Brothel Gate Day 4 Full Day

1MR DEVRIES:

That matter is still proceeding Your Honour.

2HIS HONOUR:

Yes thanks Mr Devries.

I should say that I'm

3

relieved to say the jury for Monday has settled so we'll

4

be able to, if this case hasn't completed today we'll be

5

able to continue on Monday.

6MR DEVRIES:

If Your Honour pleases.

Your Honour I enclose the

7

plaintiff's case that the evidence that's there is the

8

evidence of the plaintiff, so - - -

9HIS HONOUR: 10MR DEVRIES:

Thank you. Just two matters before I sit if Your Honour

11

pleases.

The first one is Mr Johnson has indicated to

12

the court that he intends to call all these other

13

witnesses before he gives his own evidence.

14

matter for Mr Johnson but he should be on notice that

15

I'll be asking Your Honour to draw inferences adverse to

16

him from the fact that he will have the benefit of

17

hearing other evidence and the dangers of his evidence

18

being tailored to be consistent with those other persons.

19

And the second matter is Your Honour because of two

20

practical difficulties I'm not in a position to give

21

either Your Honour or Mr Johnson lists of the authorities

22

that I may be relying on when we get to the addresses.

23

One is because someone's had to inherit my matter from

24

Monday and I've given him my bundle of authorities and

25

secondly I'm in no position to fax or email or deliver to

That's a

26 27

Mr Johnson copies.

So what I've prepared Your Honour is

28

a list of authorities that I may be relying upon

29

depending on (a) How the evidence goes and secondly

30

whether Gilda v. Pockapeds is delivered by the Court of

31

Appeal.

If I could hand Your Honour a copy of that list.

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DISCUSSION

1

I've handed my learned friend a copy.

2HIS HONOUR:

Thanks for that Mr Devries.

3MR DEVRIES:

The last three are Family Court decisions which

4

depending on how the evidence goes may or may not be

5

relied on.

6HIS HONOUR:

Yes.

7MR DEVRIES:

I hope it's a fairly comprehensive list, the

8

decisions of this honourable court.

9HIS HONOUR: 10

Yes well a couple are ringing the bell.

Are these

all on 285?

11MR DEVRIES:

Every one of them is Your Honour.

12HIS HONOUR:

Yes well I think I've only read a couple of those.

13

I've read the one of Justice Nettle, there's a recent one

14

of Justice Osborn, I don't (indistinct) the name of it.

15

It might be Rye v. Dassious or something.

16MR DEVRIES:

I think it's Rye v. Dassious Your Honour.

17HIS HONOUR:

I think I've read one other.

But if you are going

18

to rely on any principally it would be (indistinct) if I

19

could have them available for (indistinct).

20MR DEVRIES: 21

I can indicate to Your Honour that Burns v. Hassan

deals with negative contributions.

22HIS HONOUR:

Yes.

23MR DEVRIES:

And I'll certainly be referring to

24

Gilda v. Pockapeds.

25HIS HONOUR:

Yes I've got a copy of parts of that.

26MR DEVRIES:

And it's very difficult not to make reference to

27

Finley v. Beswick but it's probably distinguishable

28

depending on how the evidence comes out.

29

certainly be referring to Robertson v. Austin.

And I'll

30HIS HONOUR:

That's Justice Nettle's case is it?

31MR DEVRIES:

That is Your Honour, yes.

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DISCUSSION

1HIS HONOUR:

Yes.

2MR DEVRIES:

And I'm probably obliged to draw Your Honour's

3

attention to it because it may well be an authority but

4

it may not assist my client.

5HIS HONOUR:

Will you be also be relying on The Constructive

6

Trust as in the infinitive the (indistinct) gardener

7

principle of - - -

8MR DEVRIES:

Yes Your Honour.

9HIS HONOUR:

Yes.

10MR DEVRIES: 11

Right.

But it's almost inevitably the case if one doesn't

get up on - - -

12HIS HONOUR:

Yes.

13MR DEVRIES:

- - - 285 Constructive Trust Property (indistinct)

14

basic.

15HIS HONOUR: 16

It'd be rare for one to succeed and not the other.

17MR DEVRIES: 18

Evidentiary wise that would probably be right.

If Your Honour pleases.

I didn't want to take up

too much of your time.

19HIS HONOUR:

No.

20MR DEVRIES:

I have.

21HIS HONOUR:

I'll hear now from Mr Johnson on behalf of the

22

Right well you've closed your case?

defendant.

23MR JOHNSON:

Thank you Your Honour.

I did have some questions

24

before we start as to the process I should follow because

25

this is alien territory for me on introspect.

26

(indistinct) when Mr Devries opened the case for the

27

plaintiff he made some leading summaries of the evidence

28

to be given.

29

result in a doubling up trying to give my evidence

30

(indistinct).

31HIS HONOUR:

I

My thinking of that is that that would

Yes well generally each party is entitled to open

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DISCUSSION

1

his or her case.

2MR JOHNSON:

Yes.

3HIS HONOUR:

It's particularly important in the case of the

4

plaintiff because obviously the judge is new into the

5

case and doesn't know much about it.

6

cross-examined the two witnesses called on behalf of the

7

plaintiff I have some ideas as to the issues.

8

entitled to open and foreshadow the evidence you wish to

9

call if you think it would assist your case.

10

Now you're

What you

say to me you know is not evidence.

11MR JOHNSON: 12

From the way you

Yes, yes.

Your Honour once the evidence is given

by the witnesses including myself.

13HIS HONOUR:

Yes.

14MR JOHNSON:

Then do each of the parties' counsel get an

15

opportunity to do a summing up?

16HIS HONOUR:

Well once the witnesses have been completed, which

17

includes cross-examination, once your witnesses have been

18

called, Ms Sofroniou will call her witnesses if she sees

19

the need to.

20MR JOHNSON:

Yes.

21HIS HONOUR:

And at the conclusion of evidence then there will

22

be final addresses in which each side will be able to

23

make their final address.

24MR JOHNSON:

Thank you Your Honour.

25HIS HONOUR:

That's when legal argument occurs and when you put

26

Forgive me - - -

to me what view I should take of the evidence.

27MR JOHNSON:

It's 21 years since my moot court examination at

28

university which was my closest experience to what I'm

29

experiencing - - -

30HIS HONOUR: 31

It would probably assist if you can indicate what

witnesses you will be calling.

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DISCUSSION

1MR JOHNSON:

Yes.

I have a couple of issues.

Firstly I might

2

just note because I don't think there's anything I do

3

about it Your Honour.

4

witnesses to go before me is because they are little

5

witnesses in terms of timeframe.

The reason I've asked the other

6HIS HONOUR:

Yes.

7MR JOHNSON:

And because I have had to juggle them every day

8

for the last three days which is quite a logistical

9

exercise and everyone's busy people.

I wasn't aware that

10

there could be some drawing of inferences or diminishing

11

of the quality of my evidence according to the sequencing

12

of whether I speak first or last.

13HIS HONOUR:

Ordinarily, a party gives evidence first for a

14

number of reasons.

One is that a party can't be ordered

15

out of court under such an order.

16MR JOHNSON:

Yes.

17HIS HONOUR:

I don't know if it's a matter for inference but

18

it's certainly a relevant fact to take into account if

19

that party doesn't give evidence first in his or her

20

case.

21MR JOHNSON:

Yes.

22HIS HONOUR:

Because obviously that party will have heard the

23

other witnesses and have the advantage of that when he or

24

she gives evidence in the witness box.

25MR JOHNSON:

Yes.

Yes, I just am concerned as an officer of

26

the court and obviously on the parole evidence given and

27

the puttage in cross-examination there is marked

28

disparity between the facts per the plaintiff's case and

29

the facts as per the defendant's case.

30HIS HONOUR:

Yes.

31MR JOHNSON:

And I'm worried about even the slightest

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DISCUSSION

1

implication that I am less than 100 per cent honest and

2

truthful.

3HIS HONOUR:

Well that's a matter for you, the way you run your

4

I cannot conduct your case - - -

case.

5MR JOHNSON:

Exactly, Your Honour, and the bulk of my evidence

6

will be actually documentary rather than (indistinct) in

7

any case.

8HIS HONOUR: 9

Well I think the best thing to do is if - are you

able to indicate the witnesses you will be calling?

10

You're not compelled to but it would assist me to

11

understand what's coming - - -

12MR JOHNSON:

Yes, I can, Your Honour.

Because I do have some

13

issues because the majority of them are being called on

14

subpoenas.

15

three of them but I've now resolved one of the three.

16

One of the witnesses I wished to call was the concierge

17

at my residential apartment building, a lady, Angela.

18

She was amongst the witnesses that I subpoenaed.

19

would have like to give evidence but – and she was served

20

and acknowledged service.

21

service somewhere in my case for this.

22

Adelaide at the moment and she's leaving overseas

23

tomorrow.

24

Honour, but if there is some possibility that she might

25

give evidence by telephone?

26HIS HONOUR: 27

I have subpoenaed and I had problems with

She

I do have an affidavit of But she's in

I think I know what the answer will be, Your

Well we could have arranged audio visual link if

you had of given my staff adequate warning and you - - -

28MR JOHNSON:

Again, see I - - -

29HIS HONOUR:

(Indistinct) arrangements yourself, Mr Johnson.

30MR JOHNSON:

Yes, yes.

31HIS HONOUR:

You've raised this matter at a very late stage and

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DISCUSSION

1

I don't think that can be arranged.

2MR JOHNSON:

Again, see I thought that the defence case would

3

be opening in 24 hours or more ago.

4

don't know when the time is to raise these sorts of

5

things.

6HIS HONOUR: 7

Well I can't assist you in that.

It's for you to

run your case, Mr Johnson.

8MR JOHNSON: 9

And again I just

All right, I guess that we can just note that I'm

excusing her for failing to attend on the subpoena.

She

10

was here in court on Tuesday morning.

And I certainly

11

don't want any adverse consequences for her.

12

witness short, Your Honour.

13

calling and I did manage to finally speak with him today

14

and he will be here around about 12 o'clock is Kevin

15

Enright, the principal of Altona Primary School.

16

in attendance, he did appear as required on Tuesday

17

morning.

And I'm a

The other witness I'm

He was

18HIS HONOUR:

Yes.

19MR JOHNSON:

Now, he – I had all sorts of issues with him

20

because he was concerned because of those orders that

21

Federal Magistrate O'Dwyer made.

22

he might be at some jeopardy if he spoke with me on the

23

phone that he might be locked up for two years or he

24

might be subjected to - - -

He was concerned that

25HIS HONOUR:

Look, I don't know what orders there are but - - -

26MR JOHNSON:

That is what – I wish to clarify that by having

27

them provided to you, Your Honour.

28

run the gauntlet because I think that the orders are just

29

so blatantly repugnant to s.121 in word and spirit

30

(indistinct) hand that up to you now - - -

31HIS HONOUR:

Now, I'm prepared to

Mr Johnson, you are now diverting a long way from

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DISCUSSION

1

opening your case to - - -

2MR JOHNSON:

Your Honour - - -

3HIS HONOUR:

You wish to, if you have a concern about being

4

able to confer with Mr Enright, I can ask Mr Devries is

5

there any order of the Federal Magistrates' Court that

6

would prevent Mr Johnson communicating with Mr Enright?

7MR DEVRIES:

There is, Your Honour.

It was because of the

8

other orders made by His Honour which was effectively to

9

prevent any contact in a broader sense between the child

10

and - - -

11HIS HONOUR:

What's the order that Magistrate O'Dwyer made?

12MR JOHNSON:

May His Honour be given a copy please?

13MR DEVRIES:

Well you've got a copy - - -

14HIS HONOUR:

Do you have a copy of the order there?

15

could just let me know what the order is?

16MR JOHNSON: 17

If you

Your Honour, they're quite elaborate, I believe.

I'll provide you - - -

18HIS HONOUR:

Well I think the better thing to do, it seems to

19

me I've asked a question which will just simply delay any

20

progress in this action.

21

outline to me what witnesses you're going to call.

22

think it's best we simply start to hear the witnesses.

23

This case has already gone three days on a two day

24

estimate.

I withdraw my request that you I

25MR DEVRIES:

It will take me a few moments to locate it.

26HIS HONOUR:

Mr Devries, I think we'll just simply hear the

27

evidence.

28

what the defendant's case is about has simply delayed the

29

matter.

30MR DEVRIES: 31

It seems to me my request to have any idea of

Can I just mention one thing which may save some

time, Your Honour?

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DISCUSSION

1HIS HONOUR: 2

No, because I'd prefer to get on with the evidence

rather than - - -

3MR DEVRIES:

It might save Mr Johnson time, Your Honour, if I

4

(indistinct).

5

just use his report, I will not object to Mr Johnson

6

tendering the report.

7

Mr Clarebrough on it and if his evidence is confined to

8

the report then he doesn't have to go back - - -

9HIS HONOUR: 10

If he intends to call Mr Clarebrough and

I don't need to cross-examine

So Mr Johnson can simply tender his report

as - - -

11MR DEVRIES:

Yes, and that will be not opposed - - -

12HIS HONOUR:

Well that's of assistance.

13

What about - - -

14MS SOFRONIOU: 15HIS HONOUR: 16

Thanks, Mr Devries.

Same position, Your Honour. Thank you, Ms Sofroniou.

Well that may assist

you, Mr Johnson.

17MR JOHNSON:

No actually, Your Honour, I did have the benefit

18

of reading the transcript of the first morning – the

19

hearing of that preliminary issue on Order 15.

20HIS HONOUR:

Yes.

21MR JOHNSON:

I must say that I kept coming back to this single

22

issue that I feel hobbled in being able to use any of the

23

materials from the Family Court proceedings in these – in

24

this court.

25HIS HONOUR: 26

If you don't provide

any - - -

27MR JOHNSON: 28

You keep saying that to me.

I will give you my one and only copy, Your Honour,

of Federal Magistrate O'Dwyer.

29HIS HONOUR:

There's nothing much I can do about an order of

30

the Federal Magistrates' Court.

31

magistrate can shut you out from giving evidence in this

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77

I do not see how a

DISCUSSION

1

case in this court?

2MR JOHNSON:

Me either.

It's extraordinary, Your Honour.

3HIS HONOUR:

Perhaps I'll have a look at the order.

4MR JOHNSON:

Thank you, Your Honour.

5HIS HONOUR:

Which order do you say it is?

6MR JOHNSON:

That's my only copy of that document, Your Honour.

7

It's the one about me not telephoning the principal or

8

any staff at Altona Primary School - - -

9MR DEVRIES:

Is that the order of April or September?

10HIS HONOUR:

Yes, 9 September.

11MR DEVRIES:

I've found a copy of - - -

12HIS HONOUR:

What is - - -

13MR JOHNSON:

Thank you, Mr Devries.

14HIS HONOUR:

What is that order actually referring to?

15

find any order.

16

metres of any school (indistinct) may attend or from

17

communicating with any principal", yes.

18MR JOHNSON: 19

Here it is.

I can't

"(C) Coming within 500

Your Honour, I was given no advance notice or

opportunity to speak to the - - -

20MR DEVRIES:

It's not true, Mr Johnson.

21MR JOHNSON:

That is entirely what - - -

22HIS HONOUR:

I'm not really interested in that.

23

assist me at all.

24

available to give evidence?

It doesn't

Well, firstly you say Mr Enright is

25MR JOHNSON:

Yes, and he will be here at midday.

26HIS HONOUR:

It seems your problem there is resolved then.

27

He's going to come and give evidence, you can call him to

28

give evidence.

29MR JOHNSON:

Except for in these orders.

There is that

30

threshold issue that I was most concerned about, as I

31

tried to explain - - -

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DISCUSSION

1HIS HONOUR: 2

You've obviously had communication with him to get

him here to court.

3MR JOHNSON:

Yes, yes, Your Honour - - -

4HIS HONOUR:

This order would not preclude you calling him to

5

give evidence.

6

How would you be breaching that order?

7MR JOHNSON:

He's obviously coming to give evidence.

I'm happy to accept what you're saying there, Your

8

Honour.

That's good in respect of Mr Enright's evidence

9

but part of the case as produced for the plaintiff

10

against me, relies heavily on documents from the Family

11

Law proceedings.

12

up against other problems under Orders 7B and E, that

13

Mr Justice O'Dwyer - - -

14HIS HONOUR: 15

Now, for me to respond to them I come

I haven't heard any of the Family Court evidence

put before me?

16MR JOHNSON:

There's Exhibit C1 for example which we discussed

17

on the first morning on the trial.

18

a witness statement by another one of my witnesses this

19

morning, Ms Larissa Dek-Fabrikant.

20HIS HONOUR:

I wish to put forward

What I think we'll do, Mr Johnson - and we've now

21

wasted 15 minutes.

22

you have.

23

round it, but it seems to me that we've now wasted

24

15 minutes hearing of difficulties from both sides.

25

court is under immense workload pressure, and it really

26

doesn't have time to waste listening to this.

27

to hear cases; not people's problems.

28

– what evidence do you intend to call now?

29MR JOHNSON:

We'll proceed to hear what evidence

If you have a difficulty we'll work our way

This

I'm here

Now, what witness

I intend to call – so, I have a third witness who

30

was served and I have an affidavit of service but he

31

failed to turn up, and he is a material witness for a few

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DISCUSSION

1

reasons.

His name is Mr Peter Cochran.

2HIS HONOUR:

Are you going to call a witness now?

3MR JOHNSON:

Your Honour, I have problems with a key witness I

4

need who didn't respond to the subpoena and I'm not sure

5

how to deal with that, Your Honour.

6HIS HONOUR:

Have the subpoena called.

7MR JOHNSON:

I'm sorry, what does that mean, Your Honour?

8HIS HONOUR:

Have you got a copy of the subpoena?

9MR JOHNSON:

There may be a way to get evidence in some other

10

way.

11

the - - -

12HIS HONOUR:

What I'm concerned about is the response to

Mr Johnson, what I suggest you do is (indistinct)

13

up here.

14

you wish me to take any action under a subpoena you can

15

draw that to my attention?

16

complete your evidence today anyway, but if you need till

17

Monday we can call your other witnesses Monday.

18

now lost 20 minutes.

19MR JOHNSON:

There are other witnesses who aren't there.

Do

I don't know if we could

We've

Your Honour, having lost one my witnesses who's in

20

Adelaide because of not knowing how to manage this, I

21

don't want to lose this other witness.

22

– address this issue first thing for him on a Monday

23

morning.

24

Peter Cochran, prepared but I'm just concerned that – and

25

even though it's referred to in the pleadings and other

26

documents it may fall into a hearsay category unless he's

27

here to actually to identify, "Yes, I did write that".

28HIS HONOUR: 29

If I have to get

There is this a ringed document that this man,

You wish to what, put before me a document that

he's prepared as his evidence.

Is that right?

30MR JOHNSON:

Yes, yes, that's right.

31HIS HONOUR:

You wish to tender that under s.55 of the Evidence

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DISCUSSION

1

Act?

2MR JOHNSON: 3

It's 20 years since I've looked at that section,

Your Honour, but I think that's right, yes.

4HIS HONOUR:

I'd certainly allow you to do that if it was done

5

by consent.

6

may be it has uncontroversial matters?

7MR JOHNSON:

Do you wish to show that to Mr Devries?

It

I don't know.

I believe they'll be highly controversial matters

8

and I doubt very much that consent will be given, Your

9

Honour.

10

materials put in the court - - -

11HIS HONOUR: 12

The document has appeared a number of times in

Mr Johnson, I'm told there is a witness waiting

outside who hopefully you've arranged to attend court.

13MR JOHNSON:

I should have two witnesses waiting outside.

14HIS HONOUR:

Why don't you call them, Mr Johnson, rather than

15

wasting very valuable court time?

16MR JOHNSON:

Your Honour, I appreciate - - -

17HIS HONOUR:

Why don't we call - - -

18MR JOHNSON:

Because I'm still not clear on the house rules for

19

how to get my evidence in, and I will be worrying about

20

this while I try to - - -

21HIS HONOUR:

Mr Johnston, the time has come for you to call

22

your evidence.

23

close your case.

If you don't wish to call it you can

24MR JOHNSON:

Your Honour, that's - - -

25HIS HONOUR:

It is quite inappropriate if you come to court –

26

you've now wasted 20 minutes of court time.

27MR JOHNSON:

I'll come back to Mr Cochran's evidence - - -

28HIS HONOUR:

You'll come back to Mr Cochran.

Look, why don't

29

you organise the witnesses you have here?

30

you've got two outside.

31MR JOHNSON:

You've told me

Let's hear them.

Sorry, there was just one other minor issue and I

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DISCUSSION

1

realise - - -

2HIS HONOUR:

If it's minor is it worth worrying about?

3MR JOHNSON:

It was a document that I was told I would be given

4

a copy of on Tuesday morning, which was the Entwhistle

5

written report.

6

yet and I would be grateful to receive it.

7HIS HONOUR: 8

I haven't actually been provided a copy

I don't know what that's about.

next witness, Mr Johnson.

9MR JOHNSON:

You'll call your

That is a direction - - -

Your Honour, you did express a concern that it was

10

a denial of natural justice that I hadn't been given a

11

copy of that document and I - - -

12HIS HONOUR:

I don't think I expressed a concern but I cannot

13

even remember what that was about.

14

losing patience with you.

15MR JOHNSON: 16

Mr Johnson, I'm

You will call your witnesses.

Your Honour, I would like to call as my opening

witness Mr Antonos Ioannou.

17HIS HONOUR:

Thank you.

Call him, please, Mr Richards.

Well,

18

that gentleman isn't here but I'm told by Mr Richards

19

there's another lady outside waiting to give evidence.

20

think in fairness to her - - -

21MR JOHNSON:

Thank you.

22HIS HONOUR:

- - -good enough to turn up you should call her.

23MR JOHNSON:

Yes, Your Honour.

24HIS HONOUR:

Thank you.

25

please?

I

Miss Larissa Dek-Fabrikant.

Could you call Miss Dek-Fabrikant,

Would you come into the witness box, please?

26
You may be seated Miss Dek-Fabrikant?---Thank you.

28Could you tell us, please, your full name? 29

It's Larissa?

---It's Miss Larissa Dek-Fabrikant.

30Can you spell your surname?---It's Dek-Fabrikant; hyphenated. 31D?----D-e- - D-e-k, Dek, Fabrikant. 1.SB:ASC 05/12/08 2Cressy

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DISCUSSION

1Sorry?---Fabrikant. 2Spelt?---F-a-b-r-i-k-a-n-t. 3Thank you. 4MR JOHNSON:

Thank you, Your Honour.

(To witness)

5

Miss Dek-Fabrikant, would you advise the court of your

6

residential address, please?---It's 178 Queen Street,

7

Altona.

8Thank you, and approximately how long have you lived at that 9

address?---Approximately 20 years.

10178 Queen Street is very close to 166 Queen Street, Altona? 11

---Yes, it is.

12MR DEVRIES:

I ask that Mr Johnson not lead this witness?

13HIS HONOUR:

I don't think that's - - -

14MR DEVRIES:

I let it go, Your Honour, but if he could be

15

reminded, Your Honour, so it doesn't - - -

16HIS HONOUR:

I'll allow Mr Johnston to ask that leading

17

question.

It obviously is.

18

Mr Johnston.

You can ask that question,

19MR JOHNSON:

Your Honour, forgive my lack of - - -

20HIS HONOUR:

Mr Johnson - - -

21MR JOHNSON:

In what way was it leading because I don't want to

22

repeat the error, Your Honour?

23HIS HONOUR:

You're allowed to lead on non-contentious matters

24

but you cannot ask questions of your own witnesses, and

25

suggest an answer in relation to issues that are at large

26

in the case.

27

question it's permissible because it's non-contentious.

So while that was technically a leading

28MR JOHNSON:

Thank you.

29HIS HONOUR:

I take it, Miss Dek-Fabrikant, that 178 Queen

30

Street is close to 166?---Yes, it is very close, Your

31

Honour.

1.SB:ASC 05/12/08 2Cressy

FTR:1

83

DISCUSSION

1Just a couple of houses away?---A couple – couple of houses and 2

we very close in the community.

3Tell me do you have an occupation?---I ex-retired nursing 4

sister.

5Thank you. 6MR JOHNSON:

I'm indebted, Your Honour.

7HIS HONOUR:

Mr Johnson.

8MR JOHNSON:

Miss Dek-Fabrikant, can you inform His Honour

9

please, of the circumstances and the date approximately

10

when you first met Miss Pippin Patricia Cressy and her

11

children?---It was approximately September, October 06

12

and I was walking on the street, probably from the

13

shopping centre.

14

– on the street and i knew that it – and – and this

15

address that two Dalmatian lives.

16

concerned about the dog wandering on the street, and he

17

was very friendly dog.

18

call, so I knock on the door with the – holding the dog.

19

And I sort of knock and I say, "I find your dog, you

20

know, and I'm concerned".

21

actually – I see them but i never approach or talk to the

22

people who occupy this house.

23

and the dog was in.

I spotted the Dalmatian running free on

24Thank you Ms Dek-Febrikant.

So I was very much

He straightaway come to me when I

This was the first time when I

And they say, "Thank you",

Did you have any more contact with

25

Ms Cressy and her children after that date?---After this

26

accident I, several time met Pippin.

27

introduced herself to me and we was talking relating to

28

animals, children and I was just (indistinct) allow me to

29

change her (indistinct) outside and this is how we come

30

more know each other and start to greeting each other and

31

then I start talking to the children as well.

1.SB:ASC 05/12/08 2Cressy

FTR:1

84

This is how she

She was DISCUSSION

1

introduce me to the children.

2

close to know them as my neighbour.

3Thank you Ms Dek-Febrikant.

So I have, so that become

Did you at any times meet with

4

Ms Cressy and the children in her residence or vice

5

versa?---Yes I did because I actually offer Pippin

6

because I'm a great lover of the animals and I do all the

7

charity work with the (indistinct) and this and that and

8

we become very friendly and I offer her, as I say, I got

9

a lot of food left over from my animals, would she mind

10

me if I share rather than throw them and she accepted and

11

I was regular bring left over for the dogs and I start

12

feeding the cat, you know sort of on regular days and the

13

kids was, it was very appealing to the kids.

14

sort of friends and I was, I was at their birthday, they

15

was receiving some small present because I, I didn't have

16

the small kid.

17

grandmother so it was a great opportunity to me to, to be

18

close to the children and the children was very happy and

19

animals was very happy.

20HIS HONOUR:

We become

My all was grown up and I didn't become

So I take it you spend some time at Pippin's house

21

and - - - ?---Yes I been basically for more than a year I

22

was coming six o'clock in the morning to feed the cat and

23

she was greeting me and then I see the kids leaving to

24

school and a few (indistinct) and the evening if anything

25

was, for the dogs or I been knock on the door and so yes

26

I was a pretty regular visiting and the kids start

27

visiting from permission of the mother and stay with me,

28

help me to feed the birds or whatever and we enjoy our

29

company.

30

family.

31MR JOHNSON:

So I did have a pretty close contact with this

Thank you Ms Dek-Febrikant.

1.SB:ASC 05/12/08 2Cressy

FTR:1

85

So you would on DISCUSSION

1

occasion I take it look after the children or the animals

2

for Ms Cressy?---Yes the children was given permission to

3

spend some time especially when they was on the holiday,

4

in my house and I will sort of make them lunch with my

5

husband and we share their lunch and they will help us

6

around.

7

(indistinct), I have a lot of animals so they was

8

involved in all these plus we played games and chatting,

9

talking.

We have a big garden.

They very love it.

We have a big

The kids enjoyed the

10

company, attention and close, you know - probably there

11

was seemed like their grandparents and yes and on a

12

holiday I will be looking after animals as well if they

13

was on a leave I will be taking care of the animals as

14

well.

15Thank you Ms Dek-Febrikant.

Go back to when you first met

16

Ms Cressy and the children.

Can you say anything about

17

the living arrangements there and I hope I'm not leading

18

Your Honour.

19HIS HONOUR:

No.

20MR JOHNSON:

But in particular were there any men living in the

21

house at that time?---As far as I know that she was a

22

single mother and I never ask her a particular question

23

but for my expression that she's a single mother and I

24

didn't have idea who is the father or what, what

25

anything.

26

because she is most of the time home and apart from this

27

I really didn't know much about her personal life.

28

didn't - - -

29HIS HONOUR:

I obviously consider that she doesn't working

I

When abouts was it that you really started to

30

visit there regularly and see the children and the

31

animals regularly?

1.SB:ASC 05/12/08 2Cressy

FTR:1

Approximately? 86

You've told me you DISCUSSION

1

met her in September, October 2006.

2

was it that you sort of became a regular visitor to the

3

house?---In a couple of months follow start - - -

4So more about the end of 2006?---Yes, yes.

How long after that

Yes.

5Thanks. 6MR JOHNSON:

Ms Dek-Febrikant did you - are there any times

7

when you were visiting the Cressy household did you ever

8

see me there at the same time?---I meet you much later on

9

occasion when I find a little kitten which was lost and

10

the children was (indistinct) kitten and the kitten was

11

lost.

12

kitten and I didn't.

13

cat, the little kitten appear, the little Thomas and I

14

was very happy and (indistinct).

15

because was nobody home and I was keeping until somebody

16

come home and this evening when I brought this little

17

Thomas, this first time, I saw Mr - you know, James.

18

didn't know his name.

19

very happy and they was all excited, the kids and this

20

and like it was a very special event and they celebrate

21

this, this is the first time I actually meet him.

22

don't think he introduced himself but because everybody

23

was exciting, smiling and things, but this only the first

24

time which it was much later I saw him.

25HIS HONOUR:

The kids was very upset.

They ask me if I see the

But next morning when I feed the

I took him to my place

I saw him and because they was

I

When you say much later, are you able to put a

26

time frame on that at all?---I well believe it happen

27

approximately in the middle of 07.

28MR JOHNSON:

I

Thank you Ms Cressy - sorry Ms Dek-Febrikant.

So

29

when did you first come to know my name?---Actually the

30

children told me because children very often will coming

31

from visiting, I was told that the father of the children

1.SB:ASC 05/12/08 2Cressy

FTR:1

87

DISCUSSION

1

they was telling me that how nice time they have with,

2

with the father of James sometimes and then I ask,

3

"What's the name of your father?" and they, they told me,

4

"James".

5

happy to tell me how good time they spent together and

6

they was exciting to have a new toys or something like

7

that.

8

sure if it's the father of all kids or whatever it is,

9

but in my mind there was looked like a father of

10

And I ask what they been doing.

They was very

That is the first time when I - I still wasn't

children.

11HIS HONOUR:

When you first met Mr Johnson did you know by then

12

his name was James or was it after that that - - - ?

13

---After that, yes, I didn't.

14

didn't ask, we didn't introduce.

15MR JOHNSON: 16

Thank you, Ms Dek-Fabrikant.

Did the children

give the impression that I was - - -

17MR DEVRIES: 18

I see him personally but I

That's going to be a leading question, Your

Honour.

19MR JOHNSON:

Your Honour, maybe you can guide me so I can - - -

20HIS HONOUR:

Well I think he's doing actually pretty well for a

21

person who's not an advocate.

22

question because it may or may not be leading.

23

doing his best to avoid it - - -

24MR JOHNSON: 25

But he's

And perhaps Ms Dek-Fabrikant not answer the

question until His Honour says - - -

26HIS HONOUR: 27

I'll listen to the

Yes, well try to avoid suggesting an answer.

You

are in fact doing very well so far in that regard.

28MR JOHNSON:

Thank you, Your Honour.

(To witness)

29

Ms Dek-Fabrikant, you said that from what the children

30

told you - and please let His Honour consider the

31

question before you answer, from what the children told

1.SB:ASC 05/12/08 2Cressy

FTR:1

88

DISCUSSION

1

you, that you thought I might be the father of the

2

children.

3

whether your thinking was that I was the father of some

4

or all of the children and could you expand on that as

5

well please?---I have expression - - -

Could you expand on that a bit more and

6MR JOHNSON:

Sorry, Your Honour?

7HIS HONOUR:

No, only the answer will clarify this.

8WITNESS: 9

I have expression first.

It was no doubt in my mind

and I have no meaning to doubt this that this gentleman

10

might be the father.

11

way the kids was addressing and how happy they was after

12

visiting, tell me what they have been doing, I thought

13

first that it's the father of the children.

14HIS HONOUR: 15

I never ask people anything but the

So that was from the way the children were talking

about James?---Yes, yes.

16From that you - - -?---Yes. 17They gave you the impression that he was their father?---They 18

give me impression and because I didn't really – it

19

didn't worry me to go in details and I presumed that –

20

that possibly the father of the children.

21That's of the three children, the two boys and the girl?---Well 22

because I look at them as a family, you know, so – and I

23

didn't know any circumstances.

24

three kids so I presume that it's possibly the father.

25MR JOHNSON:

I only see the lady with

May I continue that line of questioning please,

26

Your Honour?

27

impression you got from the children change or become

28

more sophisticated over time?---Well actually on event of

29

later when I have observed when the children on the - - -

30MR DEVRIES: 31

(To witness) Ms Dek-Fabrikant, did the

Your Honour, I object to any evidence about this

episode.

I know which episode she's referring to because

1.SB:ASC 05/12/08 2Cressy

FTR:1

89

DISCUSSION

1

she's sworn an affidavit in the Federal Magistrates'

2

Court proceedings.

3

happened on 29 September 2007 and it bears no relevance

4

whatsoever to any aspect of this proceeding.

5

anything, that goes to children matters in the Federal

6

Magistrates' Court.

7HIS HONOUR:

It's an episode that allegedly

It is, if

Well that may be right but it's difficult for me

8

to rule on the admissibility of it until I've actually

9

heard.

10MR DEVRIES: 11

That's the difficulty, Mr Devries. The prejudicial effect of this evidence may

outweigh any probative value what it's - - -

12HIS HONOUR:

Well this is not a criminal court.

I do not have

13

the discretion to disallow evidence on that basis in a

14

common law court.

15

I may have that discretion.

16

law if it's relevant and there's no other ground to

17

exclude it I am obliged to receive it.

18

know what the evidence is.

19

is to hear it, subject to your objection which you've

20

properly made, and if it's irrelevant then I will rule

21

that it's inadmissible.

If and when the Evidence Act comes in But at the moment at common

But I still don't

The better thing for me to do

22MR DEVRIES:

If Your Honour pleases.

23MR JOHNSON:

Thank you, Your Honour.

24HIS HONOUR:

You ask the question, it will be subject to that

I understand - - -

25

objection, so that I'll receive it subject to that

26

objection and then I'll rule on its admissibility.

27MR JOHNSON:

Thank you, Your Honour.

28HIS HONOUR:

Ms Dek-Fabrikant, at the moment has stated that

29

she gained the impression from the children that you were

30

the father of all the children and then you've now, I

31

think, asked a question did something occur later which

1.SB:ASC 05/12/08 2Cressy

FTR:1

90

DISCUSSION

1

changed, in anyway, the impression the children were

2

giving to her about you.

3

asking, isn't it?

4MR JOHNSON: 5

That's really what you've been

I think I know how to put the question but I'm not

sure whether or not it will be leading.

6HIS HONOUR:

Well put the question and - - -

7MR JOHNSON:

Put it in a fresh way.

(To witness)

8

Ms Dek-Fabrikant, did you ever think at any time that I

9

may not be the father of all three children?---That's

10

actually happened relating to accident on 29 October when

11

the children come to my place and they ask for help.

12

Like they actually – it was one of the boys and it was

13

(indistinct) sister, Grace, they come to our residence

14

and they was shaking, pale, upset, crying and they asked

15

for help.

16

that Grace, which is younger sister of - - -

17MR DEVRIES:

So when I asked what's happened they tell me

This is hearsay, apart from anything else, Your

18

Honour.

19

9 October 2007.

20HIS HONOUR:

And it's an incident that occurred on

The only question I'm concerned of is as a result

21

from something Grace told you, did you then gain the

22

impression - - -?---Yes.

23

is - - -

Yes, Your Honour.

This

24That Mr Johnson may not be the father of all of them?---Then I 25

ask the question what's happened and when I say, "Did you

26

contact your father", and their reply was, "I'm not quite

27

sure, I've been told that James is not my father".

28

is the first time when I heard from the boy when he make

29

this statement.

This

30So is that the first time then that you gained the impression 31

at all that James was not the father of all the three

1.SB:ASC 05/12/08 2Cressy

FTR:1

91

DISCUSSION

1

children?---Then I ask him what about Illyana, he say,

2

yes, it's him father.

3

oldest boy and he say, no, he got another father.

4

is when I directly when I ask them.

And I say what about Treece, the This

5Can I ask you this though, to make this relevant, is that the 6

first occasion that you gained from the children the

7

impression that James is not the father of all three of

8

them?---Yes, Your Honour.

9Well to that limited extent it seems to me to be relevant. 10MR DEVRIES:

Certainly to that extent - - -

11HIS HONOUR:

(Indistinct) probably assistance to your case.

12MR DEVRIES:

It is, Your Honour.

13

object to the relevance.

14

that - - -

15HIS HONOUR:

But to that extent I can't

But there is some other events

Well I follow that.

That's why Ms Dek-Fabrikant

16

was astute enough to pick up on that and simply to give

17

the evidence as relevant to this trial and I'm grateful

18

to her.

19MR JOHNSON: 20

Thanks.

Mr Johnson?

Thank you Your Honour.

I'm so scared I'm going to

ask a leading question Your Honour.

21HIS HONOUR:

Don't be scared.

Just ask it.

22MR JOHNSON:

Ms Dek-Fabrikant did you have any reason to

23

believe at any time that I was in residence at the house

24

with Ms Cressy and the three children?---No.

25MR DEVRIES:

Well that was a leading Your Honour.

26HIS HONOUR:

It wasn't leading.

27MR JOHNSON:

Thank you Your Honour?---It - may I, I express my

28

impression?

29

look like they live separate life and he - the children

30

got visitation by the father.

31

impression before I even learn that what the children

1.SB:ASC 05/12/08 2Cressy

I first did think that he - for me it was

FTR:1

92

This was my first

DISCUSSION

1

said it was father he is.

2

was that she was single mother probably divorce,

3

separated, whatever and the children visiting.

4HIS HONOUR:

So - and my expression [sic]

And I take it that impression is gained from your

5

observation - - - ?---From my observation, close

6

observation to be almost every day, maybe twice a day at

7

the residence.

8What sort of times did you visit the house?---Normally I will 9

between six to seven in the morning and probably between

10

eight and 9 p.m. I will, after finish dinner and

11

everything I will pop in and bring what's left for the

12

dogs and like, it was a normal routine, every day living,

13

so.

14MR JOHNSON:

Thank you Ms Dek-Fabrikant.

Could you say a bit

15

more please to His Honour about the sort of normal every

16

day living routine that you observed in Cressy - between

17

Ms Cressy and her children on the times when you were

18

present?---I, when was on many occasion very much concern

19

because on the many occasion I, when I bring especially

20

at evening I will bring something for the dog and many

21

occasion the door will be opened by children and

22

sometimes even the youngest one, Illyana which is very

23

young.

24

"Where your mum?" a few times she tell me that she's not

25

home, nobody.

26

children been left at home without supervision and they

27

actually opened the door with the knock without even

28

knowing who behind them and from my mind it was

29

absolutely unsafe to do things you know.

30

the kids will be play in this late time on the street as

31

well when I bring the meals and I also was very much

I believe she was seven and on my question,

1.SB:ASC 05/12/08 2Cressy

I was very, very concerned that the

FTR:1

93

And very often

DISCUSSION

1

concerned that they never play in the backyard.

They

2

always on the street when it was almost dark.

3

mind I did sort of ask myself is it really safe or

4

appropriate for children to do this situation.

5

the one occasion which is alert me, I was back from

6

shopping and find the, another neighbour on the floor,

7

the elderly woman was lying on the floor.

8

herself and she was trying to help - I tried to help her

9

but I couldn't do myself.

So in my

And in

She hurt

So I rush to their house

10

actually to ask somebody to give me a basically physical

11

help and because you know I couldn't lift her up and she

12

was in a pool of blood and when I knocked the door the

13

kids was home and Pippin was sitting on the kitchen like

14

in this position and when I sort of ask for help she was

15

not, like for me she was look either very sick or maybe

16

under influence of alcohol or something else.

17

obviously - - -

18MR DEVRIES: 19

She

This is a - - - ?---- - - couldn't help me.

She

say, "I'm sorry I cannot help you".

20Your Honour I object to this (indistinct).

We don't know (a)

21

when it's happened and it's not at all relevant to this

22

proceeding.

23HIS HONOUR:

Well I think the last incidence is (indistinct)

24

remote except that you have put the case on the basis of

25

the commitment of your client to the household and to

26

caring for the children.

27MR DEVRIES:

But we don't know when this (indistinct) happened.

28HIS HONOUR:

Well when did that incident occur?---This accident

29

happened probably about 14 months ago and the - why I was

30

concern because this was the time when the kids was - - -

31Is that about October 2007?---No it was earlier than this. 1.SB:ASC 05/12/08 2Cressy

FTR:1

94

DISCUSSION

1

It's - I remember it was very hot day so it supposed to

2

be - sorry, you know.

3

it couldn't be in October.

4

possibly - sorry it was.

I know that this was a hot day so It should be later.

5No that's OK?---I just try to trace when it was. 6

was summer time.

It's

Obviously it

It was pretty hot day.

7So it was last summer was it?---It was last summer, yes, yes. 8Yes I follow then. 9 10

So I don't think this is relevant because

it's outside the relevant time period.

Thanks

(indistinct).

11MR DEVRIES:

If Your Honour pleases.

12HIS HONOUR:

No well I uphold your objection to that - - -

13MR DEVRIES:

Sorry?

14HIS HONOUR:

I'll uphold your objection to that part of

15

Ms Dek-Fabrikant's response.

16MR DEVRIES:

May it please Your Honour.

17HIS HONOUR:

That is relating to that specific incident.

18

Do

you follow?

19MR DEVRIES:

Yes I understand.

20MR JOHNSON:

Ms Dek-Fabrikant I want to just specify a date to

21

you and I want you to listen to the date and I want you

22

to advise us on whether we were formally introduced to

23

each other before or after that date.

24

I want to give to you is, please listen and think

25

carefully, 29 September 2007.

26

introduced to each other before or after that date?

27

---I, I believe after this date.

And the date that

Had we been formally

28Your Honour there is a statement that Ms Dek-Fabrikant prepared 29

for my former solicitor when I had legal representation.

30

It's actually Exhibit - p.JJ002 to my affidavit of

31

7 March 2008.

1.SB:ASC 05/12/08 2Cressy

I'd like to show that statement that

FTR:1

95

DISCUSSION

1

Ms Dek-Fabrikant made to her for identification purposes

2

and I'd like to ask her some questions about that

3

statement.

4MR DEVRIES:

I object Your Honour.

5HIS HONOUR:

The appropriate way to ask the questions is you

6

can ask - don't draw her attention to the statement but

7

you can ask her about the issues that are raised there.

8

But if she cannot remember them then she can refresh her

9

memory from the statement.

10

topics.

11

tender the statement.

You've covered a number of

You can cover any topic, you don't need to

12MR JOHNSON:

Thank you, Your Honour.

13HIS HONOUR:

The statement is an out of court statement made

14

and would not ordinarily be admissible in this court.

15

You've got the witness here.

16MR JOHNSON:

Well am I doing the right thing in drawing Your

17

Honour and my learned friend's attention to that

18

statement, to that particular exhibit?

19HIS HONOUR: 20

Well it's irrelevant at the moment.

You're doing

well so far, you're sticking to relevant issues.

21MR JOHNSON:

Thank you.

22HIS HONOUR:

Continue to ask her about any relevant issues that

23

are raised in that statement.

24MR JOHNSON:

So my confused look, Your Honour, is because it's

25

an exhibit – it's a statement given by Ms Dek-Fabrikant

26

in the form of an affidavit.

27HIS HONOUR:

Yes, but that's not in the evidence in this case.

28

This is the trial of this case and I receive viva voce

29

evidence.

30

anything - - -

31MR JOHNSON:

You've got the witness here.

I'm sorry, please forgive me.

1.SB:ASC 05/12/08 2Cressy

FTR:1

96

Ask her

I'm concerned there DISCUSSION

1

might be some hearsay aspect to the statement.

Because

2

it is an exhibit to my affidavit so I'm just wondering

3

whether it has already been admitted in evidence or not?

4HIS HONOUR:

It has not.

5MR JOHNSON:

How do I achieve that admission please, Your

6

Honour?

7HIS HONOUR:

Well you may be struggling to.

It's not so much

8

the statement, it's the evidence contained in it because

9

anything in it you wish to elicit from this witness, you

10

can elicit it now by appropriate question.

For example,

11

if the statement says that on 1 December I went to the

12

shops, then you ask Ms Dek-Fabrikant, "Did you go to the

13

shops in December", do you follow?

14MR JOHNSON:

Thank you, Your Honour.

15HIS HONOUR:

You can just use that as a guide as to questions

16

you might wish to ask her now.

17MR JOHNSON:

Thank you, Your Honour.

(To witness)

18

Ms Dek-Fabrikant, can you recall whether any of the

19

Cressy children visited you at your house on or about

20

29 September 2007?---Yes, I do remember.

21

was - - -

That it

22Excuse me please, Ms Dek-Fabrikant. 23HIS HONOUR:

What would be the relevance of this?

This case

24

has been conducted on the basis that the relevant

25

timeframe is the period of the relationship.

26

started 1998 and completed in about May 2007.

27MR JOHNSON:

That

Your Honour, is it the question of – look, I do

28

understand, yes, OK, I appreciate it.

29

to articulate the full reason for the witness' presence

30

but it is the question of residency arrangements at the

31

Queen Street property.

1.SB:ASC 05/12/08 2Cressy

FTR:1

97

And I don't want

DISCUSSION

1HIS HONOUR: 2

to this case?

3MR JOHNSON: 4

In September 2007 but why would they be relevant

For all of the time that some or all the parties

lived there, Your Honour.

5HIS HONOUR:

Well that's - - -

6MR JOHNSON:

That's what I'm trying to - - -

7HIS HONOUR:

That's relevant but particularly focusing on the

8

period up to about I think it's May 2007.

9MR JOHNSON:

Yes, yes.

I may only need – I'll ask the witness

10

to let His Honour hear my question first to make sure

11

that it's proper.

12HIS HONOUR:

Yes.

13MR JOHNSON:

During that period that His Honour just mentioned

14

since the period up to May 2007, did you have any reason

15

to believe that I was residing at 166 Queen Street - - -

16MR DEVRIES: 17

That question has been asked and answered, Your

Honour.

18HIS HONOUR:

No, well I'll permit the question.

19MR DEVRIES:

If Your Honour pleases.

20WITNESS: 21

No, I don't have any reason to believe that

Mr Johnson (indistinct) resident at this household.

22HIS HONOUR:

That's based on your observations?---On my

23

observation and visiting and I didn't observe that this

24

person didn't - - -

25MR JOHNSON: 26

Thank you, Ms Dek-Fabrikant.

I think I just have

one more question, Your Honour.

27HIS HONOUR:

Yes.

28MR JOHNSON:

Provided that it's a proper one.

29HIS HONOUR:

Yes.

30MR JOHNSON:

Ms Dek-Fabrikant, you did say that at prior dates

31

prior to May 2007, you had on occasion been visiting the

1.SB:ASC 05/12/08 2Cressy

FTR:1

98

DISCUSSION

1

property and I had been there.

Did you have any

2

impression of my reason for being there?

3HIS HONOUR:

Well impression is a bit wide.

4MR JOHNSON:

I know, Your Honour.

5HIS HONOUR:

From your observations did it appear why - - -

6MR JOHNSON:

Your Honour, if I wasn't a resident what was I

7

doing there, was I visiting? - - -

8HIS HONOUR: 9

Did you see him at the premises before May, say,

May 2007?---No.

10No?---No.

This occasion, well it seems like he visiting the

11

children or they come back from holiday or he pick up the

12

children.

13

he's there.

14MR JOHNSON: 15

I didn't sort of go in this particular why I presume it was the father of the children.

Thank you, Your Honour.

That was – yes,

that's - - -

16HIS HONOUR:

Yes, no, I understand.

17MR JOHNSON:

- - - end of my questions for the witness, Your

18

Honour.

19HIS HONOUR:

Mr Devries?

20
children towards the end of 2006, wasn't it, around

23

September October 2006?---Correct.

24Is that correct?---That's correct. 25And it's from about April 2007 that the children started to 26

drop round with you – to your place with the mother's

27

permission wasn't it?---I will say that was probably

28

shortly after the Christmas.

29

and March or April.

30

sort of more regularly – see each other.

Probably between Christmas

This – this – then when they start

31So you swore an affidavit in other proceedings on 17 October 1.SB:ASC 05/12/08 2Cressy

FTR:1

99

DISCUSSION

1

2007, and you said, "About six months ago the children

2

started" - - -

3MR JOHNSON:

Excuse me, Mr Devries.

I'm just not sure on the

4

admissibility issue.

I'm not experienced enough, Your

5

Honour, to know whether it's proper and it probably is

6

for Mr Devries to ask question off the statement just as

7

I did isn't it?

8HIS HONOUR:

Yes.

9MR JOHNSON:

I apologise, Your Honour.

10HIS HONOUR:

He's entitled to do so in cross-examination.

It may be that as a matter of fairness to the

11

witness that it ought be put before her, but I'll leave

12

that to Mr Devries.

13MR JOHNSON:

I apologise to all, Your Honour.

14HIS HONOUR:

You can proceed, Mr Devries.

15MR DEVRIES:

It's only one sentence out of the one very lengthy

16

document.

17HIS HONOUR:

What was the date of the affidavit?

18MR DEVRIES:

It was sworn on 16 October 2007.

Perhaps I'll

19

backtrack a little bit before I go back to the question.

20

(To witness) Do you recall making an affidavit?

21

an affidavit in other proceedings before Ms Kelly in

22

Moonee Ponds?---Yes, I did.

23

this affidavit for a very long time because I didn't sort

24

of – been involved – this.

25

involvements.

26

I remember - - -

I remember.

Swearing

I didn't see

I didn't have any

I remember the event – that this happened.

27No, do you remember making an affidavit?---Yes, I do remember. 28

Yes, I – I - - -

29Do you agree with me that it was about 16 October?---Yes. 30Do you agree with me that you said there amongst other things 31

and I quote, "About six months ago the children started

1.SB:ASC 05/12/08 2Cressy

FTR:1

100

DISCUSSION

1

to drop over to visit me, with their mother's

2

permission"?

3

is it – will be – permitted for me to refresh my memory?

4HIS HONOUR: 5

Do you remember saying that?---Your Honour,

You certainly may?---Do you have a copy because I

– I didn't see this document for a long time?

6That's a perfectly proper and fair request, Ms Dek-Fabrikant. 7

You may, yes.

8

affidavit?

9MR DEVRIES: 10

Could Ms Dek-Fabrikant be shown the

I refer her to Paragraph 2 of that affidavit, Your

Honour.

11WITNESS:

Thank you, Your Honour.

12HIS HONOUR:

Yes, but - - -

13MR DEVRIES:

Perhaps the last page first which is her

14

signature?

15HIS HONOUR:

We should give her the whole of the affidavit, and

16

ask her to verify her signature.

17

are?---Thank you.

18MR DEVRIES:

(To witness) There you

Could you have a look at the very last page

19

first?---Yes.

It's definitely my signature and the –

20

sworn on 16 October, all about the event mentioned on

21

29 October.

I just refresh my memory.

22I don't want you to go beyond, at this stage, Paragraph 3 of 23

that affidavit.

But at this stage I only want you to

24

read three lines down in Paragraph 2 where it says,

25

"About six months ago the children started to drop over

26

to visit me, with their mother's permission".

27

that bit?---Which one – paragraph?

Do you see

28The second paragraph?---Yes. 29At the very end of the paragraph it starts, "About six"?---Six 30

months, yes.

31Just read that and the rest of that paragraph?---Thank you. 1.SB:ASC 05/12/08 2Cressy

FTR:1

101

DISCUSSION

1

Yes, yes.

2For the sake of His Honour, after that sentence I read out, 3

"About six months ago the children started to drop over

4

to visit me, with their mother's permission", is says,

5

"They would drop in and explore the house.

6

and I would play with them and have afternoon tea.

7

enjoyed visiting.

8

occurrence about every couple of weeks".

9

you've got there?---Yes, yes, yes - - -

My husband They

This became a fairly regular Is that what

10So it would've been about April 2007 that they started to drop 11

over to your place.

12

dropping on a regular base but - - -

13No.

Is that correct?---They will start

"About six months ago they started to drop over to visit

14

me, with their mother's permission".

15

sworn before?---Correct, yes.

16It was after that that it became regular.

That's what you've

So we're talking

17

about from April, sometime after April they started to

18

come around every fortnight?---Correct.

19

but I did see them before.

Correct, yes,

20You'd seen them as they would speak to you on the street, and 21

you would speak to them?---In their home as well.

22You don't say that in that affidavit, do you, that you visited 23

them in their home?

24MR JOHNSON:

Your Honour, I'm not sure if it's appropriate to

25

object or whether I should address this in

26

re-examination?

It's probably the latter isn't it?

27HIS HONOUR:

What's the basis for your objection?

28MR JOHNSON:

I always thought, you know, that the Barbara Minto

29

Principle of Pyramid Drafting that you always have 80 per

30

cent of your message in a paragraph in the first

31

sentence.

1.SB:ASC 05/12/08 2Cressy

And if you start picking sentences further FTR:1

102

DISCUSSION

1

down the paragraph you're taking it out of context.

2HIS HONOUR: 3

- - -if it's out of context you can clarify it in

re-examination.

4MR JOHNSON:

Thank you, Your Honour.

5HIS HONOUR:

Can I ask you this, Ms Dek-Fabrikant?

I don't

6

have the affidavit in front of me but from my note of it

7

of what Mr Devries has read out, that that affidavit

8

says, "About six months ago the children started to drop

9

over to visit me, with their mother's permission".

10

Does

the affidavit have - - -?---Yes, yes.

11When you swore that affidavit was that correct?---Yes. 12So it's about that time, about April 2007 the children started 13

to drop over to see you?---Yes, that's - - -

14But you added before Mr Johnston objected that you'd added that 15

prior to that you had actually been visiting 166 Queens

16

Street.

17

prior to this.

18

know the family.

19

into my place since this.

Is that right?---Yes.

I – I start visiting them

Probably six months prior.

I already

I know the kids but they start to come

20I follow. 21MR DEVRIES:

But you agree that there's nothing in that

22

affidavit that talks about you visiting their home?

23

---Yes.

24

the accident which has happened on this day.

25

relevance.

I agree because I didn't think it's relevant for It have no

26When you visited my client's home it was generally you said 27

between six and seven in the morning?---Correct.

28And between eight and nine in the evening?---Yes, that's 29

correct.

30And sorry Your Honour could I just clarify something with my 31

client before I ask the witness?

1.SB:ASC 05/12/08 2Cressy

FTR:1

103

DISCUSSION

1HIS HONOUR:

Yes, certainly.

2MR DEVRIES:

And I apologise for turning on Your Honour.

3HIS HONOUR:

No that's OK.

4MR DEVRIES:

Most often when you came to my client's home it

5

was to bring some food for the pets wasn't it?---Yes it's

6

correct.

7And more often - - - ?---Apart - sorry, apart from several 8

occasion as I describe I bring the dog and occasion when

9

I ask for help to help elderly person or - - -

10I'm asking you about the more often than not it was to 11

bring - - - ?---That, that - it was regular based.

12Was to bring food to the pets?---Yes it's correct. 13And more often than not when you did that you didn't get beyond 14

the front door, is that correct?

You just brought the

15

food, gave it to my client and went back home?---In the

16

morning I will never go in the house, it's true.

17

the evening very often I've been welcome and - - -

But at

18But only, in the evenings, only as far as the kitchen wasn't 19

it?

You didn't get to any other part of the house?

20

---Well it is the house which is open plan.

21

entrance it is the living room, it's the kitchen and

22

apart from the bedroom well certainly it's the open plan

23

and there lounge room, entrance, kitchen and everything

24

is one place.

When you

So I just - - -

25You didn't get into any of the bedrooms did you?

Or the

26

bathrooms?---I, I only to been to the bedroom in two

27

occasion when the, the dog have a puppy and the kids want

28

to show me the puppy - - -

29Can you tell His Honour when that was?---Look I don't want to 30

mislead.

She had puppy every six months and I, I, I

31

honest cannot recall particular date.

1.SB:ASC 05/12/08 2Cressy

FTR:1

104

I, I won't, I DISCUSSION

1

could - I don't believe that they gone (indistinct) and

2

the kids say, yes they do.

3

on and I was invited to, to the bedroom.

4

time when I was in children's bedroom and all, all nine

5

puppies was in the basket with the mother and I was

6

(indistinct) on the bedroom contents.

And I say I never see, come It's the first

7You never went into any of the adult bedrooms did you?---No. 8You also said in Paragraph 3, "I met James but only very 9

occasionally".

How many times had you met James prior to

10

you making that affidavit?---I maybe see him one or two

11

times more when he bring the children.

12

in his car and he dropped them in, like this.

The children was

13Did you ever see him in the house?---No. 14Now you said in answer to a question from Mr Johnson that you 15

had no reason to believe that he lived with my client up

16

til May 2007.

17

know the opposite either.

18

know one way or the other whether he lived there?

19

---I never see his physical presence in the premises as

20

far as I've been there.

I suggest to you also had no reason not to You really had no reason to

21Yes?---And on this my observation I just make my conclusion 22

that - - -

23Only on whether you physically saw him, no other factor 24

influenced that conclusion that you've drawn?---I never

25

ask Pippin.

26

go into such particular private details to anybody.

27

physically I didn't observe him.

I never - I was not in, in the position to But

28And that's the sole basis for you drawing that conclusion that 29

in answer to his question isn't it?

30

the question Your Honour.

31

physically see him in the house is the only basis upon

1.SB:ASC 05/12/08 2Cressy

FTR:1

Sorry I'll rephrase

The fact that you didn't

105

DISCUSSION

1

which you've drawn the impression that he didn't live

2

there?---Also that, like I stated, I saw several times

3

that he brought the children and also children tell me

4

that they're visiting their father.

5But that was after May 2007 wasn't it?---Yes it's conclude my 6

opinion that they are not living together.

7But that was after May 2007 wasn't it?---Sorry. 8

before this date?

9

either.

You mean

Before this date I didn't see him

I didn't observe him so - - -

10That was before May 2007 the only reason why you - - - ?---No. 11

That's correct, yes.

12HIS HONOUR:

Sorry perhaps you better ask the question

13

(indistinct).

14

factor that led you to believe Mr Johnson was not living

15

there was that you didn't see him there?---My, my

16

conclusion that I didn't see him there and I occasionally

17

see he bring the children.

18

a visiting father rather than a resident father.

19MR DEVRIES:

Is it fact that before May 2007 the only

So my impression was as he is

But you've seen him bringing the children in the

20

car, happened after May 2007?---No I did see this a few

21

occasion before.

22Well you've only seen him on two or three occasions before 23

October 2007.

So how could you have seen him in a car on

24

three or more occasions?---I didn't say three.

25

was one or two.

Maybe it

26You did say three a few moments ago?---Sorry, no I didn't. 27HIS HONOUR:

You may be right.

I didn't hear it?---No I didn't

28

say - I say, maybe one or two times.

29

recall exactly.

30MR DEVRIES: 31

I, I, I cannot

So the total number of times you saw Mr Johnson

prior to 29 October - sorry 17 October when you made that

1.SB:ASC 05/12/08 2Cressy

FTR:1

106

DISCUSSION

1

affidavit was two times?---Maybe all together, two to

2

three times.

Very, very quickly.

3And one of those - - -?---I cannot, I'm sorry I cannot give you 4

a 100 per cent positive because it was not my prior

5

thoughts about this.

6

I have very little see him then.

I only refresh my memory and I know

7Two or three times in total and one of those occasions was late 8

in the year when he - you found out what his name was,

9

wasn't it?

You gave evidence to His Honour before that

10

you'd discovered that his name was James towards around

11

about September, October 2007 didn't you?---Yes I believe

12

that I, I think I - the children mentioned his name

13

several time but I didn't concentrate on this.

14But you said to His Honour before that it was very late in the 15

piece that you discovered that his name was James, you'd

16

discovered a name for him?

17HIS HONOUR: 18

It was we were formally introduced after

29 September 2007 is my - - -

19MR DEVRIES:

Yes.

20MR JOHNSON:

Thank you, Your Honour.

21MR DEVRIES:

That was one of the two or three occasions you met

Thank you.

22

him was when he was formally introduced to you after

23

29 September 2007, wasn't it?---Yes, that's correct.

24How long before you were introduced to him, was the second last 25

time that you saw him prior to making this affidavit?

26MR JOHNSON: 27

Sorry, could Mr Devries repeat the question?

couldn't follow it.

28HIS HONOUR:

No, I have to agree with that.

29MR JOHNSON:

Thank you, Your Honour.

30MR DEVRIES:

I'll rephrase it, Your Honour.

31

I

(To witness)

Between the time that he was introduced to you and you

1.SB:ASC 05/12/08 2Cressy

FTR:1

107

DISCUSSION

1

making that affidavit, did you meet Mr Johnson again?---I

2

don't think so.

3How did you get to Ms Kelly's office to make this affidavit, 4

did Mr Johnson take you there?---No, actually she

5

attending my place because I was just discharged from the

6

hospital.

7

condition she is attending my place.

I was very ill.

And because of my ill

8Did Mr Johnson tell you that - - -?---Yes, he introduced. 9

He

introduced her and because of my physical condition she

10

come to make it there, I couldn't go to – I was not

11

in - - -

12How many times did Mr Johnson speak to you about Ms Kelly 13

coming to see you?---Pardon?

14How many times did you have discussions with Mr Johnson about 15

Ms Kelly coming to see you to give evidence in that

16

matter?---I think just once.

17So two of the three times that you saw Mr Johnson prior to 18

making that affidavit was on 29 September and sometime

19

just prior to making that affidavit, is that correct?

20

---Can you rephrase that?

I couldn't understand clearly.

21I will rephrase - - 22MR JOHNSON:

Your Honour, there was a leading date put in that

23

question, wasn't there, Your Honour?

24

leading question?

25HIS HONOUR: 26

Wasn't that a

I think it was building on a date that's already

been established.

It wasn't leading.

27MR JOHNSON:

Sorry, Your Honour, it was or it - - -

28HIS HONOUR:

It was not leading.

29MR JOHNSON:

It wasn't?

30HIS HONOUR:

No.

31MR JOHNSON:

I thought Your Honour - - -

1.SB:ASC 05/12/08 2Cressy

FTR:1

108

DISCUSSION

1MR DEVRIES:

Your Honour - - -

2HIS HONOUR:

Enough from both of you.

3

Can you ask the question

again and I'll rule on whether it's leading.

4MR JOHNSON:

Thank you.

5MR DEVRIES:

With respect, Your Honour, I thought in

6

cross-examination I could lead.

7HIS HONOUR: 8

Well that is true.

I'm sorry.

It's Friday.

Keep

going.

9MR DEVRIES:

May it please Your Honour.

(To witness) You met

10

Mr Johnson after the incident on 29 September, that's

11

when you were introduced to him is that correct?---Yes,

12

correct.

13And on another occasion after that Mr Johnson spoke to you 14

about you making an affidavit with Ms Leanne Kelly?---I

15

believed that it was a conversation by phone.

16With Mr Johnson?---Yes, to give permission to give affidavit at 17

home.

18But you said a few moments ago that you'd spoken with 19

Mr Johnson, you'd met Mr Johnson to discuss Mr Kelly

20

coming to see you to get evidence from you.

21

now saying it was definitely by telephone?---No, no.

22

First I meet him personally and then the permission about

23

the affidavit I believe it was we discussed by the phone.

So you're

24How much time was there between when you were introduced to 25

Mr Johnson and the time before that that you saw him?

26

Are we talking about a matter of month or two?---No, I

27

don't recall exactly but it wasn't a long time.

28

want to lie to this court.

29

time but I will approximately say maybe weeks.

I don't

I don't recall exactly the

30And all of the times that you saw Mr Johnson prior to 31

29 September occurred in the period of less than three

1.SB:ASC 05/12/08 2Cressy

FTR:1

109

DISCUSSION

1

months prior to that incident, didn't they?---Can you

2

rephrase again?

3Yes, certainly. 4MR JOHNSON:

Excuse me, Your Honour.

I believe the witness has

5

answered this question both for myself and Mr Devries,

6

probably three times a piece.

7HIS HONOUR:

Well I think Me Devries is entitled to clarify

8

this issue which is now becoming quite confusing and I'll

9

permit him to continue.

Thank you, Mr Johnson.

10MR JOHNSON:

Thank you, Your Honour.

11HIS HONOUR:

Mr Devries.

12MR DEVRIES:

May it please Your Honour.

(To witness) All of

13

the times that you'd seen Mr Johnson prior to this

14

incident on 29 September occurred during a period that

15

was no more than three months prior to that incident

16

occurring on 29 September, isn't that correct?

17MR JOHNSON: 18

for the witness.

19HIS HONOUR: 20WITNESS: 21

Your Honour, that could be expressed more clearly That's a confusing question.

No, it's a clear question.

You mean that prior to accident and this affidavit

that I - - -

22MR DEVRIES:

What I'm saying is - - -

23HIS HONOUR:

What Mr Devries is putting to you is – and you

24

don't have to agree with this - - -?---No, no, I just try

25

to.

26Is that he's suggesting to you that the only times that you saw 27

Mr Johnson were within the three month period that

28

preceded the incident to 29 September 2007, do you agree

29

or disagree with that?---Well I will say disagree.

30

would think that it was more than three months.

I

31But not very much more?---Um, probably - maybe five, maybe six 1.SB:ASC 05/12/08 2Cressy

FTR:1

110

DISCUSSION

1

times prior to this.

2So prior to you - - -?---Prior to the accident of a - - 3Prior to the incident - - -?---29, yes. 4Five or six times?---Pardon? 5Did you say five or six times?---No, no, I say it probably 6

months.

7Sorry, thank you. 8

Your Honour I have no further cross-

examination of this witness.

9HIS HONOUR: 10MS SOFRONIOU:

Thanks Mr Devries. No questions.

11HIS HONOUR:

Thanks Ms Sofroniou.

You may re-examine.

12MR JOHNSON:

I do and I'm extremely conscious of the time Your

13

Honour.

Thank you for in clarifying, for my benefit,

14

that in cross-examination you're entitled to ask living

15

questions.

16HIS HONOUR:

No.

17MR JOHNSON:

OK.

18

I regret not knowing about it when I asked

questions.

19HIS HONOUR: 20

Does that apply to re-examination as well?

You can't lead your own witness, but so far you've

been very good in not doing that.

21MR JOHNSON:

Thank you, Your Honour.

22HIS HONOUR:

Keep up the good work.

23MR JOHNSON:

Look I don't know if I even needed to lead in

24

cross-examination yesterday, but I wish I had known the

25

rule.

26
Ms Dek-Fabricant, you've had a chance to refresh

28

on that statement haven't you?

29

of the first page please, just to yourself.

30MR DEVRIES: 31

I object, Your Honour.

sorry, the witness has started.

1.SB:ASC 05/12/08 2Cressy

FTR:1

111

Could you read the whole

Why should the witness Why should the witness DISCUSSION

1

be refreshing her memory when there is no suggestion that

2

she needs to refresh her memory on any question, since

3

she hasn't been asked any question.

4HIS HONOUR:

You cross-examined her, not only as to one

5

sentence, but also the breadth of the affidavit, as you

6

also said where you haven't mentioned otherwise - I

7

forget what it was, but you certainly went further than

8

that.

9MR DEVRIES: 10

Yes, I did say that and she nothing about visiting

her in the home.

11HIS HONOUR:

Yes, that's right.

I'll permit the question.

12MR DEVRIES:

If it's as to that time, but if it's just to

13

refresh her memory to give - answer further questions,

14

that's the base of my objection, Your Honour.

15HIS HONOUR: 16

Yes, well I - I don't think the phrasing redo the

question does any harm to the re-examination.

17MR JOHNSON:

Thank you, Your Honour.

Ms Dek-Fabrikant, I'll

18

repeat the question.

Could you quickly have a read of,

19

just to yourself, the whole of that first page of your

20

statement, thank you.

21

done that please?---Pardon?

Now, would you tell me when you've

22Have you completed that now?---I couldn't - - 23Just the first page please?---Yes. 24Thank you Ms Dek-Fabrikant.

You did read out that verbatim or

25

effectively a number of sentences from Paragraphs 2 and 3

26

of that statement.

27

the words "About six months ago"?---Yes.

28OK. 29

You see the sentence beginning with

Could you read the sentence immediately before that please to His Honour?---Prior to this?

30About six - yes the sentence immediately before the "I have met 31

the children" sentence please?---"Since when I have at

1.SB:ASC 05/12/08 2Cressy

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112

DISCUSSION

1

occasion contact with Petin, I have met the children,

2

Treece, Skye and Illyana and over the last 12 months or

3

so I have seen children fairly regularly as they would

4

speak to me on the street and I would speak to them."

5Yes, so that 12 months dates back from the statement, it was 6

dated in mid October?

7HIS HONOUR:

16 October.

8MR JOHNSON:

07, so we're talking about a period of - - -?

9

---Prior to the accident on 29 of - - -

1016 October 06?---Yes, 29 of - - 11Thank you.

That's just what I wanted to clarify because the

12

next sentence "About six months you were unfairly",

13

80 per cent of the information value in the paragraph was

14

loaded in there, that's the introduction, yes.

15

Honour - Ms Dek-Fabrikant, would you read to His Honour,

16

just the first sentence of Paragraph 4?---"On 29

17

September 2007, I was lying in the lunchroom half asleep

18

and my husband come to me and said the children were

19

here.

Your

The children were"- - -

20MR DEVRIES:

I object - - -

21MR JOHNSON:

No, that's - - -?---Sorry.

22MR DEVRIES:

Your Honour, this doesn't arise out of my

23

cross-examination.

24MR JOHNSON:

It does, it does, Your Honour.

25HIS HONOUR:

I think he's already cut off the sentence of the

26

I will - - -

first sentence we sort of processed - - -

27MR JOHNSON:

Thank you, Your Honour.

Ms Dek-Fabrikant, I would

28

just like to you to - I want to understand why were you

29

lying in the lounge room half asleep at that time of

30

day?---Um, because I was very ill.

31

call pneumonia and later on I been sent, so - because I

1.SB:ASC 05/12/08 2Cressy

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113

I had the beginning

DISCUSSION

1

was really quite sick and actually when the children

2

come, I thought they coming to play and I asked my

3

husband, would you please send them back because I'm very

4

ill, but he say "No, no, no, they not come to play.

5

There something terrible happen."

6MR DEVRIES:

I might - - -

7MR JOHNSON:

No, that's - - -

8HIS HONOUR:

Mr Devries, sit down.

9

And then I - - -

I know where the line of

relevance is.

10MR DEVRIES:

I'm sorry, Your Honour, I apologise.

11HIS HONOUR:

If you keep arcing up like that you will simply

12

raise the temperature of this case and to hurt it.

13MR JOHNSON:

Thank you Ms Dek-Fabrikant, so on 29 September you

14

had been unwell.

Did I formally introduce myself to you

15

after that date?---Um, actually I been told when I was in

16

the hospital that you tried to introduce yourself but I

17

was in the hospital, I've been told by my husband and

18

when I returned from the hospital, this the first time

19

when I actually seen and introduced to Mr Johnson.

20Thank you, Ms Dek-Fabrikant.

And did I come to your house and

21

visit yourself and you husband about a week after the

22

incident when you came out of hospital?---Um, yes I

23

believe so.

24And that - that was the time when I had introduced myself to 25

you, as opposed to your husband?---Yes.

26Thank you.

And that was the first occasion that I spoke

27

directly with you about making a statement to my lawyer?

28

---Yes, it's correct.

29Thank you. 30HIS HONOUR: 31

I think that's all the questions. Yes, thank you Mr Johnson.

Thank you very much

for your assistance Ms Dek-Fabrikant, you are excused,

1.SB:ASC 05/12/08 2Cressy

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114

DISCUSSION

1

thanks?---Thank you.

2MR JOHNSON:

Thank you.

3<(THE WITNESS WITHDREW) 4HIS HONOUR:

Mr Johnson, luck supports you.

Mr Richards has

5

handed me a note that your next witness is waiting

6

outside.

7MR JOHNSON: 8

I should have four witnesses waiting outside at

the moment.

9HIS HONOUR:

Well, you can only call one at a time.

10MR JOHNSON:

I know.

11HIS HONOUR:

So Mr Antonos, why don't you call him now he's

12

I know.

here?

13MR JOHNSON:

Thank you, Your Honour, I shall indeed.

14HIS HONOUR:

Good idea.

15MR JOHNSON:

Your Honour, I'm being rude - of commitments that

16

other witnesses have to be – to have left court by one

17

o'clock.

18HIS HONOUR:

I'm sorry?

You wish to cause some other - - -

19MR JOHNSON:

Your Honour, I have four witnesses outside.

I

20

thought two of them including Ms Dek-Fabrikant and

21

Mr Ioannou would be finished by now, and the other three

22

would pass quickly through within the next 45 minutes.

23

One of them specially but two of them really need to be

24

out of court by one o'clock.

25HIS HONOUR: 26

Do you wish to change the order in which you call

them?

27MR JOHNSON:

I'm sorry, I'm going to have to, Your Honour.

28HIS HONOUR:

You do so.

29MR JOHNSON:

I'll call Mrs Karen Briggs.

30HIS HONOUR:

Miss Molesworth, would you alter that, thanks?

31

Who do you want to call next? Karen Briggs.

Karen Briggs.

1.SB:ASC 05/12/08 2Cressy

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115

DISCUSSION

1MR JOHNSON:

I apologise, Your Honour.

2HIS HONOUR:

Is one of your witnesses in court, Mr Johnson?

3MR JOHNSON:

Mr Enright has come into court unbeknownst to me.

4

I'm sorry, Your Honour.

5HIS HONOUR:

You're here to give evidence, Mr Enright?

6MR ENRIGHT:

Yeah, I've been subpoenaed.

7HIS HONOUR:

I apologise.

Now, witnesses have been ordered out

8

of court.

Would you mind just waiting outside?

9

try and get to you as soon as we can.

10

attending.

11

you very much for your attendance.

We'll

Thanks for

If you'd just wait outside the court?

Thank

12MR JOHNSON:

Thank you, Ms Sofroniou - - -

13HIS HONOUR:

As I understand it Ms Briggs apparently is not

14

here, so who do you want to call?

15MR JOHNSON:

Mr Ioannou, please.

16HIS HONOUR:

Sorry?

17MR JOHNSON:

Mr Ioannou; Antonos Ioannou.

18HIS HONOUR:

Very well.

19MR JOHNSON:

Thank you, Your Honour.

20
You may be seated if you like?---Thank you.

22Your full name is Antonos?---Antonos Ioannou. 23Could you spell your surname, please? 24

---Absolutely, I-o-a-n-n—o-u

25Thank you. 26MR JOHNSON:

Thank you, Your Honour.

(To witness) Mr Ioannou,

27

would you explain to His Honour your occupation, please?

28

---Absolutely.

29

when I met James I had my mortgage broking business.

I'm currently a property developer but

30Would you inform His Honour of the time and the circumstances 31

at which we first met?---Certainly.

1.SB:ASC 05/12/08 2Cressy

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116

James and I would've DISCUSSION

1

met about four years ago.

At that time my company had a

2

relationship with Melbourne Inner City Management.

3

sold high-rise apartments.

4

purchasing one and came and spoke to me about financing

5

options.

6

Melbourne and later at his premises in the city.

7

stage he was sort of tossing up between whether to buy a

8

property to live in or to invest in, and I showed him

9

some options of my own, and basically that was that.

They

James was interested in

At that stage we met in my office down in South At that

10One of those options was a – I'm sorry, I withdraw the 11

question.

It's of marginal relevance.

Did you ever

12

visit me in my home to discuss those financial

13

arrangements?---Absolutely.

14Where was that?---I believe it was Bourke Street if – if - if 15

memory serves me correctly; an apartment in the city.

16Yes, yes, would you be able to describe the apartment to His 17

Honour?---From what I recall it was on a – on a high – on

18

a fairly high floor.

19

views.

20

There was I think a couple of bedrooms; kitchen.

21

Just the sort of normal apartment, yes.

Some pretty beautiful sweeping

It was obviously used as a home and an office. Yes.

22Was it the corner of a building?---Yes. 23It was.

Did you only ever visit me in the one apartment, or in

24

more than one apartment?---I know that there was – we did

25

have a meeting at a – at a – at another apartment in the

26

city.

27

which I can't remember.

28HIS HONOUR: 29

I believe you had moved address.

The details of

It was quite a long time ago.

When you say it had a couple of bedrooms did you

actually see in those rooms?---Yeah, absolutely.

30Do you remember whether they had beds in them or - - -?---There 31

– I – I recall that there was desks and sort of

1.SB:ASC 05/12/08 2Cressy

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117

DISCUSSION

1

(indistinct) type couches as well, yeah.

2MR JOHNSON:

Thank you, Mr Ioannou.

Mr Ioannou, you own an

3

apartment in Gibson Street, Caulfield East, don't you?

4

---Correct.

5What's the address of that apartment?---Number eight. 6So you own No.8. 7

Is that a street address of No.2?

Street?---Correct.

8Sorry, if I'm leading, Your Honour. 9

Gibson

(To witness) I own the

apartment next to you?---Yep.

10Would you explain to His Honour the circumstances in which you 11

and I came to own adjoining apartments?---Absolutely.

12

that – when we did meet I knew the developer of the

13

particular site there.

14

left, and I sort of told James that there was an

15

opportunity to acquire a sort of apartment nearing

16

completion in Caulfield.

17

one or two left.

18

correctly, No.13, and James went, "Look, I'm a pretty

19

busy man.

20

And I said, "Well, look, if you're superstitious probably

21

steer clear of 13".

There was a couple of apartments

At that stage I think there was

Number 9 and if memory serves me

Which do you reckon's the best of the two"?

22So I purchased No.9.

So nine it was.

did you assist me with packaging that

23

arrangement in terms of purchase and finance?---Yeah,

24

absolutely.

25HIS HONOUR:

At

Do you remember when that was; just broadly?---I

26

believe it was towards the end of 04, sort of beginning

27

of 05 if memory serves me correctly, yeah.

28Thanks?---Quite a while ago. 29MR JOHNSON:

Mr Ioannou, your company that you're involved in

30

was instrumental in the preparation of the preparing of

31

contracts both for the construction and sale of the

1.SB:ASC 05/12/08 2Cressy

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118

DISCUSSION

1

apartment to me and the one that you bought

2

yourself - - -

3MR DEVRIES:

This is a leading question, Your Honour.

4HIS HONOUR:

Well it might be but it's not terribly

5

controversial, is it?

6MR DEVRIES:

If he's just bringing his mind to that - - -

7HIS HONOUR:

Yes.

8WITNESS: 9

Look obviously we did facilitate the purchase

holistically from a finance perspective from basically

10

providing the site and putting James into there if that's

11

what your question was there.

12

were given to me which in turn were provided to James for

13

signing.

14MR JOHNSON:

Obviously the contracts

And I suppose that answers your question.

Did I contact you recently asking for copies of

15

contracts off your file because I was unable to lay my

16

hands on my copies of that?---Yes, you did.

17And did you provide me with copies of contracts that you had on 18

file?---I basically gave you the files (indistinct).

We

19

went through them and you photocopied the documents you

20

needed.

21Your Honour, what I'd like to hand to the witness for 22

identification and I hope that this is proper what I'm

23

doing, Your Honour, because I don't (indistinct) what to

24

do with this.

25HIS HONOUR:

While Mr Johnson is doing that can you tell me

26

please an address for yourself either personal or

27

professional that you'll be - - -?---Absolutely.

28

14 Stradmore, S-t-r-a-d-m-o-r-e, Avenue, Templestowe.

29MR JOHNSON:

I'd like to hand up a bundle of documents to the

30

witness for identification.

31

time, Mr Ioannou, and have a look at the documents that

1.SB:ASC 05/12/08 2Cressy

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119

Would you please take your

DISCUSSION

1

are in there?---Yes.

2And then tell me when you've finished. 3

I remember this, yes.

4

(indistinct).

5Thank you.

Thank you, sir?---Yes,

This is the contract of sale

And the finance application.

Just generally, with the investors who participated

6

in this opportunity, you and I have already expressed

7

that we were two of them.

8

purchase for each investor, wasn't it?---Absolutely.

This was a very profitable

9Did any or many of the investors have to put any cash in by way 10

of deposit or equity?

11MR DEVRIES:

Your Honour, what happens, with respect, to other

12

investors is probably not of any relevance to this

13

proceeding.

14MR JOHNSON: 15

I'll narrow it.

I accept what His Honour's saying

– Mr Devries is saying.

16MR DEVRIES:

And, Your Honour, if I could have a quick look at

17

that bundle, it may speed up the time, I may have no

18

objection - - -

19HIS HONOUR: 20

I take it you're intending to tender those

documents?

21MR JOHNSON:

Yes.

22HIS HONOUR:

Well perhaps we'll have Mr Devries have a look at

23

it first.

24MR JOHNSON: 25WITNESS:

Absolutely, yes.

In that situation, no, there wasn't a requirement if

26

there didn't need to be for a purchaser to put money in

27

there.

28MR JOHNSON:

Did the project run smoothly so that settlement

29

occurs very quickly, according to schedule, or was there

30

a delay?---I don't recall there being too many delays.

31

Not it was pretty – it was on track.

1.SB:ASC 05/12/08 2Cressy

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120

There was a few DISCUSSION

1

difficulties with certain purchasers.

2Your Honour, can I put questions and put it to you? 3HIS HONOUR:

Sorry?

4MR JOHNSON:

Can I ask questions in – and I put it to you that

5

mode, or is that leading?

6HIS HONOUR: 7

10

But if it's a noncontroversial

matter it would assist.

8MR JOHNSON: 9

That's leading.

Mr Ioannou, I put it to you that my contract of

purchase was meant to settle originally around about June – late 2005?---Yes.

11But that didn't occur and settlement didn't occur until about 12

June 2006?---M'mm.

13And during that period the value for mortgage lending purposes 14

increased substantially, do you happen to recall roughly

15

the purchase price, I'm sure mine was comparable to your

16

apartment?---From what I understand, I think it was 450.

17Yes, less – was this just - - 18MR DEVRIES:

This is well and truly leading, Your Honour.

19HIS HONOUR:

Does it matter?

20MR JOHNSON:

Don't know how to - - -

21MR DEVRIES:

It's in the documents, Your Honour.

The documents

22

speak for themselves.

23

documents being tendered absolutely, Your Honour.

24MR JOHNSON: 25

I'm indebted, Your Honour.

That will save an

enormous of work.

26HIS HONOUR: 27

I have no objection to these

I take it I can receive it as the one exhibit?

Thank you, I will.

28MR JOHNSON: Thank you, Your Honour. 29 30#EXHIBIT 4 Bundle of documents relating to the 31 purchase by the defendant of the property 32 at Unit 9, 2 Gibson Street, Caulfield 33 East. 1.SB:ASC 05/12/08 2Cressy

FTR:1

121

DISCUSSION

1Thank you, Your Honour.

(To witness) Turning to another one of

2

my properties, Mr Ioannou, you are aware that I purchased

3

a property 166 Queen Street, Altona?---That is correct.

4During the first half of 2006?---That is correct. 5At the same time as I contacted you to ask about copies of 6

documents on your records regarding Gibson Street

7

property I asked you about Queen Street and - - -?---That

8

is correct.

9What I have here I'd like to hand up for identification. 10MR DEVRIES:

Perhaps if first of all we could find out whether

11

the witness was involved in that transaction.

12

to be (indistinct), Your Honour.

13MR JOHNSON: 14

(To witness) You brokered the

financing - - -?---That's correct, yes, absolutely.

15Thank you. 16

I'm sorry.

It seems

Do you recall - sorry I'll let you look at the

documentation?---Yes.

17Could you summarise for His Honour what that documentation is? 18

---Certainly.

19

was submitted to the lender or James to obviously obtain

20

finance for the purpose of the property.

21

recall I think we did apply for a 95 per cent facility on

22

this one as an investment loan and being self-employed

23

James did have to prove quite a bit more than a typical

24

applicant to this lender i.e. back in those days there

25

was a loan called a non genuine savings where you could

26

pay ten per cent and it was of no consequence where the

27

money came from.

28

physically prove via - by way of bank statements his

29

deposit, where it came from and when it was paid and

30

that's why we had to affix, I don't even know, I think

31

there might have been 20 pages of statements in your

1.SB:ASC 05/12/08 2Cressy

This is the complete loan application that

FTR:1

From what I

But in this instance James had to

122

DISCUSSION

1

application just to appease the lender.

2Thank you Mr Ioannou.

Included in that documentation is there

3

not copies of real estate agents receipts for deposit

4

money?---There would have to be because the lender would

5

have asked for them.

6Could you just simply look at them and say yes or no that they 7

were?---I'm pretty sure I saw it before.

8

receipt from - - -

Yes there's a

9Was there one or more receipts?---There's more than one 10

receipt.

11Yes?---Yes. 12Is there a - - 13HIS HONOUR: 14

There are (indistinct) deposit is that right?

---That's correct, the deposit package.

15MR JOHNSON:

Is there a statutory declaration in there that I

16

swore regarding where I obtained the moneys to pay that

17

deposit?

18

---Yes there is a statutory declaration (indistinct).

I know there's a lot of documentation?

19Thank you Mr Ioannou.

Your Honour I - - -

20HIS HONOUR:

You seek to tender those documents do you?

21MR JOHNSON:

Yes I do.

22HIS HONOUR:

Did you see them first Mr Devries?

23MR DEVRIES:

(Indistinct).

24HIS HONOUR:

Yes.

25MR DEVRIES:

May I stand (indistinct)?

26HIS HONOUR:

Yes.

Mr Johnson, Mr Richards tells me that

27

Mr Briggs - (indistinct) Mr Enright and Clarebrough are

28

all outside.

29MR JOHNSON:

Yes.

30HIS HONOUR:

Yes all right.

31MR DEVRIES:

I have no objections Your Honour.

1.SB:ASC 05/12/08 2Cressy

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123

DISCUSSION

1HIS HONOUR: Yes thanks Mr Devries. 2 3#EXHIBIT 5 Bundle of documents relating to the 4 acquisition of 166 Queen Street, Altona. 5MR JOHNSON:

Thank you Your Honour.

Mr Ioannou I also at that

6

time asked for copies from your files of documentation

7

for a refinancing I did of my properties at Point Cook,

8

Dorrington Street and 7 Inverloch Drive and you did

9

supply me with copies.

10HIS HONOUR:

What did that relate to?

11MR JOHNSON:

And 7 Inverloch Drive.

12HIS HONOUR:

And 7 Inverloch Drive.

13MR JOHNSON:

Yes?---This was the first transaction we did I

14

believe.

Dorrington Street?

It was such a long time ago.

Sorry.

15Take your time?---Yes. 16Your Honour I would like to tender these materials as well. 17HIS HONOUR:

Well again - - -

18MR DEVRIES:

Your Honour I'll take the risk and I don't object

19

(indistinct).

20HIS HONOUR:

Thanks Mr Devries.

21MR DEVRIES:

I'll be asking leave to remove those from the

22

court book at some time.

23HIS HONOUR:

Yes.

24MR DEVRIES: (Indistinct). 25 26#EXHIBIT 6 Documents relating to the refinancing of 27 the properties at 2 Dorrington Street and 28 7 Inverloch Drive, Point Cook. 29MR JOHNSON:

Thank you.

Mr Ioannou that is a lot of

30

documentation prepared over a number of years.

31

assisted me with the financing for another property last

32

year didn't you?---That's correct.

33

property in Torquay.

34Thank you, Mr Ioannou. 1.SB:ASC 05/12/08 2Cressy

FTR:1

You also

I think it was a

You also assisted me with a refinancing 124

DISCUSSION

1

of a mortgage for the property at - sorry, the apartment

2

we talked about earlier, Caulfield East?---That's

3

correct.

4So both those properties, Caulfield East and Torquay are now 5

with a common lender, can you remember who the new lender

6

was?---Commonwealth Bank.

7I don't have documentation for those two properties in court, 8

Your Honour, because I wasn't aware that those properties

9

were involved in the proceedings.

I'm not clear whether

10

they are even at this stage, Your Honour.

Mr Ioannou, a

11

lot of documents signed over a number of years, did you

12

at any time meet or have any involvement with a lady,

13

Ms Pippin Cressy, in the preparation of those meetings?

14

---No.

15Have you ever met a lady known as Ms Pippin Cressy?---No. 16Would you know her if she happened to be in court today, would 17

you recognise her?---Absolutely not.

18Thank you Mr Ioannou, I have no further questions. 19HIS HONOUR:

Thank you, Mr Johnson.

20MR DEVRIES:

Your Honour, with Your Honour's leave I would ask

21

that I reserve my cross-examination of this gentleman

22

until after lunch so I can have a look at these

23

documents, it will be a lot quicker, and if Mr Johnson

24

could call one of his other witnesses in the meantime.

25HIS HONOUR:

Mr Ioannou, hopefully that doesn't overly

26

inconvenience you.

Would you mind standing down and

27

returning for cross-examination at two?---Not a problem.

28I am sorry, thank you very much for preparing all those 29

documents, you have been of great assistance to the

30

court.

31MR DEVRIES:

Just before he leaves, Your Honour, if it was

1.SB:ASC 05/12/08 2Cressy

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125

DISCUSSION

1

convenient for him to obtain the documents in respect to

2

the other two properties in the break that might be of

3

assistance to the court.

4MR JOHNSON:

Your Honour, those documents were never part of my

5

documents stored at 166 Queens Street, so I have all of

6

my original files for that, I don't require replacement.

7HIS HONOUR:

You don't need them.

8

you, Mr Ioannou.

9

inconvenience?---That's okay.

That is your answer.

Thank you very much, I am sorry for the When does lunch commence?

10Lunch starts hopefully at one and we resume at 2.15. 11

Thank

If you

could come back at 2.15?---Yes, absolutely.

12Thank you very much?---Not a problem. 13<(THE WITNESS WITHDREW) 14HIS HONOUR:

Mr Johnson, your next witness.

15MR JOHNSON:

Yes, thank you, could I call Karen Briggs please.

16HIS HONOUR:

In relation to Mr Clarebrough, I think he made an

17

offer earlier today didn't you?

18MR JOHNSON:

I did.

19HIS HONOUR:

Do you simply wish to adduce from Mr Clarebrough

20

what is obtained - - -

21MR JOHNSON: 22

Mr Clarebrough from the obligation to attend.

23HIS HONOUR: 24

Yes, I am happy to take up the order and release

I will have my staff if you like communicate that

to Mr Clarebrough.

25MR JOHNSON:

Thank you, Your Honour.

26HIS HONOUR:

You can tender his report now.

I don't have a

27

copy so you will need to tender it.

28

in due course.

29

Mr Clarebrough, thank him for his attendance and that he

30

will not be required.

31

Mr Johnson?

1.SB:ASC 05/12/08 2Cressy

Don't do it now but

Mr Richards, could you please advise

FTR:1

Is that satisfactory to you

126

DISCUSSION

1MR JOHNSON:

Thank you, Your Honour, yes that's so.

2HIS HONOUR:

Thank you, Mr Richards, of great assistance.

3MR JOHNSON:

Your Honour, I will need some help in

4

understanding what it is to tender the documents because

5

I do have a copy of that Clarebrough report as an exhibit

6

to an affidavit of mine.

7HIS HONOUR:

Yes, it will need to be tendered as his evidence

8

in this case, it's just that if you can find a copy of it

9

and tender it to me either today or on Monday.

10

Ms Briggs.

11
Ms Briggs, you may be seated if you desire?

---Thank you.

14Your full name is Karen Briggs?---Yes. 15What is your address, your professional?---Where I work? 16Yes?---Mickham, which is 85 Queenbridge Street in Melbourne 17

Pathology or Southbank.

18Your occupation?---Property manager. 19Thank you, Mr Johnson. 20MR JOHNSON:

Thank you, Your Honour.

Ms Briggs, I would be

21

grateful if you could inform His Honour of your

22

recollection of the circumstances in which you and I

23

first met?---Leasing an apartment, do you mean?

24Yes?---Well, basically James came to our company, applied for 25

an apartment which we approved him to live in.

26At a later date - this is a little bit leading, I'm sorry, but 27

I don't think it's too naughty.

When did you become the

28

manager of the apartments for Mickham at the Civic Point

29

Building?---I can't remember how long I've been there

30

now.

I think I've been in the company for four years.

31You moved from this position a little while ago didn't you?---I 1.SB:ASC 05/12/08 2Cressy

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DISCUSSION

1

did for - it was approximately six months, I think that's

2

when you vacated the last property.

3When you first started in that role I was already a resident in 4

the building wasn't I?---You were, sorry.

5That's okay.

What I would like to give to you to have a look

6

at and identify for His Honour - I'm sorry, no, no, we

7

both stand still?---Sorry.

8That's all right, I'm learning this myself.

Would you have a

9

look at that please and tell His Honour what that is?

10

---This is a lease which we prepare with Mickham and

11

obviously James moved in on 29 July '03 with Mickham -

12

no, I wasn't with the company then, but I did come along

13

after that.

14

moved to another property.

15Yes.

I would like to tender - should I tender both leases as

16

one exhibit or as a separate?

But yes, you moved into 909 and from then

17HIS HONOUR:

What is the other lease?

18MR JOHNSON:

It is the lease for the 20th floor sub-penthouse I

19

lived in.

20HIS HONOUR:

Yes, just ask Ms Briggs to - - -

21MR DEVRIES:

I think perhaps if Mr Johnson tenders them

22

directly to Your Honour.

I don't believe that this

23

witness could tender the original because it was a lease

24

executed before her involvement.

25HIS HONOUR:

Do you accept that as a lease?

26MR DEVRIES:

Yes, I'm saying he can tender them both absolutely

27

without putting them through this witness.

28HIS HONOUR: 29

Thank you, Mr Devries.

I will receive both as

exhibits?---It's definitely from our company.

30HIS HONOUR:

Thanks.

31MR JOHNSON:

I did want to ask Ms Briggs some questions about

1.SB:ASC 05/12/08 2Cressy

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DISCUSSION

1

the dates in the documents?---I've got nothing else.

2HIS HONOUR: 3

these as Exhibits?

4MR JOHNSON: 5

Do you want to ask her that first before I receive

I think so - yes, that's right I must - - -?---I

do have copies, yes.

6All right. Thank 7 8#EXHIBIT 7 9 10 11 12#EXHIBIT 8 13 14 15MR JOHNSON:

you, Your Honour. Lease by the defendant of the premises at 909/668 Bourke Street, Melbourne dated 28/07/03. Lease by the defendant of the premises at 2302/668 Bourke Street, Melbourne dated 06/07/06.

Thank you, Your Honour.

Perhaps we don't need to

16

refer to the documents at all.

Ms Briggs, you were the

17

manager of the residential apartments for - around about

18

July 2006?---Yes, I was definitely there in 06.

19And I approached you, did I not, about moving into a larger 20

apartment?---Yes.

21And can you recall, and look I don't know if you can, how I 22

came to be shown Apartment 2302?---It probably came -

23

vacant, I really, honestly can't remember the details.

24Look, I do - I do understand?---But I mean, obviously if an 25

apartment becomes available, we'd suggest it to you to

26

have a look.

27But you managed the owners and for your employer, the change 28

over process for - I went from one apartment to the

29

larger apartment I went to, yes?---Yes.

30And you did the - an outgoing tenant inspection?---Yes. 31Did I pass with a clean bill of health on - - -?---Yes you did, 32

I remember just a thing we discussed that you fixed and

33

there was no problems.

34Full bond back, yes. 1.SB:ASC 05/12/08 2Cressy

You got the full bond refund.

There was - there was an issue - some

FTR:1

129

DISCUSSION

1

alterations that I'd made along a wall and a ceiling?

3

---Yes.

4Yes.

Thank you Ms Briggs, that's good.

5

managing that apartment and also the new apartment I

6

moved into, you would do regular landlord inspections?

7

---Routine inspections, yes.

That was from your projector or some TV unit. While you were

8How frequently would you do that through the complex?---Every 9

six months.

10Every six months, yes.

And that would involve you coming in to

11

my apartment to do my inspection.

12

that with or without me being present?---Yes.

13HIS HONOUR: 14Which?

Would you have done

Which?---We would, if - sorry?

With him present?---Sorry.

Basically when we do a

15

routine inspection, we send out a letter to advise the

16

tenant that we're coming through and we'll come through

17

will the key if, um, we don't hear from you.

18

they're home or they're not home, we would go through

19

either way.

Um, so if

20You'd still go through, yes?---Unless they've contacted us to 21

make a time.

22Now did you inspect both premises or just the larger one?---Um, 23

909 is a fair while ago but he did vacate, it would've

24

been approximately in August 06, so I'm sure I - because

25

I vacated you, so I would've been through but I can't

26

precisely say on the routine.

27Yes?---That's something I would have to look up in the system 28

but with regards to 2302, I do remember going through

29

that apartment.

30MR JOHNSON: 31

Could you describe firstly Apartment 909 to His

Honour as you remember it, including any memories you

1.SB:ASC 05/12/08 2Cressy

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130

DISCUSSION

1

have of my furnishing of the apartment?---909 - - -

2MR DEVRIES: 3

apartment.

4HIS HONOUR: 5

She said she couldn't remember going through your

No she said she couldn't remember the day?---Yes,

909 I can't remember how it was set out.

6MR DEVRIES:

909 on that - - -

7HIS HONOUR:

I'm sorry?---909 I can't really recall it - - -

8You can't call it to mind?---No. 9Right, well what about 2302?---2302 I do remember.

It was set

10

up - James ran the business, our business out of there,

11

so he did run a business there and as far as I was aware

12

that he lived there as well.

13MR JOHNSON:

Thank you.

Can you remember the configuration of

14

- what sort of furniture I had in each of the three

15

bedrooms?---I vague - I remember desks being set up.

16

can't remember it precisely.

17

third room I would say it was a bed, but I'm guessing on

18

that one, I can't precisely remember - - -

19HIS HONOUR:

I remember two rooms.

I The

So you can't specifically say - - -?---how many

20

desks.

I know it was set up to that situation of a

21

business running there as well and as far as I was aware,

22

that he - he stayed there.

23Do you have any specific recollection of there actually being a 24

bed there and other items of residence?---I would be

25

guessing, but I'm sure there would've been, to be honest.

26

But I can't be 100 per cent.

27But you don't have any - you don't have a clear recollection 28

either way?---No, I mean, I see so many apartments every

29

day.

30No that's all right, that's all right, I understand. 31MR JOHNSON:

Can you recall anything about the kitchen and the

1.SB:ASC 05/12/08 2Cressy

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131

DISCUSSION

1

lounge areas, did they look residential or commercial or

2

- if you can't recall anything, that's - - -?---I don't -

3

I wouldn't - no I really - I honestly can't remember

4

100 per cent but I - I was of the assumption that you

5

lived there as well as working from there, that's what I

6

recollect but set up, I honestly can't remember.

7The combined bathroom/laundry?---Yes, it does - I know the set 8

out of the property.

9Yes, but you just can't recall much of the furniture?---I know 10

the - how - I remember desks and stuff and that I did

11

think you lived there but I didn't - can't remember - - -

12Yes.

I had a number of car parks didn't I?---You had two -

13

three - three, because it comes with the tandem car space

14

plus the third one.

15Yes, that's right. 16

And even though I've vacated, I still have

one, don't I - - -?---Yes, well, yes - - -

17- - -which we're talking about.

Thank you Ms Briggs.

Sorry,

18

just some other questions.

19

will assist the court or not, but in the time that you

20

were managing the apartment, did you ever meet a lady by

21

the name of Pippin Cressy?---I don't remember any lady to

22

be quite honest.

23OK.

I'm not even sure if these

If that lady happened to be in court today, would you be

24

able to recognise her, do you think?---I - I've never met

25

her - I just thought there was you.

26Yes.

Thank you Ms Briggs, that's the end of my questions for

27

the witness, Your Honour.

28HIS HONOUR:

Thank you Mr Johnson.

29
originally set up as residential apartments, weren't

1.SB:ASC 05/12/08 2Cressy

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132

DISCUSSION

1

they?---Like I say, with 909 originally, I couldn't say.

2Sorry, you misunderstand my question. 3

Go back to when they're

vacant, there's no tenant in them?---Yes.

4Essentially, they're leased as residential apartments, aren't 5

they?---That's correct.

6They're set up as residential apartments?---Yes. 7But whether tenants use them wholly for business, or wholly for 8

residence or a bit of both, doesn't matter to you does

9

it?---Well, no, yeah exactly.

I mean, it's something we

10

tell the owners about though.

Like, because it is, I

11

suppose residential should be residential, but if the

12

owner allowed them to run a business from the property,

13

then that's the owner's decision in the end.

14The owner was notified in both cases that Mr Johnson was going 15

to run a business from each of those apartments in turn?

16

---I'd say they would have.

I don't know for 909.

17Yes?---Because I wasn't there. 18But for 2302 - - -?---Usually I would say that we would have 19

advised the owner.

It's something we do.

20

owners know what's happening.

We let the

21When was the last time you discussed these issues on who was 22

living there and not living there, and how it was used

23

with Mr Johnson?---I didn't discuss it.

24You haven't discussed it. 25

You haven't - - -?---In what regard,

what do you mean?

26Coming to court and giving evidence?---When did I discuss it? 27

I didn't, I got subpoenaed.

28Yes?---Um, and I came the other day, um and I've just had a 29

call to ask me to come back to the court.

30You've had no discussions with Mr Johnson at all about this 31

notice?---No, no, I mean, we just, I knew that he lived

1.SB:ASC 05/12/08 2Cressy

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133

DISCUSSION

1

there, cos I asked the question, "Why am I coming to

2

court?"

3What did he tell you?---No, he just told me that I, you know, I 4

want you to just say that I'm, you know, you're my

5

property manager and whatever I ask, just please answer.

6Did he tell you that he wanted you to say that he lived there? 7

---No.

8Your impression of him living there is just a vague impression. 9

There's nothing that particularly gives you to believe

10

that, is there?---Well I would, well he applied for the

11

property as a person living in the apartment, and yes

12

that was an, an additive that he was working out of

13

there.

14

ask any further questions.

I didn't think anything else of it, cos I didn't

15It's just that he applied for a residential apartment, and said 16

he'd like to work there.

17

---That's all I know.

That's all you know about?

18I have no further questions. 19HIS HONOUR: 20MS SOFRONIOU:

Thanks, Ms Sofroniou. No questions, Your Honour.

21HIS HONOUR:

Any re-examination?

22MR JOHNSON:

Two questions for re-examination, Your Honour.

23
the building, you had an office and you were in the

26

building all day, most days?---I worked out of that

27

office - - -

28MR DEVRIES: 29

That really doesn't arise out of cross-

examination, Your Honour.

30MR JOHNSON:

But if it does - - -

31HIS HONOUR:

I'll allow the question.

1.SB:ASC 05/12/08 2Cressy

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134

If anything takes you by DISCUSSION

1

surprise, you can ask further questions.

2MR JOHNSON: 3

Thank you.

We would regularly see each other

- - -?---I saw you in and out of the - - -

4Lobbies and elevators?---Yes. 5At all times of the day?---Whenever, yeah really. 6Yes, you should – thank you.

Just, Mr Devries' point about

7

wholly businesses operating out of the residential

8

apartments, the whole of the skyscraper is all

9

residential apartment, isn't it?---Yes.

10There are no commercial tenancies, or commercial leased 11

premises in the high-rise?---When you say commercial –

12

no, it's not, no business – I mean - - -

13There are at the front, are they not - - -?---in your 14

(indistinct) sometimes it's happened where a tenant may

15

lease and ask to work out of there for minor things, but

16

that's it.

17

situation.

There's nothing leased as a commercial

18A home office, office home set-up is not unusual, and not a 19

violation of body corporate rules, or - - -?---I mean, if

20

the owner's agreeable to it, you can do it.

21

yeah, it says that no business is to be ran out, but when

22

it's agreed with the landlord, then it's fine.

Um, but

23No further questions. 24HIS HONOUR:

Thank you, Mr Johnson, anything arising from that?

25MR DEVRIES:

No, Your Honour.

26HIS HONOUR:

Thanks Mr Devries.

27

attendance Ms Briggs.

28

to you.

Thank you very much for your

I hope it wasn't too inconvenient

You are excused?---Thank you.

29Thank you for your assistance. 30

(Witness excused.)

31<(THE WITNESS WITHDREW) 1.SB:ASC 05/12/08 2Cressy

FTR:1

135

DISCUSSION

1HIS HONOUR: 2

Your next witness will be Mr Enright, is that

right Mr Johnson?

3MR JOHNSON:

Yes, thank you.

4
Thanks, Mr Enright, you may be seated if you'd

prefer.

7MR JOHNSON:

Mr Johnson. Thank you, Your Honour.

Mr Enright, would you

8

tell His Honour please your occupation?---I'm the

9

principal of Altona Primary School.

10Thank you.

How long have your held that position?---Nine years

11

and one term.

12Yes.

Can you recall approximately what date Illyana Cressy,

13

Skye Cressy and Patrice Cressy were enrolled at your

14

school?---Not the exact date, no.

15

Altona Primary School for a number of years.

But they have been at

16May I propose a date, I'm not sure whether that would be legal 17

or not.

18HIS HONOUR:

Yes.

19MR JOHNSON:

Yes.

Mr Enright, can you recall whether the

20

children might have first attended the school partway

21

through the year 2006 calendar year?---From my memory

22

that is probably correct.

23Yes, and would you recall whether it would be like the middle 24

of the year, or a quarter way through the year?---Um, I

25

can't really recall exactly.

26That's fine Mr Enright. 27

Can you recall who enrolled the three

children at the school?---They were enrolled by Pippin.

28Was I involved in the enrolment or the signing of any enrolment 29

forms or documents, can you recall?---I can't recall to

30

be honest but I don't think you were.

31While the children were at school as well as the regular school 1.SB:ASC 05/12/08 2Cressy

FTR:1

136

DISCUSSION

1

day they would be involved in before school and after

2

school programs?---Correct.

3Could you give His Honour an idea of the frequency and duration 4

of those outside of regular hour attendances?---I'm not

5

sure exactly because it has changed.

6

have the documents because they have been subpoenaed in

7

terms of their attendance at before and after school

8

care, so they are an accurate representation.

I believe you do

9I think that might have been at the other court proceedings, I 10

am not aware of them being subpoenaed here Your Honour?

11

---In - they've been requested by yourself previously so

12

I'm - - -

13Yes, yes they are?--- - - - not sure if you have got a copy of 14

that documentation with you or not but they were

15

regularly at before and after school care.

16Can you recall the arrangements for the collection of the 17

children from after school care during last year 2007,

18

particularly the second half of 2007?---You arranged it.

19HIS HONOUR: 20

parking.

21MR JOHNSON: 22

I guess the whole of the year was mum picking the

children up or was dad picking the children up?

23MR DEVRIES: 24

We're really more concerned with the first car

Well, it should be confined to the first half of

the year Your Honour.

25HIS HONOUR:

We really are focussed on that aren't we?

26MR JOHNSON:

I'm grateful for the guidance Your Honour.

27HIS HONOUR:

This is bearing on relationship.

28MR JOHNSON:

Yes, thank you Your Honour?---From my recollection

29

the children were picked up by their mother.

30

children do not leave after school care on their own,

31

they are picked up by a parent.

1.SB:ASC 05/12/08 2Cressy

FTR:1

137

I mean

DISCUSSION

1They would never be left waiting alone at the school gate for 2

an adult to come and collect them?---That's not the

3

procedure, no.

4What would happen if a child's parent wasn't there at the 5

required time?---They would be kept at the after school

6

care premises until a parent arrived.

7So it simply wouldn't happen that a little seven year old girl 8

would be waiting out the front of the gate on a busy road

9

crying because mummy or daddy hadn't turned up?---It

10

shouldn’t be, no.

11Does it ever happen?---From memory there was an occurrence 12

where the children had left the after school care and we

13

were searching for their whereabouts.

14Can you place that date?---No, not at the moment I can't. 15Would that have been this year or last year?

I just want to -

16

in terms of the relevance whether it's this year or last

17

year.

18HIS HONOUR:

No, I will permit the question.

19MR DEVRIES:

Sorry, Your Honour?---From my recollection it

20

would be in the first half of this year.

21HIS HONOUR:

This year?

22MR JOHNSON:

This year.

Thank you Mr Enright, this year.

What

23

was your impression of - sorry, can you recall when you

24

and I first met and the circumstances of the meeting?

25

---You mean in 2006 or across the years?

26Whenever, whenever we first met, sir?

Can you place it within

27

a particular year to start with?---It would be 2006,

28

that's when the children enrolled.

29

recollect the first time.

But I don't really

30You became aware of certain difficulties in the relationship 31

between Ms Cressy and I during the period that the

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138

DISCUSSION

1

children have been at the school, can you sort of

2

pinpoint a time when you had become aware of such

3

difficulties?---Not an exact date but somewhere during

4

2007.

5Thank you Mr Enright.

Your impression of my relationship with

6

the children and Ms Cressy in the period leading up to

7

the mid-point to 2007, did you have any impression of my

8

role within the family unit?---From the school point of

9

view we believed that you were the parent, guardian.

10

knew that, for example, you weren't the parent of the

11

three children but I believed it to be a family

12

partnership.

I

13Did you think that Ms Cressy and I were living together within 14

the family unit?---I did think that, yes.

15HIS HONOUR:

More importantly did you think that because of

16

observations you made in relation to - - - ?---Well, you

17

just presume as the principal of the school when parents

18

enrol and there's two parents on the enrolment form and

19

you see them together at the school, not that we saw

20

James that often, that they are living within the same

21

residence, unless you are told otherwise.

22Yes, I follow. 23MR JOHNSON:

In that sort of thinking did you for the same

24

reasons have the impression that I was father to all

25

three children or perhaps - bearing in mind we are

26

talking at times prior to mid-2007?---I guess you presume

27

that but you don't know that, there are so many varying

28

circumstances of families in schools.

29The thinking would be the same as you just explained to His 30

Honour your presumptions about us living together?

31HIS HONOUR:

It's really a presumption unless you are told

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139

DISCUSSION

1

something to the contrary?---Exactly, yes, yes, I mean I

2

was aware that James also resided in the city at some

3

maybe a day a week or maybe two days a week or whatever

4

the arrangement was.

5MR JOHNSON:

Yes, but that could be something you identified

6

before or after that mid-2007, wouldn't it?---After that,

7

yes.

8Thank you. 9 10

Do you recall the children being taken out of

school for a week in September 2007 for a holiday?---Yes, vaguely.

11Do you recall whether that was, sort of, over, sort of, a 12

weekend or was it a Monday to Friday week?---I don't

13

recall.

14

which ones I'm not sure.

It did involve some school days but exactly

15Did you, and if so, yes, at what time begin to form an 16

impression that I may not be the biological father of one

17

or either of the two boys, Treece and Skye?---Did I form

18

that impression?

19Yes, yes?---I was told that fact but I don't know how you - - 20Can you sort of place that in a timeframe, when and who and how 21

you were told?---I was informed of that by yourself,

22

timeframe at some stage in 2007.

23And before, at or after that midpoint in 2007?---I can't really 24

recollect the timeframe, around that midpoint, I would

25

say.

26Thank you, Mr Enright. 27

I have no further questions of this

witness, Your Honour.

28HIS HONOUR:

Thank you, Mr Johnson.

29
(To witness)

You said in your evidence, didn't you, that you saw

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140

DISCUSSION

1

Mr Johnson and my client together at school from time to

2

time?---I did.

3Now, in the first half of 2007 how frequently would have that 4

been?---It would be - would have been infrequently.

5But enough times for you to have noticed they have been, a 6

handful of times?---At the most.

7And what about 2006?---Yes, very rarely. 8When the children were enrolled, both Mr Johnson and Ms Cressy 9

were on the enrolment as the parents or - I think you

10

used the term parents or guardian of the children?

11

---Correct.

12Were you involved in parent/teacher night?---I am present at 13

parent/teacher nights but I'm not involved specifically

14

with interviewing or talking to parents, unless they

15

request that of me.

16Sorry, and I should have asked you, do you have parent/teacher 17

nights?---We do, yes.

18I'm sort of out of touch with primary schools, so you'll have 19

to bear with me.

20MR JOHNSON:

Your Honour, just a gentle objection, I don't know

21

what a parent/teacher night has relevance to residency in

22

the family home.

23HIS HONOUR: 24

It is relevant to the relationship under cross-

examination.

25MR JOHNSON:

Thank you, Your Honour.

26MR DEVRIES:

Did you see Mr Johnson and Ms Cressy at any of the

27

parent/teacher nights, to your recollection?---Not that I

28

can recollect.

29

building and parents don't necessarily have to come past

30

my office to go to parent/teacher interviews, and there's

31

350 families, so not specifically.

1.SB:ASC 05/12/08 2Cressy

I know - my office is in the main

FTR:1

141

DISCUSSION

1So, you're in your office, you're not in the area where the 2

parent/teacher interviews are - - -?---They're in all the

3

different rooms around the school.

4

in my office, I am around the school buildings but, yes.

5HIS HONOUR:

It's not that I sit

Can I ask you this arising out something a little

6

earlier, you said that in fact understandably you presume

7

that if parents, two parents are enrolled as the parents

8

of the children you assume they're together?---You do.

9

There's a lot of variations and combinations.

10I understand that. 11

Do I take it that in this case that was

your presumption?---It was.

12And would that still have been your presumption if you had been 13

told on an enrolment form that the parents were living at

14

different addresses?---It would not, no, no.

15And do you have any recollection as to what address or 16

addresses were given, whether they were the same or

17

different ones for Ms Cressy and Mr Johnson in this case?

18

---I don't really recollect, I think it was the one that

19

I - - -

20Yes?---We have that record at school but off the top of my head 21

I couldn't say.

22Fine, thanks. 23MR DEVRIES:

Sorry, Mr Devries. But you wouldn't have formed the view that they

24

were a family unit if there were multiple addresses given

25

in enrolment, would you?---No.

26So, the fact that you formed that impression suggested in your 27

mind they'd been enrolled as at the same address?---Yes.

28All five of them?---I mean, we do have co-parenting 29

arrangements where children spend half a week or a week

30

with either parent at different addresses, so there are

31

variations.

1.SB:ASC 05/12/08 2Cressy

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142

DISCUSSION

1But you had no impression that this was that sort of case? 2

---I didn't have any impression at all other than what

3

was - - -

4That they were - - -?---Enrolled. 5That they were a common family unit?---Yes. 6And it's not uncommon at your school for mothers to collect 7

children from after school care?---It's more often than

8

not the mother.

9It's not uncommon where one parent is working, the other parent 10

is not working, for you to see more of the non-working

11

parent - - -?---That's correct.

12- - - than the working parent?---That's most likely the case. 13

yes.

14I have no further questions Your Honour. 15HIS HONOUR: 16

Thank you Mr Devries.

Mr Johnson?

17MS SOFRONIOU:

Any re-examination

I'm sorry Ms Sofroniou.

No, no re-examination.

18MR JOHNSON:

Thank you Your Honour.

19HIS HONOUR:

Yes.

Just two or three perhaps.

20
lot of information about the Cressy children's home

23

circumstances and the evidence (indistinct) just assumed

24

everything was normal.

25MR DEVRIES: 26

Your Honour this is not only leading, it doesn't

arise out of my cross-examination.

27HIS HONOUR:

Well it probably arises out of some of the

28

questions I asked.

29

a fair summation of what the witness has said, Mr Enright

30

can look after himself if he disagrees with any of those

31

propositions?---Could you repeat that question.

1.SB:ASC 05/12/08 2Cressy

FTR:1

It is leading but it does seem to be

143

DISCUSSION

1MR JOHNSON:

You didn't really have a lot of information about

2

the children's home living circumstances prior to the mid

3

point of 2007 and you just assumed, yes there's a mum and

4

a dad and three kids and they like more situations must

5

be all living under one roof?---That's correct.

6Thank you sir. 7

office some time in late in 2007 where we discussed - - -

8MR DEVRIES: 9 10

Your Honour, Your Honour this is totally out of

anything that was asked in cross-examination and out of relevance.

11MR JOHNSON: 12

Do you recall (indistinct) meeting in your

It's exactly to the enrolment form, the document

itself that Your Honour's asked the witness about.

13HIS HONOUR:

Well I don't see how it can be but ask the

14

question and we'll see but I, subject to Mr Devries

15

objection, which at the moment sounds to me to be

16

legitimate.

17MR JOHNSON:

Did we have a discussion at one stage in 2007

18

where we sat down in your office and looked at the

19

enrolment form?---We did.

20Is it not true that all of the handwriting on - sorry there was 21

none of my handwriting on the enrolment form?

22

---That's true.

23Including the three children?---Yes. 24My mobile phone number was down as a contact person - - 25MR DEVRIES: 26

This goes far beyond cross-examination.

It's so

blatantly leading.

27HIS HONOUR:

I did ask some questions about the enrolment.

28MR JOHNSON:

Thank you Your Honour.

29HIS HONOUR:

I'll allow the re-examination.

30

You can question

on the witness.

31MR DEVRIES:

If Your Honour pleases.

1.SB:ASC 05/12/08 2Cressy

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144

DISCUSSION

1MR JOHNSON:

Thank you Your Honour.

2HIS HONOUR:

So the enrolment form was not in Mr Johnson's

3

I'm indebted.

handwriting?---No.

4And I think he's about to ask this, (indistinct) mobile phone 5

number.

6MR JOHNSON:

One of my mobile phone numbers was down as an

7

emergency contact for some or all of the children?

8

---I can't really recollect, but - - -

9But there was no information of my name or my address or 10

anything like that on any of the children's enrolment

11

forms?---There was a mistake actually made in the office

12

that the card that we keep in the office didn't have that

13

information but the actual enrolment form which is kept

14

in a folder did have information regarding - - -

15The document that you showed me in that meeting didn't have any 16

information about me as parent of any of the children

17

except for a mobile phone number as emergency contact?

18

---You might need to give me a bit more detail.

19HIS HONOUR: 20

Yes well can I ask you this, what time frame are

you asking this about though?

21MR JOHNSON:

Well this would have been the documents that were

22

prepared at the time that the children were enrolled

23

which would have been just after Easter - - -

24HIS HONOUR:

Sounds to me Mr Enright you exhausted your memory

25

in relation to the document have you?---I do know that

26

there was some confusion and some of it was created by

27

our office staff as to whether James' details were, they

28

certainly weren't on the card which is the card that we

29

use in the office with children's details to contact the

30

parents in case of emergency.

31

pages which are the enrolment forms filled out by parents

1.SB:ASC 05/12/08 2Cressy

FTR:1

145

There's also the, the A4

DISCUSSION

1

now.

They did have some detail of James on there.

2

can't recollect exactly what.

3MR JOHNSON: 4

Now I

But any detail would have been in Pippin's

handwriting though?---Would have been.

5In Pippin's handwriting and not mine?---(Indistinct). 6I'm grateful for the latitude allowed me Your Honour and no 7

further questions.

8HIS HONOUR:

Thank you Mr Johnson.

9
and the other (indistinct)?---No it's not.

12It's more common than not isn't it?---Yes it's very common. 13No further questions. 14HIS HONOUR:

Thank you.

Thank you very much for your patience

15

Mr Enright and for attending today and the other day.

16

apologise for the inconvenience.

17

(Witness excused.)

I

You are excused.

18<(THE WITNESS WITHDREW) 19Well that's I think a convenient time to adjourn and we will 20

presume (indistinct) 2.15.

21MR DEVRIES:

Just before we do Your Honour could I get Your

22

Honour's leave to take those three or four bundles

23

(indistinct) - - -

24HIS HONOUR: 25

Yes you may have access to them over the lunch

adjournment, yes.

26MR DEVRIES: 27

And I'll undertake to return them straight after

lunch.

28HIS HONOUR: 29

Thank you Mr Devries and Ms Sofroniou may have

(indistinct) them too if she wishes to.

30MS SOFRONIOU: 31HIS HONOUR:

Thank you Your Honour. We'll resume at 2.15.

1.SB:ASC 05/12/08 2Cressy

FTR:1

146

DISCUSSION

1LUNCHEON ADJOURNMENT 2

1.SB:ASC 05/12/08 2Cressy

FTR:1

147

DISCUSSION

1

(Kaye J)

2UPON RESUMING AT 2.14 P.M.: 3MR DEVRIES: 4

I think we were in the position of cross-examining

Mr Ioannou.

5HIS HONOUR:

Yes.

6MR DEVRIES:

I think he's - - -

7HIS HONOUR:

Is he outside?

8

Thanks.

Because Mr Richards will go and

fetch him.

9MR DEVRIES: 10HIS HONOUR:

If Your Honour pleases. Thanks Mr Devries.

11
Thanks Mr Ioannou.

Mr Devries.

13MR DEVRIES:

Mr Ioannou you were essentially Mr Johnson's

14

mortgage broker or finance broker for a considerable

15

period of time and over a number of property transactions

16

weren't you?---You could say that, yes.

17And you'd go beyond that and say you were also a good friend of 18

his over that period of time?---I - like with many

19

clients that you deal with for a long enough time you do

20

obviously you know have a friendship with them.

21Well you're also a neighbour of his aren't you?---Pardon? 22You're a neighbour of his at one of the properties too? 23

---The property at Gibson Street was an investment

24

property so, yes.

25You have a pretty good recollection of the financing 26

transactions for each of the properties that you financed

27

or sorry the company you were with organised the finance

28

for?---You could say so, yes.

29166 Queen Street?---M'mm. 30That was - the loan for that was borrowed at 98.2 per cent of 31

the valuation of the property wasn't it?---If you include

1.SB:ASC 05/12/08 2Cressy

FTR:22

148

IOANNOU XXN

1

the mortgage insurance which gets capitalised above the

2

95 that would be correct.

3What about Gibson Street?---That was as well at 95 plus 4

mortgage insurance.

5You were involved with Endeavour Avenue as well weren't you? 6

---Endeavour Avenue - Torquay?

7Torquay, yes?---Correct, yes. 8Is that the same? 9

95 per cent plus mortgage insurance?

---Correct.

10What about the two Point Cook properties?---I believe they were 11

just refinanced.

12And when they were refinanced effectively they were refinanced 13

at that sort of level weren't they?---I cannot recall.

14

I, if I've looked at the documents I probably could say

15

but it was such a long time ago that if they were

16

refinanced and topped up I couldn't know.

17HIS HONOUR:

Was there much equity in either of those

18

properties at Point Cook?---Not really.

19

I do remember quite clearly was when we, when I sat down

20

with James and we, obviously questions were asked

21

regarding what the value might be and when we actually

22

did the valuations they came in significantly short so

23

from what I recall I know we did refinance.

24

were able to extend the facility above that, I really

25

can't remember.

26MR DEVRIES:

When - one thing

Whether we

Gibson Street was refinanced to endeavour - to

27

enable to purchase at Endeavour Avenue wasn't it?

28

---That's correct.

29Your Honour I think the Gibson Street file is Exhibit 4. 30

the witness could be shown that for the moment.

31

the file that you photocopied and brought along

1.SB:ASC 05/12/08 2Cressy

FTR:22

149

If

Was that

IOANNOU XXN

1

or - - - ?---No I haven't photocopied - James obviously

2

came to the office and we went through the files and I

3

said you can photocopy the information that's required.

4That's not your complete file is it?---Sorry? 5That's not your complete file on Gibson Street is it because 6

there's not a single financial document on there?---No

7

because obviously being a client of my company we already

8

have his financial documentation in other files i.e. tax

9

returns and what have you so I didn't need - require for

10

him to double up.

11There's no loan application.

There's no document on there that

12

says, this is what's being borrowed in respect to that

13

property, this is what's being refinanced.

14

nothing there at all except the - - - ?---Well there is,

15

there is, there is a loan application at the back here.

16Could I - - - ?---Yes, absolutely.

There's

What you've got to remember

17

is with James' files they probably occurred maybe

18

two-thirds of a filing cabinet due to the fact that he

19

was self-employed and most lenders go through these

20

things with a fine tooth comb.

21Sorry, sorry to do this to you - that single page at the top is 22

that the entirety of the loan application is it?---Sorry?

23What you've just given me is a one page document which has got 24

nothing filled in and the rest is the contract of sale?

25

---No, no, no.

26

five pages.

If you look - it's one, two, three, four,

27There was a contract of sale amongst there?---Yes. 28That doesn't - - - ?---Well obviously when you submit a loan 29

application to a bank you submit the application with the

30

contract.

31If I could have a look at it now please?---My apology, there 1.SB:ASC 05/12/08 2Cressy

FTR:22

150

IOANNOU XXN

1

you go.

2HIS HONOUR:

Just while you're doing that, Mr Ioannou I

3

understand you say that because Mr Johnson was

4

self-employed that he had to put forward quite a large

5

amount of information in order to satisfy the lender that

6

he would be able repay the loan.

7And to carry the interest payments?---Well it's not so much um, 8

to carry the interest payments, um, when you borrow more

9

than 80 per cent and especially when you're borrowing and

10

95 per cent lent, it's - even back then, it's considered

11

the - probably the highest risk loan which a bank is

12

prepared to give.

13

people, the bank have found that - just because two years

14

of track record, it doesn't necessarily guarantee the

15

next year's going to be great.

16

have comfort to obviously extend the facility, they want

17

to be able to see other papers, like bank statements,

18

where the money is coming from and as I said before, back

19

in those days you could get a 95 per cent loan without

20

having to prove where your deposit came from.

21

you were self employed and especially when it was an

22

investment, there actually had to be a - a bank statement

23

or a share certificate or something along those lines,

24

proving that you did hold those funds and that they were

25

available to cover the shortfall.

26

loan - um, you've got to think of this, you don't

27

actually get 98 per cent.

28

three per cent is added on top as insurance premium and

29

then you also have to cover stamp duty, so each time you

30

at least putting eight to ten per cent of your own money.

31Thanks.

Now obviously with self employed

So in order for them to

But when

And with a 98 per cent

You get 95 per cent and

Mr Devries?

1.SB:ASC 05/12/08 2Cressy

FTR:22

151

IOANNOU XXN

1MR DEVRIES: 2

Now would you just bundle that up for the moment?

---Yep.

3In every instance of these documents, he had to give you his 4

residential address didn't he?---He did, absolutely.

5In every one?---Yep. 6And can you recall what his residential address was?

As given

7

to you by him, without looking at the documents?---No I

8

can't.

9If I was to tell you that in each case it was 2 Dorrington 10

Street?---M'mm.

11Would you agree with that?---Well, I'd have to take your word 12 13OK.

for it without looking at it. And those ones were around about - spanned period of

14

2005/2006, didn't they?---That's correct, um, with the

15

most recent - I think the refinance and Torquay took

16

place, if my memory serves me correct, towards the end of

17

last year.

18Now the refinance at Torquay, we haven't got a - - -?---No 19

there was never a refinance of Torquay, um, it was - - -

20HIS HONOUR:

Refinance at Gibson Street?---There was a

21

refinance at Gibson Street enabling the purchase of

22

Torquay to obviously be facilitated.

23MR DEVRIES:

Yes.

And are you aware that - sorry, I'll

24

withdraw that.

So, how many properties did you - were

25

you involved in the financing of or the refinancing of?

26

---Um, off hand, there was the two original, I think, it

27

was at Point Cook and - memory doesn't serve me.

28

was obviously Gibson Street, Torquay and Queen Street,

29

Altona.

30

two existing properties being five.

There

So there was three purchases and refinances of

31And at the end of, sort of a wash up of all of these was that 1.SB:ASC 05/12/08 2Cressy

FTR:22

152

IOANNOU XXN

1

he effectively borrowed 95 per cent plus a loading for

2

mortgage insurance?---Not on all.

3

did gear it as much as possible, for tax reasons or

4

whatever it might be, but with Dorrington Street, I'm -

5

look, I can't be certain in saying this but I'm pretty

6

sure that we kept it at 80.

7

have to go through the documents if need be and

8

re-establish that but um, I don't think we extended much

9

higher - maybe it was 90 per cent, but it certainly

On the purchases he

Um, but once again, like I'd

10

wasn't 95, because at that time, we couldn't refinance up

11

to 95 per cent, being non bank lenders and they had, sort

12

of, criteria which we have to meet.

13When was the last time you met socially with Mr Johnson?---Um, 14

I haven't really met socially with James throughout the

15

duration of our relationship.

16

a social - I mean, he did come past my office frequently

17

but I suppose you could class that social and business,

18

but we haven't really gone out and had a drink or a bite

19

to eat together.

Um, I suppose if you class

20And how many times did you visit him at - in his Queen Street 21

office - Bourke Street office, sorry?---It was the - it

22

was the - - -

23MR JOHNSON:

Your Honour, that's a bit misleading.

I actually

24

had my city - well it was corner of Bourke and William

25

Streets, I guess, 140 William Street, but that's not the

26

premises that Mr Devries - he's asking about my - my

27

residence in 668 Bourke Street, I believe.

28HIS HONOUR:

I think that the witness understands the question.

29MR JOHNSON:

Yes.

30HIS HONOUR:

Yes?---There was one time, yes.

31MR DEVRIES:

Can you remember when?

1.SB:ASC 05/12/08 2Cressy

FTR:22

153

Perhaps I can help you, IOANNOU XXN

1

was it this year?---No.

2Last year?---No, it would've been towards the - when we 3

initially did meet, so if it was between any time period,

4

it would've been between, say the end of 04 to mid 2005.

5

It would've been in between those two dates.

6Yes?---Otherwise, your guess is as good as mine. 7And when you visited him, it was quite clearly his office that 8

you were visiting, wasn't it, because your other

9

documents all reflected his address as being 2 Dorrington

10

Street at that stage , his residential address?---Well I

11

suppose that's debatable.

12

myself and I do operate a home office and have other

13

addresses.

14

application form for finance as my actual address,

15

because I get my mail there, is a different story

16

altogether.

17

um, it was pretty evident that yes it was both a home and

18

an office.

I mean, I'm a businessman

Whether I choose to nominate an address on an

But having gone to that premise and seen it,

19But you wrote down on the documentation that his - in your own 20

handwriting, that his residential address was

21

2 Dorrington Street and you wrote down on one of those

22

documents that you were refinancing his owner occupied

23

property?---OK, um, and people - - -

24So you know full well don't you - - 25HIS HONOUR:

Just a minute.

Let the witness answer the first

26

question?---I don't suppose there's a - there wouldn't be

27

too many other people in Australia that don't reside in

28

multiple addresses.

29

don't understand your question or where you - what you're

30

getting at.

31MR DEVRIES:

I mean - I mean, that's - that's - I

You wrote down on an application that his

1.SB:ASC 05/12/08 2Cressy

FTR:22

154

IOANNOU XXN

1

residential address was 2 Dorrington Street and you wrote

2

down that it was for the refinancing of Dorrington Street

3

as owner occupied?---Based on the information - - -

4Can you recall that?---Based on the information given to me by 5

the client, as a finance broker, we record this whether

6

it's in my handwriting or the applicant's.

7

signs off on that.

8HIS HONOUR: 9 10

The applicant

Was that based on information given to you, if it

was in your handwriting?---Well absolutely, I'm not going to make things up for the sake of a loan.

11No?---Goodness me. 12MR DEVRIES:

So if the witness can be shown this document, Your

13

Honour?

(To witness) Perhaps the first question is is

14

that document in your handwriting or not?---It appears to

15

be, yes.

16Now, if you can turn to the second page?---Yes. 17Are the entries in that, apart from your signature at the 18

bottom, your handwriting?---They are.

19And on the very last page is that your handwriting?---Yes. 20Now, about three lines down of your handwriting it says, 21

"Purpose of funds will be to refinance his current place

22

of residence as well as a loan agreement against a block

23

of land in Point Cook, Victoria"?---M'mm.

24And then some additional money will be used for other 25

purposes?---M'mm.

26And that's what Mr Johnson told you at the time?---Absolutely. 27

But - - -

28You wouldn't have written it down if he hadn't told you that, 29

would you?---Sorry?

30You wouldn't have written that down unless he had told you 31

that?---Well of course not.

1.SB:ASC 05/12/08 2Cressy

FTR:22

155

I can only be guided by what IOANNOU XXN

1

my clients tell me.

2And if you have a look at the second page you've got Split 1, 3

Split 2 if applicable, Split 3 if applicable?---Yes.

4And you've written refinance O/OCC property. 5

Now that means

owner occupied, doesn't it?---That is correct.

6If you could return that too. 7HIS HONOUR:

Now, what's that document, Mr - - -

8MR DEVRIES:

That was partly a loan application, wasn't it, and

9

partly your - - -

10HIS HONOUR: 11

Do you wish to tender it or was that extracted

from - - -

12MR DEVRIES:

No, I'm not going to tender it, Your Honour.

13HIS HONOUR:

Where's that from?

14MR DEVRIES:

It's from the Gibson Street file.

15HIS HONOUR:

So it's Exhibit 4.

16MR DEVRIES:

It's part of the part that's already there, Your

17

Honour.

18HIS HONOUR:

Yes, thank you.

19MR DEVRIES:

I have no further cross-examination, Your Honour.

20HIS HONOUR:

Thank you, Mr Devries.

21MS SOFRONIOU: 22HIS HONOUR: 23

No cross-examination. Thank you, Ms Sofroniou.

Mr Johnson, any

re-examination?

24MR JOHNSON:

Yes, thank you, Your Honour.

25
because we each own properties, 8 and 9 Gibson Street,

28

Caulfield East.

29

apartments?---No.

Have you ever lived in one of those

30To your knowledge, have I ever lived in one of those 31

apartments?---No.

1.SB:ASC 05/12/08 2Cressy

FTR:22

156

IOANNOU XXN

1Who, to your knowledge, does live in those apartments? 2

---Tenants that pay rent - - -

3What sort of tenants?---I think mums and dads, families and a 4

couple of self employed individuals.

5The units are across the oval from Monash University, aren't 6

they?---That's correct.

7And originally when I invested into the property as part of the 8

investment group, your company was managing organising

9

tenants - - -?---A company I was - - -

10And the quality of tenants you were attracting?---A company I 11

was associated with, absolutely.

They were targeted

12

obviously at students initially because of their

13

proximity but there was a big take up of sort of younger

14

professionals, families in the area, being a new

15

development and as well as close proximity to, you know,

16

trains and bars and what have you.

17Did you have a young family or students in your apartment?---I 18

believe it was a young family to be honest, yes.

19Thank you. 20HIS HONOUR:

No further questions, Your Honour. Thank you very much for your attendance and I'm

21

sorry to have kept you waiting so long.

22

are excused?---That's all right.

Mr Ioannou, you

Thank you very much.

23Thank you. 24

(Witness excused.)

25<(THE WITNESS WITHDREW) 26Mr Johnson, are you calling any other witnesses or are you 27

going to give evidence?

28MR JOHNSON:

Next witness will be myself, Your Honour.

But

29

just before we do, I have a couple of points I wanted to

30

raise.

31

time last night.

I managed to look at the transcript for the first

1.SB:ASC 05/12/08 2Cressy

I was most grateful because I received

FTR:22

157

IOANNOU XXN

1

the whole transcript for the previous three days.

2HIS HONOUR:

Very good.

3MR JOHNSON:

I noticed a number of – I mean, the transcribers

4

obviously do an amazing job to get that much words down

5

so quickly.

6

of indeterminates in there.

7

– sorry, softly and quickly, so I understand that.

8

there were quite a few bloopers in there which I want to

9

discuss the way that we get those corrected.

10HIS HONOUR: 11

I notice that my karaoke score, I get a lot I do speak slowly and quick But

Yes, well if they're material errors and the

parties agree that they're errors we get them corrected.

12MR JOHNSON:

Thank you.

I have only gone through like about

13

the first hundred pages and maybe there's like a dozen I

14

could quickly give - - -

15HIS HONOUR:

Are any of them of consequence as - - -

16MR JOHNSON:

Yes, Your Honour.

17MS SOFRONIOU: 18

Your Honour, can I propose that we do it outside

of court time, perhaps by agreement in writing.

19HIS HONOUR:

I agree with that.

20MS SOFRONIOU: 21HIS HONOUR:

If it please the court. So if you can draw those to the attention of

22

counsel.

23

that the transcript be amended accordingly.

24

any argument we can deal with it at another time.

25MR JOHNSON:

If they're agreed, then I can simply direct

I think we can do that.

If there's

I only had the one that

26

perhaps we should discuss with Your Honour is the

27

appearances which I think is not recorded correctly.

28MS SOFRONIOU: 29

directions in that regard.

30HIS HONOUR: 31

I think Your Honour may have already make

They have been corrected.

You mean in relation to

Ms Sofroniou?

1.SB:ASC 05/12/08 2Cressy

FTR:22

158

IOANNOU XXN

1MR JOHNSON:

No, I meant in relation to my appearance as well.

2HIS HONOUR:

Yes.

3MR JOHNSON:

And perhaps for consistency therefore Mr Devries's

4

appearance also.

5

to be the changes - - -

6HIS HONOUR: 7

I have taken copies of what I propose

Well I think we'll deal with it later.

Well get

on with the evidence - - -

8MR JOHNSON:

All right.

Thank you.

9HIS HONOUR:

- - - that seems fairly unimportant.

You're

10

appearing for yourself, Mr Devries is here for the

11

plaintiff, Ms Sofroniou for the second defendant to the

12

counterclaim.

13MR JOHNSON:

Would you care to enter the witness box?

Just before I do, Your Honour, I wanted to

14

foreshadow that at an appropriate stage in the trial and

15

I've been guided by Your Honour.

16

application under Chapter 4 of the Legal Practice Act.

17

It's specifically an application I wish to make under

18

Part 4.4 which is just disciplinary complaints and

19

particularly under s.4.4.7 and it arises out of issues

20

which I've raised in my affidavit in this proceeding

21

regarding my learned friend Mr Devries's conduct of the

22

matter and also his instructor and that 11 July 2008

23

affidavit is what I'll be relying on.

24HIS HONOUR: 25

Well I haven't read that.

I want to foreshadow an

I'm hearing a trial.

I

don't see how this relates to the trial - - -

26MR JOHNSON:

Because I know from past experience and Mr Devries

27

has received similar letters to similar effect that a

28

letter outlining concerns of this kind of a disciplinary

29

complaint about a fellow legal practitioner, if that

30

arrives on the Legal Services Commissioner's desk she's

31

going to refer to – especially the question of whose

1.SB:ASC 05/12/08 2Cressy

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159

IOANNOU XXN

1

jurisdiction is it, the courts or the Legal Services

2

Commissioner's and she's going to say that it's a matter

3

that must be raised fully in the court.

4

jurisdiction under the disciplinary scheme

5

because - - -

6HIS HONOUR:

I have no

I don't see how it relates to the trial I am

7

conducting.

8

that you have sought to waste the time of this court.

9MR JOHNSON:

It seems to me this is the second time today

Your Honour, with respect I'm not trying to do

10

that, I'm just saying that I would like at some stage to

11

discuss the application of and the question of

12

jurisdiction in terms of disciplinary conduct of members

13

of the legal progression.

14HIS HONOUR:

I don't discuss anything, I hear submissions

15

relevant to the issues in the case before me.

16

certainly wouldn't entertain this now.

17

proceeding in the middle of your case.

18MR JOHNSON:

I

We are not

I am asking Your Honour to be prepared to

19

entertain this at a later date to give as part of your

20

judgment in this trial some directions to the Legal

21

Services Commissioner.

22HIS HONOUR: 23

You can raise this in final address but it seems

to me to be - - -

24MR JOHNSON:

Thank you, Your Honour.

25HIS HONOUR:

Just a moment.

It seems to me to be entirely

26

irrelevant to this proceeding.

27

anything about it now but if you say it is relevant

28

somehow to this proceeding you can raise it in due course

29

but at the moment we are hearing evidence in your case.

30

You have successfully called a number of witnesses so

31

far.

1.SB:ASC 05/12/08 2Cressy

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160

I am not going to hear

IOANNOU XXN

1MR JOHNSON:

Thank you, Your Honour.

2HIS HONOUR:

We have negotiated that well, what have we here

3

from you now?

4MR JOHNSON: 5

Thank you, Your Honour.

I have a number of

documents which I want to identify as exhibits.

6HIS HONOUR:

Yes.

7MR JOHNSON:

I am just wondering on the logistical way of doing

8

that I should be sworn into the box, should I take my

9

exhibits and my notes with me into the box?

10HIS HONOUR:

Yes, you should.

11MR JOHNSON:

Or should I be sworn in and perhaps speak from the

12

Bar table?

13

advocate and instructor.

14HIS HONOUR:

I don't want to remove my other hat as

You will be in the witness box as a witness and

15

you can tender documents from there.

16

documents which you wish to tender, if it's manageable

17

you can take some of them into the witness box with you.

18MR JOHNSON: 19

If you have the

I may need to take them in one or two stages, Your

Honour.

20HIS HONOUR:

We will deal with it as it comes.

21MR JOHNSON:

Thank you, Your Honour.

22
You may be seated, Mr Johnson, or stand, whichever

you are more comfortable with?---Thank you, Your Honour.

25Or you can vary it as you see fit?---I am grateful Your Honour. 26Firstly your full name is Harold James Johnson?---Yes, Your 27

Honour.

28What is your address?---My address is - well, I have a number 29

of addresses.

30Well, one will be sufficient?---10 Hawkers Court, Hoppers 31

Crossing.

1.SB:ASC 05/12/08 2Cressy

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161

IOANNOU XXN

1Your occupation?---I'm a barrister and solicitor, officer of 2

this honourable court of 18 and a half years good

3

standing, Your Honour.

4When were you admitted to practice?---On 7 May 1990. 5Have you practised as a solicitor since then?---I have always 6

practised as a solicitor, Your Honour, in the commercial

7

and government spheres, never as a member of the

8

Victorian Bar.

9It is you to give evidence.

You seem to me to - when you do

10

focus your mind on it be able to address the relevant

11

issues.

12

about your evidence?---I did write my notes out longhand

13

last night and this morning, Your Honour, to save having

14

to try to take notes whilst I am here.

15

yes, Your Honour.

Have you got a plan of how you propose to go

The answer is

16Yes, well you proceed and I will try to prompt you with any 17

issues that may seem relevant?---Thank you, Your Honour.

18

Just as a point of clarification, I wish to establish

19

that each of my affidavits are filed in these proceedings

20

and exhibits, are they already tendered in evidence or do

21

I need to - - -

22No?---I need to bring them in - - 23No, and I will not have access to them, save they form a 24

relevant part of this evidence.

As I explained to you, I

25

hear evidence viva voce?---Thank you, Your Honour, I now

26

fully understand your earlier comments today, thank you.

27All right?---I wish to rely on each of my affidavits that I 28

have filed plus the exhibits thereto.

29

affidavits - - -

My two key

30Firstly, you have deliberately ignored what I have just said? 31

---I will introduce them one at a time, Your Honour.

1.SB:ASC 05/12/08 2Cressy

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162

Can

IOANNOU XXN

1

I introduce the first one?

2No, if you can just go through the issues.

Firstly, the issues

3

in this case which I have to decide, as you know, are

4

firstly it seems to me whether there was a domestic

5

relationship between yourself and the plaintiff as

6

defined in the Property Law Act, particularly in section

7

275, and secondly then the issues as to the

8

contributions, direct and indirect, both financial and

9

other, as referred to in section 285.

They are really

10

the issues to which you need to address your evidence

11

before me.

12

both those two matters, the existence of a domestic

13

relationship and secondly the issue of contributions?

14

---Yes, Your Honour, I am with you Your Honour.

15

would like to say firstly is that I have never resode or

16

resided at a property in Illoura Avenue, Grovedale with

17

Ms Cressy and/or any other persons.

18

tender is evidence - forgive me for turning my back Your

19

Honour - is a copy of the birth certificate for Illyana

20

Patricia Cressy, born in Geelong on 9 June 2000.

21

sorry, I had an original here, and I have one photocopy

22

as well.

Now, it seems to me you have put in issue

What I would like to

23Yes?---I don't have enough for all the parties. 24

What I

I am

If I may

tender that.

25Do you wish to see a copy of that Mr Devries? 26MR DEVRIES:

I would like to see the original, Your Honour,

27

because that was one of the documents stolen from my

28

client.

29

client - - -

30HIS HONOUR: 31

I would be interested to see it and have my

Well, you don't need to give evidence from the Bar

table.

1.SB:ASC 05/12/08 2Cressy

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163

IOANNOU XXN

1MR DEVRIES:

I do apologise.

2HIS HONOUR:

Or withdraw that.

3MR JOHNSON:

Or insult, that's grossly insulting.

4HIS HONOUR:

That's enough from you.

5MR DEVRIES:

I do apologise, I do withdraw that.

6HIS HONOUR:

Yes, you will withdraw that but you are entitled

7

to see the original.

8

copy so I can start to mark as an exhibit.

9

Ms Molesworth, could you show the original to Mr Devries,

10

In the meantime I will look at a

thank you.

11MR DEVRIES:

May I turn my back and just talk to my client?

12HIS HONOUR: You may certainly do that. 13 14#EXHIBIT 9 Birth certificate of Illyana Patricia 15 Cressy, born 9/06/00. 16MR JOHNSON:

Thank you Your Honour.

17MR DEVRIES:

Could I ask - I missed the exhibit number you

18

gave.

19HIS HONOUR:

Exhibit 9.

20MR DEVRIES:

Thank you.

21HIS HONOUR:

I think I have got the numbers right?---Your

22

Honour, this is a birth certificate that I obtained in

23

June of 2007 and I needed to obtain that to provide a

24

copy to a Mr Kevin Enright, the principal of Altona

25

Primary School and the reason I needed to do that was to

26

assure him that I had paternity rights and

27

responsibilities in response of Illyana Patricia Cressy.

28

The reason being, according to Mr Enright's records,

29

which he showed to me at a meeting at about that date,

30

there was no record of me by name on any of the three

31

children's enrolment papers with the school, except for

32

one of my mobile phone numbers down as a second emergency

1.SB:ASC 05/12/08 2Cressy

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164

IOANNOU XXN

1

contact but without any name - any name put against my

2

number.

3Yes the last bit of evidence you've just given is hearsay, but 4

the fact is a school had requested you to provide them

5

with a birth certificate and you have - and that is how

6

you say you've come into possession of that document?

7

---I - - -

8Who registered Illyana's birth?---If I may refer to the 9

statement, the informant's are both P. Cressy, which is

10

the plaintiff of course, and H. Johnson, which is of

11

course myself.

12Right?---It was registered on the sticker on 21 June 2000, 13

which is 12 days after Illyana was born.

I do have

14

amongst my records a copy of my fax which would've been

15

dated in that week of 22 June 2007, sending a copy of the

16

birth certificate to Mr Enright, which I could track down

17

and try to bring into court on Monday and tender, if that

18

goes to any issue as to, um, at what date this document

19

came into my possession, I think that will answer it

20

comfortably, Your Honour.

21

addresses of the two informants.

22

statutory document issued on the - recording made on

23

21 June 2000.

I would like to refer to the This is a document - a

24Well the document speaks for itself, but it - it records the 25

plaintiff's addresses in Illouera Crescent or Avenue and

26

yours as he Gheringhap Street?---Correct, that's right.

27

There is, of course - - -

28And that's why you're tendering it?---Yes, Your Honour. 29

I know

a typo in Illouera it's spelt with a V rather than a U.

30Yes?---But that's - that's not - - 31It's of no moment?---this proceedings, that's right. 1.SB:ASC 05/12/08 2Cressy

FTR:22

165

The

IOANNOU XXN

1

number of the house in the street where Miss Cressy was

2

living is recorded as No.5 not No.12, which if my

3

recollection is correct - I accept with the passage of

4

time of it either 5 or 12.

5It doesn't really matter does it?---Exactly, Your Honour, 6

that's right.

7Now you seem to me to be obsessed about details, so they don't 8

ask why, but let's just stick to the main point, all

9

right?---Thank you, Your Honour.

What I would now like

10

to tender is a property search extract that I obtained

11

recently, 12 November this year, for that property

12

5 Illouera Avenue, Grovedale.

13

I have.

14

Director of Housing on 12 June 1998.

This is the only copy that

It shows that that house was purchased by the

15Do you wish to see this Mr Devries? 16MR DEVRIES:

I just wonder about the relevance.

17HIS HONOUR: Well, we've got to receive it as an exhibit. 18 19#EXHIBIT 10 Property search extract in respect of the 20 property at 5 Illouera Avenue, Grovedale. 21WITNESS:

The relevance is, Your Honour, that it shows that the

22

house was owned - the landlord was a public service

23

housing authority - Ministry of Housing, and that is

24

consistent with, I believe, the uncontested evidence that

25

Miss Cressy has given and which I admit is my belief, not

26

having actual knowledge, that there was a lease in place

27

between Miss Cressy and the Director of Housing, which I

28

believed, without direct knowledge, was managed by the

29

Salvation Army.

30

Miss Cressy has - has admitted in evidence and I agree

31

to - - -

And those arrangements, I think,

32Well everyone's in agreement on that?---Yes. 1.SB:ASC 05/12/08 2Cressy

FTR:22

166

Yes, Your Honour. IOANNOU XXN

1

Um, the certificate shows, of course, as consistent with

2

- well consistent with the facts that I had a different

3

residence to Miss Cressy at the moment that Illyana was

4

born.

5

from the time I moved in, which was in early January 1999

6

up until I moved out in about May 2001.

7

visitor to the Cressy family, which included both

8

Miss Cressys and their children, living at 5 Illouera

9

Avenue, Grovedale.

I lived alone at 142 Gheringhap Street, Geelong

I was a regular

I never had keys to the property, I

10

could only visit when someone was home to let me in.

11

would often visit there of an evening, during the week.

12

I was working for Minter Ellison at that time, 25 storeys

13

up in the Rialto Building.

14HIS HONOUR:

I

Whereabouts, in Melbourne?---In Melbourne, yes,

15

Minter Ellison, yes - the Melbourne office as a full time

16

employee I was special counsel.

17

work hours that goes along with that.

18

any of the household tasks that a resident would do

19

within a household because I wasn't a resident.

20

didn't mean that I didn't pull my weight.

21

take groceries in to be prepared for the meal, I would

22

assist with washing up the dishes afterward.

23

someone in the house you know cooks well the cook doesn't

24

wash the dishes, someone else does, you know you balance

25

like that.

26

or anything.

Um, with all of the long I never engaged in

That

I would often

If, if, if

I certainly never did any washing or laundry

27Did you eat there?---Again, when visiting at mealtimes, yes. 28How often was that?---Look it really depend.

That was a

29

rollercoaster year because Ms Cressy and I were an item,

30

we'd be dating for a week or two then there'd be this -

31

Ms Cressy would say to me, "Oh James you're a wonderful

1.SB:ASC 05/12/08 2Cressy

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167

IOANNOU XXN

1

man.

I've never been in a relationship with a wonderful

2

man like you before.

3

destroy you" and then she would get up and I would have

4

to go or if, or if that drama was being played out at my

5

house she would get up and she would go.

6

there were nights when I would sleep over or she would

7

sleep over at my place.

8

boyfriend and two half-sisters living in the house as

9

well, it did tend to get a little bit crowded.

I have to leave you before I

There were,

With her mother and her mother's

My house

10

was very convenient, in the central grid, the CBD of

11

Geelong and especially on weekends Ms Cressy perhaps not

12

in 1999 but later on - no during the winter of 1999 she

13

would do this, she and her two boys would often come, not

14

every weekend, not every second weekend but maybe two

15

weekends out of a month, three weekends out of a month

16

and they would kind of bunk with me from the Friday

17

through to the Saturday.

18

on at the time.

19

(indistinct) five months old when I first met him.

20

Treece I didn't meet for quite some time because at that

21

time he was kind of living alternate weeks with his

22

mother Pippin and with his biological father

23

Matthew Laity.

24

that I keep things running in true time sequence Your

25

Honour.

26

a lot of statements of fact to Ms Cressy Senior - Junior

27

and Senior in cross-examination on a, "I put to you"

28

basis.

29

in my evidence-in-chief or - - -

There were various issues going

Skye of course was an infant.

Perhaps - OK no, yes.

He was

I'm just worried

My first meeting with - sorry Your Honour I put

Do I have to repeat each and every one of those

30What you have put in cross-examination is not evidence. 31

If you

wish to make it evidence then you have to - - - ?---Thank

1.SB:ASC 05/12/08 2Cressy

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168

IOANNOU XXN

1

you.

2- - - give it on a - - - ?---I thought that would be the case. 3

Thank you Your Honour.

4

affidavit, my first affidavit being the one dated 7 March

5

2008.

6MR DEVRIES: 7

I'd like to refer to my

I might be getting hard of hearing as Mr Johnson's

accused me of.

8HIS HONOUR:

I don't think you are.

9MR DEVRIES:

I thought Your Honour had made the ruling twice

10

about this.

11HIS HONOUR: 12

I think your arithmetic's right.

It is at least

twice I've drawn that - - - ?---Forgive me Your Honour.

13- - - to Mr Johnson's attention - - - ?---Forgive me Your 14

Honour.

15Mr Johnson you are, if I may say so, a very intelligent young 16

man and I'm sure you understood what I put to you.

If

17

you wish to say something in evidence you have to say it

18

here.

19

affidavit.

20

Honour.

21

that difficulty this morning with Ms Dek-Fabrikant and

22

there was a little statement - - -

I do not - you can't simply tend to your Do you understand that?---I appreciate Your

I tend to work in pages and papers and I had

23Well you've managed so far - - - ?---I appreciate (indistinct). 24- - - to understand how Common Law works?---Sorry. 25

So would

the process be that I tell the story?

26Yes?---And then after I've told it I can give you the 27

affidavit?

28No you can't give me the affidavit.

You just tell me the

29

story.

30

---Do you receive the affidavit?

31No.

You tell me not the story, you tell me the facts?

Not unless you're cross-examined on them?---Then why do we

1.SB:ASC 05/12/08 2Cressy

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169

IOANNOU XXN

1

prepare affidavits then?

2For interlocutory applications probably. 3

Now would you proceed

with your evidence?---Yes.

4So far you've been relevant - - - ?---Thank you Your Honour. 5

Thank you Your Honour.

6- - - you've told me you did not reside at Illoura Grove and 7

that you did take a lease at Gheringhap Street is that

8

right?---Yes Your Honour.

9When did you move into Gheringhap Street, in January 1999? 10

---Yes Your Honour.

11Right?---Yes. 12At any time did Ms Cressy come and live with you at Gheringhap 13

Street?---I, I, I've just - - -

14Or have I jumped ahead of you?---No, no that's fine Your 15

Honour.

I, I, I've just said that she would often come

16

and visit - - -

17I follow that?---- - - as boyfriend girlfriend but these were 18

(indistinct) when we would date for two weeks and then

19

she would have an issue and we would not see each other

20

for a few weeks and then (indistinct) back again.

21

explain it in a bit more detail shortly.

22

the first point chronologically now is when did we first

23

meet.

24

which was my usual - but I appreciate, I need to actually

25

tell you what is in the writing.

26

there's a lot of written words and I now have to - I have

27

to verbalise.

I will

I just think

Now - and I have put that out in written form

Now I'm just thinking

28Well just so far as it's relevant because if it's 29

uncontroversial that somehow or other you did meet?

30

---Yes.

31And somehow or other, uncontroversial, that somehow or other 1.SB:ASC 05/12/08 2Cressy

FTR:22

170

IOANNOU XXN

1

you had a relationship.

You deny it's a domestic

2

relationship?---Yes and also (indistinct).

3That is really what is at issue between the parties is 4

what - - - ?---Yes.

5- - -whether the relationship became a domestic relationship. 6

And the other issue of course is the matter of

7

contributions.

8

---I, I understand those issues.

9

between the written word and the spoken word Your Honour.

Just keep your mind focused - - - ? It's just the dichotomy

10Well I hear - - - ?---I realise the written word - - 11- - - the spoken word.

I think I've explained it now three

12

times to a person who has practiced as a lawyer for

13

almost two decades and is an intelligent young man.

14

you just proceed?---Thank you Your Honour.

15

the plaintiff at approximately 2.20 a.m. on Saturday

16

12 September 1998.

So

The - I met

17I met her in an establishment called Lorraine Starr which is a 18

licensed brothel in Mallop Street, Geelong.

19

is that as a Fellow at the Taxation Institute of

20

Australia I was attending the annual retreat for members

21

down at Lorne at the Cumberland Complex where two out of

22

three years it is held.

23

nine pm I drove up to Geelong.

24

life I went into a licensed brothel because I was

25

curious.

26

which was like my bond down so that I wouldn’t chicken

27

out on the exercise.

28

a number of hours and occasionally I'd be taken into one

29

of the bedroom chambers and various ladies would be

30

introduced to me.

31

is - - -

I walked in.

1.SB:ASC 05/12/08 2Cressy

FTR:22

The context

On the Friday night at about For the first time in my

I paid to the receptionist $200

I then sat in the waiting room for

The first time in a brothel which

171

IOANNOU XXN

1I don't think this detail is terribly necessary.

You are

2

putting to me that you met the plaintiff in a brothel at

3

Lorraine Starr.

4

me is she was working there at that time?---Yes, Your

5

Honour, at just up - - -

Now, I take it what you are putting to

6You are putting that to me because you see some relevance in 7

the point that you met her in that context not in a

8

social context?---Yes, Your Honour.

9I don't think I really need any other of the fine details? 10

---Thank you, Your Honour.

When I met Ms Cressy it was

11

several hours later.

12

room, we made eye contact, she introduced herself to me

13

as "Claudia".

She walked into the general waiting

14Did you just hear what I said?---Your Honour - - 15I don't really need - what is the relevance of all this fine 16

detail?

If you say it's relevant I will hear it

17

but - - - ?---The relevance is that the relationship

18

between the plaintiff and I, and I don't want the word

19

"relationship" to be interpreted as meaning solely and

20

exclusively a de facto bona fide relationship.

21No, no, we will use it in the general?---You and I have a 22

relationship now, Your Honour, because we have been in

23

each other's company for four days.

24

of relationship.

That is my concept

25I don't think we do, but let us proceed?---Mr Devries and I 26

have a relationship.

27Let us proceed without debating that issue.

You say that not

28

only the fact that you met the plaintiff in these

29

circumstances whilst she was doing the work you say she

30

was then doing, that these minor details are relevant?

31

---It is an important detail because it comes in later on

1.SB:ASC 05/12/08 2Cressy

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172

IOANNOU XXN

1

in terms of the conditions under which I was providing

2

her with incredibly generous child support.

3

the previous (indistinct) and for - - -

Prior to

4If you say it is relevant I will not - - - ?--- - - - and most 5

of the last decade, Your Honour.

6If you say it is relevant I will not shut you out from giving 7

the evidence.

You proceed?---Sorry, if I - - -

8You proceed?---Thank you, Your Honour. 9If you say it's relevant I won't shut it out?---Thank you, Your 10

Honour, I am indebted.

11

then visited the plaintiff as Claudia perhaps once a

12

week, maybe twice a week for the next six weeks or so.

13

Generally what I would do is I would drive down from

14

Melbourne to meet her during the lunch hour because she

15

worked during the days at that establishment, she didn't

16

usually work night shift.

17

interested in more of a relationship.

18

name, my phone number, my background, that I was a

19

lawyer, et cetera, et cetera.

20

of my published articles in the Law Institute Journal

21

amongst other things and gave her my phone number,

22

thinking that I would not hear from her again.

23

that sort of six week courtship I would give her gifts as

24

well.

Initially they would be $100 gift vouchers for

25

Myers.

One gift I gave her was a book by Carl Jung

26

published in 1964 called "Man and his Symbols".

27

number of intellectual discussions and I felt a bit of a

28

connection on an intellectual level.

29

intelligent lady, Ms Cressy can.

30

number and heard nothing more of her.

31

up one day during the week when I was strolling down

1.SB:ASC 05/12/08 2Cressy

FTR:22

This was 12 September 1998.

I

I told her that I was

173

I disclosed my

I think I showed her some

During

We had a

She can be a very

I gave her my phone She then rang me

IOANNOU XXN

1

Little Collins Street.

We organised to go out on a first

2

date which was set for Melbourne Cup Day.

3

I met her in Geelong, Little Mallop Street at a café, we

4

had lunch, we then went for a drive down the beach.

5

sat on the beach, Torquay, it was a bit blowy, a bit

6

cold.

7

lived.

8

her at a supermarket near the corner of the house I later

9

found out she was living in.

I then drove her back.

I drove down,

We

I did not know where she

She was concerned about her privacy.

I dropped

This was a supermarket in

10

Hines Road.

I believe she went and did some shopping and

11

I drove off.

12

stalking.

13

show her that I could be trusted.

14

each other and dating on that basis for a while.

15

this will take quite some time, there's 10 years of

16

history Your Honour.

I want to give you as much of that

17

picture as possible.

We continued dating on that basis.

18

At this stage my living arrangements, I was living in my

19

family home, the Johnson family home, up in the

20

Dandenong.

21

Julie Deanne Johnson.

I didn't want her to think that I was

She was very nervous, sensitive, I need to We continued seeing Yes,

Now, my wife and I had grown distant, this is

22When you say your family home, is that your matrimonial home? 23

---It's the house where my wife, Julie Johnson and our

24

three children continue to live until this day,

25Yes.

The arrangement was that we had separate bedrooms.

Now,

26

I would be getting up at like five in the morning.

I'd

27

be driving into a gym halfway to the city, I'd be working

28

out when it's dark.

29

city.

30

city law firms require.

31

Tuesday morning early.

I didn't catch the train into the

I didn't work the very long hours that the big

1.SB:ASC 05/12/08 2Cressy

FTR:22

I would often start work on a I'd get in about eight o'clock 174

IOANNOU XXN

1

after the gym, et cetera.

I would work 36 hours

2

straight, all through that Tuesday night.

3

the Belgrave house eight o'clock on the Wednesday night.

4

They were very long hours.

5

wrong with you if you weren't at your desk from seven to

6

seven.

7

almost expected of senior employees.

8

not quite - - -

Return back to

You know, there was something

There were political questions asked and it was I was an employee,

9This is becoming irrelevant?---I'm trying to set the context, 10

Your Honour.

So what happened is I would not see my wife

11

or those three children during the week because they'd be

12

in bed when I left, they'd be in bed when I get home.

13

only see them on the weekends.

14

one bedroom - - -

I

My wife was sleeping in

15This is not really relevant, the circumstances in which you 16

separated from your wife are irrelevant - - -?---Your

17

Honour, can I give you some relevance?

18

claiming in her evidence yesterday that we started living

19

in a de facto relationship at Illouera Avenue, Grovedale

20

in August or September.

Ms Cressy is

21And you deny that, you say you remained at Dandenong - - -? 22

---Overall - - -

23That's a short point?---Thank you, Your Honour.

Thank you.

24Now, we'll try and make a little bit of progress past 1998? 25

---Sorry, Your Honour, my nature is always to be detail

26

orientated.

I will try to - - -

27Yes, well the requirement of this court is to be relevant? 28

---Thank you, Your Honour.

29

continued for me up until into December.

30

in – up the Dandenongs, working in the city.

31

Ms Cressy down in Geelong.

1.SB:ASC 05/12/08 2Cressy

FTR:22

175

That living arrangement So I'm living Dating

Spending time with my three IOANNOU XXN

1

children in the Dandenongs on the weekend and also

2

beginning to spend time with Ms Cressy and her children

3

on the weekends as well.

4

contact, late of evening or meeting Ms Cressy, as I

5

explained, during the middle of the day at the Lorraine

6

Starr premises.

7

until that date, Melbourne Cup Day 2008, when to avoid a

8

traffic jam up the Geelong Road I pulled into Kmart in

9

Belmont, a southern Geelong suburb, and purchased the

It tended to be more weekday

I did not know Ms Cressy's first name

10

three set books called the Lord of the Rings.

11

game that Ms Cressy had given me that day that I could

12

discover her first name if I looked at the first word in

13

the third book of the trilogy, Return of Kings – sorry,

14

Return of the King and that word is Pippin.

So it wasn't

15

until that point that I knew her as Pippin.

Up until

16

then I knew her as Claudia.

17

as honey or anything like that, it was simply Claudia.

18

And she told me that that was like a third or a fourth

19

name that she had.

20

after a date Ms Cressy took me home to meet her family

21

for the first time.

22

her mother was pregnant at that stage, as proved by the

23

birth of her third daughter some six months later. I met

24

her mother's boyfriend and I met Ms Cressy's younger of

25

the two boys, Skye, who was, as I say, about five months

26

old and I met her half sister, Rose, who I think was

27

about four at that stage.

28

Treece, until the following week or maybe the week after

29

that.

30

first occasion I slept over in the house with Ms Cressy.

31

I then resumed the living arrangement, I told my wife

I did not ever refer to her

At some stage in early December,

I met her mother.

FTR:22

Unbeknownst to me

I did not meet her eldest boy,

We had dinner that night.

1.SB:ASC 05/12/08 2Cressy

It being a

176

That may have been the

IOANNOU XXN

1

that I was seeing somebody else and even though we'd had

2

this two year estrangement, that was a bit of a shock for

3

her.

4

kind of splitting my residency, a pattern that I

5

continued for a decade between Belgrave, so the

6

Dandenongs, sleeping in my office in the Rialto, maybe

7

one or two, three nights a week and I might have a one or

8

two night sleepover at Ms Cressy's.

9

didn't have wardrobe space or a sock drawer or even the

What that meant for the next month was that I was

But certainly I

10

most basic things, toothbrush, toothpaste, that a

11

resident would have.

12

all ad hoc.

13

girlfriend to sleep over at each other's premises.

14

January Ms Cressy actually found the house in Gheringhap

15

Street.

16

kooky as well.

17HIS HONOUR: 18

And it was no permanent – it was

And not unusual for a boyfriend and In

It was very dilapidated, a bit spooky and a bit But had a little bit of charm.

That really does not have much relevance?---Thank

you, Your Honour.

I then organise - - -

19Please continue to direct your mind to what's relevant in the 20

case - - -?---Thank you, Your Honour.

21

lease and I moved into the premises.

22

townhouse and that meant that not only was it me sleeping

23

over at Ms Cressy's house occasionally but she could

24

sleep over at my house.

25

with the two Ms Cressy's and their children and Troy

26

Mitchell, it was my first Christmas with them.

27

discussion, Ms Cressy was continuing to work.

28

code name for this.

29

professional tennis player and we were trying to be grown

30

up and mature and sensible about it but I made it clear

31

to her that if she wanted a more established relationship

1.SB:ASC 05/12/08 2Cressy

FTR:22

I then organised a And that was a

Now, I spent that Christmas 1998

We had a We had a

We used to call it she was a

177

IOANNOU XXN

1

with me, as I'm a serial monogamist, I expected the same

2

of her.

3

nothing violent ever at that point, on the Christmas Eve

4

and on that New Year's Eve 1998/1999, especially because

5

Ms Cressy was planning to work those evenings at that

6

Lorraine Starr establishment, which offended me because I

7

thought Christmas Eve and New Year's Eve would be family

8

time.

9

and that was part of what then, looking at maybe a week

10

or two later identifying a house that I could rent and

11

move in Geelong.

12

and intimate information about myself and my history of

13

sexual partners or almost complete absence of it in

14

affidavit form.

15

relevant for me to tell you by voice or is that verging

16

on not relevant.

And we had a number of arguments, certainly

We had a bit of a separation and break up there

Your Honour I disclose a lot of detail

I'm just wondering whether that might be

17I don't see any relevance at all?---Thank you Your Honour. 18

I

thought you would say that.

19I have persistently told you what the issues are in this case 20

and you actually by and large are able to focus on them

21

in cross-examination - - - ?---Thank you.

22- - - just keep the same focus now and we might make a bit of 23

progress?---Thank you Your Honour.

24

summarises our living arrangements.

25

of course as the cashed up lawyer it was always me who

26

paid for everything.

27

restraint seat that I kept at Ms Cressy's house.

28

Ms Cressy didn't drive at that time so I could take her

29

out plus Skye who lived permanently with her being five,

30

six, seven months old at that stage.

31

in Geelong it gave us the opportunity, we would often

1.SB:ASC 05/12/08 2Cressy

FTR:22

That pretty much In terms of dating

This included buying a child

178

And with me living

IOANNOU XXN

1

drive down the coast in the evening or some time on the

2

weekend.

3

residences.

4

I resided at 166 Queen Street, Altona.

5

the back end of the relationship if you like.

6

front to the back.

7

house.

8

first year that Ms Cressy and her two boys and Illyana

9

lived there.

But it was strictly dating in separate Ms Cressy has claimed that I lived with her, I'm skipping to From the

I say that I, I never resided at that

I never had keys to the door.

I say that for the

The front door was never lockable from the

10

outside.

It could only be locked if someone was at home

11

and they could bolt the door from the inside.

12

couple of occasions I gave Ms Cressy - two times I gave

13

her $200 to organise a locksmith to put a deadlock on the

14

door.

15

money.

16

the household was never really conversation.

17

always sort of angry, yelling and the youngest of the two

18

boys in particular would often be unhappy and he would

19

just run out of the house and it was quite a busy road,

20

close to the road.

21

issues within that particular household.

22

slovenly behaviours and it was not a pretty, not an

23

attractive sort of house.

24

when I would go there.

25

You couldn't sit on the couch because if you had sit on,

26

you would get dog hair or cat hair.

27

visited I would just sit on one of the wooden kitchen

28

tables - table - kitchen chairs at the table because then

29

at least you can sort of see if it was clean or wipe it

30

before you sat down.

31

regular routines for meals or anything like that.

She never did.

On a

I don't know what she did with the

One of my concerns was the conversation within

1.SB:ASC 05/12/08 2Cressy

FTR:22

It was

There were a lot of anger management With pets and

I used to get quite anxious

I wouldn't know where to sit.

Basically when I

In the household there were no

179

There

IOANNOU XXN

1

was a very disjointed stress environment which I just

2

couldn't cope with which is why I preferred to live alone

3

in my immaculately kept apartment in the city.

4

space and all (indistinct) to my personality and my

5

comfort.

6

rather than the money - - -

I had my

I'm really focusing on the residency issue

7Yes?---- - - sources (indistinct) property Your Honour. 8It's probably a sensible way then you can come back to the 9

assets later?---Thank you Your Honour.

Thank you.

10The most sensible way to go about it?---In terms of 11

co-habitations in the early half of 2001 Ms Cressy

12

informed me and I had no reason to doubt her that she was

13

under a bit of pressure from her landlord, the Salvation

14

Army, to move out.

15

a program for helping young women in distress.

16

understood that she qualified for that because she gave

17

birth to Skye when she was 19 and a half years old and

18

she had at that stage a three and a half year old boy,

19

Treece plus the newborn and that date matches with the

20

title search that I've just exhibited because the

21

Ministry of Housing bought the house in mid-June.

22

was born on 12 July.

23

tenant into that house after it became a public housing

24

house.

I

Skye

Ms Cressy probably was the first

And I understood - - -

25Anyway are you moving on? 26

I understood that she was there under

You said in early June 2001 - - - ?

---Yes.

27- - - the plaintiff told you she was under pressure from the 28

landlord to move out?---Yes.

29Yes now if we go from there?---And it was an emergency crisis 30

accommodation program apparently anyway so three years is

31

not exactly short term emergency.

1.SB:ASC 05/12/08 2Cressy

FTR:22

180

I tried to find her IOANNOU XXN

1

alternative accommodation in Geelong.

2

Geelong somewhere but not, no longer at that Grovedale

3

address.

4

continuing to work in Geelong at that establishment,

5

Lorraine Starr.

6

lived in Geelong as well so there was a certain gravity

7

for Ms Cressy and her family to be in Geelong.

8

other hand was looking to move up to Melbourne for

9

financial reasons.

Children were in day care.

Her mum was in

Ms Cressy was

Treece's biological father, Matthew,

I on the

I had quite a long list of people

10

financially dependent on me because part of my vow to

11

myself when I moved out of the house in the Dandenongs

12

was that my legally married wife and three children would

13

never at any time be any worse off financially than as if

14

I had had continued to be a full time live in dad.

15

a vow that I'd at all times kept up until approximately

16

six months ago.

17

financially with or without me living under their roof.

They've always been at least as well off

18Now you're getting irrelevant. 19

It's

You say you wanted to move back

to Melbourne for - - - ?---For financial reasons.

20When was it, in early 2001?---Yes. 21With the plaintiff under pressure to move out from Illouera 22

Avenue?---Yes, yes.

23So what happened from there?---So, we were - we were both 24

moving.

I was moving from Gheringhap Street, she was

25

moving from Illouera Avenue.

26

bedroom, um, miner's cottage in South Yarra, in the

27

middle of the block, the grid, Malvern Road/Chapel

28

Street, Toorak or - - -

I located um, a nice two

29It's precise location is irrelevant?---Thank you, Your Honour. 30You have a - - 31MS SOFRONIOU:

Your Honour, I'm terribly sorry to interrupt the

1.SB:ASC 05/12/08 2Cressy

FTR:22

181

IOANNOU XXN

1

testament.

2

on notice being emboldened by Your Honour's fourth now I

3

think, at least instruction to the witness to give

4

evidence confined to the relevant issues.

5HIS HONOUR:

Could I, through Your Honour, put my friend

6MS SOFRONIOU:

Yes. My client to keep it brief is something of

7

collateral damage in this and it's sitting in it's fourth

8

day of hearing.

9HIS HONOUR: 10MS SOFRONIOU:

I understand that. May I put my learned friend on notice that if he

11

doesn't comply with Your Honour's directions, and

12

consistently with the dignity of this court, in giving

13

evidence rather than anecdote, then I'm just warning him

14

that he will be grounding my application for any costs

15

that we might get, ultimately on an indemnity basis.

16HIS HONOUR: 17MS SOFRONIOU:

Yes.

18

May it please the court.

In fairness to him, I

wanted to pre warn him.

19HIS HONOUR:

It's appropriate that you gave that notice and

20

thank you for doing that Ms Sofroniou.

21

taken into account in a previous case that I've heard

22

about this time last year, the fact that I thought that

23

in that case a successful party wasted the court's time

24

but deducting costs from them.

25

court's time by any party as a matter that goes to the

26

discretion on costs ultimately.

27MS SOFRONIOU:

Indeed I have

I regard wastage of

May I emphasise I'm not in any way preventing

28

the - seeking to prevent the witness his right to give

29

evidence, but Your Honour has given five directions about

30

not being anecdotal and - and general.

31HIS HONOUR:

I agree with that.

1.SB:ASC 05/12/08 2Cressy

FTR:22

182

IOANNOU XXN

1MS SOFRONIOU: 2HIS HONOUR:

May it please the court. Thank you Ms Sofroniou.

Now you've heard that?

3

---I - I am indebted to Ms Sofroniou for the warning,

4

Your Honour.

5So there's additional reason why you should try to stay 6

relevant?---Your Honour, I - - -

7Now you located a property in South Yarra, what happened? 8

Did

you go and live there?---I - I went and lived there.

9Yes?---But before that happened, we were looking for 10

alternative rental accommodation for Miss Cressy and her,

11

by then three children.

12

the Geelong region.

13

given that she couldn't disclose her income source and

14

her welfare benefits that were disclosable weren't

15

particularly attractive as a credit proposition.

16

Honour, I - if I am wasting the court's time, it's not -

17

there's no mens rea involved, it's just perhaps my

18

perception of relevance.

19

lend more truthfulness and honesty to this story.

20

appreciate - - -

The two boys plus Illyana, in

She couldn't find anything, um,

Your

I think more detail tends to And I

21Mr Johnson, just keep going, stay relevant and keep going? 22

---OK.

23So the plaintiff could not find any alternative accommodation? 24

---No.

25So what happened, she came and lived in South Yarra with you 26

did she?---Yes - yes she did, I said "All right, you can

27

move in."

28

which was good.

29

working very long hours, um, even though I'd been a sole

30

practitioner, since September 1999, I've been what I've

31

regarded - um, about in house counsel, who work for a

1.SB:ASC 05/12/08 2Cressy

And I was happy to have the children close by, So we did cohabit in South Yarra.

FTR:22

183

I was

IOANNOU XXN

1

company in house and you have external counsel, who were

2

the private professional law firms.

I always regarded

3

myself as both, as a hybrid lawyer.

So I would basically

4

um, be spending a day a week working out of an office

5

just like an employee down at Barwon Water in Geelong.

6

The other four days of the week I'd be working just like

7

an employee out of an office in South Melbourne for - no,

8

originally the city, Collins Street for Primelife

9

Corporation.

So my home was my work office, but my

10

office was actually a space about this big behind the

11

desk, up against a wall.

12

administer my two contracts with my two clients because I

13

was paid as an external lawyer, but treated as an

14

internal.

15

number extension in either place, Geelong or the city it

16

would come through to my mobile phone wherever I was in

17

the State.

18

business that I've kept for the whole of the last decade.

19

Um, so cohabiting, I'm not spending a lot of time there.

20

Miss Cressy had - sorry, no, I'll talk about sources and

21

earnings separately.

22

accommodations.

23

two infant half sisters moved into that house where I and

24

Miss Cressy and the two boys and Illyana were living, for

25

about six months and that is, I believe, consistent with

26

Gail Cressy's evidence.

27

2002, consistency there, Your Honour.

28

consistency in 2003.

29

2003 when all three of us adults and five children then

30

moved to 2 Dorrington Street, Point Cook.

31

that because the house was constructed, um - it was just

1.SB:ASC 05/12/08 2Cressy

It was just a place to

All my communications you'd dial a three

Um, that's a method of operation of my home

Let's just keep on - on the

From there, um, Miss Cressy's mother and

FTR:22

That was about September/October And then there was

I know for a fact it was 7 March

184

And I know

IOANNOU XXN

1

the one block, the 2 Dorrington Street, Point Cook at

2

that point.

3

part of the package, all of the - all of the decorations,

4

the walls, everything was painted, it was all brand new,

5

there was nothing left to be done, carpet, tiles, all the

6

fittings, absolutely nothing to be done but hang a few

7

curtains for privacy's sake.

8

I had very high fences in any case, so you could almost

9

get away without the privacy, um, in terms of having to

The garden was landscaped by the builder as

Um, and strictly speaking,

10

have curtains.

Very little needed to be done.

Um, I - I

11

paid all of the deposit, I paid for all of - - -

12How much was the deposit?---Um, let me see, it was a land 13

purchase which was 79,500 and I did this on - it would've

14

been a 20 per cent equity basis and the reason I say that

15

is because you get a different level of due diligence

16

required from the lender.

17So you bought the land for 79,000?---Yes, off Metricon Homes 18

and as part of the deal stapled to that, was a

19

construction contract.

20And you - - -?---It was a very large house. 21But firstly just starting on that, you just pay a deposit for 22

the land, do you?---No, this one was actually all stapled

23

together, so it was 79,500 for the land.

24Yes?---And it was, I think from memory, $178,100 or something 25

for the construction of the house.

And I maxed up

26

everything, I mean, your high ceilings - - -

27How much deposit did you pay?---Um, 20 per cent. 28Of what, about 250?---Yes, Your Honour. 29So that is about 50,000 deposit?---16 on the land and 34 on the 30

house.

Yes, about 50,000, Your Honour, yes.

31

our maths coincide?

1.SB:ASC 05/12/08 2Cressy

FTR:22

185

Sorry, did

IOANNOU XXN

1Yes, but I do it the easier way. 2

50,000 deposit and you say it

came from your funds?---Yes, of course Your Honour.

3Ms Cressy said that you both contributed to the deposit, you 4

disagree with that do you?---Yes, I do, Your Honour.

I

5

had a lot of trouble getting finance for that and those

6

negotiations with my financiers are all through Wizard

7

Home Loans, started very early in - actually no, late

8

2001 I think I started trying to get finance, it took an

9

enormous amount of time.

Part of the reason was because

10

of my unusual circumstances being self-employed and not

11

having any track record at all, I'd only been self-

12

employed for less than the minimum two years before the

13

lenders would even look at you.

14

through Colonial - sorry, maybe I'm not allowed to look

15

at documents, Colonial State Bank, which then became a

16

subsidiary of the Commonwealth Bank and so a lot of my

17

banking business I then diverted to the Commonwealth as a

18

result.

19

because of the situation with those records that I had

20

stored - do I need to put this in positive evidence in-

21

chief Your Honour?

I eventually got finance

They were the original lender.

Now, again

22What's this?---My boxes of records referred to in the minutes, 23

the other matters on the hearing of 18 March 2008 before

24

Mr Justice Whelan.

25

shed at my 166 Queen Street property which were to be

26

handed up to me but I say were never handed to me and

27

therefore just as with Mr Iannou providing me with his

28

correspondent parts of his files, I had to go to my

29

original lender, Colonial State Mortgage, in order to get

30

those.

Records I had stored in a storage

31What is that you have in your hand?---What I have here is a 1.SB:ASC 05/12/08 2Cressy

FTR:22

186

IOANNOU XXN

1

letter from Commonwealth Bank, the new parent of Colonial

2

State mortgage, kindly giving me their archived copies of

3

my loan documentation for my original purchase.

4

first purchase of any of the copies of - - -

The

5Of Dorrington Street?---2 Dorrington Street, Point Cook. 6What do you want to do with that, tender it?---I would like to 7

tender it Your Honour.

This is my only copy in the world

8

in my possession, these documents.

9I will receive that Mr Devries. 10

I take it you wish to have a

look at that?

11MR DEVRIES:

I would like to, Your Honour, I'm trying to think

12

of a way that I can do that without delaying but I'm not

13

sure I can.

14HIS HONOUR: No. 15 16#EXHIBIT 11 17 18 19 20HIS HONOUR: 21

You say all these relate to number 2 Dorrington?

---2 Dorrington Street.

22MR DEVRIES: 23

Letter from the Commonwealth Bank to the Defendant dated 5/11/08, together with enclosed photocopies of loan payment and financial documents.

I would be happy to peruse them whilst Mr Johnson

continues the way he is going, Your Honour.

24MR JOHNSON:

I am grateful to my learned friend.

25HIS HONOUR:

Thank you very much?---Now, even though Ms Cressy

26

was living in the same house as I when I was organising

27

this, I put about eight or nine months of effort into

28

this without telling her anything about it.

29

and got the finance approval, up to three or four knock

30

backs.

31

for the house, did not tell her anything about this and

32

the reason was because we were going through a stage

33

where Ms Cressy was involved in a long term intimate

I organised

I organised the design and the optional add-ins

1.SB:ASC 05/12/08 2Cressy

FTR:22

187

IOANNOU XXN

1

relationship with another gentleman, a Mr Peter Cochrane,

2

who I did not know at the time but there was some very

3

nasty stalking behaviour that I was a victim of and some

4

identity theft that started happening around about - - -

5MR DEVRIES: 6

This has got to be - it borders to hearsay Your

Honour and irrelevant as well.

7HIS HONOUR:

It's hearsay, it's irrelevant.

What on earth has

8

this got to do with it?---Your Honour, it goes to a) was

9

Ms Cressy involved in the process of the property.

10Well, you say she wasn't?---Totally not, and the reason was we 11

didn't really have - we weren't that close that I would

12

get her involved in it.

13

cutting all ties with Ms Cressy at that time because Your

14

Honour with her brothel activities and this gentleman,

15

who was the fellow that I subpoenaed but he failed to

16

turn up.

I was seriously looking at

17You say the relationship cooled because of the nature of 18

Ms Cressy's work and she was having a relationship with

19

another man?---Correct, Your Honour.

20

to me who was stealing my identity and sending me emails

21

from a hotmail account, JamesJohnson741.

22Well, there you are.

Another man unknown

Now, the next matter is this, you were

23

proceeding to design the house, is that right?---Yes,

24

yes.

25How big was the house?---It was large, it had lots of bedrooms. 26How many bedrooms did it have?---Gee, I wish I had a plan. 27

There was a master bedroom which was a suite big enough

28

to include like a sitting area.

29Yes?---It was one of those populist McMansions, single storey, 30

about 34 squares including the double garage.

31

two lounge areas with a kitchen in between.

1.SB:ASC 05/12/08 2Cressy

FTR:22

188

There were We IOANNOU XXN

1

configured the internal walls so that the study nook was

2

either a bedroom or an office or a retreat, the computer

3

room - - -

4I just asked how many bedrooms were there?---Thank you.

Well

5

that's two.

So

6

there were five double bedrooms.

Then there were three more bedrooms.

7So you say you negotiated the design of that and the finance on 8

your own?---Yes.

9Because your relationship with Ms Cressy was cooling?---Yes, 10

yes.

11Righto?---I believe for a part of that time Ms Cressy was 12

actually living with the children and her mother in a

13

little suburb south of Geelong.

14

had got to that bad.

15

off for hearsay and irrelevancy, but Your Honour, what

16

had happened is that this fellow, Peter Cochran's

17

stalking was so bad and aggressive, including mail theft,

18

and Ms Cressy had it in her mind because of the intimate

19

nature of the - - -

Um, Winchelsea.

Um, I figure that I'm gunna be told

20MR DEVRIES:

I have - - -

21HIS HONOUR:

Yes?--- She thought that I her stalker,

22

Things

(indistinct).

23MR DEVRIES:

- - - (indistinct) is hearsay Your Honour.

24HIS HONOUR:

You're objecting?

25MR DEVRIES:

Yes.

26HIS HONOUR:

Right, now if - do you say that Ms Cressy was not

27

all this time living at South Yarra.

28

you're trying to make?---Yes.

Is that the point

Yes Your Honour.

29How much of the time was she not at South Yarra?---She would 30

simply take the children and Illyana

31

without telling me anything.

1.SB:ASC 05/12/08 2Cressy

FTR:22

189

and just disappear

IOANNOU XXN

1Yes?---I believe she'd want - no I can't say - I definitely 2

can't say that (indistinct).

3No, well, how many times do you say she left?---After a while 4

you become numb to it and you don't count any more.

5Well it was more than one then I take it?---Yes, yes, yes. 6How long a period of time did she leave for on each occasion? 7

---This would be variable.

8Just approximately?---Sometimes a week or two, if it was school 9 10

holidays, so there was no urgency to be in Melbourne for work or for children for crèche, that sort of thing.

11All right?---Yes. 12How you proceed. In the meantime you're designing the house and 13

you go straight into the finance?---Yes.

Yes that's

14

right.

15

Your Honour, but this is the problem I had because the

16

witness that I subpoenaed, Mr Peter Cochran didn't turn

17

up even though he was properly served.

18

guidance about how do I get him compelled to come here,

19

because he's in breach of the subpoena by (indistinct)?

And, and construction is starting.

20We'll deal with that in due course.

I'm sorry

Can I have some

I can have him dealt with

21

for failing to - if you prove service of the subpoena, I

22

can have him dealt with and brought to court, but I'd be

23

loathe to do that if he's irrelevant?---I would have

24

thought that the relevance is - - -

25But in the meantime we're in the middle of your evidence?---I'm 26

sorry Your Honour.

27Yes?---I know.

I've got too many (indistinct).

28Just keep your mind on the job?---Thank you Your Honour. 29And bear in mind the warning that Ms Sofroniou was good enough 30

to give to you?---Yes.

31

Um, eventually I did tell Ms Cressy about the house at

1.SB:ASC 05/12/08 2Cressy

FTR:22

Thank you Your Honour.

190

Um, OK.

IOANNOU XXN

1

Point Cook, Dorrington Street, and it got to the point

2

where she did move into that house with me, as - as I

3

mentioned earlier, along with the three children and her

4

mother and the two half sisters.

5When did she move in?---Well, as I said earlier Your Honour, I 6

- - -

77 March 2000?---7 March 2000. 8When did you move in?---It was - it was a - the whole 9

household, three adults - - -

10You all moved together?---All moved together, yes. 11

right.

12

them.

13

Crossing.

That's

Then I have the two identical twins as I call The Hawkhurst and Lisa Court properties at Hoppers

14Yes?---Now they were Devine Pioneer house and land packages. 15

Similar story.

I went off of course on my own and spoke

16

to Devine Pioneer.

17

approval for the Point Cook, 2 Dorrington Street.

18

Construction hadn't even started, and I thought with a

19

bit of gusto, well if I apply for one, I might get

20

knocked back, but if I apply for two it'd be grand,

21

because everyone, like the selling agent doing the same

22

work - same amount of work really and a double bonus, et

23

cetera, et cetera, so they kind of roll out the red

24

carpet and it worked.

25

pair.

26

next to each other, not that it mattered as it turned

27

out, so I took them sort of a few hundred metres apart

28

and not - located.

29

size.

30

Now, I went to AMP Bank there for the purchase and

31

funding because of an infinity scheme through the Law

Now this was while I just got

So I bought - I bought a pigeon

I picked out the blocks, but I didn't want them

The land - it was land about the same

One block was 61,000 I think, one was 64,000.

1.SB:ASC 05/12/08 2Cressy

FTR:22

191

IOANNOU XXN

1

Institute, and I did a 20 per cent equity, 80 per cent

2

mortgage, because that's the maximum amount within

3

(indistinct) due diligence, and it almost worked like a

4

soft loan without full financials because of being a

5

professional man, Law Institute, AMP wanting to build

6

their book at that stage.

7

Two blocks of land.

8Yes.

Do I take it then you had to pay 20 per cent of

9

the - - -?---yes, yes.

So that was all quite nice.

10- - - purchase price which was?---106,400. 11Yes?---Now I was earning substantial money at that stage and 12

the way the tax system worked is that the tax for the

13

year didn't have to be paid until you lodged your tax

14

return which would be 12 months later and it was - you

15

had like 15 months' use of your tax part of your

16

earnings.

17

permanently locked in, provided they didn't change the um

18

pay as you go, pay as you earn system, which of course

19

they did in about 2003, but at that point I had like -

20

the tax man's money that I could borrow before I had to

21

give it to him in 15 months, so it was very easy for me

22

to fund these out of - out of cash earnings.

23

that.

24

worried that I would not go through with the

25

construction, but I assured them I did, and I got that

26

approved as well on the same 20/80 basis.

27

houses - - -

Settled on the land.

28For the land? 29

So I had like - and that would be like

So I did

The builder was a bit

The

For the houses?---For the houses, which were

virtually identical.

30How much did they each cost?---The Lisa Court one was just over 31

100,000 - 106,000 I think.

1.SB:ASC 05/12/08 2Cressy

FTR:22

192

IOANNOU XXN

1Yes?---And the Hawkhurst one, which had one less bedroom, not 2

as nice a design, was I think just - I think it was

3

99,000.

4What was the terms of that? 5

Again, 20 per cent equity?---20,

20 - - -

620 per cent deposit?---Yes, yes.

20/80, that's right.

7So you would have paid about $40,000 deposit?---Yes.

Yes.

8

Now, it didn't - it was even better than that in cash

9

flow Your Honour, because what happened I paid the

10

deposit on the land, then I only had to pay my - so I put

11

my 20 per cent in, the bank did the rest, I owned the

12

land.

13

progress payments.

Then the builder built the house and there were

14Yes?---I only had to put 20 per cent in to the building, so 15

about 20,000 each.

And AMP were lovely.

They funded the

16

80 per cent, but I completely exhausted the mortgage

17

component.

18

to put the last 20 grand in.

19

save up the 20 grand and the 26 grand to meet that

20

component.

21

turned out that all three houses basically were completed

22

around the same time.

23

when all three adults, five children moved in.

24

ones in May and June.

25

Street, 7 March, I noticed that the block behind had a

26

for sale sign on it.

The bank put their 80 grand in.

I only had

So I had like a year to

Um, so it - cash flow was just lovely.

It

Dorrington Street in early March, The other

Now in moving into Dorrington

27The developer was quitting, he wanted to cash in on the 28

increasing value which was a bit naughty because there

29

were covenants, developers in those areas buy cheap.

30Irrelevant, keep moving?---Thank you, Your Honour. 31I asked the property behind the sale?---The price advertised 1.SB:ASC 05/12/08 2Cressy

FTR:22

193

IOANNOU XXN

1

was 120,000, it had been up on the market for just two

2

days.

3

that at 115,000 they would be making 100 per cent profit

4

and they would gear it to go and buy four blocks to build

5

off.

6

that conversation.

I, sitting at lunch, rang the agent and I knew

So I knew I'd get a deal and it was concluded in

7So how much did you purchase it for?---115,000 on a 20/80 per 8

cent loan, again through AMP Bank, and the whole thing

9

was done and documented and settled within 30 days.

10Who paid the deposit?---Me, Your Honour.

One of the exhibits I

11

handed up has all of my original documentation which I

12

handed up to you yesterday, it's the blue folder with the

13

plastic.

14What has that got, is that with the documentation?---All of the 15

original documentation of that period.

16Of Inverloch Drive?---To purchase Inverloch Drive, yes. 17So if we show you Exhibit 1 that can be - - - ?---I am indebted 18

to your Tipstaff, this is all of that documentation.

19I am not sure but was that tendered for identification? 20

---Exhibit 1 Your Honour.

21You say that is a folder of documents relating to the purchase 22

of Inverloch Drive do you?---Yes, yes, and you see how

23

simple it is.

24You wish to tender that absolutely now?---Yes. 25I will receive Exhibit 1 absolutely. 26 27#EXHIBIT 1 Folder of documents re purchase of 28 Inverloch Drive. 29Yes?---At that stage because I was putting the finishing 30

touches to Dorrington and paying my last $20,000

31

contributions to equity in the two houses, my cash was

32

getting a bit constrained, so I left that block unfenced,

1.SB:ASC 05/12/08 2Cressy

FTR:22

194

IOANNOU XXN

1

even though it was seven - two Dorrington Street, a

2

cinder block drive like an L shape configuration they

3

weren't continuously fenced at that point, I didn't have

4

the $400 just to spin the fence around.

5

was a little bit tight, I kind of got it and spend it and

6

working longer hours to get the cash flow to work that

7

through which of course I did.

8

cohabitation at Dorrington Street.

9

the plaintiff's two infant half sisters they moved out -

The cash flow

Okay, that's our Ms Cressy Senior and

10

sorry, Rose and Grace and Gail, they moved out of

11

Dorrington Street in June 2003, so they had six months of

12

three adults, five children at South Yarra, followed by

13

about three months five adults - sorry, three children

14

and five adults at Dorrington Street, Point Cook.

15

house at Lisa Court, they moved into that and I organised

16

a concessional rent agreement for Ms Cressy.

17

me in all of the years prior to that she had never spent

18

two consecutive Christmases under one roof in her whole

19

life with her children.

20MR DEVRIES:

This is hearsay Your Honour.

21HIS HONOUR:

I agree?---I'm sorry, Your Honour.

The

As told to

I wanted to

22

give those children, Grace and Rose, stability in their

23

lives and I did achieve that, they were living at that

24

premises for four years.

25

Hoppers Crossing were very expensive, they were $160,000,

26

$170,000.

27

terms of they weren't negatively geared, they pretty much

28

balanced, provided that you had a tenant that paid the

29

market rent.

30

had a very bad tenant who destroyed the brand new home at

31

Hoppers Court and of course Ms Cressy Senior was on

1.SB:ASC 05/12/08 2Cressy

Now, neither of those houses at

20 per cent equity was a lot of equity in

I didn't have that with either of them.

FTR:22

195

I

IOANNOU XXN

1

basically - the lease - the rent was only 50 per cent of

2

the market.

3

medical issues, a lot of stress, that was all she could

4

afford.

5

there.

6

to note it, I won't do that.

7

residence for myself which was the 909 apartment in 668

8

Bourke Street, just around the corner, and in late July I

9

moved into that premises by myself.

She was on a pension, she had certain

So that was the living arrangement occupancy What I did and this is partly - sorry, I'm going In July 2003 I organised a

Since that date I

10

have always lived alone.

I lived at that premises alone.

11

You know I had my children for sleepovers, girlfriends

12

would come for sleepovers.

13

domestic living partner at any time from late July, Early

14

August 2003 when I moved into the Bourke Street

15

apartment.

16

a fully functioned office and support staff within Barwon

17

Water.

I never had a bona fide

At this stage I had a lot of addresses, I had

18In where?---Barwon Water in Ryrie Street, Geelong.

I had the

19

de facto status of a branch manager, I had a reporting

20

line directly to the chief executive and the chairman.

21

My official report was to the company secretary but we

22

functioned pretty much as equals.

23

latitude because - in terms of pecking order - wonderful

24

latitude because I could choose which days, how many days

25

of the week I was down there and I had exactly almost the

26

identical twin arrangement with a publicly listed company

27

PrimeLife Corporation helping out the General Counsel as

28

one of the four lawyers in that legal team, so I'm

29

working probably 50 hours every week in the city for

30

PrimeLife Corporation.

31

Street were a godsend because it was less than half a

1.SB:ASC 05/12/08 2Cressy

FTR:22

I had wonderful

The premises in Melbourne Bourke

196

IOANNOU XXN

1

block away and then I would have this lovely no traffic

2

against the flow over the Westgate down to Geelong when I

3

needed to do that.

4

to spend time with me, my three Johnson children, in my

5

apartment.

6

that if you close the two bedroom doors and you would

7

have a lounge room, you have a balcony, lovely views,

8

full bathroom, full kitchen and it was like a bedsit

9

apartment.

I would have my children coming over

Basically what I did was I configured it so

Now, my bed for the last decade since I left

10

the Johnson family home up in the Dandenongs, my bed has

11

always been a couch but it's one of those couches that

12

folds out.

13

Basically what I would do is I would fold that out, it

14

was sort of long enough that I wouldn't even need to fold

15

it out.

16

three days a week, into my home.

17

one of the bedrooms – work out of one of the bedrooms

18

which I'd set up as a study.

19

role there was administering my two contracts.

20

organise the billing and the mailing and that sort of

21

thing.

22

core of my working life I was either in my fully

23

functional office in Geelong, Client 1, or my fully

24

functional office in the city for Client 2.

25

close that study room door and you'd never what's behind

26

it, whether it was a bedroom or an office or what and

27

that's what I would do at the times when my personal

28

assistant wasn't in there.

29

exactly the same and it had a second fold out couch so

30

that if my children came and stayed over, they would have

31

the larger couch in the lounge area.

I had two of those in Apartment 909.

I had a personal assistant who would come in And she would work out

Now, basically her sole Basically

I would do writing, (indistinct) work but the

1.SB:ASC 05/12/08 2Cressy

FTR:22

197

I could

The other room was set up

I would sleep in IOANNOU XXN

1

the study/bed couch room.

Now, Your Honour, they loved

2

that and just as an indication of the residential nature,

3

I had a big projector television, wall screen, so the

4

kids could come and they could lay on the couch playing

5

PlayStation games.

6

which was absolutely – the kids loved it, really loved

7

it.

8

to move out in sort of the first half of 2006.

9

reason was I wanted a bigger room, I wanted to get more

Bigger than, you know, real life

My decision to move out of that apartment, I decided The

10

staff coming in.

I was looking at still using my home

11

office, office home setup but having more staff working

12

there.

13

factory.

14

in the residential apartment.

15

appropriate, I thought that would be tacky.

16

serviced office at Level 40, 140 William, corner of

17

Bourke and William Street.

18

needed to have in my practice I would hold there.

19

Sometimes, depending if I had extra contracting staff, we

20

would organise a temporary office space up there but that

21

was kind of like the public image of the firm.

22

said, I very rarely needed to – I had very few private

23

clients other than my two clients so all of the meetings

24

were down in my office or the manager's office onsite in

25

Geelong or in my office or the manager's site office at

26

the city.

27

I was also strongly in favour of telecommuting my staff.

28

They could work from home with the internet and notebooks

29

and - as long as the work got done I didn't care where

30

they worked from.

31

and both office.

And it was becoming during the daytime it was the Now, for customers, I never had client meetings

1.SB:ASC 05/12/08 2Cressy

I never thought that was I had a

So any client meetings that I

But that

So there really wasn't much work traffic.

And

So, yes, my residences were both home They tended to switch character

FTR:22

198

IOANNOU XXN

1

depending on whether it was daylight or night time.

But

2

in most respects, for a single living man, not a bad

3

arrangement in terms of a home office environment.

4

During the time that I was living in the city, so we're

5

talking from July 2003 up until it becomes irrelevant,

6

September – August September 2007, children would stay

7

over in my apartment.

8

also Ms Cressy's two boys and Illyana.

9

been raised from birth to think of me as his dad as well.

Both my three Johnson children, Now, Skye had

10

I always felt a bit awkward about that because Skye was

11

born ten days after my daughter, Jessica, by my legally

12

married wife.

13

probably is, Your Honour, she was conceived during the

14

estrangement of my wife and I as part of a sort of

15

attempting to come closer together.

16

the two children are born ten days apart.

17

period there would be times when I would sleep over with

18

the Cressy family in Point Cook.

19

the commuting, city, Geelong, Melbourne, I had clients

20

with the other water boards up on the Murray and down at

21

Warrnambool as well (indistinct) but a bit of travelling.

22

I would constantly be very tired, overworked, you know,

23

60, 70, 80 hours a week not unusual.

24

Your Honour, what I have I'd like to - - -

Jessica – maybe it's irrelevant detail,

A coincidence that During this

Sometimes with all of

Which reminds me,

25How often did you go to the Point Cook property during that 26

period?---Look, as a rule I tended to see the Cressy

27

family more weeknights.

28What sort of time would you go over there?---Well look it 29

really depended - and some days see I have the

30

flexibility, I could take a whole day off, I could take a

31

Friday off at the drop of a hat because I had no one to

1.SB:ASC 05/12/08 2Cressy

FTR:22

199

IOANNOU XXN

1

account to.

So I can have a day off during the week. OK.

2

There were times relations between Pippin and I were

3

good, OK.

4

2007, just that week after Easter things started to go

5

extremely astray.

6

Sometimes I would sleep on a pull-out couch in the

7

computer room.

8

what I had in the city.

9

next to one of the kids reading to them at night.

Pretty much all the way through until April

Um, I would often sleep over.

I'm in kind of like a mini duplication of Sometimes I might fall asleep It was

10

always a bit of danger for me reading to the kids because

11

I would tend to fall asleep when the children did.

12

sometimes - - -

13You haven't answered the question I asked you.

Um,

You said you

14

generally went over there at week nights?---Yes, yes, a

15

couple of nights a week - - -

16What sort of time?

What sort of time would you go over there?

17

---Um, I was working, coming up from Geelong it might be

18

earlier, might be six o'clock, coming from Melbourne to

19

Point Cook it might be later, seven o'clock, eight

20

o'clock.

21Yes?---Usually there'd be a dinner, there'd be family time.

I

22

might sleep over I might not, depending on the social

23

questions or workload.

24

Miss Cressy, we might sleep in the same bed.

25

there might be sexual relations, sometimes there might

26

not be.

27

rarely but I can think of maybe three occasions in 2006

28

and even three in 2007 where we were sexually active.

29

Um, Miss Cressy and I would occasionally go out on dates

30

but not very often.

31

maybe three or four times.

Sometimes I might even sleep with Sometimes

Even into 2006, um, Miss Cressy and I were, um,

1.SB:ASC 05/12/08 2Cressy

FTR:22

I think for all of 2006 and 2007,

200

Perhaps the evidence I'm IOANNOU XXN

1

giving might sound like I'm shooting my case in the foot,

2

but I'm fulfilling my obligations of candour which I hold

3

as a man as well as an officer of the court.

4

want to conceal anything from anybody.

5

too much detail perhaps is driven a bit by that desire to

6

be truth and the whole truth, Your Honour, in all it's

7

detail.

8

with Miss Cressy, of course it was me who paid for

9

everything and with Miss Cressy in particular, it

I don't

My tendency to

Occasionally - sorry, if I did go out for a meal

10

wouldn't be like, um, Nando's before a movie, it would

11

have to be the $80 bottle of red with the expensive um,

12

seafood platter at the waterfront or Al Greco down in the

13

Southbank casino complex.

14

some social contact, um, even increasingly, rarely,

15

occasionally, sexual contact between Miss Cressy and I,

16

well after we ceased cohabiting in 2003.

17

a bachelor in the city, um - I would still and even up to

18

six months ago, I would occasionally sleep over at my

19

wife's up at Belgrave for one night, either in with the

20

two boys bedroom or on the couch.

21

varied sleeping pattern, even today when um - not very

22

well, there are three different couches in three

23

different towns, including Melbourne and Geelong where I

24

could be sleeping tonight, provided I've got the petrol

25

and the time to drive to them.

26

than three nights of any week, over the last decade, in

27

the one residence, Your Honour.

28

that I'm a Lothario or anything like that.

29

2004 up until the end of 2006, I was dating a young lady

30

who was my main girlfriend, I guess.

31

sleep over at my apartment, not once did I sleep over

1.SB:ASC 05/12/08 2Cressy

FTR:22

So there was some contact,

201

Um, I lived as

So I did have this

I would not spend more

Um, that doesn't mean From early

Not once did she

IOANNOU XXN

1

with her, but at least once a fortnight, occasionally or

2

frequently we would have dinner together, we would see a

3

movie and um, yes, we were intimate on 50 per cent or

4

more or less of those occasions.

5

three to a relationship.

6

In January 2007, I met a lovely lady on a beach in

7

Torquay, a surf beach in January.

8

Portuguese background, school teacher and I was dating

9

Stella for the first four months of 2007.

So that was one of

That ended in December 2006.

Her name was Stella,

Um, that was

10

dating, again on my part and I believe Stella's part,

11

mutually monogamous.

12

went sticky between Miss Cressy and I to do with our

13

co-parenting and in relation to the children.

14

Miss Cressy and I naturally talked about spending Easter

15

2007 together, going on a holiday, crusing, chartering a

16

clipper throught eh Whitsundays and I raised that with

17

Miss Cressy a number of times.

18

thought, well I'm not going to waste my Easter, I'm going

19

off to Byron Bay, I'm going to do an open water diving

20

course.

21

you've got school holidays, why don't you come with me,

22

so she did.

23

did an open water diving course, 800 metres off the coast

24

of Byron Bay and it was lovely.

25

Easter.

26

Easter 2007 that she spent Easter with her boyfriend Mark

27

up in Sydney.

28

after I moved out of 2 Dorrington Street, Point Cook, I

29

would be every week giving Miss Cressy child support

30

moneys.

31

cost to Miss Cressy.

Easter 2007, just before things

We never did that so I

I was dating Stella at the time and I said,

So I spent my Easter 2007 with Stella and we

It was a wonderful

I am told by Miss Cressy about a week after

Now at that point and for the whole of

I was basically making the house available at no

1.SB:ASC 05/12/08 2Cressy

FTR:22

I was giving her $400 at a time, it 202

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1

would go up to $500, um, $600 I was giving her every week

2

for covering food and outgoings of living for the

3

children.

4

Monday I would draw $9000 of my bank account as drawings

5

and I would apply that, that was my Monday morning

6

routine apply it to mortgages, bank it into bank accounts

7

where it would be direct debited out to mortgages, bank

8

it into Julie's bank account.

9

month I think, 1100 twice a month and Ms Cressy who I

Generally speaking it would be cash.

Every

I was giving her $2200 a

10

would see (indistinct) for the children, this month

11

(indistinct) week I could give you $600.

12What's that for?

For child support?---Child support, yes.

13For who?---Well I guess my legal obligation was with Illyana 14

and the out flowing of (indistinct) was $400 a month but

15

for me it was for all of them.

16

Ms Cressy sufficient money so that she didn't have to

17

dabble part time, full time any time in adult services

18

provision.

19

too good for that line of work.

20

many years, and I believe that prior to leaving South

21

Yarra and moving to 2 Dorrington Street Point Cook that

22

Ms Cressy had turned things around and she'd given up

23

that "game for good", some of the words that Ms Cressy

24

expressed to me a number of times.

I thought she'd

25

turned her back on that lifestyle.

I was making sure

26

that she had sufficient cash.

27

her schooling, training, education courses.

28

Nicholson Street, South Yarra I paid for her to do the

29

correspondence at Stott's College (indistinct).

30

Your Honour she'd left high school in Year 9 I think, 15,

31

16 pregnant with Treece.

1.SB:ASC 05/12/08 2Cressy

And it was also to give

I always thought and still think that she's

FTR:22

Other things I did for

I was paying for her to do While at

You see

It was a major eruption in her 203

IOANNOU XXN

1

life and to her credit, to - you know, to be so young, to

2

be so pregnant and to see it through you know with

3

support with her mother, you know, the, there's some good

4

character showing through.

5

compared to how simple - - -

Very gutsy decision to make

6All right well we don't need a character reference?---Thank you 7

Your Honour.

Thank you.

So I'm paying for her.

I'm

8

trying to get her back into school educating, there was

9

Stott's College correspondence for I think that would

10

have been 2001 or 2002.

My memory does fade a bit.

11

There was a year full time at Taylors College to do

12

Year 12 and Ms Cressy was talking about getting into

13

dentistry.

14So you paid the Taylors school fees for - - - ?---Yes. 15- - - Ms Cressy did you?---Yes, yes.

I think they're about

16

$7000 a year.

I do have some copies of invoices where

17

I've noted down at the time.

18

records left surprisingly enough Your Honour, but I do

19

have some that show Your Honour at such and such a date I

20

paid such and such an amount and an ANZ cheque reference

21

number.

22

like 30 days, 60 days late so that I didn't have to - I

23

got to keep the money for a bit, you know business

24

(indistinct).

25

Honour but I do - I'll show these to myself.

26

too many hats Your Honour and a sense of humour

27

fortunately.

28

You can make of them as you will.

30

Ms Cressy.

31

as purchaser for - - -

I don't have a lot of these

Often I'd be juggling cash flow so I'd pay them

1.SB:ASC 05/12/08 2Cressy

Forgive me for turning (indistinct) Your See I have

Here are some Taylors College payments. They're made out to

Here's a bank cheque that is made out to me

FTR:22

204

IOANNOU XXN

1Well I don't think you need to prove it. 2

those school fees.

You say you paid

Now if - - - ?---Yes.

3- - - that's put in contest by Mr Devries and I doubt it will 4

be then no doubt you will, may be able to produce it then

5

but I don't think we need it proved that at this stage?

6

---Thank you.

7MR DEVRIES: 8

(Indistinct) I lost track of the dates Your

Honour, I must say.

9HIS HONOUR: 10

May I tender these - - -

When did - what dates are these?

This is at South

Yarra is it?---December 2002 and July 2003.

11Yes?---This is Taylors College.

May I tender these?

12Well if you wish to?---Thank you Your Honour. 13MR DEVRIES:

I have no objection to (indistinct) Your Honour.

14HIS HONOUR:

Thank you very much?---I appreciate this is

15 incredibly detailed Your Honour. 16 17#EXHIBIT 12 Memorandum of school fees from Taylors 18 College to plaintiff dated 19/12/02 and 19 14/07/03. 20MR DEVRIES:

I don't need to see them Your Honour.

21HIS HONOUR:

No?---I also have similar some exhibits of child

22

care - - -

23Tell me where did you obtain those documents from, the Taylors 24

documents?---Sorry, they're, they've just been caught up

25

in my things, record, records of things that I've had.

26Yes?---Yes.

I have similar evidence of paying the substantial

27

long term child care fees for some of the children.

28

is August 2003.

29

I had just moved into City Point Apartment 909.

30

not large amounts of money but may I tender those in

31

evidence Your Honour?

So this is after I was or about the time

32Yes you might?---Thank you. 33

This

They're

If we need to talk contributions

under Part 9 - - -

1.SB:ASC 05/12/08 2Cressy

FTR:22

205

IOANNOU XXN

1I follow?---- - - contribution, if we ever get that far Your 2 Honour. 3 4#EXHIBIT 13 5 6 7 8 9

Letter of Yarra Parish Mission to the defendant dated 20/08/03 together with attached statement of fees and letter of the defendant to Ms Jenny Hardigan dated 19/08/03 also with the attached statement of fees.

10MR DEVRIES:

If I could have a - - -

11HIS HONOUR:

You may.

12MR DEVRIES:

- - - whilst he's continuing with his evidence

13

Your Honour?---Your Honour also on my earnings I just

14

want to clarify a confidentiality point because I have

15

copies of my tax invoices from my two, three or four

16

clients from 2004 up to I think the end of 2007.

17

show my substantial earnings basically from two sources

18

over 2004, 2005, 2006, 2007 and they show that my

19

earnings were substantial.

20

These

They also showed that my hours of work, my

21

engagement letters required a minimum of 30 hours a week

22

with PrimeLife in Collins Street and then at Kings Way,

23

South Melbourne, and a minimum of 20 hours per week as a

24

performance condition down in Geelong.

25

of 50 hours.

26

50 hours at PrimeLife alone, probably another 20 to 30

27

hours a week in Geelong.

28

week at charge out rates of up to $275 an hour.

29

little weary to do the math in my head but 80 times 275,

30

that's a lot of money, particularly when you have even at

31

that stage a quarter before you do your BAS statement to

32

give the tax man his slice of your - I tender these - I

33

am assuming - I haven't asked my client - I should say

34

former client because I have had no clients for six

1.SB:ASC 05/12/08 2Cressy

So it's minimums

Now, for most of the period I was working

FTR:22

So I'm working eight hours a

206

So I'm a

IOANNOU XXN

1

months about their commercially sensitive information,

2

but I am assuming that there is no question of that

3

information being divulged to anyone not involved in this

4

proceedings.

5The information can only be used for the purpose of these 6

proceedings under the principles in Harmon?---Thank you,

7

Your Honour.

8

these will be handed back to me and no copies will be

9

allowed out.

And then at the conclusion of proceedings

10Normally exhibits are retained in the court, particularly if 11

there is an appeal?---That doesn't - that's acceptable to

12

me, no a problem.

13The defendants will certainly be entitled to look at the 14

documents and if they need to, for want of a better word,

15

take copies for the purpose of this case only then they

16

will be entitled to do that?---But then in due course

17

they will be - once the case is finished they will be

18

required to shred them, they can't be - - -

19I can't impose that on counsel. 20MR DEVRIES:

I understand my obligations.

21MS SOFRONIOU: 22

I don't propose to breach Mr Johnson's

confidentiality either Your Honour.

23HIS HONOUR:

I follow that.

24MR DEVRIES:

I am sure that my instructor also understands his

25

obligations, but we would at some stage like to see those

26

documents.

27HIS HONOUR:

I follow that?---I am indebted to my learned

28

friends for being much more learned on the matter in

29

issue than I am.

May I tender these please?

30Yes?---The context in preparing those was that in all of this 31

conflagration and stress of the last 18 months somebody

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207

IOANNOU XXN

1

made an anonymous tip off to the Law Institute - - -

2MR DEVRIES:

This is - - -

3HIS HONOUR:

This is irrelevant.

4

What I want to do is mark

this as an exhibit?---All right Your Honour.

5What do we call this in general terms?

It's a folder

6

containing what?---Tax invoices for Harold James

7

Johnson's legal practice.

8For what period?---I think they're financial years 2004, 2005, 9 2006, 2007. 10 11#EXHIBIT 14 Tax invoice for Mr Johnson for the 12 financial years ending June 2004, 2005, 13 2006 and 2007. 14Yes?---And, Your Honour, the earnings information there will 15

match up with the bank account statements in the other

16

exhibits being the financing and refinancing documents

17

for each property and they will also match up with the

18

tax returns prepared for those relevant years as well,

19

and I might say that although I am often regarded in the

20

profession as a tax lawyer and still to this day even

21

called Mr GST, I am not really an income tax lawyer and I

22

have never since my university days prepared a personal

23

tax return, I have always used the same tax agent, H&R

24

Block, and that will show consistently through the

25

financing documents, and also the four boxes of documents

26

which are sitting in safety.

27Let's just remain on the relevant issues for a moment?---Thank 28

you, Your Honour, thank you.

29MR DEVRIES: 30

Sir, given the time I need to ask Your Honour a

question before we rise.

31HIS HONOUR:

Is this an appropriate time to - I think we will

32

give you a rest now Mr Johnson and return to your

33

evidence on Monday morning.

1.SB:ASC 05/12/08 2Cressy

FTR:22

208

You may stand down and IOANNOU XXN

1

resume your alter ego as representing yourself at the Bar

2

table?---Thank you.

3<(THE WITNESS WITHDREW) 4MR DEVRIES: 5

If Exhibit 14 could be released to my instructor

with the usual undertakings.

6HIS HONOUR:

Yes, the exhibits which have been thus far

7

tendered on behalf of the defendant I will just give a

8

global direction that they can be released to the

9

defendants for their perusal and the usual undertaking.

10MR DEVRIES: 11

If Your Honour pleases.

This matter is clearly,

with respect, not going to finish on Monday.

12HIS HONOUR:

No.

13MR DEVRIES:

I am really concerned about where it is going to

14

go after Monday and if I can just foreshadow at this

15

stage, Your Honour, if by some expedient it happens to be

16

adjourned off or need to come back, I cannot possibly be

17

available from 19 December to the end of this year.

18HIS HONOUR: 19

This case will complete this year.

Now, how many

other witnesses have you got?

20MR JOHNSON:

Only myself, Your Honour, and I guess I perhaps

21

might only need another evidence-in-chief, two at the

22

absolute maximum.

23MR DEVRIES:

I am more concerned about when we finish, then we

24

have address, then we might have to come back and talk to

25

Your Honour about Gilda v. Pockapeds apart from anything

26

else and reserve decisions and so on.

27HIS HONOUR:

What we will do, Mr Devries, we will complete

28

evidence hopefully the defendant on Monday.

29

think I need to commit Ms Sofroniou as to whether she is

30

going to call witnesses or not.

31MS SOFRONIOU:

I don't

No, Your Honour has anticipated me.

1.SB:ASC 05/12/08 2Cressy

FTR:22

209

IOANNOU XXN

1HIS HONOUR:

So I am not going to require you to respond to

2

that.

But I would hope that on any view of the world the

3

evidence finishes by half way through Tuesday.

4

then hear final addresses.

5

Wednesday and I would hope to get a judgment out before

6

we break for Christmas.

7MR DEVRIES:

We will

We should finish this case by

If Your Honour please, but if that is going to

8

happen after the 18th, if I can have - I know I am

9

jumping the gun - but leave not to be present.

10HIS HONOUR:

If that occurs then then I will simply hand down

11

my written reasons and then adjourn the matter for orders

12

in the new year.

13MR DEVRIES:

I am indebted to Your Honour for that indication.

14HIS HONOUR:

I will be going from - provided it's manageable -

15

from evidence into final address.

16

evidence into final address hopefully Monday or Tuesday.

17MR DEVRIES: 18

We will be moving from

Probably more like I suspect Tuesday than Monday

Your Honour.

19HIS HONOUR:

Yes.

I have had access myself over lunch to

20

Byrnes and Kazan and Finlay and Beswick, so I don't need

21

copies of that.

22

got the decision of Osborne J which I forget the name of

23

it and the decision of Cummins J.

24

Rye v. Dassious.

25

constructive trusts I think.

26MR DEVRIES: 27

I have also got Robertson, Austen, I've

I think that might be

I also have the relevant decisions on

I am indebted to Your Honour for those

indications.

28HIS HONOUR:

My staff will need to get away earlier today so I

29

would be grateful if the parties could clear the court

30

quickly after court.

31

10.30 on Monday.

1.SB:ASC 05/12/08 2Cressy

FTR:22

Otherwise we will resume this at

210

IOANNOU XXN

1MR DEVRIES:

May it please Your Honour.

2ADJOURNED UNTIL MONDAY 8 DECEMBER 2008

1.SB:ASC 05/12/08 2Cressy

FTR:22

211

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