Fantakis v Commissioner of Corrective Services (NSW)

Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Coleman v Director of Public Prosecutions (2002) 5 VR 393; [2002] VSCA 116
Dacich v Commissioner for Corrective Services [2020] NSWCA 359
Dacich v Governor of Dilwynia Correctional Centre [2021] NSWSC 1333
Dacich v Picton Local Court [2020] NSWSC 1714
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fantakis v R [2023] NSWCCA 3
Fantakis v R (No 2) [2023] NSWCCA 22
Fantakis v R (No 3) [2023] NSWCCA 35
Hunter v Chief Constable of West Midlands [1982] AC 529
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1
Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396
R v Darby (1982) 148 CLR 668; [1982] HCA 32
R v Fantakis; R v Woods [2018] NSWSC 1700
R v Fantakis, Woods and Cheong [2018] NSWSC 749
Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Texts Cited: Nil

Category: Principal judgment

Parties: Terry Fantakis (appellant)
Commissioner of Corrective Services (NSW) (first respondent)
Director of Public Prosecutions (NSW) (second respondent)

Representation: Counsel:
Self-represented (appellant)
S Palaniappan, R Thampapillai (respondents)
Solicitors:
Crown Solicitor’s Office (respondents)

File Number(s): 2025/451706

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Terry Fantakis, is serving a sentence of imprisonment for the murder of Elisha (Sam) Karmas on 11 August 2011. The appellant was tried alongside two co-accused, Andrew Woods and Derek Cheong, who were charged as accessories after the fact to murder.

The murder was alleged to have taken place at a property located on Wilga Street in Punchbowl, NSW. The indictment did not particularise the Crown case beyond the date and the suburb.

By the close of the Crown case at trial, the period in which it was alleged that the murder occurred had been refined to 67 minutes in the early afternoon. The appellant referred to this aspect of the case as the “first case theory”.

In his closing address to the jury, in addition to referring to the first case theory, the Crown prosecutor also raised the possibility that Mr Karmas left the Wilga Street property and was killed after he returned to it at 5pm. The appellant referred to this aspect of the case as the “5 o’clock theory”. As Mr Cheong had left the premises by 5pm, this alternative was fatal to proof of his knowledge of the murder, which the Crown prosecutor acknowledged in closing.

After closing addresses and before the trial judge’s summing up, the appellant’s trial counsel and counsel for the Mr Woods raised an issue about the asserted “shift” in the Crown case, and applied for a direction to be given to the jury that their consideration should be limited to the first case theory. The trial judge refused that application and noted in her summing up that although the Crown’s primary position was that the murder occurred in a 67 minute window earlier in the day when Mr Cheong was at the property, the 5 o’clock theory was also before the jury and should be borne in mind.

On 25 May 2018, the appellant was found guilty of murder. Mr Cheong was acquitted. On 8 November 2018, he was sentenced to a term of imprisonment of 24 years, commencing on 3 October 2013 and expiring on 2 October 2037, with a non-parole period of 18 years expiring on 2 October 2031.

In his conviction appeal, the appellant’s grounds included that the first case theory and 5 o’clock theory were mutually exclusive and could not both be pursued by the Crown, and that the acquittal of Mr Cheong was inconsistent with his conviction. The appellant’s complaints about the conduct of his criminal trial were considered comprehensively by the Court of Criminal Appeal, and the appeal was dismissed. The appellant did not seek special leave to appeal to the High Court.

By an amended summons dated 30 July 2025, the appellant applied for a writ of habeas corpus pursuant to s 71 of the Supreme Court Act 1970 (NSW), directed to the Governor of the Macquarie Correctional Centre. He also sought a number of declarations relating to the conduct of his criminal trial.

On 2 September 2025, the primary judge dismissed the proceedings. His Honour concluded that the sentence warrant was a complete answer to the application for a writ of habeas corpus. His Honour further concluded that the declarations were directed to some of the very same complaints that were litigated and finally decided in the conviction appeal, and it was not open to his Honour to adjudicate claims that the Court of Criminal Appeal’s dismissal of his conviction appeal was wrong.

The appellant advanced three grounds of appeal, which submitted that the primary judge had failed to exercise jurisdiction and afford natural justice, that his Honour had misdirected himself on the jurisdiction of the Court to remedy the jurisdictional errors alleged to have occurred in sentencing the appellant, and that his Honour failed to afford natural justice and acted unreasonably in denying declaratory relief.

The Court (Mitchelmore JA, McHugh JA and Ball JA agreeing) held, dismissing the appeal:

(1) An order of a superior court of record, even if made in excess of jurisdiction, is valid until set aside. The orders the trial judge made on sentencing the appellant, and the warrant issued pursuant to those orders, stand as legal authority for his detention: [37] (Mitchelmore JA) (McHugh JA at [61] agreeing, Ball JA at [62] agreeing).

State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396, applied.

(2) The appellant’s application for a writ of habeas corpus was not an appropriate avenue through which to reagitate his complaints about what occurred during his criminal trial. The decision of the Court of Criminal Appeal comprehensively dealt with these complaints, and that decision stands, in circumstances where the appellant did not seek special leave to appeal: [40], [47] (Mitchelmore JA) (McHugh JA at [61] agreeing, Ball JA at [62] agreeing).

(3) The terms of the declarations that the appellant sought were directed to a collateral attack on his conviction for murder. The matters he advanced in the form of positive declarations had been considered and dismissed by the Court of Criminal Appeal: [55] (Mitchelmore JA) (McHugh JA at [61] agreeing, Ball JA at [62] agreeing). Directed as it was to arguments he had advanced on his conviction appeal, the appellant’s application for declaratory relief constituted an abuse of process: [56] (Mitchelmore JA) (McHugh JA at [61] agreeing, Ball JA at [62] agreeing).

Coleman v Director of Public Prosecutions (2002) 5 VR 393; [2002] VSCA 116; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; Rogers v The Queen (1994) 181 CLR 251 at 255, 274; [1994] HCA 42; Hunter v Chief Constable of West Midlands [1982] AC 529, considered.

JUDGMENT

1. MITCHELMORE JA**:** The appellant, Terry Fantakis, is presently serving a sentence of imprisonment for murder, having been sentenced on 8 November 2018 to a term of imprisonment of 24 years, commencing on 3 October 2013 and expiring on 2 October 2037, with a non-parole period of 18 years expiring on 2 October 2031.

2. The appellant applied for a writ of habeas corpus under s 71 of the Supreme Court Act 1970 (NSW), and for declaratory relief under s 75 of the Act. The primary judge, Harrison CJ at CL, dismissed his application: Fantakis v Governor of Macquarie Correctional Centre [2025] NSWSC 996. This is an appeal from that decision.

3. By his notice of appeal dated 20 February 2026, the appellant advanced the following grounds of appeal:

“1. Ground 1: Harrison CJ [at CL] failed to respond to a substantial, clearly articulated argument that was based on settled facts and seminal authorities, disclosing a constructive failure to exercise jurisdiction and to afford natural justice.

2. Ground 2: His Honour misdirected himself on the Courts (sic) jurisdiction in circumstances where these (scil there) was no available appeal mechanism to remedy the two jurisdictional errors committed at sentencing.

3. Ground 3: Harrison CJ [at CL] failed to exercise jurisdiction, failed to afford natural justice and acted unreasonably to deny declaratory relief and to order costs, in circumstances where:

(i) The applicant has a "standing" in the matter;

(ii) There are real legal controversies;

(iii) The controversies between the parties have not been resolved;

(iv) Primary findings made by the Court of Criminal Appeal establish a series of breaches to Chapter Ill of the Constitution; and

(v) The matter is ongoing.”

4. The appellant filed extensive written submissions in support of his grounds of appeal, both in chief and in reply. On the morning of the hearing on 12 August 2026, he provided a further 36-page document titled “Oral Submissions”, to which he spoke during the hearing.

5. For the reasons set out below, the appellant has not demonstrated any error in the primary judge’s dismissal of his application, and the appeal should be dismissed.

Background to the appeal

6. The following background provides some context for the appellant’s application in the court below, and the grounds of appeal in this Court.

7. On 26 February 2018, the appellant was jointly arraigned with Andrew Woods and Derek Cheong before Wilson J, sitting with a jury. The appellant was charged with the murder of Elisha (Sam) Karmas on 11 August 2011. The murder was alleged to have taken place at a property located on Wilga Street in Punchbowl, NSW. The two co-accused were charged as accessories after the fact to the murder.

8. On 25 May 2018, the appellant was found guilty of murder. Mr Woods was also found guilty as an accessory after the fact. Mr Cheong was acquitted.

9. On 8 November 2018 Wilson J sentenced the appellant: R v Fantakis*; R v Woods* [2018] NSWSC 1700.

10. The appellant sought leave to appeal against his conviction. Relevantly for present purposes, the grounds of appeal included that the Crown had split or shifted its case, depriving him of a fair trial and causing the trial to miscarry (ground 4); and that the trial miscarried because the trial judge left to the jury a possible basis of conviction which the Crown had not relied upon (ground 5).

11. On 3 February 2023, the Court of Criminal Appeal dismissed the appeal: Fantakis v R [2023] NSWCCA 3. Dhanji J (Ward ACJ and Rothman J agreeing) addressed grounds 4 and 5, which his Honour summarised at [852]:

“The applicant contends pursuant to ground 4 that he was deprived of a fair trial as a result of the prosecutor advancing ‘a conceptually different case theory for the first time in its closing submission’. He submits that the case until that point had been run on the basis that the applicant murdered Mr Karmas between 1:50pm and 3:07pm while in the presence of Mr Cheong. He complains that the prosecutor in closing advanced, in the alternative, the proposition that Mr Karmas left the Wilga Street Property earlier in the afternoon and returned around 5pm and was then killed by the applicant. This proposition was referred to as ‘the 5 o’clock theory’. Ground 5 relates to the same issue but is directed to the trial judge leaving the 5 o’clock theory to the jury as a possible basis for conviction, or at least, not directing the jury that the Crown must prove that Mr Karmas was killed between 1:50pm and 3:07pm. Given the close relationship between these grounds it is convenient to deal with them together.”

12. Dhanji J observed at [857] that although the indictment did not particularise the Crown case beyond the date and the suburb, by the close of its case it had refined the period during which it alleged Mr Karmas was killed to 67 minutes. The appellant referred to this aspect of the Crown case as the “first case theory”. On the Crown case, Mr Cheong was present at the Wilga Street property during that period. The Crown relied on Mr Cheong’s presence and (inferred) knowledge of the murder, coupled with actions he allegedly took to assist the appellant to remove the body and eliminate evidence, as the foundation for its case against him as an accessory after the fact: at [855].

13. In the course of the trial, the Crown tendered various documents which contained admissions by the appellant. Dhanji J observed that in some of those documents, while admitting to doing violence to Mr Karmas, the appellant said that Mr Karmas had left the Wilga Street property in the afternoon and returned around 5pm. As his Honour noted, this was inconsistent with the case that Mr Karmas was killed in the period when Mr Cheong was at the premises, as he (Mr Cheong) had left the property before 5pm: at [859].

14. In his closing address to the jury, the Crown prosecutor referred to the 67 minute window and Mr Cheong’s alleged involvement: at [861]. The Crown prosecutor also raised the possibility that Mr Karmas was killed after he returned to the property after 5pm, being the 5 o’clock theory: at [862]. As Dhanji J noted, the alternative that Mr Karmas left and returned after 5pm was fatal to proof of the knowledge of murder on the part of Mr Cheong, which the Crown prosecutor acknowledged in closing: at [863].

15. The appellant’s counsel addressed the 5 o’clock theory in his closing address to the jury. However, after addresses and before the trial judge’s summing up, both the appellant’s counsel and counsel for Mr Woods raised an issue about an asserted “shift” in the Crown case, and applied for a direction to be given to the jury that their consideration should be limited to the first case theory. The Crown opposed that application, as did counsel for Mr Cheong: at [866].

16. The trial judge refused that application: R v Fantakis*, Woods and Cheong* [2018] NSWSC 749. Subsequently, in summing up to the jury, her Honour noted that although the Crown’s primary position was that the murder occurred earlier in the day, when Mr Cheong was at the property, the evidence relating to the 5 o’clock theory was also before the jury and should be borne in mind: at [868].

17. As summarised by Dhanji J at [879], the appellant submitted in the conviction appeal that as a result of the trial judge’s decision to leave the 5 o’clock theory to the jury, there were “two cases” which were mutually exclusive, and it was not permissible for the Crown to pursue both. The primary basis on which he claimed to have been prejudiced was that he could have called his mother to give evidence to meet the 5 o’clock theory. In response on the conviction appeal, the Crown relied on evidence of the appellant’s trial counsel, including as to his instructions that Mrs Fantakis was not to be called as a witness at the trial: at [889]. When cross-examined, trial counsel said that his forensic strategy in relation to the 5 o’clock theory was to characterise it as resting on writings of the appellant which were nonsensical, and otherwise to rely on it as a sign of weakness in the Crown’s primary case: at [890].

18. Dhanji J concluded that the appellant’s trial counsel had articulated a number of forensic considerations that were at play in the trial and told against miscarriage. His Honour also observed that no further application was made after the trial judge refused the application to limit the Crown case, noting that the appellant was not precluded from applying at that point to reopen, so as to call Mrs Fantakis or otherwise to deal with the 5 o’clock theory: at [892].

19. His Honour concluded that what the appellant described as the first case theory was the strongest basis for the Crown case and was very likely the basis on which the jury accepted the appellant’s guilt: at [895]. His Honour continued:

“[896] While the evidence established Mr Cheong was present at Wilga Street between 2pm and 3:07pm, his acquittal is not necessarily inconsistent with the jury convicting the applicant on the basis that the murder occurred during that 67 minute window. The jury may have found the murder occurred during that timeframe but was not satisfied beyond reasonable doubt that Mr Cheong was aware of it. Mr Cheong may have been working in a different part of the house. In his interview he told police that he was listening to music through his ear buds. Consequently, he may not have heard anything which may have otherwise concerned him. As Mr Cheong’s counsel pointed out, it was not in the [applicant’s] interests to make Mr Cheong aware of the murder. Given the limited relationship between the two men there was no basis to assume that Mr Cheong would assist the applicant rather than alert the authorities. While Mr Cheong’s assertion in his interview with police that Mr Karmas left shortly after arriving was more consistent with the 5 o’clock theory, even if this was a lie (which, if the murder occurred in the 67 minute window it likely was), this was not enough to demonstrate his knowledge of the murder and to accordingly require the conviction of Mr Cheong.

…

[897] It is apparent from the applicant’s trial counsel’s evidence on the appeal that he was taken by surprise when the 5 o’clock theory was raised in the Crown address. However, having regard to the above, it cannot be said that there was a miscarriage of justice as a result of the reference to the 5 o’clock theory in the Crown’s closing address. The primary basis on which the applicant claims to be prejudiced was in the decision not to call his mother to give evidence. There were clearly sound forensic reasons militating against calling the applicant’s mother. More significantly, while the applicant’s trial counsel on his evidence on the appeal agreed he had been taken by surprise, once the problem had arisen, he regarded it to be advantageous to the applicant to rely on it as an indication of weakness in the Crown case, while keeping focus away from the veracity of the writings. Ultimately, those matters provide the forensic context in which to view the absence of any application to reopen the defence case. It also follows from the above that there was no miscarriage of justice as a result of any shift in the Crown case or the manner in which the case was left to the jury by the trial judge. I would, to the extent that leave is required, grant leave but would otherwise reject grounds 4 and 5.”

20. On 15 February 2023, the Court of Criminal Appeal dismissed the appellant’s application to set aside or vary the orders it made on 3 February 2023, pursuant to reg 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): Fantakis v R (No 2) [2023] NSWCCA 22 (“Fantakis (No 2)”). The focus of the application was a further ground of appeal that the appellant had foreshadowed two days before the hearing of the appeal, and which he addressed orally at the hearing. By that ground, the appellant contended that the trial judge erred in not directing the jury to deliver separate verdicts for “each proposition”, by which, the Court noted at [3], he was “referring to the two case theories advanced at the trial (the first case theory and the alternative so-called ‘5 o’clock theory’)”. The Court summarised the appellant’s central complaint on this ground at [10]:

“Mr Fantakis complains that, during the summing up, the jury was only asked to determine whether the Crown proved the ultimate inference beyond a reasonable doubt (referring to SU58), resulting in a single verdict. Mr Fantakis says (referring to Lane v The Queen [(2018) 265 CLR 196; [2018] HCA 28] at [34]) that the failure by the trial judge to give the necessary unanimity direction left open the possibility that there was no unanimity among the jurors as to which act founded the guilty verdict; and, therefore, he maintains that he was not lawfully convicted. …”

21. In dismissing the ground, the Court observed that although the Crown put forward an alternative factual scenario in terms of the 5 o’clock theory, “the effect of this was to expand the opportunity for the appellant to have committed the offence, rather than to allege an alternative act giving rise to distinct issues such as causation intent”: at [22]. The Court contrasted the appellant’s case in this regard with the situation in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, in which the Crown relied on two physical interactions between the appellant and the deceased, each of which was alleged to have involved a blow by the appellant capable of having caused the death of the deceased and which were capable of giving rise to different issues, such as causation and self-defence: at [20]. The Court stated that its conclusion on this ground involved no alteration to the reasons it had already published, but, rather, applied those reasons to the additional ground that it had not specifically addressed in the earlier judgment: at [23].

22. On 27 February 2023, the Court refused the appellant leave to apply to set aside or vary the Court’s decision in Fantakis (No 2): Fantakis v R (No 3) [2023] NSWCCA 35. In its reasons, the Court described the various submissions and email communications that had been sent to the Court after its second judgment, by or on behalf of the appellant, as evidencing that he cavilled with the Court’s decision in Fantakis (No 2) and the reasoning. The Court stated that it was not appropriate to deal with such a complaint by way of an application to vary or set aside the judgment: at [6].

23. The appellant did not seek special leave to appeal to the High Court from one or more of the decisions of the Court of Criminal Appeal.

The application for habeas corpus and declaratory relief

24. The appellant moved on an amended summons, dated 30 July 2025, seeking a writ of habeas corpus pursuant to s 71 of the Supreme Court Act, directed to the Governor of the Macquarie Correctional Centre, to bring him before the Court, and an order that he be released from custody forthwith. He also sought a number of declarations, including a declaration that the trial involved two mutually exclusive counts of murder in circumstances where the indictment charged a single count of murder, which resulted in “a complete nullity of the trial”; and that there was a common factual matrix between the case of the appellant and that of Mr Cheong, such that it followed from Mr Cheong’s acquittal that the Crown case against him at trial also failed.

25. On 2 September 2025, the primary judge dismissed the proceedings.

26. As to the application for a writ of habeas corpus, his Honour observed, by reference to Dacich v Picton Local Court [2020] NSWSC 1714 at [12], that on return of such a writ an applicant is entitled to immediate release if the detainer is unable to show on the balance of probabilities that the applicant’s detention is lawful: at [11]. However, where there is a court order or warrant which provides sufficient justification for detention, it is for the applicant to show some basis for casting doubt on its regularity: at [11], citing Dacich v Commissioner for Corrective Services [2020] NSWCA 359 at [16].

27. The primary judge further observed that “[c]ourt orders are a ‘complete answer’ to an application for habeas corpus, provided the detainer is holding the applicant lawfully in accordance with the orders and with the authority of the warrant that was executed in consequence of the judicial decision”: at [12], citing Dacich v Governor of Dilwynia Correctional Centre [2021] NSWSC 1333 at [10]. Specifically in relation to orders of the Supreme Court, the primary judge referred to State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 (“Kable (No 2)”) in support of the proposition that its orders are assumed to be valid until set aside: at [15].

28. The appellant provided the primary judge with “extensive written submissions”: at [16]. His Honour described the following two issues as lying at the heart of the appellant’s concerns:

29. The appellant’s criminal trial miscarried and his conviction was a nullity “by reason of a perceived inconsistency between the acquittal of one of his co-accused on a charge of being an accessory after the fact to the very murder of which Mr Fantakis was convicted”.

30. The Crown proceeded on alternative bases for his culpability, from which it followed that no jury could have been satisfied beyond reasonable doubt about which version was true.

31. The appellant contended that because the process adopted at trial and on sentence resulted in “two separate nullities”, his detention was unlawful: at [17]. However, he did not challenge the sentence warrant, dated 8 November 2018, which was in evidence before the primary judge: at [19].

32. The primary judge accepted the respondents’ argument that the warrant was a complete answer to the application for a writ of habeas corpus. His Honour relied in this respect on Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402 (“Rich”), in which the Victorian Court of Appeal (Maxwell P, Mandie and Bongiorno JJA) stated that the order imprisoning Mr Rich was valid until it was set aside, which would only occur “if his conviction appeal succeeds and his conviction and sentence are quashed”: at [10].

33. As to the declaratory relief that the appellant sought, the primary judge concluded that the declarations were directed to some of the very same complaints that were litigated and finally decided in the conviction appeal; and it was not open to his Honour, as a single judge, to adjudicate on his claims that the Court of Criminal Appeal’s dismissal of the challenge to his conviction was wrong: at [28].

The appeal

The grounds of appeal

32. As I noted above, the appellant’s written material was extensive, although much of it was repetitive. While I do not propose to rehearse the material in detail below, I have read and considered it, including the document the appellant provided as setting out what he wished to say at the hearing, some of which he read aloud. I have also read the contents of the two affidavits which the appellant provided on the appeal, sworn on 25 September 2025 and 16 July 2026, which were read on the basis that they contained further submissions elaborating on the written submissions made at the time they were sworn.

Ground 1

33. The appellant submitted that the primary judge failed to discharge his obligation to determine any of the five grounds that he had advanced in support of his habeas corpus application, and thus constructively failed to exercise jurisdiction and denied him procedural fairness. Without seeking to be exhaustive, his submissions on this ground included the following:

34. The jury’s decision to acquit Mr Cheong, with whom the appellant shared a common factual matrix (on the first case theory), meant that he should also have been acquitted. It followed, he submitted, that he could not lawfully have been sentenced, as the count on which he was sentenced failed at trial. He relied in this regard on the dissenting reasons of Murphy J in R v Darby (1982) 148 CLR 668 at 685; [1982] HCA 32.

35. Conversely, if Mr Cheong was acquitted on the basis of the 5 o’clock theory, then the appellant was convicted on a count that was not charged on the indictment, and that constituted a true jurisdictional error rendering the orders by which he was sentenced to imprisonment a nullity. The appellant submitted that it was plainly obvious that the first case theory and the 5 o’clock theory were mutually exclusive, in contradiction of the single count on the indictment, rendering the trial a complete nullity. It followed, he submitted, that his imprisonment had no lawful foundation.

36. Additionally, the trial judge was compelled to take on the role of the jury at sentencing and to determine which of the two mutually exclusive counts he was convicted on, which he alleged was “a true jurisdictional error”.

37. The decision of the trial judge to refuse his application to confine the Crown case was affected by Wednesbury unreasonableness. The key statement of the trial judge with which the appellant took issue was: “…I don’t propose to confine the Crown’s case to the 67 minute window on 11 August 2011 nor do I propose to give the suggested direction about it not having been put to Mr Fantakis…”. The appellant submitted that this statement violated her Honour’s duty of impartiality and in making this comment her Honour “committed a Wednesbury unreasonableness”.

38. Contrary to the trial judge’s finding that there was “no discernible shift” in the Crown’s case, the Court of Criminal Appeal found that there was a shift in the Crown case. However, the Court of Criminal Appeal failed to exercise jurisdiction and afford natural justice by not considering the reasoning process followed by the trial judge before dismissing the application to exclude the 5 o’clock theory.

39. There was a “knock on effect” of allowing the 5 o’clock theory to be presented, in that it usurped the jury’s function, was incompatible with the court’s Ch III functions, and ultimately constituted exceptional circumstances such that a writ of habeas corpus was appropriate.

40. The doctrine of stare decisis only binds courts to follow decisions that are not wrong in law. Accordingly, this Court was not bound to follow the earlier decisions in his case. Further, his trial was unfair due to the 5 o’clock theory and this was not considered by the primary judge.

41. The accumulation of errors gives rise to an apprehension of bias on the part of the primary judge.

42. The appellant contended that the primary judge failed to deal with significant parts of the material he put forward in the hearing below. His submissions involved extensive reference to the evidence presented at his criminal trial, outlining the case against him and Mr Cheong as he understood it, including the relationships between himself, Mr Cheong and the deceased, the alleged timing of the offence, and the forensic evidence.

43. The primary judge was correct to dismiss the appellant’s application for a writ of habeas corpus. As the Victorian Court of Appeal stated in Rich at [5]:

“Quite simply, the application for habeas corpus is misconceived. It is a principle of very long standing that ‘a writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law’. That this is the established position is confirmed by the most recent (2011) edition of Justice Robert Sharpe’s work, The Law of Habeas Corpus, extracts of which were included by Mr Rich in his submissions. The learned authors put the position very clearly: ‘The writ of habeas corpus has never been used with effect where convictions or orders of courts of general common law jurisdiction are concerned.’”

36. The appellant attempted to distinguish Rich, and the other authorities on which his Honour relied, on the basis that Mr Rich was complaining about an “error within jurisdiction”, whereas his complaints were directed at a “true jurisdictional error”. That distinction was also misconceived. It has been said of inferior courts that demonstrable error on the part of a court that is “entrusted with authority to identify, formulate and determine” relevant issues and relevant questions, and what is and is not relevant evidence, will not ordinarily constitute jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [67]-[68]. The position is a fortiori in relation to a superior court. The decisions made by the trial judge in the course of the trial with which the appellant took issue were, plainly, within the jurisdiction vested in her Honour as a judge of a superior court of record.

37. Further, and in any event, the orders her Honour made on sentencing the appellant, and the warrant issued pursuant to those orders, stand as legal authority for his detention. An order of a superior court of record, even if made in excess of jurisdiction, is valid until set aside: Kable (No 2) at [32]; Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 at [53].

38. The appellant sought to distinguish Kable (No 2) on the basis that it was a tort matter in which the Court had jurisdiction to make the order at the time it was made, with the legislation pursuant to which it was made only subsequently found to be invalid. Those circumstances did not relevantly affect the fundamental characteristic of the Court’s orders, whether made within jurisdiction or in excess of jurisdiction, as valid until set aside.

39. Given the misconceived nature of the application for habeas corpus, it was unnecessary for the primary judge to give detailed consideration to the appellant’s five grounds, by which he sought to characterise the rulings and orders that the trial judge made following the trial as affected by various forms of jurisdictional error, including Wednesbury unreasonableness, denial of procedural fairness, and bias. The appellant has reagitated those submissions on the appeal.

40. It is readily apparent from my non-exhaustive summary of the appellant’s submissions on this ground that the appellant disagrees with what occurred during his criminal trial, in particular with the 5 o’clock theory being left to the jury in circumstances where the Crown raised this possibility in closing. I have dealt in some detail above with the reasoning of the Court of Criminal Appeal on the grounds that were relevant to the appellant’s complaints regarding the 5 o’clock theory, so as to demonstrate both the comprehensive manner in which the Court dealt with those complaints and the extent to which his submissions in this Court, and before the primary judge, reagitated those complaints. In circumstances where the appellant did not seek special leave to appeal from the decision of the Court of Criminal Appeal, the decision of that Court stands: his conviction appeal was dismissed. The appellant’s contention that the primary judge should not have followed that Court’s decision because it was wrong misunderstood the doctrine of stare decisis.

41. As part of his submissions on this ground, the appellant referred to having served a notice to admit on the respondents comprising 49 paragraphs, each of which the respondents disputed. He submitted the primary judge had failed to address the disputed facts. That submission assumed, wrongly, that the disputed facts were relevant to the issues his Honour needed to decide. For the reasons I have outlined, the manner in which his Honour resolved the application for the writ of habeas corpus did not require his Honour to consider the matters that the appellant sought to raise by the notice to admit, which related to his criminal trial.

42. I would dismiss ground 1.

Ground 2

43. By this ground, the appellant contended that the primary judge misdirected himself as to the jurisdiction of the trial judge, in circumstances where there was no available appeal mechanism to remedy the two jurisdictional errors committed at sentencing.

44. As with ground 1, the appellant’s focus was his criminal trial. He submitted that his application for a writ of habeas corpus was directly linked to the conduct of the trial judge, which had resulted in his unlawful conviction and incarceration. He submitted that the primary judge was wrong to have declined to deal with these issues on the basis that he was bound by the decision of the Court of Criminal Appeal because like the decision of the trial judge, the Court of Criminal Appeal’s decision was clearly wrong in law. Indeed, he submitted that the findings of each of the judges who have heard his case so far have conflicted, meaning that the principle of finality did not exist in this matter.

45. He submitted that this was a situation where he was entitled to go behind the conviction and sentence. He reiterated the submission that the primary judge misapplied Kable (No 2) in refusing to reopen the trial, and asserted that the primary judge was biased and failed to provide adequate reasons for his decision. The appellant submitted that bias was “clear” because his Honour’s conduct was inconsistent with the fair performance of his duty.

46. Assuming the correctness of his submission that he was convicted on a count he was not charged with, the appellant submitted that the Court must have jurisdiction to rehear the trial, due to the interests of justice in freeing an innocent man from detention. He referred to a number of decisions of the High Court dealing with detention under the Migration Act 1958 (Cth), such as Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1, in support of the proposition that detention must “pass muster” under Ch III of the Constitution.

47. The appellant’s arguments on this ground demonstrate his preoccupation with what occurred at his criminal trial, his appeal from which was dismissed and from which he did not seek special leave. His submissions did not engage either with the limits I have addressed above both as to the availability of the writ of habeas corpus and the legal status of orders of the Supreme Court.

48. As to the appellant’s allegations of bias against the primary judge, the relevant principles are well-settled. A complaint as to actual bias on the part of a judge is a serious allegation and such a finding is not made lightly, with cogent evidence required to establish it: see South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] (McColl JA, Giles and Tobias JJA agreeing) and the authorities there cited. As to apprehended bias, the relevant principle is that a judge is precluded from sitting in a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the determination of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. In the present case, the appellant did no more than assert that the primary judge was biased. It does not follow from his Honour’s entirely correct conclusion on the application that his Honour’s decision was affected by actual or apprehended bias.

49. I would dismiss ground 2.

Ground 3

50. The appellant’s final ground of appeal related to the primary judge’s dismissal of his claim for declaratory relief. He contended that the primary judge failed to exercise jurisdiction, failed to afford natural justice and otherwise acted unreasonably to deny the declaratory relief he sought, and to order costs.

51. The declarations that the appellant sought were in the following terms:

“4. Pursuant to section 75 of the Supreme Court Act 1970 the applicant seeks orders for the following declarations, including:

(i) A declaration that the court at first instance heard two mutually exclusive counts of murder in circumstances where the presented indictment only charged a single count of murder, a process resulting in a complete nullity of the trial.

(ii) A declaration that the orders made by Wilson J in closing submissions were formulated on a wrong primary finding; a plainly wrong decision.

(iii) A declaration that Wilson J breached her duty to remain impartial and independent for having advanced the second count of murder (5OT) after the learned Crown submitted that the prosecution did not, and never did, seek to rely on the new argument (5OT).

(iv) A declaration that the plaintiff did not receive a unanimous decision in circumstances where the jury only delivered a single verdict against the applicant; infringing on s 80 of the Constitution.

(v) A declaration that Mr Derek Cheong and the plaintiff shared a common factual matrix with regards to the case opened and conducted by the Crown at trial, namely, the first case theory (FCT).

(vi) A declaration that the legal consequences associated with Mr Cheong's acquittal meant that the only case propounded by the Crown, the FCT, failed at trial.

(vii) A declaration that the plaintiff was unlawfully sentenced on the first case theory (FCT) in circumstances where the FCT failed at trial.”

52. The appellant submitted that pursuant to s 75 of the Supreme Court Act the Supreme Court has broad discretionary power to make declarations of right. It followed, he submitted, that the Court should be able to declare the lawfulness or unlawfulness of a detention, even if the writ of habeas corpus may not technically lie. In light of the breaches of Ch III of the Constitution that he submitted arose from the Wednesbury unreasonableness committed by the trial judge in the course of the Crown closing, even if the orders were valid, declaratory relief would assist any application he might make under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), or a petition of mercy. He referred in this regard to the declaration made in Coleman v D**irector of P**ublic P**rosecutions (2002) 5 VR 393; [2002] VSCA 116 (“Coleman v DPP”), which he characterised as involving a Court declaring a sentence to be legally wrong but nonetheless valid.

53. It is the case, as Batt JA observed in Coleman v DPP at [10], that declarations may be made in appropriate circumstances where relief in the nature of certiorari is not available. However, it is important to pay close attention to the circumstances in which such relief is granted. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, for example, declarations were made in circumstances where the appellants were denied natural justice but certiorari did not lie because the report issued by the Criminal Justice Commission did not legally affect the appellants’ rights: see eg at 581-2, 595-6.

54. In Coleman v DPP, the Court of Appeal was hearing an appeal from a decision of the Practice Court dismissing an application for judicial review of a decision of the County Court. In summary, on 21 February 2001 the appellant had been sentenced to two months-imprisonment wholly suspended for 12 months. On 6 September 2001, the appellant pleaded guilty to drug-related charges the maximum penalty for which, given the small quantity of drug involved, was a fine. However, the County Court reinstated the sentence of imprisonment on the basis that the appellant was convicted on 6 September 2001 for an offence punishable by imprisonment, within s 31(1) of the Sentencing Act 1991 (Vic). The Court of Appeal found that the primary judge was right to find neither jurisdictional error nor error of law on the face of the record in the appellant’s conviction, but the appellant had been “legally wronged” and, in circumstances where a pardon could be sought, declarations were made on the basis that they could be of practical utility: at [10], [29]-[30].

55. By contrast to the proceedings in Coleman v DPP, in which the appellant brought an application for judicial review from the decision of a lower court, in the present case the terms of the declarations that the appellant sought were directed to a collateral attack on his conviction for murder. The first six declarations sought to impugn his conviction, while the seventh declaration sought to impugn his sentence on the basis that he had been unlawfully convicted. The matters he advanced, in the form of positive declarations, formed part of the arguments that he advanced on his conviction appeal, as the primary judge correctly observed at [28]. The Court of Criminal Appeal granted the appellant leave to appeal and dismissed his appeal.

56. It is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial: Rogers v The Queen (1994) 181 CLR 251 at 255, 274; [1994] HCA 42; see also Hunter v Chief Constable of West Midlands [1982] AC 529 at 541. I accept the respondents’ submission that the application for declaratory relief constituted an abuse of process. The primary judge did not err in dismissing the appellant’s application for declaratory relief.

57. I would dismiss ground 3.

Conclusion

58. Leave to appeal was not required in respect of the primary judge’s dismissal of the habeas corpus application: Supreme Court Act, s 101(3). However, the respondents submitted that leave to appeal was required in relation to the primary judge’s refusal of declaratory relief pursuant to s 101(2)(r) of the Supreme Court Act, and that leave was also required pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). As to the former, the declarations sought were not refused “on an application for a writ of habeas corpus ad subjiciendum” within the meaning of s 101(3). Accordingly, leave to appeal is required with respect to the declarations by reason of s 101(2)(r). The respondents opposed that leave on the basis that the declarations constituted a collateral merits attack on the appellant’s criminal conviction and were an abuse of process. I accept that submission. That being so, it is unnecessary to determine whether leave is also required pursuant to the Felons Act.

59. The respondents sought their costs of the proceedings. The appellant has not advanced any submissions that would call for a departure from the ordinary rule that costs follow the event.

60. Accordingly, I propose the following orders:

61. Leave to appeal against the primary judge’s refusal of declaratory relief is refused.

62. The appeal is otherwise dismissed.

63. The appellant is to pay the respondents’ costs of the appeal.

64. McHUGH JA: I agree with Mitchelmore JA.

65. BALL JA: I agree with Mitchelmore JA.

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