R v Fantakis; R v Woods

Supreme Court of NSW|2018-02-21|Before: Wilson J

Judgment

HER HONOUR: On 6 May 2017 the accused men were arraigned before this Court upon an indictment charging Mr Fantakis as principal in the murder, on 11 August 2011, of Elisha Karmas, and Mr Woods thereafter as an accessory to that crime. Each accused entered pleas of not guilty.
Their trial, jointly with Derek Cheong, commenced on 19 February 2018 hearing, initially, pre-trial issues. It is anticipated that a jury will be empanelled on 26 February 2018.
At the trial proper, the Crown proposes to adduce evidence of a number of conversations between the accused men, evidence which has been described broadly as "the intimidation evidence". In it, the accused appear to discuss doing harm to the officer in charge of the murder inquiry, Detective Sergeant Roxanne McGee.

The Surrounding Facts Alleged by the Crown

The facts alleged against the accused may be found in R v Fantakis; R v Woods [2017] NSWSC 1840; and R v Woods; R v Cheong [2018] NSWSC 123. It is not proposed to reproduce that material here.
In short, Mr Karmas vanished without trace on 11 August 2011. He is presumed to have been murdered. On the day of his disappearance, he was last known to be in the company of the accused Fantakis at an address at Warwick Street Punchbowl. Other electronic evidence places the two men together at an address in Wilga Street, Punchbowl, with the accused Woods at or near the premises at about the time of the murder.
A police inquiry into Mr Karmas' disappearance commenced the following day, 12 August 2011. The accused Fantakis quickly became the focus of the investigation, with a vehicle stop relating to him conducted as early as 13 August 2011. The involvement of the accused Woods was, similarly, an early focus of the police inquiry.
Warrants were granted to police to electronically intercept conversations had by the accused, and such interception commenced no later than 1 September 2011.

The Disputed Evidence

Where evidence is relied upon as capable of demonstrating an accused's consciousness of guilt, it is important that it be precisely identified. The disputed evidence was obtained by investigating police pursuant to the various warrants that authorised electronic surveillance of the accused. The evidence is before the Court in transcript form, but no issue has been taken with that, or with the voice identification noted on the transcripts.
In places, there are discrepancies between the transcripts, Exs. VD A.6, and VD A.7, and the account of the conversations in the statement of D/S McGee, Ex. VD A.5. Extracts taken from the transcripts are rendered in standard font; extracts taken from the statement of D/S McGee are rendered in italics.
From warrant 11/0597 (Ex. VD A.6), between 18:21 - 18:44 on 25 November 2011, WOODS - …then they're going… were gonna get put in gaol…then we'll be like… you only get to go to prison i f you're going to get caught…only if you're going to sort something…you need to serve something….court case… private hospital…I like that orderly… . when we go and see Nick huh… very nice very nice very nice. ..fucken FANTAKIS - … WOODS - …fucken… very nice y ep very nice very nice…. FANTAKIS - ... WOODS - … FANTAKIS - ….listen I got a new computer….. WOODS - …. what's the fucken story….you….they're going to find him….storage….taser injury.. . FANTAKIS - … WOODS - yeah FANTAKIS - [Inaudible] WOODS...we believe that… you know like a…..suicide….all I'm saying is mate…..death by electrocution FANTAKIS - ….. WOODS - ….you know what I mean FANTAKIS - yes WOODS - [Inaudible].. murdered.. WOODS - ….it 's them….my certificate, it's even her writing FANTAKIS - ….. WOODS - ….no no no it's in boxes…boxes FANTAKIS - …. WOODS: I wanna know where she lives mate.. I fuckin wanna know where she fuckin lives FANTAKIS - Just follow her home from work WOODS - …I know…fucken there….I want her moving, I want her upset ok…moving, moving, moving… how fucken…alright this is what we do, this is what we do… This is about survival.. FANTAKIS - You got fucken charges WOODS - …I got fucken charges, we can do it in a way that it's gonna you know what I mean…I know I never got the… never, never…still…you know detail…detail…I still can't fuckin believe it… FANTAKIS - … WOODS - How dare.. [inaudible] WOODS - …he's got a dog or glock??.. he has his own .. FANTAKIS - … WOODS - …he's qualified he is qualified…nah he can do it he can do it… FANTAKIS - … WOODS - … FANTAKIS - … WOODS - .. I'm fuckin sure of it.. ok why the fuck… FANTAKIS - …that's what they're all saying… WOODS - …that's what they're all sayin.. they're fucking saying this that. FANTAKIS - [Inaudible] WOODS - She is I read the thingo. WOODS - Even the original one was not fucken real FANTAKIS - But it doesn't matter.. [inaudible] WOODS - They're gonna turn it around .. [inaudible].. it's strange all strange WOODS: Her vehicles in that same block you know… [Inaudible].. WOODS - …I don't even wanna punch her in the face okay …I want to blind her.. I want to know where she lives..I want to know where she lives.. [lowers voice] I wanna know where she fuckin' lives. I'm gonna start chasing her FANTAKIS - ... WOODS - Fuckin…I 'm gonna start chasing her okay! WOODS - [Inaudible conversation] FANTAKIS - … WOODS - …start doin it …hey… FANTAKIS - ... WOODS - …you fucken… any of that ring a bell… Fuckin Ashley.. he looks like him, it looks exactly like that… FANTAKIS -… WOODS: Ahhh FANTAKIS: … WOODS - No he doesn't.. [inaudible]. whole story.. she grew up around there but she doesn't live there.. I'm telling ya [WOODS / FANTAKIS - Inaudible conversation] WOODS - She would have been gone.. made sure.. fuckin.. Officer in charge of Flaggy Dead WOODS [FANTAKIS] - That won't be a problem man haha
From warrant 11/0597, between 18:46 - 18:55 on 25 November 2011: WOODS - ...gun…fuck this get a gun, got your gun? Got to get a gun we've gotta get a gun FANTAKIS - ... WOODS - … [Indiscernible] WOODS - ….he needs to …just find out anyway alright, I won't do anything about fucking finding it alright... FANTAKIS - … WOODS - … [indiscernible] WOODS - …six months… FANTAKIS - …oi… it's the only fucken way WOODS - …what do you mean it's the only fucken way FANTAKIS - Killing her WOODS - … FANTAKIS - …what are you talking about the only way WOODS - …that's how you deal with it like that I'm just asking because… if you can't help me I'll do it myself… FANTAKIS - … WOODS - … FANTAKIS - Dead WOODS - Dead. Cool. I like it. Yeah, fuck her. It's got to be done, okay […..] WOODS - …I don't wanna fucken…I don't …they drag you they drag me I said no...I don't like it… I want to influence the fucken hunter… they have the upper…you know what I mean …this barrister… [They're all getting around like they know. I don't like it. I want to influence the outcome you know what I mean., Like they know [inaudible] they know the outcome. This will fuckin embarrass them.]
From warrant 11/0597, between 19:04 - 19:19 on 25 November 2011: WOODS - …I don't care.. yeah, I'll go and have coffee every single day …every spare [two] minute[s] I don't care… I've got an excuse to be there you know.. ago and have coffee there.. and just go heyahhh . yeah man ..we can get around there and just go de de de …yeah man… we can go down there… FANTAKIS - … WOODS - Inaudible.. and after that we will be right on her .. all the time. We are going to be right on her all the time! … WOODS: Everyone else would be "oh you know" go to ground dadada.. But that's what these pricks are good at.. Ive got twelve …twelve han ds on my own… just that pressure pres sure pressure … you know that…all the time… what I'm saying, they're gonna fucken ground down… all the time you know… know what I'm saying? FANTAKIS - … WOODS - …We're gonna fuckin ground her down..[inaudible]..fuckin [punches wall] I'm gonna fuckin.. [punches wall again].. all the time WOODS - fucken yeah…fucken jesus christ you know…she's the only one that knows anything… FANTAKIS - … WOODS - We've gotta do it.. I'm gonna do it. WOODS -…fucken back either…just like what's been happening to me …fucken nobody…I 've been bouncing around everywhere you know what I mean… fucken nowhere to go, no this that, no money, no nothing, only one way out… boom FANTAKIS - … WOODS - …you understand what I am saying… I put something…just to go there… she's fucken…their operating two… like they're still kicking sand in our faces telling us to get fucked fuck that I want to see them operating on our schedule and her to fucking crash …nah fuck that…you better talk to me and I'll fucken decide whether you get it right… I wanna bypass as soon as I can…as soon as we fucken…you don't have the same motivation as me. They don't have the same motivation… you know what I mean... FANTAKIS - … WOODS - …what about the skinny guy… fucken girlfriend or something like that… you understand… you know what I mean , ok FANTAKIS - … WOODS - …yeah yeah you know what I mean, something like that. Ok no problem no worries, yeah we can figure that out, actually I'll take a gun, as long as someone can … you know…explain the scenario write down the right thing do the right thing… you know what I mean no I want to use those…ok you know what I mean…even if I have to fucken crack onto her to get in there I'll do that I don't care… there's nothing… that's it…fucken big bad world out there…big bad world out there mate ….if…money…you'd both be dead…kill myself…that's my revelation.. .you what… said…lock them up son…fuck that...no way… FANTAKIS - WOODS - … [Indiscernible] FANTAKIS - … danger… WOODS - …you know what I mean …we can do it…they make money from it…you get what I mean…you see what I'm saying…you get some customers you respect more than others …ok and that's it… yeah bang FANTAKIS - … WOODS - …you see the way you're going …she still hasn't… .you know what I mean… nah fuck that man no way, we're gonna do it our way I'm gonna get her…pressure… watching all the time…got a theory… I know…I don't trust you to handle it ... I don't trust you FANTAKIS - … WOODS - …no way, we're not going to break… yeah FANTAKIS - …that's what I'm saying WOODS - …yeah yea h… listen we gotta be there… forget these.. .nah nah nah we've got to be there…she's got to run away…yeah no no yeah b ut no I want her to feel like we're looking at her, we're looking at her… I don't give I want her to feel where looking at her ok that's the only thing that made her move last time
From warrant 11/0597, between 13:16 - 13:31 on 26 November 2011: WOODS - How you goin Flaggy FANTAKIS - … WOODS - Yeah they're thick now but you know what I mean…you know like they're jumping over each other probably FANTAKIS - …They're fucked.. . Wasting time WOODS - Huh FANTAKIS - They're just wasting tax payers money WOODS - They've got direction but ok. Let's go up and get the whole team, you know. [We have got to start thinking about that… got to get onto this Tim cunt] They've got to start digging around that farm. Maggot. Start sending me a message about the farm ok. Did you get the message I sent you about the farm. Saying things like that. They still think we got to dig one somewhere yeah. If they think that they are going to go scrambling you know what I mean… FANTAKIS - Have to start thinking about that…. WOODS - Huh FANTAKIS - Start thinking about that.. WOODS - Which one the one that's state forest FANTAKIS - We'll have to google it WOODS - But don't do it from home they're tracking everything we're looking at. […] WOODS - How bout a MCGEE FANTAKIS - …Fuckin Flaggy… WOODS - (laughs) can't get over…. FANTAKIS - Hey WOODS - How FANTAKIS - Left and then right WOODS - Yeah then where you gonna go FANTAKIS - Left then right WOODS - You can't FANTAKIS - What are you talking about WOODS - You can't turn right up here FANTAKIS - What are you talking about … WOODS - … FANTAKIS -… WOODS - Hey did you get on to the fucking money guy FANTAKIS - I missed him last night WOODS - What, that's great FANTAKIS - I missed him last night, didn't see him yesterday WOODS - Well I'm owed ten grand, you said that to me FANTAKIS - … [……]
From warrant 11/0597, between 15:39- 15:48 on 26 November 2011: WOODS - they're gonna get more and more agitated. We gotta keep the whole thing fucken red hot you understand , maggot. My tempers fucken starting to fray you know, you know what I'm saying. But they've fucked themselves with this whole scientific thing they've fucked themselves. I wanna get hold of this Tim cunt. [Flaggy…make some calls for me yeah. I'm gonna get more and more agitated. We have got to keep this going red hot. My temper's starting to fray you know maggot. You understand what I'm saying. We've got to get onto this Tim cunt.]
On 7 July 2012 Detective Inspector Doueihi spoke with both accused, and advised them that an investigation was underway into the possible commission by them of conspiring to murder D/S McGee.
From warrant 12/0311 (Ex. VD A.7), between 16:38 and 16:51, 25 July 2012: WOODS: Toads. The toad. 16:40 WOODS: Toadfinder. This is fuckin bullshit Actual Factual! Yeah automatic gaol. This is fucked up. Shut up man. Oh my god 16:42 [Vehicle stops. Woods exits.] 16:46 - 16:46 WOODS - 0-4-1-4-6-2-3-1-1-3 16:47 WOODS: Ok nah nah that's bullshit. [Phone dialling in background. Woods calling Fantakis] WOODS: Thorny head [or similar] I'll see you soon. Vehicle starts and drives off 16:50 WOODS: Toad. Toad 16:50:46 WOODS: Toad. Toad 16:51 WOODS: Roxane give me a call
From warrant 12/0311, between 17:42 and 17:55, on 25 July 2012, and only sought to be led against Woods: [Woods on phone to mother] 17:42. WOODS: Yeah I got pulled over taking seroquils. [Reference to meds.] Yeah I got pulled over suspected drug driving. WOODS: So they took me to hospital in handcuffs. That's the first time I was handcuffed. I've never been handcuffed you know. WOODS: No I was just stressed out you know. I had a massive argument with another cop. 17:44:03 WOODS: Yeah Yeah I'm in the toad finder [Woods on phone to mother.] The toad finder. WOODS: Yeah he comes up and he goes "What the bloody hell is a toad finder?" "Who's that?" WOODS: I go [indecipherable] It is the toad finder. WOODS: I can 't hear you mum. WOODS: 3 cop cars came you know. Just because I was weaving a bit you know. [Further irrelevant conversation] 17:46 WOODS: I can't hear you mum [Call ends]. 17:50 WOODS: Wrongo. Wrongo. You're a fuckin Wrongo. [Woods talking to self.] 17:52 WOODS: Toad. That fucking Toad. Everybody get the Toad [Woods talking to self.] 17:53 WOODS: Toady….. Toad. 17:54. [Vehicle stops. Woods exits vehicle.] 17:54:57 [Woods playing with phone.] 17:55:15 WOODS: Toad.
From warrant 12/0311, between 18:20 and 18:26, on 25 July 2012: WOODS - Yeah and I'm goin what the fuck am I doin here FANTAKIS - I dunno what the fuck where you doin there. Listening to McGee WOODS - …yeah man FANTAKIS - You were listening to McGee. Fucken crazy cunt WOODS - I was fucken yeah man I can't think about that stuff anymore FANTAKIS - Fucken meedo WOODS - Aw man…gets me fucked up you know FANTAKIS - Aw yeah…meedo fucks things… WOODS - Aw man I'm telling ya I'm fucken I went I went…and he goes, he comes up and goes, look at that, there's the toad finder I go I go where where's the toad finder I go the toad finder's not a person it's a thing and he goes fucken cool man FANTAKIS - …[Laughing] Nah man WOODS - …he goes what's a toad you know. It's a fucken toad you know it's a chick you don't like you know. Been nasty to ya. it's not exactly a fucken bitch, it's a toad…he went ahha…Detective Senior Constable McGee. Should even be a…today…he goes no I go she's a toad. […] FANTAKIS - No in actual fact, the fact of the matter is if you find it once you own it now. That is actually ah… WOODS - Ah yeah…I will find it FANTAKIS -Nah you just talk inside the van and go you know what guys if you have anything here right now and I will find it as you know WOODS - Yeah I am the finder FANTAKIS - Yeah nah but they had something in Trish's car WOODS - In the black car, I found I found that one FANTAKIS - Nah your fucken your phone is what's fucken their microphone, that's how they're hearing us mate…becomes a microphone WOODS - …yeah, that's it it does anything… FANTAKIS - Anything that its, well it's got it's got it's got loudspeaker.
There are other scattered references in the transcript of conversations caught by warrant 12/0311, including the accused Woods saying "Go and get McGee".
In August 2012, an officer attached to Strike Force Flaggy saw the vehicle driven by the accused Woods, registered number ALL61P, parked at George's Hall. The words "Toad Finder" had been written in dust adhering to the back windscreen.
D/S McGee says in her statement (Ex. VD A.5) that other relevant conversations were recorded pursuant to warrant 13/136, the transcript of which is not part of the evidence on the voir dire. In one conversation, that the officer listened to on 5 April 2013, the accused Fantakis is recorded saying "I know where everybody lives now […] I can get you dog cunts".
The context is not referred to in the statement.
Telephone interception technology was also deployed, capturing the following text message from the accused Fantakis to the accused Woods at 16:46 on 22 January 2013. I warn u all today was the last stray and my ass is over being fucked. I am now going to instill a campaign that will crush whatever it is you feel that you are entitled to. I will leave you u all with nothing but the true premise that you should all be burned to a stake after you a subjected to a public show of stoning. so that this never happens again. this I think is fitting for you fit up cunts.
Although no transcript is in evidence, D/S McGee also refers to intercepted telephone conversations in which the accused discuss having access to "RP data", that being said to be a reference to a real estate database.
Further, the Crown relies upon the aggressive demeanour of the accused Fantakis to D/S McGee in the context of failed action taken by him in this Court in February 2013, together with a text message sent by Fantakis to Woods after judgment was handed down.
Relevant only to the accused Fantakis, pursuant to warrant E07243-00-00 the accused was recorded saying to a friend, Terry FANTAKIS: "I need to create a crime that will go to a jury. I actually want a jury. When it's a severe enough crime, you get a jury." Terry FANTAKIS: You know what, Fuck em! They want to push it so far that I go to gaol? Yeah no worries, I'll go to gaol but it's gonna be for something fucken good I can tell you that much mate Male (Nick): Just be careful Melaka Terry FANTAKIS: Yeah no I'm careful, that's something I do know.

Other Relevant Evidence

The accused Fantakis tendered a number of psychiatric and related documents on the voir dire.
Dr Gordon Elliott (Ex. VD 1.1) examined the accused last year and provided a report to the Court on 4 May 2017. Dr Elliott had earlier seen the accused as a treating doctor through Justice Health, and had access to departmental notes. He formed the view that the accused was "consumed" by his legal matters, and "deluded" in his beliefs as to police involvement in the death of his twin brother. The doctor noted an earlier diagnosis of a delusional disorder, made soon after the accused entered custody on remand.
Dr Elliott concluded that the accused presented with elaborate persecutory and grandiose delusional beliefs concerning the death of his brother, those he believes responsible for it, and the role of police.
Dr Charles Chan saw the accused soon after his admission to custody (Ex. VD 1.2). He formed the view that the accused had a delusional disorder.
Dr Stuart Saker (Ex. VD 1.3) was the accused's treating psychiatrist in the community, seeing him on numerous occasions in 2011, 2012, and 2013. Over those consultations, he concluded that the accused suffered from persecutory beliefs and depression. He regarded him as affected by persecutory delusions. Dr Saker referred to the accused's belief that a transmitter had been inserted into his brain by police.
Dr Saker had access to some recorded material (relied on by the Crown as admissions).
The doctor opined that there was no clear evidence of psychosis prior to 2013. He cautioned that "any information" derived from the accused "is highly unreliable" due to the accused's delusions and "extremely skewed view of reality". Treatment notes (Ex. VD 1.4) record contemporaneous observations.

The Submissions of the Parties

Counsel for the accused Fantakis submits that the material relied on by the Crown as evidence of attempts to intimidate the officer in charge are: 1. Not capable of meeting the test of relevance; and 2. Unfairly prejudicial.
It is submitted that nothing in the impugned material is relevant to any fact in issue in the trial, the facts in issue being whether the accused killed Mr Karmas on 11 August 2011, and later moved his body and cleaned the crime scene. The accused argues that the material contains no admissions, and nothing of direct relevance to the issues at trial.
Thus, the test at s 55 of the Evidence Act 1999 (NSW) is not satisfied.
Even were the evidence to be admissible the accused argues that the nature of the evidence is such that it would inevitably inflame a jury, and prejudice its members against him, notwithstanding any direction that might be given. Counsel for the accused refers to the obscene nature of some of the material, the unsavoury language on occasion used, and the threats to a female officer, as having the potential to particularly horrify or anger a jury.
Its probative value in establishing the "nefarious" nature of the relationship between Fantakis and Woods is contended to be so slight as to be readily outweighed by the potential prejudice. The accused submits that the Crown would invite the jury to reason that the relationship between the accused at the time of the alleged offences, as evidenced by the relationship shown in the later intercepted conversations, was a nefarious one. This is, it is argued, to impute a state of mind held by them in late 2011 - 2013, to the same individuals at an earlier time.
The accused further submits that some of the evidence is in reality tendency evidence, in that a jury might conclude that he is a person with a tendency to use violence. Tendency evidence of this nature could not be admissible, particularly in circumstances where no notice has been given and the Crown does not rely on the material as falling within s 97 of the Evidence Act.
Counsel for the accused refers to the material generally as "ranting", or the expression of bitter complaints against the police, by an individual who was seeking psychiatric treatment at the time.
He submits it would be unfairly prejudicial to permit the Crown to use the recordings in its case, and the evidence should be excluded pursuant to s 137 of the Evidence Act.
The accused Woods similarly contends that the material is neither relevant, nor sufficiently probative to permit the admission of plainly prejudicial evidence. He too relies upon the oddness of some of the statements by the accused men (such as Mr Fantakis' claim that police had put a transmitter in his head) as pointing to the unreliability and even madness of the material, and the unfair prejudice to the accused in permitting its use. Referring to the Victorian authority of R v Ciantar (2006) 16 VR 26, or 167 A Crim R 504, counsel for the accused submits that, if an innocent explanation of post‑offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or, if the post-offence conduct is intractably neutral, the evidence should not be admitted as evidence capable of demonstrating consciousness of guilt.
It is argued here that the evidence falls into the latter category, being "intractably neutral".
Further, the "poisonous" nature of the evidence is submitted to be such that the prejudice to the accused in admitting the evidence will be both overwhelming and incurable. Counsel submitted that evidence of "a vile murder" and the deeds done by the accused afterwards, particularly if coupled with evidence that the accused Woods suffered from paranoid schizophrenia, would be such as to prejudice the jury irremediably.
The accused argues that the evidence does not meet the test at s 55 and, if it does, it should be excluded pursuant to s 137.
The Crown submits that, for the accused to discuss or plan harming the officer in charge of the investigation into the murder of Mr Karmas is directly relevant to proof of the guilt of the accused men, in that it demonstrates their wish to disrupt the investigation, and thus their consciousness of their guilt of the charged offences.
The evidence is not and cannot be tendency evidence, and it is not relied upon as such. It is contended that the motive for the plans of the accused to kill D/S McGee or to interfere with her investigation, must bespeak a consciousness of guilt.
Although the evidence is principally relied upon for that purpose, further, the evidence demonstrates the close nature of the relationship between the accused, and the preparedness of each to take significant action on behalf of the other.
The relevance test is satisfied.
The Crown contends that the probative value of the evidence is high, and any prejudice occasioned to the accused can be dealt with by direction, and is not unfair prejudice.

The Law

To be admissible, evidence must be relevant within the meaning of s 55 of the Evidence Act. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at (653 [6]): "Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise."
Section 55 is in these terms: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
Evidence which may establish that an accused person has a consciousness of guilt of a charged offence has long been recognised as relevant and admissible in support of the case called by the prosecution. It is circumstantial evidence of a collateral event capable of supporting the Crown case.
Such evidence is frequently seen as evidence of lies told by an accused (Edwards v The Queen (1993) 178 CLR 193), but there are other examples. An accused's flight or resisting arrest can be evidence of consciousness of guilt (R v Sutton (1986) 5 NSWLR 697; R v Egan, unreported decision of the NSWCCA of 7 July 1997), as can the failure of an accused to deny an allegation (R v MMJ [2006] VSCA 226), the destruction of evidence (R v Nguyen [2001] VSCA 1; DN v R [2016] NSWCCA 252), interference with a witness (R v Smit & Ors [2004] NSWCCA 409), or the disguising or altering of an accused's appearance.
Guilt may be inferred from an accused person's post-offence conduct by demonstrating the accused's awareness of his or her guilt. In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Latham J observed (at [6]): As I observed in McKey, the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions.
In considering the admissibility of the impugned evidence, it is necessary to conclude that it is capable of rationally supporting an inference of guilt of the charged offences, and be capable of constituting an implied admission to those offences. The test was discussed in Edwards, at 209: "But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him.'" (footnotes omitted)
In summary, for evidence of conduct to be admissible as evidence of consciousness of guilt, 1. The conduct must be deliberate; 2. It must relate to a material issue; and 3. It must be open to infer that the motivation for the conduct was comprehension of guilt of the charged offence.
The fact that there may be some explanation for the relevant conduct other than consciousness of guilt does not render the evidence inadmissible; it would ordinarily be a matter for a jury properly instructed to consider any hypotheses consistent with innocence in assessing the weight to be given to the evidence, if any: R v Power (1996) 87 A Crim R 407. That there is or may be some other explanation may be relevant to the application of ss 135 or 137 of the Evidence Act.
Those provisions may suggest or require the exclusion of the evidence, even though it meets the criteria for admission as going to consciousness of guilt. Section 135 provides a discretion upon which to exclude evidence: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
Section 137 requires the exclusion of evidence if the circumstances referred to in the provision are present: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Applying the Law to the Evidence

Of the evidence that the Crown seeks to tender only that evidence set out at [12] - [14] above meets the criteria for admissibility as evidence of consciousness of guilt.
The extracted conversation is one voluntarily engaged in by the accused men. It relates to a material issue, that being the conduct of the police investigation into the presumed murder of Mr Karmas, and the importance to the investigation of its officer in charge, suggested by the expressed desire to kill her or see her dead. The evidence is clearly capable of supporting an inference that the accused planned to kill, or wanted to see D/S McGee dead, because she was investigating the crime each was conscious of having committed.
The Edwards test (necessarily modified since no lie is involved) is satisfied. The requirement of relevance is met.
The Court must next consider whether the exclusionary provisions relied upon by the accused are properly engaged.
Section 135(b) and (c) have no application. There is no question of the evidence being confusing, or a waste of time. The only real consideration is whether there is unfair prejudice (s 135(a)), or whether prejudice of that nature outweighs the probative value of the evidence (s 137).
All evidence that tends to inculpate an accused person is prejudicial; to be unfair prejudice, the evidence must give rise to prejudice which is unfair.
Unfair prejudice will arise where there is a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, per McHugh J at 325 [91]; Colby v The Queen [1999] NSWCCA 261 at [97] per Mason P.
The prejudice which the accused argue will be unfairly occasioned to them is: 1. in the evidence being unduly focused upon by the jury in circumstances where the mental illness of the accused men provides an innocent explanation for the conduct but which, if revealed, could of itself lead to prejudice; 2. in a jury's distaste for the idea of two men discussing the violent death of a woman; 3. in the unpleasant nature of some of the language; and 4. in the evidence being used as tendency evidence, suggesting that the accused have a disposition to violence.
The first and last of these are the only matters that could potentially give rise to unfair prejudice in my view. In circumstances where the jury will be hearing evidence of the alleged commission of a violent crime, and will be directed to consider the evidence dispassionately and without emotion, I do not think that the idea of the accused discussing the death of a woman (presumably as opposed to a man), or that they may do so using bad language, could lead to prejudice.
The fact that there may be a reason for the discussion consistent with innocence - that the conversations are no more than the deranged rantings of two mentally ill men - does not in my view dictate the exclusion of the evidence. Whilst I accept that the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, I do not regard the risk of that as a significant one, particularly in an age when mental illness is increasingly recognised as a common experience in the community. A properly crafted direction can readily address such prejudice as may be occasioned.
Further, the Crown relies to an extent on the fact that the accused men were unbalanced to go to prove motive, and the bizarre nature of much that was said and done will be exposed to the scrutiny of the jury for that other purpose. The Crown's case is that the accused had come to a deluded view as to the responsibility of Mr Karmas for the death of Nicholas Fantakis, and killed him because of that delusion.
As to the potential for the jury to use the evidence as establishing a tendency in the accused men to act violently, I do not think that the danger of that occurring is in fact present. Evidence of a similar course of conduct is regularly placed before tribunals of fact to go to establish the context in which a charged offence occurs, and potential prejudice is as regularly addressed by directions to the jury. See generally R v Quach (2002) 137 A Crim R 345; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; JMW v R (2014) 245 A Crim R 538.
I would not exclude the evidence pursuant to s 135.
Section 137 requires the Court to consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice.
"Probative value" is defined in the Dictionary to the Evidence Act as: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
That is to be assessed without seeking to evaluate the reliability or credibility of the evidence, the High Court having recently confirmed that such is the correct approach. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court held that such matters should be left to the jury, as determined in R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121.
There is a relatively high degree of probative value to this evidence. The Crown relies upon it, and it is capable of being accepted as, a significant circumstance in proof of the charges, in what is a wholly circumstantial case.
I have already considered the issue of prejudice and unfair prejudice, and concluded that there is no real danger of unfair prejudice in the admission of the evidence, particularly bearing in mind the warnings required to be given to the jury.
Section 137 does not require the exclusion of the evidence extracted above at [12] - [13] inclusive.
The balance of the material does not bear the same character or have the same probative force.
The material extracted in [14] above could be understood as the accused discussing a campaign of harassment against the officer in charge, but it is not expressed with the same apparent determination as that in [12] - [13], and there is no element of planning in the discussion. Whilst the accused Woods is recorded as saying "I'll take a gun", the reference is not grounded in any plan. I do not regard this evidence as meeting the requirements of evidence which could legitimately support an inference of consciousness of guilt.
The conversation extracted at [15] is a general discussion in hostile terms concerning the police investigation, disparaging it as a waste of time and so on, but it also lacks the character of a plan to disrupt the inquiry discussed with genuine intent. The references to a "guy" and $10,000 are capable of many meanings, not necessarily anchored in the context of this matter.
There are similar issues relevant to the conversation set out at [16].
The material referred to in [18], [19] and [20] above contains the references by the accused Woods to D/S McGee as a "toad", and himself and his vehicle as the "toad finder". This sort of foolish abuse seems more childish than real and is without the sort of determined expression of intent to take action to disrupt the murder inquiry. I do not consider it to be capable of supporting an inference of guilt.
The evidence extracted at [21] is vague, and not sufficiently connected to a material issue to be admissible.
The conversation referred to at [23] is not before the Court in transcript or recording form and, without anything to establish its context and purport, I do not conclude that it has sufficient relevance to make it admissible. The same observation applies to the evidence noted at [26] above.
The evidence set out at [25] seems to relate to Supreme Court action the accused Fantakis took in relation to the police investigation, and that at [27] certainly does. His disgruntlement with the process and the outcome receives clear expression in the text message sent following the judgment handed down by Button J. Since the action related to the murder inquiry, it could perhaps be regarded as sufficiently relevant for admissibility, but the connection is somewhat tenuous, and the probative force is limited. The language employed in the text message is so gross as to give rise to a danger of unfair prejudice. In the exercise of the Court's discretion I would exclude that evidence pursuant to s 135 of the Evidence Act.
The accused's conversation extracted at [28] is suggestive of an intent to commit some crime, but what and why is unclear. A generalised intention to commit an unspecified criminal offence, not necessarily related to an intention to disrupt the investigation of Mr Karmas' murder, may be relevant but, if so, it's probative force is readily outweighed by the danger of unfair prejudice. I would exercise the Court's discretion to exclude the evidence pursuant to s 135; s 137 mandates its exclusion in any event.

Directions

91 As earlier observed, there is a need for careful directions to the jury with respect to the evidence that is to be admitted. It will be necessary to ensure that the jury understands that the accused acted deliberately, that they acted in a way relevant to the issues at the trial, and that the motive in so acting was a realisation of guilt. Warnings as to the possibility of other, innocent, explanations for the conduct will be required: Edwards v The Queen; DN v R [2016] NSWCCA 252; R v Cook [2004] NSWCCA 52 revised 18/3/2004; McKey v R [2012] NSWCCA 1.

orders 1. The evidence extracted at [12] - [13] of these reasons (and evidence of such surrounding conversation as is agreed between the parties to be necessary to put the evidence into context) is admitted. 2. The balance of the evidence sought to be led by the Crown is excluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 January 2019

Evidence Act 1999(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Legislation Cited (1)

Cases Cited (25)

Cited By (2)