Fantakis v Director of Public Prosecutions - [2021] NSWCCA 271 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Fantakis v Director of Public Prosecutions

[2021] NSWCCA 271

Court of Criminal Appeal (NSW)|2021-10-27|Before: Beech-Jones CJ, Hulme J, Campbell J, Wilson J, Jones CJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-10-27

Before

Beech-Jones CJ, Hulme J, Campbell J, Wilson J, Jones CJ

Catchwords

R v Woods [2018] NSWSC 1700 R v Fantakis
R v Woods [2018] NSWSC 1814 R v Murray (1987) 11 NSWLR 12 Shepherd v The Queen (1990) 170 CLR 573
[1990] HCA 56 United Mexican States v Cabal (2001) 209 CLR 165

Source

Original judgment source is linked above.

Catchwords

R v Woods [2018] NSWSC 1700 R v FantakisR v Woods [2018] NSWSC 1814 R v Murray (1987) 11 NSWLR 12 Shepherd v The Queen (1990) 170 CLR 573[1990] HCA 56 United Mexican States v Cabal (2001) 209 CLR 165

Judgment (20 paragraphs)

[1]

Solicitors: In person (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2021/248739 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2018] NSWSC 1700 Date of Decision: 8 November 2018 Before: Wilson J File Number(s): 2013/297834

[2]

Judgment

BEECH-JONES CJ at CL: This is an application by Elefterious (Terry) Fantakis (the "Applicant") for bail pending the hearing of an application for leave to appeal against his conviction for murder. To obtain a grant of bail pending the appeal, the Applicant must, inter alia, demonstrate that "special or exceptional circumstances" exist to justify the grant of bail (Bail Act 2013 (NSW), s 22(1)). For the reasons that follow, I do not consider that he has done so.

[3]

Background

Between 26 February 2018 and 25 May 2018, the Applicant stood trial before Wilson J and a jury on an indictment that charged him with the murder of Elisha (Sam) Karmas on or about 11 August 2011. He stood trial with Andrew Woods and Derek Cheong, each of whom were charged with one count of accessory after the fact to murder.
On 25 May 2018, the Applicant was found guilty of murder. On the same day, Mr Woods was also found guilty. Mr Cheong was found not guilty.
On 8 November 2018, the Applicant was sentenced to a term of imprisonment of 24 years commencing on or about the date of his arrest, namely, 3 October 2013, with a non-parole period of 18 years. His non-parole period expires on 2 October 2031. The balance of his sentence expires on 2 October 2037 (R v Fantakis; R v Woods [2018] NSWSC 1700).
Mr Karmas was last seen on 11 August 2011. The Crown alleged that Mr Karmas was murdered by the Applicant sometime that afternoon at the Applicant's home in Wilga Street, Punchbowl ("Wilga Street"). The Crown alleged that, with the assistance of Mr Woods, the Applicant disposed of Mr Karmas' body in the early hours of 12 August 2011.
Mr Karmas lived with his family in Warwick Street, Punchbowl. His house was across the road from two duplexes, both of which were owned by the Applicant's family. From around March 2008 to June 2011, Maria Angeles lived in one of the duplexes. For a period, Ms Angeles was in a relationship with the Applicant's brother, Nicholas. Nicholas died in May 2011. By that time his relationship with Ms Angeles had broken down and they were estranged. The Crown contended that the Applicant developed a hatred of Mr Karmas, at least in part because he held the irrational and erroneous belief that Mr Karmas and Ms Angeles were responsible for his brother's death and were possibly having an affair.
Mr Karmas' body was never found. The Crown case against the Applicant was largely circumstantial, although the Crown relied on documents written by the Applicant in which he described having harmed and tortured Mr Karmas. The Applicant said those documents were unreliable because it was evident from their contents that his mental health was severely affected at the time he wrote them. The Crown also relied on what it contended were admissions captured on listening devices and various lies and other conduct said to evidence a consciousness of guilt. One form of conduct said to evidence that guilt was the Applicant's participation in a telephone call with Woods on 25 November 2011 when threats were said to be made against the life of the police officer investigating the disappearance of Mr Karmas (the "informant") [1] (see [36]).
Otherwise, it is not necessary at this point to describe the scope of the Crown case and all the circumstances it relied upon. It suffices to state that, on this application, the Crown submissions noted that it was apparently not in dispute at the trial, that just before 2.00pm on 11 August 2011, Mr Karmas travelled with the Applicant and Mr Cheong in the Applicant's blue Ford Transit van from Warwick Street to the Applicant's home at Wilga Street. [2] There was evidence that Mr Cheong returned home at around 3.30pm to 4.00pm that afternoon (and most likely left Wilga Street shortly after 3.00pm). Between 3.57pm and 5.26pm, various text messages were sent from Mr Karmas' mobile phone that the Crown contends were fictitious and in fact were sent by Mr Woods acting on the instruction of the Applicant. The Crown contended that the Applicant and Mr Woods disposed of Mr Karmas' body sometime between 1.00am and 4.36am on the morning of 12 August 2011. The Crown adduced evidence tracing the movement of both of their vehicles on the evening of 11 August 2011 to a unit occupied by Mr Woods' grandmother in Campbelltown. There was evidence that they had left that unit at around 1.00am.

[4]

Bail Pending Appeal

As noted, s 22(1) of the Bail Act requires the Applicant to demonstrate that "special or exceptional circumstances" exist to justify the grant of bail. In El‑Hilli & Melville v R [2015] NSWCCA 146 at [13], Hamill J observed: "Given that the 'special or exceptional' circumstances requirement in s 22 replaces the show cause requirement (where applicable) and the structure of the Bail Act, the same reasoning employed by the Court of Appeal in DPP v Tikomainaleya supports the following propositions. First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and exceptional circumstances exist justifying the [decision to grant bail]'. Then the Court must apply the 'unacceptable risk test' and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special and exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a 'special or exceptional circumstance' and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the 'unacceptable risk' factors are imported in the 'special or exceptional circumstances' requirement by s 22(3)."
Section 22 was considered by this Court in El Khouli v R [2019] NSWCCA 146 at [22] ("El Khouli") where the Court, Hoeben CJ at CL, Walton and Wilson JJ, observed that: "… a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where the strength or merit of an appeal has been relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal." (emphasis added)
Their Honours noted that in the former type of case the applicant must show more than the grounds seem arguable and that it may be necessary to establish that the appeal is "most likely to succeed" (El Khouli at [23]).
I do not take El Khouli as specifying different thresholds about the relative strength of the proposed grounds of appeal that must be shown in order to demonstrate special or exceptional circumstances. The above passage from El Khouli identifies a particular matter that is often highly relevant to a grant of bail pending an appeal, namely, whether an "applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal". That circumstance is relevant to an assessment of whether special or exceptional circumstances have been shown in that the appeal may be rendered futile, or at least of lesser utility, if there is no grant of bail. Often, the interaction between the assessment of the relative strength of the appeal and the utility of the appeal will bear heavily upon whether or not special or exceptional circumstances exist (see United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [41]).
In this case, the Applicant does not solely rely on the relative strength of his grounds of appeal to demonstrate special or exceptional circumstances, although it is a substantial component of his application. Even so, a consideration of the relative strength of his proposed grounds of appeal must be undertaken in combination with an assessment of the appeal's utility, that is, the likelihood that, in the absence of a grant of bail, he may spend a substantial part of his sentence in custody by the time of the hearing of his appeal as well as the period of time between this application and when his appeal will be heard.
The Applicant's appeal was originally listed to commence on the date that this bail application was heard. However, on his application, it was adjourned until May 2022. Hence, the period of delay between this point and the likely hearing of his appeal should bail be refused is six months. By the time his appeal is heard, there will still be over a decade of his non-parole period to be served. In those circumstances, it cannot be said that even if he was to be ultimately successful on his appeal, he would either have spent a substantial part of his non-parole period in custody by the time of the hearing of his appeal, or that his appeal will have been denied utility because he was incarcerated in the meantime. These circumstances mean that the level of persuasion of the relative strength of his grounds of appeal that the Applicant must demonstrate is that much higher.
A further matter must be noted about the assessment of the relative strength of the grounds of appeal that is often undertaken in support of an application for bail pending the hearing of a conviction appeal. Section 71 of the Bail Act requires that a bail application be dealt with expeditiously. That requirement and the interlocutory nature of an application for bail pending appeal would be wholly undermined if the bail application was treated as a dress rehearsal for the substantive appeal or an occasion to evaluate the strength of the proposed grounds. Instead, the approach of "this Court is confined to reaching only a broad overall view of an applicant's apparent prospects" (Obeid v R (No 2) [2016] NSWCCA 321 at [17]).
The Applicant represented himself at the hearing of the application. He relied upon 97 pages of submissions in chief, together with over 300 pages of documents in support, 65 pages of written submissions in reply and a further substantial affidavit from him in support. The Crown responded with 54 pages of written submissions and 2 substantial affidavits in support. The Court was provided with a further 1,000 pages consisting of the material filed by the Applicant to date in support of his grounds of appeal, including his affidavit annexing various evidence. The bulk of this material was addressed to the prospect of the success of his grounds of appeal.
It follows from what I have stated that this was wholly excessive and should not be repeated in this or any other bail application that comes before the Court. When necessary, the case management powers available to the Court under the Criminal Appeal Rules will be utilised to limit the size of written submissions produced in support of a bail application (and a substantive appeal) (Supreme Court (Criminal Appeal) Rules 2021, r 4.1). In this case this material has been reviewed but only in the context of reaching "a broad overall view of [the] applicant's apparent prospects" of success in his appeal against his conviction (Obeid supra).

[7]

Grounds 4 and 5: "Shifting" Crown Case

Ground 3 of the appeal is addressed below. Ground 4 of the appeal contends that the Crown shifted its case to deprive the Applicant of a fair trial. Ground 5 contends that a miscarriage of justice was occasioned by her Honour leaving to the jury a possible basis for conviction which had not been relied upon by the Crown during the trial.
This compliant relates to an aspect of the Crown Prosecutor's address concerning the time in the afternoon on 11 August 2011 when it is said that the Applicant killed Mr Karmas. The case against Mr Cheong was that he assisted the Applicant after he murdered Mr Karmas at Wilga Street during the time period from just prior to 2.00pm until he left to return home after 3.00pm (see [8]). In her closing address, the Crown Prosecutor referred to the documents written by the Applicant which describe Mr Karmas leaving Wilga Street alive, returning later in the afternoon on 11 August 2011 and the Applicant attacking him (see R v Fantakis, Woods and Cheong [2018] NSWSC 749 at [24]). The Crown Prosecutor contended that the jury should not accept that Mr Karmas left Wilga Street and then returned, but instead was killed during the period when both the Applicant and Mr Cheong were present. However, the Crown Prosecutor conceded that, if the jury considered that Mr Karmas left Wilga Street and came back after Mr Cheong had returned home, then Mr Cheong should be found not guilty (at [25]) as he was.
Apparently, some days after the Crown Prosecutor addressed on this topic, counsel for Mr Woods sought to confine the Crown case by seeking a direction to the effect that the jury could only consider the Crown case against his client on the basis that the Applicant killed Mr Karmas during the time that Mr Cheong was present at Wilga Street (at [34]). In her judgment, the trial judge observed that Counsel for the Applicant joined in Mr Woods' application "but did not assert that any particular prejudice had been occasioned by the Crown Prosecutor referring to the evidence of a departure from and return to Wilga Street by Mr Karmas as providing evidence that Mr Karmas was murdered later on 11 August 2011 than the Crown alleged" (at [37]).
The trial judge declined to make the direction sought. Her Honour did not accept that there had been any "shift" in the Crown case against either the Applicant or Mr Woods. Her Honour noted that, in his evidence, the Applicant addressed his movements for the whole of that afternoon and was otherwise aware that the Crown was relying on his own documents as admissions to the effect that he had killed Mr Karmas (at [75] and [87]).
The Applicant's submissions in support of his bail application [3] and in support of his substantive appeal, [4] contend that this amounted to a fundamental change in the Crown case which denied him a fair trial. He contends that he was denied the ability to call evidence such as evidence from his mother to the effect that she was present at Wilga Street later in the afternoon and thus he could not have killed Mr Karmas at that time.
At the level of analysis required for the purpose of this application, I note two matters about this ground. The first is the approach of counsel for the Applicant as recorded by the trial judge noted above. The second is the comprehensive reasons given by the trial judge for rejecting the suggestion that the Crown had shifted its case or that any prejudice was occasioned by any such shift or perceived shift (R v Fantakis; R v Woods [2018] NSWSC 749). The trial judge was in a far superior position to a bail court to determine such matters. That said, I do not consider that the points made by the Applicant in relation to this ground are without substance. I am prepared to accept that his complaint about this aspect of the trial is reasonably arguable. Nevertheless, for the reasons already outlined, the mere existence of a reasonably arguable ground of appeal against a conviction for a count of murder where an appeal is close to being heard and the bulk of the sentence remains to be served, does not amount to special or exceptional circumstances.

[8]

Ground 6: Trial Judge Direction

Ground 6 of the appeal complains about the adequacy of the directions given during the summing up by the trial judge. The first complaint is that a direction of the kind envisaged in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 should have been given on the basis that the return of Mr Karmas to Wilga Street later in the afternoon on 11 August 2011 was an "indispensable intermediate fact" and thus the jury should have been directed that they had to be satisfied of that matter beyond reasonable doubt. [5] At this point it suffices to note two matters about that contention. First, the ground has as its premise that the acquittal of Mr Cheong was because the jury were not satisfied beyond reasonable doubt that Mr Karmas was killed during the time that he, Mr Cheong, was at Wilga Street. I was not persuaded of that premise. Second, no such direction of the kind now sought was sought at the trial.
The second complaint made with ground 6 is about an alleged failure of the trial judge to note in the summing up that the Crown Prosecutor had failed to put to the various witnesses that Mr Karmas had returned to Wilga Street that afternoon. [6] No such application was made to the trial judge at the trial.
The third complaint made with ground 6 concerns a failure of the trial judge to give a "Jones and Dunkel direction" (although presumably this is meant to refer to a direction referable to Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]) in relation to the failure of the Crown to call the Applicant's mother. [7] Again, no such direction was sought on behalf of the Applicant at the trial.
The fourth complaint made with ground 6 is that the trial judge failed to give a Murray direction (see R v Murray (1987) 11 NSWLR 12) in respect of the reliance by the Crown on the documents written by the Applicant referring to Mr Karmas returning to Wilga Street and being attacked. [8] This ground appears to have little substance. No such direction was sought. A Murray direction only relates to the evidence of a witness that is critical to the Crown case and not written material. The documents written by the Applicant were not the only evidence relied on by the Crown to demonstrate his guilt.
The fifth contention in relation to ground 6 is that the summing up was unbalanced. [9] It suffices to note that no complaint about the summing up was made on his behalf at the trial.
Overall, the matters raised in relation to ground 6 do not add any further weight to the conclusion noted above in relation to ground 4.

[9]

Grounds 7 and 9: Seized Computer Data

Ground 7 of the appeal contends there was a non-disclosure of documents by the prosecution which occasioned a miscarriage of justice. The documents identified in the Applicant's submissions as not having been disclosed appear to be the original phone records used to compile a spreadsheet of various telephone calls and SMS messages tendered at the trial, documents authorising the destruction of certain drugs found at his home, documents relevant to the discovery of cannabis in the co-offender Mr Woods' vehicle on 7 September 2011 and documents pertaining to the odometer reading for his blue Ford van. [10]
The material filed by the Crown on this application reveals that there is a substantial factual dispute as to whether these documents were disclosed. In relation to the phone records and the odometer reading, an affidavit sworn by the informant and read on the bail application, suggests that they were provided. The Applicant complains that the odometer reading that was provided was not referrable to the date that he sought. However, the Crown's affidavit indicates that all the records containing odometer readings were provided. [11]
As for the material concerning the finding of drugs on Mr Woods, the informant's affidavit suggests that material concerning that was served as part of the brief. [12] Further, the Applicant's submissions in support of his bail application suggest that all of this material is designed to establish the proposition that the informant planted drugs on Mr Woods. When he was pressed on the relevance of this material to his conviction appeal, the Applicant contended that this material would have allowed him to "put [the] recordings in context" [13] being those recordings which involve a discussion between himself and Mr Woods in which the informant was threatened and which were relied on as consciousness of guilt.
The alleged "context" is best explained by considering ground 9 which is related to this aspect of ground 7. Ground 9 contends that the trial judge erred in admitting part of a conversation recorded by a listening device, namely, that part in which it was said that the Applicant and Mr Woods planned to kill the informant because they wanted to disrupt her investigation. In his written submission on the appeal, the Applicant contends that the trial judge erred in failing to exclude the evidence because, in effect, his discussion with Mr Wood was "taken out of context as they were in reference to Mr Woods' frustration for having been charged by the informant in a separate drug matter when Mr Woods was contesting the alleged weight, claiming that the drugs had been planted". [14] In her summing up, the trial judge told the jury that the Applicant's explanation for participating in the conversation was that he "became so distressed and so resentful of what he saw as the police unfairly targeting him and placing enormous pressure on him in the context of this investigation .… that he became hostile to the police". [15] This is completely inconsistent with the "context" the Applicant now seeks to invoke as the explanation for the conversation.
The material sought in relation to this topic appears to be irrelevant to the case that was made against the Applicant at his trial. This aspect of ground 7 and ground 9 appears to have very little substance.

[14]

Grounds 14 and 15: Police Conduct

Ground 14 of the Applicant's notice of appeal contends that there was a miscarriage of justice on account of the conduct of the New South Wales Police during the investigation. The submissions in support of his bail application contend that the New South Wales Police have recently conceded that various crime scene warrants were unlawfully executed by the police. In particular, it was alleged that they conceded they did not comply with s 88 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"), including not filming the execution of the crime scene warrant, not having an independent observer present, not using property and seizure exhibit forms and not issuing receipts to occupants after warrants had been executed. In support of the contention, the Applicant refers to the transcript of argument about subpoenas he issued out of the Local Court in 2019 in relation to charges laid against him of intimidate police. [18] His subpoenas were ultimately set aside.
Section 88 of the LEPRA does not regulate the execution of crime scene warrants. It does not contain any requirements for filming of their execution, the use of independent observers, the issue of property seizure exhibit forms and the issue of receipts. The issue and execution of search warrants is regulated by Part 5. Both a perusal of the transcript relied upon by the Applicant, and the Crown's submissions, reveals that all of his allegations of breaches of LEPRA are contested. More importantly, the submissions do not appear to identify any relevant connection between any alleged breach of LEPRA and any unfairness in his trial so as to give rise to a miscarriage of justice.
Ground 15 contends there was a miscarriage of justice at the Applicant's trial on account of the New South Wales Police withholding and not disclosing computer data seized from him.
This ground is related to one of the Applicant's contentions as to why he should obtain bail. It seems that on or about 7 June 2013 the police seized computer data of the Applicant pursuant to a warrant. In an affidavit read on this application, the informant describes how, between September 2014 and February 2018, there was service of a brief of nine volumes of material which was said to include some of the electronic material that was seized in June 2013. The Applicant contends that it did not include all of that material. He contends that he made a request for all of the material to be provided and it was not.
Since the time of his trial the Applicant has attempted to obtain a readable copy of all the electronic material that was seized. In 2020, the Applicant caused to be issued a notice requiring the production of the data in digital format. In August 2020, an officer of the New South Wales Police exchanged emails with the Applicant's legal representative in which the latter nominated the format in which the electronic data would be provided. [19] In October 2020, the police provided that electronic material in that format to the Governor of the correctional centre where the Applicant is detained. [20] In May 2021, the Governor of the gaol acknowledged receipt of the material but advised that the format of the files was incompatible with Corrective Services' computer system. The Governor also advised that he had been in contact with the New South Wales Police and they were not in a position to provide the contents in another format. The Governor added that Corrective Services' information technology branch are "undergoing laptop trials and this avenue is unavailable until the trial is complete and outcomes advised". [21]
The Applicant contends that there should be a grant of bail to facilitate his access to that electronic material which currently cannot be arranged while he is in custody. Two matters should be noted about that contention.
First, the only matter nominated in the Applicant's submissions as potentially occasioning a miscarriage of justice from his inability to access this material prior to his trial is his contention that the seized material included material relating to Mr Woods' drug matter. That has already been addressed. Unlike, say, the circumstances that arose in Edwards v The Queen [2021] HCA 28, there is no suggestion that at any point in the prosecution of the Applicant that the Crown Prosecutor deployed material that was seized that was not served upon him or his legal representatives. Hence, there appears to be little basis for contending that any alleged failure to provide this material prior to his trial occasioned a miscarriage of justice.
Second, the above material suggests that, presently, the Applicant is unable to access the data although the Governor's letter indicates that access may become available. However, it is clear that he has had access to legal advisors. It was not suggested that he has exhausted their ability to facilitate his access to the electronic material.

[18]

Other Aspects of the Bail Application

As noted, in his bail application, the Applicant nominated other reasons that are said to warrant the grant of bail. The first has already been addressed, namely, his inability to access the computer data seized by the police.
The Applicant's submissions also refer to the potential for COVID-19 outbreaks and their effect on his access to computers and printing services. It is self-evident that, to this time, the Applicant has had the capacity to produce prodigious amounts of written material notwithstanding that he has been incarcerated. Save for the possibility that further COVID-19 outbreaks may affect his access to computers (and his complaint about accessing the seized computer data), there is no basis for contending that he is hampered in preparing and presenting his appeal. The potential for further COVID‑19 lockdowns, and for them to affect his preparation of the appeal, can be accepted. However, the Applicant has already filed his written submissions. Should any further lockdowns affect his ability to prepare for oral argument then that can be accommodated when his appeal is heard.
The proposed bail conditions involve the Applicant living with his mother. The Applicant's mother swore an affidavit in support of the bail application. She describes her personal difficulties including depression and health issues. It can be accepted that a grant of bail of the Applicant will be of assistance to his mother.
The passage from El‑Hilli set out above refers to the unacceptable risk factors in the Bail Act being imported into an assessment of whether special and exceptional circumstances are made out. It suffices to note that the material provided by the Crown indicates that the Applicant had a poor record of compliance with bail conditions when he was arrested on a charge of intimidating police prior to his arrest in October 2013 on the charge of murder. It seems that within hours of his being released he breached a bail condition that prevented him from contacting the co-accused Woods. Given that there is evidence of him discussing threats to the informant and the evidence at his trial about his dispute with Ms Angeles, I consider that any grant of bail, even on strict conditions, would carry an unacceptable risk of his interfering with witnesses and committing a further offence.

Fantakis v Director of Public Prosecutions

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