Ward ACJ, Rothman J, Dhanji J, Wilson J, Clarke JA
Catchwords
[2017] HCA 37
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342
[2020] FCAFC 30
Fantakis v R [2023] NSWCCA 3
Gould v R
R v Gould [2021] NSWCCA 92
Jones v The Queen (1989) 166 CLR 409
[1989] HCA 16
Lane v The Queen (2018) 265 CLR 196
Source
Original judgment source is linked above.
Catchwords
[2017] HCA 37
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342[2020] FCAFC 30
Fantakis v R [2023] NSWCCA 3
Gould v RR v Gould [2021] NSWCCA 92
Jones v The Queen (1989) 166 CLR 409[1989] HCA 16
Lane v The Queen (2018) 265 CLR 196[2018] HCA 28
Pantorno v The Queen (1989) 166 CLR 466[1989] HCA 18
R v Jones (No 2) (2010) 79 NSWLR 143[1991] HCA 27
Ryan v The Queen (1967) 121 CLR 205
Judgment (3 paragraphs)
[1]
Judgment
THE COURT: On 3 February this year, this Court published reasons granting leave (to the extent necessary) dismissing an appeal brought by the applicant, Mr Elefterios (Terry) Fantakis, against his conviction by a jury of twelve for the murder of Mr Elisha (Sam) Karmas (Fantakis v R [2023] NSWCCA 3).
Mr Fantakis has now brought an application pursuant to Regulation 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the orders made by the Court (citing R v Lapa (No 2) (1995) 80 A Crim R 398 at 402 per Clarke JA) on the basis that the Court did not include or deal with one of the grounds (ground 19) which had been foreshadowed by Mr Fantakis in written submissions filed by him on 16 May 2022, two days before the hearing in this Court, and was raised by him in the course of his oral submissions.
In those written submissions the error of law identified (at [40]), on which Mr Fantakis indicated he would seek leave to be heard, was that the primary judge erred by not directing the jury to deliver separate verdicts for "each proposition", by which Mr Fantakis is clearly referring to the two case theories advanced at the trial (the first case theory and the alternative so-called "5 o'clock theory"). Mr Fantakis submitted that "it would not have added to burden [sic] to require the jury to state which of the alleged acts they found to be proved" (noting that it is for the jury alone to determine which of the acts they found to be proved and citing Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [39] per Kiefel CJ, Keane and Nettle JJ in this context). Referring to her Honour's sentencing judgment at [25]-[26], Mr Fantakis submitted that her Honour was wrong to sentence him on the first case theory "without the jury having made this decision". Mr Fantakis submitted that there were clearly two separate and mutually exclusive events that had to be assessed as separate counts. Complaint was again here made as to the splitting of the Crown case after the close of evidence (a matter raised in other of the grounds of appeal).
In his written submissions on the present application, Mr Fantakis frames his ground 19 as being that:
The learned trial judge failed to give a fundamental unanimity direction to the jury who had been tasked to consider two separate alleged criminal acts/events causing death, occasioning a substantial miscarriage.
Mr Fantakis, in the course of oral submissions, confirmed that his position was that the trial judge had an obligation to have the jury give a separate verdict on each "separate event" and to inform the jury that he could not be found guilty of both events simultaneously. Mr Fantakis relied on Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 (Lane v The Queen) (to which his attention was drawn by Dhanji J in the course of argument). He contends that he was entitled to have the jury determine whether he was guilty in relation to the first proposition or the second proposition taking into account that both propositions were mutually exclusive. As with numerous of his other (often overlapping) 18 grounds of appeal, Mr Fantakis says that ground 19 is a standalone ground.
Turning then to the basis of the present application, although the issue as to the change in the Crown case was dealt with in the judgment published in February 2023 Mr Fantakis is correct to note that ground 19 was not expressly identified in the judgment. By oversight, reference was made only to the eighteen grounds of appeal (see at [3]). The additional ground (ground 19) on which Mr Fantakis sought leave to be heard was not expressly mentioned (albeit that the reasons given addressed Mr Fantakis' contention that both propositions or case theories were mutually exclusive and required separate verdicts - see the reasons as to grounds 4-5 and ground 12). That oversight is clear from the incorrect enumeration of the grounds of appeal at [3], which did not pick up the additional ground raised in submissions filed only shortly before the hearing and then raised in oral submissions.
Accordingly, it is appropriate here to make clear the reasons that this Court has concluded that the appeal on ground 19 should be dismissed (see Jones v The Queen (1989) 166 CLR 409 at 411; [1989] HCA 61per Mason CJ, Brennan, Dawson and Toohey JJ; Pantorno v The Queen (1989) 166 CLR 466 at 484; [1989] HCA 18 per Deane, Toohey and Gaudron JJ; R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195). It is not an opportunity for Mr Fantakis to re-argue his appeal; rather, it is addressing a ground not expressly dealt with in the reasons that were published.
As to ground 19 (noting that Mr Fantakis identifies a number of documents on which he relies in support of (all) his 19 grounds as including: filed submissions for grounds 1-18; affidavits deposed on 1 September 2021, 11 February 2022 and 11 May 2022; and his response to the Crown's submissions e-filed on 16 May 2022 to which reference has already been made above), Mr Fantakis contends that the failure to give a unanimity direction involves a misdirection that is apt to prevent the performance of the jury of its function which, without more, will result in a substantial miscarriage of justice (referring to Lane v The Queen at [48]) and that it amounts to a fundamental defect that occasioned a substantial miscarriage that precludes the application of the proviso (referring to Lane v The Queen at [50]). Mr Fantakis asserts that a re-trial is inevitable when considering the nature and effect of the misdirection.
Mr Fantakis' complaint is that, in the absence of a "unanimity direction", the basis of the verdict is necessarily uncertain as to the act or acts on which it was founded. As noted in the principal judgment at [403], Mr Fantakis says that both propositions were mutually exclusive and had to be assessed as separate counts (and also requiring separate verdicts).
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 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. As noted above, Mr Fantakis contends that since the misdirection of the trial judge may well have affected the jury verdict it is not possible to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW).
Mr Fantakis sets out in his submissions the statement of Barwick CJ in Ryan v The Queen (1967) 121 CLR 205 at 218; [1967] HCA 2 to the effect that the choice of the act causing death is essentially a matter for the jury under proper directions (referring also in this context to Royall v The Queen (1991) 172 CLR 378 at 386; [1991] HCA 27). Mr Fantakis submits that the absence of the necessary direction means that it cannot be assumed that the jury discharged its function to reach a unanimous verdict as the tribunal of fact; and hence resulted in a substantial miscarriage of justice (citing Lane v The Queen at [47]-[48]); arguing that it was distinctly possible that some jurors may have been disposed to convict on the first case theory and others on the second.
Thus, it is submitted by Mr Fantakis that a retrial must be ordered. However, Mr Fantakis then goes on to submit that orders for an acquittal are warranted including by reference to matters relating to the acquittal of one of his co-accused (Mr Cheong) as to which he made submissions on 16 May 2022. Mr Fantakis submits that a re-trial would constitute an abuse of the Court's process as he says that he must have been acquitted of the first case theory and this is the only case that the Crown could conduct on a re-trial (citing R v Zaiter [2004] NSWCCA 35 at [27]).
Mr Fantakis, in his submissions on the present application, then makes complaint as to what he contends to be impermissible and illogical reasoning of Dhanji J (at [896] in the principal reasons) and Wilson J in her sentencing judgment (referring in that context to his earlier submissions at [222]-[238]). This amounts to an impermissible attempt to re-argue submissions dealt with in the February 2023 judgment and goes well beyond the permissible ambit of the present application. The Court does not propose to entertain those submissions.
The Crown addressed this ground in the course of oral submissions. The Crown notes that a unanimity direction is required where the Crown relies on a number of discrete acts, and proof of any one of them would entitle the jury to convict, referring to Lane v The Queen at [42] per Kiefel CJ, Bell, Keane and Edelman JJ and Gould v R; R v Gould [2021] NSWCCA 92 (Gould) at [12] per Bathurst CJ as examples of that principle. The Crown submits that this case is different entirely. The Crown says that this case was not about discrete acts; rather, it was about when a single act, that is the murder of Mr Karmas, occurred during one day. On that basis, the Crown says it was not a matter where a unanimity direction was required, either as a matter of law, or the absence of such a direction gave rise to a miscarriage of justice.
[2]
Determination
The contentions raised by Mr Fantakis in relation to the so-called "5 o'clock theory" have been addressed in sufficient detail in the principal judgment (in the context of grounds 4 and 5 by Dhanji J and ground 12 by Ward ACJ). It is not necessary here to repeat those reasons.
As noted at [868] by Dhanji J, the Crown's primary position was that the murder occurred in the 67 minute "window" earlier in the afternoon of 11 August 2011 but the case ultimately went to the jury on the basis that it could also have occurred when Mr Karmas returned at around 5pm. The Crown thus expanded the timeframe during which it said the applicant had the opportunity to commit the offence.
In the Crown's closing address, the Crown addressed the third element of the offence at 2481.33ff as follows:
In relation to Mr Fantakis, it's my submission to you that when you consider all the evidence and as I said at the beginning of my address to you that the Crown case is essentially a circumstantial case, when you consider all the evidence, you'd be satisfied beyond reasonable doubt that he did a deliberate act that caused the death Elisha Karmas and in doing that act, he either intended to kill him or do him grievous bodily harm and you would find him guilty.
In the summing up, the trial judge explained the Crown's case as to the third element, that Mr Fantakis did a deliberate act that resulted in the death of Mr Karmas, at SU 33-34:
The third aspect of the matter, did a deliberate act. Here the Crown is not able to particularise for you what that deliberate act was. The Crown says that Mr Fantakis applied force to Mr Karmas and that as a consequence of the application of violent force to Mr Karmas, he died. This is not a case obviously where the Crown is saying, it was when the accused person thrust a knife. The act of thrusting a knife into someone's chest, is the deliberate act. It is not that sort of case. The Crown simply says to you that the deliberate act was the application of force by Mr Fantakis to Mr Karmas of some sort, which led to his death.
Accordingly, the mutually exclusive possibilities put by the Crown (that Mr Karmas may have been killed between 2pm and 3pm or around 5pm) did not serve to advance or particularise multiple discrete acts, or indeed even a single one. There were thus no discrete acts available for the jury to convict upon. The Crown's expansion of the timeframe in which the killing could have occurred does not without more go to the proof of any of the four essential elements of the charge, such that a requirement for a unanimity direction arose during the trial.
It is commonplace that the Crown will alleges a crime against an accused, but be unable to particularise the precise time at which the offence was alleged to have been committed. Indeed, offences will often be alleged to have been committed in a timeframe measured in months and sometimes years. Regularly, particularly in offences of murder, the Crown will be unaware of the acts or precise circumstances resulting in death. There are limits, but the limits are defined by the need to ensure a fair trial, which in turn requires sufficient particulars of the allegation be provided to an accused such that he or she can fairly meet the charge. This is a different situation to that in, for example, Lane v The Queen, upon which the applicant relies (and see also, for example, R v Koko [2022] QCA 216). In Lane v The Queen, the appellant was alleged to have caused the deceased's death in a relatively confined timeframe, in the course of a particular night. What was problematic was not the timeframe, but that, within that confined time 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" (as set out in the first paragraph of the reasons of the plurality). Those acts were capable of giving rise to different issues with respect to matters such as causation and self-defence.
The relevant principles concerning the need for a unanimity direction were considered by the Full Court of the Federal Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30 where the Court observed:
77. The authorities concerning the need for unanimity directions tend to distinguish between two types of cases where the issue has arisen. The first type of case is where the prosecution advances alternative legal formulations of liability, but those alternative legal formulations are based on the same, or substantially the same, facts. The typical cases where this arises are cases where the prosecution case relies on the same facts to allege either murder or manslaughter. In such a case there is generally no need for a unanimity direction; see for example R v Cramp (1999) 110 A Crim R 198 (Cramp). The accused did not contend that the prosecution case in respect of charges 1 to 3 advanced alternative legal formulations of liability. They accordingly did not suggest that this case fell to be determined in accordance with the principles expounded in Cramp and like cases.
78. The second type of case arises where there are said to be alternative factual bases for liability. The typical case where this issue arises is where the accused is charged with obtaining a benefit by deception, or a similar offence, and the prosecution relies on a number of discrete particulars to prove the deception and any one of those particulars would be sufficient to prove that element. In those circumstances, the need for any form of unanimity direction will depend on the nature of the charge and the factual issues presented by the evidence having regard to the way the prosecution and defence put their respective cases.
79. In R v Walsh (2002) 131 A Crim R 299 (Walsh), the principles applicable in this type of case were neatly summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in the following terms (at [57]):
The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence". When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.
80. This statement of principle in Walsh has been applied or cited with approval by the High Court and numerous intermediate courts of appeal: Lane v R (2018) 265 CLR 196 (Lane) at [45]; Magnus v R (2013) 41 VR 612 (Magnus) at [32] and the cases cited at [33]; Pratten v R [2014] NSWCCA 117 (Pratten) at [45]-[46] and the cases cited at [47].
The present case was not concerned with alternative legal formulations to establish liability. But nor was it a case in which the Crown relied on two distinct acts each of which was capable of establishing the offence. While there was an alternative factual scenario put forward by the Crown, the effect of this was to expand the opportunity for the applicant to have committed the offence, rather than to allege an alternative act giving rise to distinct issues such as causation intent. As stated by the Full Court of the Federal Court, above (at [78]) "the need for any form of unanimity direction will depend on the nature of the charge and the factual issues presented by the evidence having regard to the way the prosecution and defence put their respective cases". The issues here were relatively straight forward. The Crown alleged that at some point in the afternoon of 11 August 2011 the applicant caused the death of Mr Karmas with an act by which he intended to inflict, at least, grievous bodily harm. The applicant denied that he, at any time on that date (or at all) inflicted any physical harm to Mr Karmas. While there was a question as to the fairness of the Crown being permitted to expand the timeframe in which the relevant act occurred, that issue has been resolved in the context of grounds 4 and 5. There was no requirement that the jury be unanimous as to when on the relevant date the offence was committed, and no direction as to unanimity was required. That defence counsel objected to the Crown being allowed to rely on the "5 o'clock theory" but did not consider a unanimity direction was required gives added force to this conclusion.
This additional ground of appeal is not made good. That conclusion involves no alteration to the reasons already published by this Court in this matter; rather, it involves the application of those reasons to the additional ground not specifically addressed in our earlier judgment. The application to set aside or vary the orders made by the Court on 3 February 2023 is dismissed.
[3]
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Decision last updated: 15 February 2023