By Paul Gregoire and Ugur Nedim
Prior to being taken into police custody, Mr A told his wife he’d stored six gold bars belonging to Mr Y at her mother’s house.
On 8 August 2012, on the request of Y, Mrs A removed two bars and a Mr C drove the pair to the vicinity of Sydney’s Queen Victoria Building at around midday. Y then met Ian David Lazar in order to exchange the gold for cash, and when he returned to the car, he was still holding one bar.
Later that evening, a police officer pulled the vehicle over in Annandale. On searching it, he found the 1 kilogram bar on Y, who told the officer he got it from Lazar. The bar was confiscated, and the trio drove to North Sydney where Y spoke with Lazar, a mortgage lender, about the police incident.
Leichhardt Detective Senior Constable David Roberts then commenced an investigation into whether the $50,000 gold bar might have been stolen or the proceeds of crime.
Incidentally, on 6 June that year, an interception warrant had been issued to the NSW Fraud and Cybercrime Squad in respect to 41-year-old Lazar’s phone.
Intercepted calls showed Lazar was anxious about retrieving his gold bar. And they also revealed he was a close associate of another mortgage lender, that being 57-year-old Achilles Constantinidis.
A police informant known as Witness B said he met with Constantinidis, who asked him to take steps to prevent DSC Roberts from continuing his investigation into the gold bar. He added that he’d also met with Lazar twice, who made the same request and paid him around $99,000 to carry this out.
Witness B explained that he didn’t act on these requests, and he’d never intended to. DSC Roberts said he subsequently ceased his investigation into the gold bar on 23 August, after a conversation with a Fraud Squad detective, the content of which remains undisclosed.
Guilty as charged
Both Lazar and Constantinidis stood trial over 13 days commencing on 22 July 2019, each facing a single count of perverting the course of justice, contrary to section 319 of the Crimes Act 1900 (NSW). This offence carries up to 14 years prison time.
NSW District Court Judge Kate Traill explained during the proceedings that the prosecution’s case relied on evidence from Witness B that both the accused had told him to do “whatever it takes” to dissuade DSC Roberts from continuing his investigation, including threatening violence.
Therefore, her Honour could not find the co-accused guilty of the offence to the criminal standard unless she accepted Witness B’s testimony beyond reasonable doubt.
Constantinidis sought a verdict by direction asserting there was no evidence of a joint criminal enterprise that he was a party to with Lazar.
A directed verdict involves a trial judge entering an acquittal when it is found there is not enough evidence for a reasonable jury to find an accused guilty of a crime. However, Judge Traill went on to find both men guilty of perverting the course of justice.
And on refusing to enter a directed verdict, her Honour noted that it was the Crown’s case that only Lazar had offered to make the payment, although Constantinidis knew about this arrangement which she found constituted the joint criminal enterprise, with all this evidence relying on Witness B.
Grounds of appeal
The two men appealed their convictions to the NSW Court of Criminal Appeal (NSWCCA) in November last year, at which time, the pair remained unsentenced.
The pair appealed on the ground that the judge had made an error in not considering section 165 of the Evidence Act 1995 (NSW), in that Witness B’s evidence may be unreliable, and further that her Honour hadn’t taken into account the significance of their good character.
The appellants further asserted that the guilty verdict wasn’t supported by the evidence, whilst Constantinidis contended an error had been made in not upholding the directed verdict, and Lazar posited a miscarriage of justice had occurred as he may not have been fit to stand trial.
NSWCCA Justices Murray Gleeson, Des Fagan and Julia Lonergan outlined that “the unreasonable verdict ground raised… must be determined irrespective of the disposition of any other ground”, and that the joint section 165 and good character ground, if upheld alone, would only trigger a retrial.
The evidence reviewed
Their Honours set out that in establishing whether the verdict was unreasonable the evidence must be reconsidered, and it was made up of two components: Lazar’s intercepted calls and Witness B’s testimony. And since the recorded conversations were “objectively established” that left B’s version.
According to the justices, the reasons to challenge Witness B’s credit were significant: his poor character, his substantial criminal record, that he felt the co-accused had defrauded him out of his home, along with his having fabricated evidence in relation to an unrelated charge in 2014.
And there were holes in his evidence. His first two statements failed to mention a meeting with Constantinidis, there was an absence from his testimony that Constantinidis had requested violence towards Roberts, and other features “arguably rendered” his account “inherently improbable”.
Witness B said he’d known Constantinidis since around 2006-08, and he’d met Lazar then. However, he also claimed he’d met Lazar in 2002. And he further stated he’d worked as a “bodyguard” for Lazar for seven or eight years prior to 2012. But none of this evidence was thoroughly scrutinised.
The appeals court then reflected upon the intercepted calls. Those involving Lazar and his lawyer or Constantinidis didn’t turn up anything suspect. But there was one call involving Witness B, which raised significant questions.
Witness B had called Lazar pretending to be a high-ranking police officer called McGillicuddy. He said he was working within the police department to get the investigation dropped. During the call, he’d mentioned “the Big Man”, whom Lazar would be speaking to, and he later testified that meant him.
In regard to contact between B and Constantinidis, there were more than 100 calls logged between the 18th and 25th of August, of which the trial judge found must have been in relation to getting Roberts to drop the case, yet this conclusion was left unsupported by any evidence.
Unreasonable convictions
“The above considerations in combination give rise to a reasonable doubt on the part of this Court about the truthfulness and accuracy of Witness B’s evidence against both Lazar and Constantinidis, and hence a reasonable doubt about their guilt,” their Honours found.
The justices further set out that rather than any of the other evidence presented during the case supporting the account given by Witness B, some of it pointed to the innocence of both men.
These conclusions then led to the upholding of the ground put by both Lazar and Constantinidis that the verdict was unreasonable and not supported by the evidence, so their convictions were quashed.
On 11 February this year, the three justice bench of the NSWCCA ruled that the trial judge’s finding of guilty in respect to both Lazar and Constantinidis should be set aside and “in lieu thereof” their Honours directed that a finding of not guilty be entered in relation to both men.
Editor’s note: The original article stated that the defendants were on remand. They were not.
