in 2000.” In evidence in court she said she didn't actually know Detective Senior Constable Roberts at all, it was somebody she believed her ex-husband knew. The statement made in 2018 does not mention the name Detective Roberts. In the 2018 statement, Witness D says after she left the room, “I didn't hear anything more”. I find that evidence Witness D gave in respect of overhearing the accused Constantinidis speaking to her husband about Detective Roberts is not reliable or credible. In my view, Witness D’s recent retrieval of memory which enabled her to identify Detective Senior Constable Roberts by name is a recent invention to assist her husband, as Witness B did not remember Roberts’ name in his first statement. It is extremely unlikely that Witness D would remember Detective Senior Constable Roberts’ name 7 years after hearing the name in an overheard conversation in circumstances where she did not know and had not met Detective Senior Constable Roberts, and had not mentioned his name before in her previous statements.

99. I also do not accept the evidence of Witness D in respect of the McGillicuddy call. I find that the witness was an unreliable witness, and her evidence does not lend support to the critical conversations alleged by Witness B with either the accused Constantinidis or Lazar.

Other Crown witnesses relating to gold bar

Witness A

100. Witness A was called to give evidence in respect of the gold bar. She said that she was a passenger in a car with Y and another person, C, when the car was stopped by Police on 8 August 2012. She was in the back seat with Y at the time the car was stopped. She said earlier that day she had gone to her mother's house, where her husband had placed gold bars in speakers. Her husband, X (who is a well-known underworld figure and is now deceased), told her that they were Y’s gold bars, but she wasn't to give them to him all at once because Y would go on “benders”. Y spoke to Witness A, and convinced her that he needed the money for legal fees, and shortly after that conversation she went to her mother’s house and retrieved the gold bars. She said that she travelled with Y into the city to cash them in. In the city, Y met the accused Lazar. At the time she was sitting inside a café, and did not know who Lazar was. Y had told her he was meeting the accused Lazar. Witness A has now since met the accused Lazar.

100. She said when Y came back from his meeting with Lazar he only had one gold bar with him. She then went with Y to Sheraton on the Park to meet a lawyer. After that they went in the car with C. C is a family friend, and was the driver of the car. She said they were stopped by Police between 20:00 pm and 21:00 pm, and the gold bar was in the car. She said prior to being stopped by the Police, Y got a text message and became fidgety and was arguing with C, and Y said that he was going to jump out of the car. Witness A thought she should hand the gold bar back to him, as she did not want to take it with her. She handed it back to Y without C knowing, and he put it in his laptop bag. The highway patrol Police stopped the car and searched it, and found the gold bar. After they left the scene, they drove to an apartment block next to Luna Park in North Sydney. She said Y got out of the car and went to speak to the accused Lazar. She could see the accused Lazar talking with Y for about 15 minutes.

101. After the incident she said she attended Balmain Local Court regarding the gold bar, and Detective Senior Constable Roberts identified himself to her. After the Local Court, she had a meeting with the accused Lazar and Y. At the meeting, the accused Lazar said Detective Senior Constable Roberts was being like a dog with a bone and wouldn't let it go, and that he was being very territorial about the gold bar [T 278.1 – 5]. She said she had other meetings with the accused Lazar, and Y was present at every meeting. At another meeting she recalled the accused Lazar saying, “Detective Roberts got demoted apparently and moved”. She recalls the conversation while she was on her balcony, with Y on speakerphone. She said she could hear what was being said. She said Lazar said, “Apparently Detective Roberts had been demoted and moved to a country Police station.” [T 279.14 – 15].

102. I found Witness A to be a credible and reliable witness. Her evidence was not really in dispute and is supported by other evidence.

Senior Constable Hayden Thew

104. Senior Constable Hayden Thew gave evidence that at approximately 20:50pm on Wednesday, 8 August 2012, he was in an unmarked Police vehicle in Annandale and saw a black BMW swerve onto the incorrect side of the road to avoid a speedbump. He pulled the car over, searched the car, and found a gold bar. He was told by Y that “A mate gave it to me to sell" [T 298.15]. Y said that the mate he was referring to was Ian Lazar, and they had a conversation on Thursday, 9 August with the accused Lazar in relation to the gold bar.

Senior Constable Marie Vial

105. Senior Constable Marie Vial gave evidence that she was in an unmarked Police car at 20:50 pm on Wednesday, 8 August. The purpose of calling her was that she noted the serial number of the gold bar in her notebook, which was tendered by the Crown and marked Exhibit M.

Duval Johns

106. The Crown also called Mr Duval Johns. Mr Duval Johns was a master jeweller, and had known the accused Lazar for approximately 25 years. Approximately eight years ago, the accused Lazar asked him if he wanted to buy gold, and he thought there was a mention of a gold bar. He said to Lazar, “"If you've got some gold bar or whatever, why don't you take it to ABC Bullion Company?" [T 295.11 – 12]. He told Lazar that if he took it there, they would give him a better price. The Crown asks that the Court draw an inference that Lazar had a motive for not wanting to give the Police a statement in relation to the gold bar, the motive being that the gold bar was the proceeds of crime. There is no evidence Mr Duval was referring to the same gold bar, however an inference can be drawn that the accused Lazar knew or suspected the gold bar was stolen.

Eddison Diez

107. Eddison Diez was the account manager for Ian Lazar. He worked for Lazar from 2009 – 2013. He went to Thailand in January 2011 and visited Lazar. This witness was called by the Crown to meet the Defence contention that the accused Lazar did not meet Witness B until the end of 2012 or the beginning of 2013. His evidence only went to the timing of when Lazar met Witness B. Mr Diez had no contact with Witness B, however had connections with a person called Ken Gale and his transgender partner. Mr Diez never met Witness B, despite being the accused Lazar’s account manager during the relevant time.

Dennis Mirosavic

108. Dennis Mirosavic was called on behalf of the Crown on the issue of when the accused Lazar met Witness B. Mr Mirosavic met the accused Lazar in late 2010, and commenced working with him on 10 January 2011. He stopped going into the office and working for him at the end of 2012. Mr Mirosavic gave Lazar a resignation letter on 10 January 2013. Mr Mirosavic said he did not meet Witness B, but he said he was involved in the Jacobsen case, and heard the accused Lazar saying on the phone that Witness B was not allowed to come up the stairs, and that he would meet him outside. He thought that conversation was before May 2012.

109. Mr Mirosavic made his statement to the Police on 2 August 2019. His evidence does not corroborate Witness B’s evidence that he was Lazar’s bodyguard and working in Lazar’s office from 10:00 am – 12:00 pm on a daily basis. In cross-examination, Mr Mirosavic said he had a falling out with Lazar. He also said that he was in a civil dispute with Mr Lazar in 2011. This witness was unreliable as to dates and never met Witness B. I put little weight on his evidence.

Raed Rahal

110. Raed Rahal gave evidence on behalf of the Crown. He was, at the time of the gold bar incident, the accused Lazar’s solicitor. The accused Lazar waived privilege in relation to the telephone intercepts and conversations with Raed Rahal, Barbara Coorey and other solicitors.

111. Mr Rahal gave evidence that in August 2012, at the request of Lazar, he handed over volumes of material to Detective Senior Constable Roberts. Mr Rahal also gave evidence in respect of Witness D being provided with a cheque on 14 June 2012, which she signed a receipt for in his presence. The cheque was advanced to her in the amount of $221,000. Mr Rahal said that he advised Lazar in respect of Detective Senior Constable Roberts. He also said at the time of those calls that Lazar was suicidal, manic, and depressed. He said he advised Lazar that he was under no compulsion to provide a statement to Detective Roberts.

112. Mr Rahal also said he met Witness B, and thought it was late 2012. Mr Rahal said that the accused Lazar was paying Witness B money regarding a deal relating to a property in Alexandria, and another deal involving a tugboat. He also said that there was an amount of $200,000 paid into a trust account of Macquarie lawyers. He was asked:

Q. Do you know what that payment was in respect of?

A. Memory serves me correctly, it was because there were threats being made to Al and by [Witness B] requiring –

Q. What kind of threats, do you know?

A. My understanding was physical harm threats suggesting that he was going to do certain things to him if money wasn’t paid back and that's the basis of that payment.

[T 343.25 – 37]

113. Mr Rahal said he also received instructions from the accused Lazar to lodge a complaint in respect of Detective Roberts [T 346.25].

114. Mr Rahal was also asked questions in relation to an assault involving Witness B in 2013. Mr Rahal also said that there were complaints made to Police by Lazar regarding Witness D.

Detective Sergeant Craig Simons

115. Detective Sergeant Craig Simons was called in his capacity as a member of the Professional Standards Command to inform the Court that he had searched the official records and did not find a complaint made by either accused against Detective Senior Constable Roberts.

Officer in Charge Detective Senior Constable Dianne Erhardt

116. Detective Erhardt prepared a table of phone numbers (Exhibit O), relating to the phone numbers listed in the Call Charge Records of Constantinidis’ phone (“CCRs”) (Exhibit P). Detective Erhardt also marked a number of calls in the CCRs by highlighting them in yellow, which she said were relevant to the proceedings. The Crown relies on the CCRs as being calls made from Constantinidis to Witness B, and vice versa, from 18 August 2012 to 25 August 2012. The Detective explained that there are duplicate entries in the records, and there was a technical reason why the calls repeat on the records when a call goes to a different carrier. The telephone intercepts were played through Detective Senior Constable Erhardt.

117. In cross-examination, Mr Vasic asked Detective Erhardt whether Constantinidis had any criminal convictions in New South Wales; he had one conviction on his federal record [T 481.1 – 5]. The conviction in 1996 was for “Failure to attend before taxation officer when and as required”. A fine was imposed. Detective Erhardt said Lazar had no criminal convictions.

118. Detective Erhardt also gave evidence that Witness B produced documents to her during the course of the investigation. The documents were produced in cardboard folders [MFI 12]. She said Witness B made his first statement on 27 November 2014. The statement was an induced statement and related to a number of matters of which the gold bar was one.

Detective Senior Constable Roberts

119. Detective Senior Constable Roberts did not give evidence at the trial. The Officer in Charge gave evidence that Detective Senior Constable Roberts was extremely ill, and unfit to attend Court. A medical certificate stating that Detective David Roberts was suffering a severe medical illness was tendered to the Court (Exhibit K). By agreement Detective Roberts’ statements were also tendered (Exhibit L).

120. The redacted version of Detective Roberts’ statements can be summarised as follows: Detective Roberts stated that in August 2012 he was detached to Leichardt Detectives Office, and was allocated to investigate the seizure by Police of a gold bullion from Y on 8 August 2012. Enquiries revealed that the gold bullion was valued at approximately $50,000. Detective Roberts confirmed that he had numerous conversations with the accused Lazar, and there were some telephone conversations with Lazar on his work landline, which were not recorded. Detective Roberts produced an email sent to him by Lazar on Thursday 9 August 2012, at 15:43, which stated “From my point of view, I am only interested in the money that this character [Y] has owed various entities for four years over two properties… In terms of your request for me to make a statement in relation to the ownership of the gold bar in question, I confirm I will be making the necessary legal claims one has to make in order to recover my money. I have spoken to my lawyer on the basis that you require me to make a statement, which I am happy to do, but he is not available tomorrow. Could you please let me know your next convenient day so that I am able to come to the meeting with legal representation to ensure that I am not in any way prejudicing my legal entitlement and claim on the gold bar that you have seized from [Y]”. Detective Roberts said that he drafted a statement for Lazar, based on the information Lazar had provided, with a view that he would complete the statement when he came in. Detective Roberts said he had a conversation with Detective Sgt John Flores from the Fraud and Cybercrime Squad, and as a result of that communication, he suspended the investigation into the gold bar.

121. [REDACTED]

Telephone intercepts

122. Evidence relating to the telephone intercepts was tendered through the Officer in Charge Detective Senior Constable Dianne Erhardt [Exhibit H].

123. The Fraud and Cybercrime Squad were investigating Ian Lazar in relation to other matters and had a lawful telephone intercept on his mobile phone. Tendered by the Crown were some of the calls, which occurred between 4 July 2012 and 23 August 2012. Some of these calls pre-date the seizure by Police of the gold bar. The earlier phone calls and texts are predominantly between the accused Lazar and Y, to demonstrate their close relationship.

124. After the seizure of the gold bar by Police on 8 August 2012, there are telephone calls between the accused Lazar, various Detectives including Detective Thew and Detective Senior Constable Roberts, Lazar’s lawyers - Mr Tabchouri, Raed Rahal and Barbara Coorey, the Balmain Detectives, and the accused Constantinidis. The accused Lazar was a prolific user of his phone, by voice and text. None of the 227 phone calls tendered in volumes 1 and 2 of Exhibit H and G, besides the McGillicuddy phone call, were between the accused Lazar and Witness B. The calls do not refer specifically to Witness B's involvement by name. The telephone intercepts do however paint a telling portrait of the relationships between the accused Lazar and those he spoke to, and his state of mind at the time.

125. I have listened to each telephone intercept on numerous occasions and have reviewed each of the transcripts. The following is a brief summary of some of the more relevant telephone intercepts, interspersed with the times and lengths of calls relating to Constantinidis’ phone from the CCRs calls [Exhibit P]. Although I do not refer to all of the telephone intercepts, I have taken them into account. It is important that I refer to some of the telephone intercepts in more detail than others, to support my findings of fact. The underlining in the telephone intercepts is my emphasis. All tab references refer to Exhibit G, which is the transcript of the intercepted calls.

8 August 2012 – The day of the seizure of the gold bar by Police

126. On 8 August 2012 at 19:46 [Exhibit G, tab 13], Lazar rings Y, organising to meet up. At approximately 20:50 on 8 August 2012, the Police stopped the car with Y, Witness A, and C, and the gold bar was seized. The car was pulled over in Annandale. Witness A then said that Y met with Lazar at an apartment block next to Luna Park. This, she said, was fairly late at night. There are numerous text messages between Y and Lazar, and at 21:31 at tab 18, Y rings Lazar asking to catch up for a coffee, telling him the matter is very urgent and cannot wait till the morning. They arrange to meet at Milsons Point near Luna Park, and Lazar texts Y an address. This meeting is supported by the evidence of Witness A.

9 August 2012

127. On the 9 August 2012, there are text messages between Y and Lazar. Y asks if Lazar is okay, and receives a text about Lazar’s personal circumstances. The morning of 9 August 2012 at 00:35, there is a text message from Y to Lazar: “sorry bro to bust your nuts ill bigtime make it up to you!!!” This, I infer, related to Y telling the Police that Lazar owned the gold bar.

128. At 8:09 am [Exhibit G, tab 43], Lazar rings Vodafone, seeking the number for the Australian Bullion Company. He then makes a series of phone calls to the Police to make enquiries into whether Police can tell if a gold bar is stolen or not [Exhibit G, tab 47]. Lazar speaks to Chatswood Detectives Megan Burke and J Locke [Exhibit G, tab 49], and gives an explanation to Detective J Locke as to how he came about the gold bars. He says he was given two gold bars. He names Y and asks, “how does one verify if something is stolen - a gold bar is stolen" [Exhibit G, tab 49, p 6]. He tells the Detectives that he gave the gold bar to Y yesterday, and said, “I bumped into him in the city yesterday. And then I thought he was trying to con me. And then I demanded that he come straight away otherwise I said, I said I'm going to go to the Police and report him" [Exhibit G, tab 49, p 10]. He told the Detectives he gave Y one gold bar, because he did not trust him with two.

9 August 2012, 10:18, tab 50

129. On the 9 August 2012 at 10:18 am, tab 50, Lazar texted Y: “It's not right you took my goods and I have to waste my time trying to recover what is mine. Its like you did it on purpose. You said you had a buyer for me and I generously offered you a commission".

9 August 2012, 10:25, tab 51

130. At 17:00, Lazar sent another text to Y saying, “Mate I haven't seen you in years. I bump into you and say sorry you didn't pay my mortgage of 250 K I lost. I give you another go and more headache. Anyway I will deal with who holds my goods. It's a headache I don't have time for".

9 August 2012, 10:26, tab 52

131. At 10:26, Y responds “I agree with all what you said it's a totally shit go man… I feeling like a complete fucking idiot and a loser!"

9 August 2012, 12:01, tab 59

132. Detective Senior Constable Roberts calls the accused Lazar and asks Lazar to ring him back on the landline.

9 August 2012, 12:51, tab 60

133. Shortly thereafter at 12:51, Lazar texts his solicitor Rahal and says, “Cops have called me over something I'm not even involved in. I need help”. There follows a series of phone calls to his lawyers.

9 August 2012, 13:55, tab 65

134. At 13:55 on the 9 August 2012, the accused Lazar rings Detective Roberts and gives a long explanation of his association with Y, why he owed him money, and asks for the gold bar back. Detective Roberts says, “it could be six months, 12 months.. could be two years mate” (before Lazar can get it back). There follows further discussions about Y, and how much money he owes the accused Lazar. Detective Roberts is clearly sceptical of the explanation given by Lazar, and on a number of occasions he says, “do you really think anyone is going to believe that?” He says, “if you come in and ah, you know tell me some truths mate, then you know I’ll be very, I can be a very reasonable bloke, you know what I mean?" Lazar says, “look I've got – I can say this: I’ve done nothing illegal so I’m not worried about the illegalities of it. My only concern as I said to you, is, was discussing things I don't want to be involved with ‘cos they've got nothing to do with me. All these other parties that I've never even met, seen or heard of except by reputation, that you're telling me have used my name in some format. So that's my, that's my primary concern”. This was not true, Y was well known to Lazar.

135. Detective Roberts then questions Lazar about what he told the Police that morning, and Lazar says, “I told the truth… I thought I was actually robbed because I thought he'd ripped me off because… see the money or the gold if he did sell it, so ah, I didn’t believe him until I met him at a coffee shop and, its in all my text messages, on my phone records you can pick up in two seconds. You can see the messages, there is nothing sinister there… I didn't believe him until I, I saw the card, that lady’s, the lady’s name on the card that I mentioned to you”. It seems Y provided a card to Lazar from a Police officer following the seizure of the gold bar. Detective Roberts says to Lazar, “this is going to be investigated no matter how big or small it is… it’s gunna be investigated right to the nth degree, mate… if you come in with lies tomorrow, then ah, mate it's going, its going to be much worse for you... Have a good think about it between now and then though, mate.”

136. Immediately after this phone call with Detective Roberts, the accused Lazar texts his lawyer Tabchouri, and rings Raed Rahal [Exhibit G, tab 67] to express his concern.

9 August 2012, 14:31, tab 68

137. On the 9 August 2012 at 14:31, the accused Lazar rings his solicitor, Tabchouri, and says, “I’ve got a situation… in terms of, um, a Detective has called me up this morning in relation to, um, me coming to see them and, ah, he wants me to talk to him about, about the gold bar which is a kilo, um, so it's all legal… a guy got stopped last night who is connected to some criminals. I don't even know the whole story; it doesn't even make sense. Long story short the guy told them the truth that – which is the truth - it belonged to me, right, and he was selling it on my behalf, right? And so that's the truth, right?" The accused talks about Detective Senior Constable Robertson and says, “a - he doesn't believe me and he's trying to get me to say it wasn't mine and its actually theirs, and I'm, and I’m somehow being threatened and heavied by the people, whoever, you know, these other guys associated with it. Which is not actually right?”.

388. At 11:57 am [Exhibit G, tab 196], Detective Roberts rings Lazar and Lazar tells him that he is [REDACTED], that his biggest issue at the moment is liquidity and that he needs the money from the gold bar. Detective Roberts says, “well mate, if you’re, if you’re not cooperating with me, mate, if you’re not cooperating with me, how do you expect any cooperation in return?” Lazar tells Detective Roberts that he might have to go to [REDACTED]. During this phone call, Lazar is crying.

389. At 12:03 pm [Exhibit G, tab 197], Lazar rings Constantinidis and tells him about his conversation with Detective Roberts. He tells Constantinidis that he was crying on the phone, which can be heard in the tapes. Constantinidis is very upset about the way Detective Roberts is treating Lazar, and tells him, “you’re not going to see him without Rahal”. Lazar says, “I just want them to go away”, Constantinidis says, “I'm doing what is needed - what I've done - I'm not fucking letting up”. Lazar asks, “Can you do something?” Constantinidis says, “I'm doing everything… mate, I’ve rung and rung, what do you want me to do, I’m becoming a pest”. Lazar says, “but have you had contact?”, and Constantinidis replies, “yes, of course I have”. I infer this is a reference to Witness B. The CCRs indicate that Constantinidis called Witness B at 12:30, 12:38, and 14:43.

390. At 14:58, Detective Roberts rings Lazar again [Exhibit G, tab 198]. They have a lengthy discussion and Detective Roberts says he aims at getting a statement from Lazar first thing in the morning. From the conversation, it was clear Lazar was distressed and Detective Roberts was not going to stop pursuing him for a statement. During this period the CCRs indicate Constantinidis is in regular contact with Witness B.

391. At 16:18 [Exhibit G, tab 199], Lazar calls Constantinidis, and Constantinidis says ““they’re on the war path, and something's being done this afternoon, right? That's all I can say to you now… They're trying to address the issue.” From this I infer that Constantinidis is speaking about Witness B, and that Witness B was trying to address the issue.

392. At 20:51 [Exhibit G, tab 200], Lazar calls Constantinidis and says, “Did you reach further contact with your friend?” Constantinidis says, “they’ll ring me later”. At the end of the call, Constantinidis says, “Hang on a minute”, as he places Lazar on hold and music plays. The call discontinues. At that precise time, the CCRs indicate that Witness B called Constantinidis, and spoke to him for 109 seconds. There is a further call between Witness B and Constantinidis at 20:57, for 1,468 seconds, and then Constantinidis calls Witness B for 162 seconds. I infer the calls between Witness B and Constantinidis relate to the Detective Roberts issue.

393. Immediately after those calls at 21:40, Lazar calls Constantinidis [Exhibit G, tab 201]. I infer that the phone call refers to Witness B. Constantinidis says, “I got a phone call also from the people we are expecting, you might even get a call tonight, they're not sure - just to ask you about the intimidation and what Rahal heard and whatever. I just said ‘don't take my fucking word for it’, I said ‘hear it yourself’, so that's being contemplated at the moment”. Lazar asks, “why are they so adamant to hear it from me?” The accused are contemplating getting Rahal to make a formal complaint, “’cause they could bury this prick once and for good”.

394. Immediately after the above phone call, Constantinidis called Witness B.

22 August 2012

The McGillicuddy call

406. On 22 August at 7:39 am [Exhibit G, tab 202], the McGillicuddy call takes place. I summarise the contents of the phone call at paragraphs [223] – [231] of my Judgment, and will not repeat my summary here. There is no dispute in the trial that the call is between the accused Lazar and Witness B. Witness B said that he made this call as he had been asked by Constantinidis and Lazar to deter Detective Senior Constable Roberts from his investigation of the gold bar matter.

407. The McGillicuddy call is a curious call, particularly because (a) if the accused Lazar knew Witness B as well as Witness B said he did, there is a strong possibility that Lazar would have recognised his voice; and (b) Witness B said he had no intention of actually speaking to Detective Senior Constable Roberts or anyone else in the Police force, nor did he intend (he said) to physically harm Detective Senior Constable Roberts, so there was a high probability that nothing would happen and Lazar’s stress levels would not be reduced. The only possible reason for Witness B making this call would be to persuade the accused Lazar that he had in fact spoken to the fictitious Detective Sergeant Superintendent McGillicuddy to ask him to get Detective Senior Constable Roberts to stop investigating the gold bar matter. This was a very risky tactic as, given the determination of Detective Senior Constable Roberts, he had no intention of ceasing to investigate the providence of the gold bar without someone or something stopping him.

408. I accept that it was entirely coincidental that other Police officers asked Detective Senior Constable Roberts to cease the investigation as it was interfering with another ongoing investigation.

409. The McGillicuddy call refers implicitly to both Witness B and the accused Constantinidis. Witness B says, “I don’t want you to stress ‘cause if you stress, it causes [me] anxiety and I’ll get, I’ll get the Big Man calling my friend, my friend who gives me the headache…” I accept the evidence of Witness B that “the Big Man” was a reference to Constantinidis and “my friend” was a reference to Witness B.

410. Witness B then tells Lazar to put in a complaint (regarding Detective Senior Constable Roberts), and that he is in control now. He then says, “If he rings you today and if he [threatens] - rings you one more time, okay? I will call you, but actually, you will call the Big Man [Constantinidis], you know who I'm talking about? The Big Man will talk to my associate… which is a mutual friend of [both of ours]?” (presumably he is talking about himself). “He will come and see me in person and then... he will deal with it swiftly [accordingly] and quietly and I promise you this much, you'll never hear from him again.”

411. At page 16 [Exhibit G, tab 202], Witness B says, “Mate, I heard - I mean, ah, the guy [Witness B] that talks to the Big Man [Constantinidis], is a very good, a very good mutual friend of mine. That’s the main reason why we’re doing this and he told me and he was, actually he was really pissed off… about the circumstances, so um, there are certain, ah arrangements we can make to make you [comfortable].” Witness B talks about how they are going to go through a third party, and how they have done a similar thing on two other occasions. Witness B says, “so, leave it in my hands.. if for any reason he rings you and threatens you, you ring the Big Fellow, okay? And then he will ring my friend, and my friend will ring me, and then we take precautions”.

412. This part of the McGillicuddy call corroborates the evidence of Witness B that he was to do “whatever it takes” to have Detective Roberts removed from the case. The McGillicuddy call also refers to Lazar’s father [Exhibit G, tab 202, p 10].

413. In essence, the tenor of the phone call is that Constantinidis had spoken to Witness B who had spoken to the fictitious McGillicuddy, and that Lazar should tell Constantinidis if there is any further harassment by Detective Senior Constable Roberts, who would let Witness B know to let the fictitious McGillicuddy know, and Detective Senior Constable Roberts would be dealt with.

414. This phone call is an important evidentiary call in the Crown case. The McGillicuddy phone call is supportive of Witness B’s evidence that he was informed by Constantinidis about Detective Senior Constable Roberts pressuring the accused Lazar to give a Police statement. There are other matters in the call that support Witness B’s evidence such as: (a) the name of Detective Roberts; (b) the name of the solicitor Raed Rahal; and (c) reference to Lazar’s father.

415. I find the McGillicuddy call supports Witness B’s evidence that he was asked by Constantinidis to assist in having Detective Roberts taken off the case.

416. At 7:55 am [Exhibit G, tab 203], after the McGillicuddy call, Detective Roberts rings Lazar and tells him he is coming to get a statement from him that morning. Detective Roberts is incredibly persistent in this phone call and says, “all I'm doing is telling you that I’m going to want this over and done this morning, mate”.

417. At 7:58 am [Exhibit G, tab 204], Lazar rings Constantinidis, and immediately Constantinidis tells him he has been on the phone for 35 minutes with a guy, and says, “somebody who you know probably right? Or you know of right?” In my view, Lazar is well aware that Constantinidis is having “somebody” they cannot name on the calls deal with the Detective Roberts matter. The CCRs at this time show Witness B and Constantinidis in constant contact. In fact, during this phone call, Constantinidis says, “Someone’s on the phone. Let me answer it”, and the CCRs show that Witness B was on the other line. I find that the reference above is referring to Witness B, and that Constantinidis had spoken to Witness B regarding the McGillicuddy call.

418. At 8:05 am [Exhibit G, tab 206], Lazar rings his solicitor Rahal and tells him he got a call from a bloke (Witness B/McGillicuddy) and also Detective Roberts, and expresses his concerns.

419. At 8:11 am [Exhibit G, tab 207], Lazar rings Constantinidis. Constantinidis tells him he is on the other line, and he says, “the person was with an English accent, wasn't he? The person that just spoke to you right, he’s got an English accent?” I find this is a reference to the McGillicuddy call. Lazar says, “no not English, it sounded, you know.. Pakistani”. Constantinidis tells Lazar that Detective Roberts “is just being hunted right now. You're not to do anything, you just stay where you are, right?”

420. It was Witness B who said he disguised his voice with an English accent. The CCRs show that immediately before this call, the accused Constantinidis spoke on the phone to Witness B for 573 seconds. I find that when Constantinidis said, “I’m on the other line”, it was to Witness B. I find Witness B told Constantinidis that the person who had called Lazar had an English accent. Immediately after, Constantinidis calls Lazar for 2,080 seconds, and asks Lazar about the English accent [Exhibit G, tab 207].

421. At this time, the CCRs indicate that Constantinidis is in constant contact with Witness B before and after each call with Lazar. Either Witness B is lying to Constantinidis about having contacted other Police, or Witness B was in fact speaking to someone in the Police. There is a strong inference that Witness B was telling Constantinidis that he had the matter under control and was talking to Police.

422. At 8:19 am [Exhibit G, tab 208], Lazar rings Constantinidis and asks him if he wants Detective Roberts’ mobile and they again speak of the McGillicuddy call. Constantinidis says, “they’re just going to pick him up and get to the fucking bottom of it, because you know this is a person that you, you don’t fuck with.”

423. At 8:26 am [Exhibit G, tab 211], there is a further conversation between both accused. They discuss what Witness B has allegedly told Constantinidis, that Detective Roberts has not said he will charge Lazar. Lazar says, “no.. but Raed is imputing that he will if I don't do what he wants”. Constantinidis says, “well he can't force you to give a statement, it's illegal”, and Lazar says, “that's what Raed said - I either be a witness or if I’m not going to be a witness I could be a defendant… I just want him to leave me alone so I can work”.

424. At 8:30 am [Exhibit G, tab 212], Lazar rings his financial employee, Darren Thorley, and speaks about the Detective Roberts matter and asks for a fast clearance on a cheque. Although the timing of this call is extremely suspicious, I cannot be satisfied beyond reasonable doubt that it relates to any payment of cash to Witness B.

425. At 8:35 am [Exhibit G, tab 213], Lazar again speaks to Constantinidis and asks if he should ring Detective Roberts and tell him to leave him alone, and that he is not going to see Detective Roberts without a lawyer, and that his lawyer can see him later that day. Constantinidis says, “yes, say your lawyer’s in court right?” and Lazar says, “and you're saying by that time the other matter will be dealt with?” Constantinidis says “100%”. I find this is another reference to Witness B and find that the “other matter” refers to Witness B dealing with Detective Roberts.

426. At 8:38 am [Exhibit G, tab 215], Detective Roberts rings Lazar. In the conversation, Lazar tells him he is not coming or signing anything without a solicitor present. Detective Roberts is still not letting up and says, “Let’s get this thing sorted out this morning”.

427. At 8:55 am [Exhibit G, tab 216], Lazar rings Constantinidis again. Constantinidis says, “I will do anything it fucking takes to take this prick down. You've got no idea”. I find Constantinidis is talking about Detective Roberts.

428. At 9:51 am [Exhibit G, tab 217], Lazar calls Detective Roberts and asks him to make a draft statement for him, and gives him information. It is a lengthy phone call.

429. At 10:26 am [Exhibit G, tab 218], Lazar calls Constantinidis to speak about another solicitor being involved (Alexander), as they want to use Rahal as a witness for a complaint against Detective Roberts. Mr Rahal was in Lazar’s office at the time Detective Roberts called and spoke to Lazar in a very forceful manner. I find that Lazar believed that in this call (and in general) Detective Roberts was threatening and harassing him. There is a reference in this call to “they” – Constantinidis says, “they don’t want you to sign anything or go anywhere”. I find this is a further reference to Witness B. There are further conversations between the accused that day discussing Detective Roberts, which I have summarised in my Judgment.

430. The CCRs indicate that Constantinidis was on the phone to Lazar and using Lazar’s office number and mobile. These calls were interspersed with calls to Witness B [Exhibit P, CCRs, p 27 and 28]. At 21:20 [Exhibit G, tab 223], Constantinidis tells Lazar that there are further meetings happening, saying, “right now, there's a final one at 11:15 pm up the road I’m waiting for… There’s a meeting again tomorrow, some place”. I infer that this meeting related to Witness B and Detective Roberts.

431. In the early hours of the morning (between approximately 1:00 am and 3:20 am), Witness B and Constantinidis speak on the phone seven times [Exhibit P, CCRs]. I infer this related to Detective Roberts.

23 August 2012

432. On 23 August 2012 at 8:55 am [Exhibit G, tab 224], Lazar calls Constantinidis. Constantinidis says Detective Roberts was spoken to “very severely two or three times during the evening, so hopefully there's a different result – the outcome is the same the result should be, that's what I'm saying to you”. The evidence from the Officer in Charge is that Detective Roberts was spoken to by Detective Sergeant Flores who was investigating Lazar on other matters, and the gold bar investigation was suspended. How Constantinidis knew this is a mystery, as the Officer in Charge gave evidence that Detective Senior Constable Roberts’ removal from the gold bar investigation had nothing to do with Witness B.

Findings regarding the telephone calls between Constantinidis and Witness B

433. Overall, there are almost 100 phone calls between Constantinidis and Witness B between 18 August and 25 August. Given the timing of the calls, the correlation of those calls with the telephone intercepts, and the fact that Witness B’s calls at times interrupted Constantinidis’ calls with Lazar, I find that Constantinidis did speak to Witness B and ask for his assistance in removing Detective Roberts from the gold bar investigation, with the intention of perverting the course of justice. There can be no reasonable explanation for the McGillicuddy call other than that Witness B rang Lazar to assure him that something was being done to address his concerns in relation to Detective Roberts. I find Constantinidis spoke to Witness B to get him to speak to Police officers, and Witness B was either providing Constantinidis with information that he was making up, or was getting information from some unknown person or persons.

434. Witness B did not give evidence as to the contents of these telephone calls with Constantinidis, in particular the calls which overlapped with the telephone intercepts and the McGillicuddy call. The Crown case is deficient in this regard. Independent evidence does however point to Witness B and Constantinidis being in very close contact at the precise time of the McGillicuddy call. Despite the deficiencies in the evidence and the unreliability of Witness B, I find that the telephone intercepts and CCRs paint a compelling picture that the conversations between Witness B and Constantinidis related to Detective Roberts and having him taken off the case.

How well did Witness B know each accused in 2012?

435. An issue arose in the trial as to how long Witness B had known each of the accused at the time of the McGillicuddy call. I find that Witness B knew the accused Constantinidis very well at the time of the McGillicuddy call. I accept that Witness B had a very close relationship with the accused Constantinidis, until approximately 2014, when a dispute arose between them with regards to Witness B’s wife's house. I find that Witness B was so close with Constantinidis that he called him “Dad”. I find that Constantinidis and Witness B were in very close contact leading up to the McGillicuddy call, particularly on 21 and 22 August 2012. I accept that from Witness B’s demeanour in Court that he was extremely hurt and upset by Constantinidis’ actions, and had an axe to grind against him. He felt betrayed by Constantinidis.

436. In relation to the accused Lazar, I cannot be satisfied beyond reasonable doubt that Witness B was in close physical connection with the accused Lazar prior to August 2012. He may have known Lazar and met him through Constantinidis prior to August 2012, but the evidence called on behalf of the Crown is not persuasive and does not suggest that Witness B was indeed working in the office with the accused Lazar in August 2012. One of the reasons their physical proximity may have been limited was because Lazar wanted to paint himself as a legitimate businessman, and did not want Witness B, who was a large standover man with criminal convictions, associated with him. Witness B referred to this in his evidence [T 177].

437. There is no dispute that as of early 2013, Lazar and Witness B knew each other, as both were charged with a criminal assault relating to an incident in a car park. It would seem that all charges were dropped against Witness B, and Lazar was charged with common assault. There are no telephone calls recorded in the 227 calls on Lazar’s mobile phone between Lazar and Witness B. There is no independent evidence at all that Witness B was the bodyguard of Lazar in 2012. There is no independent evidence at all that he was seen in his office in 2012. There is evidence that Witness B and Constantinidis had a long relationship, and Lazar knew who Witness B was.

438. It is clear from the McGillicuddy call Lazar did not recognise his voice. The fact that Witness B’s voice was not recognised by the accused Lazar on the McGillicuddy call supports the accused Lazar’s contention that at the time of the call, Witness B did not know the accused Lazar as well as he purported. I listened to Witness B give evidence and also to the McGillicuddy phone call on a number of occasions. It seems to me that Witness B thinly disguised his voice. His voice was very hard to understand both on the call and in court, as he was slurring his words. However Witness B’s voice in the McGillicuddy call was still recognisable as Witness B. I find that the reason Lazar did not recognise Witness B’s voice during the McGillicuddy call is that although Lazar may have met him and had day-to-day business dealings with him, prior to August 2012, Lazar’s main contact with Witness B was through Constantinidis. The phone call with Constantinidis on 16 August 2012 [Exhibit G, tab 136], in which he refers to Witness D, at least indicates Lazar knew Witness B’s wife in August 2012. I find that in August 2012, Witness B was not a full-time employee and did not work in Lazar’s office. It was not until 2013 that I can be satisfied that Witness B and Lazar worked together in close physical proximity.

435. I primarily base my findings on Witness B’s statement to Police dated 8 February 2018, in which he stated that he met the accused Lazar shortly before the assault incident in 2013, and the evidence of independent witnesses (Dennis Mirosavic and Eddison Diez) who worked in Lazar’s office in 2012 that they did not see Witness B in the office.

436. I make a finding that although Lazar may have known Witness B in 2012, Witness B was much closer to Constantinidis. I find that Lazar was not as familiar with him, and he did not recognise Witness B’s voice when Witness B made the McGillicuddy call. I find that whilst Witness B was putting on an accent during the McGillicuddy call, he still sounded remarkably like he did in the witness box, with slurred speech. If Lazar had known Witness B so well at the time, not only would he have recognised his voice, he would not have needed to go through the accused Constantinidis to speak to him. He could have spoken to him at his workplace. Further, if Lazar knew Witness B as well as Witness B said he did in 2012, it would have been a very risky tactic for Witness B to make the McGillicuddy call if there was a possibility he would be recognised by the accused Lazar.

437. At the time of the telephone intercepts, particularly around 21 and 22 August 2012, I find that Lazar was under a considerable amount of stress due to matters such as Police raids on his lawyer in Melbourne, a Victorian Senator, media articles, his ex-wife, his boils (diagnosed by Constantinidis as shingles), [REDACTED]. Lazar's perception of Detective Roberts’ intention to charge him was fuelled by his lawyer Raed Rahal’s constant insistence that Detective Senior Constable Roberts may charge him out of spite. Lazar wanted the gold bar returned because he was desperate for money.

438. I find in August 2012, Lazar and Constantinidis had a very close personal and business relationship, indeed they were on the phone to each other constantly discussing business and personal matters.

439. In respect of the accused Constantinidis, I find that as of August 2012, Constantinidis had intimate knowledge of Lazar’s problems with Detective Roberts. Lazar rang Constantinidis almost immediately after each phone conversation with Detective Roberts or his solicitor Rahal. Constantinidis spoke directly to Rahal on 21 August, when Rahal was in Lazar’s office before he met with Detective Roberts. Constantinidis was in constant contact with Witness B at the relevant times, and indeed was actually speaking to him on the other line on some occasions when Lazar tried to call Constantinidis.

440. In respect of the accused Lazar I find that in August 2012, he was concerned that the gold bar given to him by Y was stolen. The evidence that supports that finding can be found in Lazar’s phone calls to various entities to ascertain how one can tell if a gold bar is stolen or not. I find that at the time the gold bar was seized by the Police, Lazar needed the money. I find that Lazar was concerned that Detective Senior Constable Roberts may charge him with something “out of spite”. I find that Lazar was concerned that Y was a well-known criminal, and had involved him in an investigation by saying it was Lazar’s gold bar. Y was also in a vehicle with Witness A, who was the wife of a now deceased notorious criminal.

441. I find that Lazar wanted Detective Senior Constable Roberts taken off his case, and enlisted the accused Constantinidis to help him. I find the accused Constantinidis then enlisted Witness B. I accept Witness B’s evidence that Lazar also spoke to him about the gold bar matter and Detective Roberts. This was most likely on 21 or 22 August 2012.

442. Despite the unreliability of Witness B’s evidence, I am satisfied beyond reasonable doubt that both accused asked Witness B to assist in getting Detective Senior Constable Roberts taken off the gold bar case either by getting him transferred or making a complaint, and doing whatever it takes.

447. I find both accused spoke to Witness B and asked him to speak to high-ranked Police, and put improper pressure on Detective Senior Constable Roberts, and if that did not work to recruit others to physically harm Detective Senior Constable Roberts. I find both accused acted together in a Joint Criminal Enterprise. Based on my assessment of all the evidence, I am satisfied to a point of actual persuasion beyond reasonable doubt that both accused had an intention to pervert the course of justice.

448. The particular act to pervert the course of justice relied upon by the Crown is an “offer” to pay Witness B. The Crown opened its case that there was actual payment of money by Lazar to Witness B. It is not in dispute that Lazar did make payments of money to Witness B. The only issue is what the money was payment for. Witness B said in 2013 that $200,000 went into the trust account of his lawyer [T 180.5]. It was put to Witness B that the accused Lazar made payments of approximately $50,000 in relation to work done on some tugboats. Witness B said, “I was paid for his protection. That's about it” [T 182.45]. Witness B said he was paid two lots of cash in the amounts of $49,000 and $50,000 on two separate occasions by Lazar in respect of the gold bar matter [see paragraph 52 above of my Judgment]. Mr Rahal also said he was aware that money was paid to Witness B as he was threatening Constantinidis.

449. I cannot be satisfied beyond reasonable doubt of the exact amount of payment by Lazar to Witness B for the gold bar job. Firstly, the value of the gold bar was said to be approximately $50,000. Why would the accused Lazar pay approximately double that, being $100,000, to get the gold bar back? Secondly, it was clear from the time of the conversations with Detective Senior Constable Roberts and his lawyers that the accused Lazar was desperate to get the gold bar back, as he needed the money. Thirdly, the evidence of Witness B is highly unsatisfactory in relation to when he was paid, what he was paid for, and what the other jobs related to. There is a very strong suspicion that Witness B was involved with both accused in other matters that went beyond legitimate legal business dealings, however those matters are not before me and I have very little evidence in relation to them. I make no finding in that regard.

450. What I do have to decide is, can I be satisfied beyond reasonable doubt of the elements of the offence on the evidence before me. The indictment refers to an “offer” to pay Witness B, although the Crown opened and ran its case on actual payment. The Crown cannot say when exactly the cash payment was made. I accept Witness B’s evidence when he said he spoke to Constantinidis about money, and I accept his evidence that he was paid cash by Lazar at some stage, and the money included money for the gold bar job. I am satisfied beyond reasonable doubt that the accused Constantinidis discussed payment with Witness B, and that the accused Lazar did in fact pay Witness B some money for his involvement in removing Detective Roberts from the investigation. I cannot however be certain of the precise amount Witness B was paid or the timing of the payment.

451. I am therefore satisfied beyond reasonable doubt in respect of both elements of the offence.

452. I find that the accused acted together in a Joint Criminal Enterprise and did an act, namely offer to pay and paid Witness B to improperly influence Detective Senior Constable Roberts. There was an intention by each accused to pervert the course of justice. I find the offence proved.

Verdict

453. I find each accused Guilty of the offence as charged.

**********

NOT FOR PUBLICATION – NAMES RESTRICTED

Annexure 1

Witness List and Pseudonyms

[REDACTED] (“Witness A”)

[REDACTED] (“Witness B”)

[REDACTED] (“C”)

[REDACTED] (‘Witness D”)

[REDACTED] (“Y”)

[REDACTED] (“X”)

Amendments

29 January 2020 - Addressed some heading formatting issues

Decision last updated: 29 January 2020