R v Fantakis, Woods and Cheong

Consideration

The first question in determining this application is whether, as asserted by counsel for Mr Woods, a jury is entitled to consider the evidence before it only insofar as it may be consistent with the opening address of the Crown Prosecutor.
The authority relied upon by Mr Woods for this proposition was Tangye, set out at [36] above.
Tangye needs to be considered in its particular context. It was a case in which the appellant was alleged to be one of a number of persons involved in an affray in a public street in Campbelltown. Whilst the Crown's case against him was that he was a participant in a joint criminal enterprise, that basis for it was never clearly articulated by the Crown Prosecutor in opening address to the jury. Subsequently, and unnecessarily, the trial judge directed the jury in relation to common purpose, or extended joint criminal enterprise. In the course of dealing with later questions from the jury, the Crown clarified for the first time the basis of its case.
The paragraph from the judgment of Hunt CJ at CL (McInerney and Sully JJ agreeing), which is relied upon by the accused Mr Woods, was given against that background. The import of it was to stress the need for the Crown to clearly identify its case and the legal basis for it, that is, the nature of the case "in conceptual terms", in opening its case to the jury and the court, particularly where there may be differing legal bases for liability for the charge. I do not accept that Tangye is authority for a principle that the Crown Prosecutor's opening address serves to restrict the nature of the evidence which may be ultimately led and relied upon by the Crown, or to confine the jury to considering the evidence only insofar as it may fit within the detail of the Crown's case against the accused as articulated in opening address.
There are cases where a deviation between the Crown's case against an accused as outlined in opening address, and the case as it was ultimately left to the jury, has resulted in a miscarriage of justice.
In King v The Queen (1986) 161 CLR 423 two men were jointly charged as principals with the murder of the wife of one of the men. The case as advanced by the Crown was that the husband, as an accessory before the fact, had procured the second man to kill his wife. The case against the husband was left to the jury, at the request of the Crown Prosecutor, on the basis that the husband could be convicted if the jury was satisfied that he had arranged for some person, including a person other than the co-accused, to murder his wife.
The conviction of the husband was quashed by the NSW Court of Criminal Appeal with the matter going before the High Court on another issue. Whilst the principal issue to be considered was whether the CCA had been in error in ordering a new trial, rather than recording an acquittal, the Court concluded that the conviction could not have stood in circumstances where there had been a change in the nature of the Crown case, first made clear during the summing up of the trial judge. Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed; Mason, Murphy and Deane JJ in dissent as to the ultimate outcome, but agreeing on this point) said at 432, No exception was taken before us to the finding of an irregularity or the quashing of a conviction. Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand.
The authorities cited by his Honour were R v Laird (1893) 14 NSWLR 354; R v Thompson and Gamble (1925) 42 WN (NSW) 71; McManamy v Fleming (1889) 15 VLR 337; Gregory (1981) 77 Cr. App. R. 41 at 47; Falconer-Atlee (1973) 58 Cr. App. R. 348 at 355 - 356; and Cross and Channon (1973) 55 Cr. App. R. 540 at 545 - 546.
In R v Laird, the Crown prosecuted the prisoner for larceny but, at the close of the evidence, a further charge of receiving was added. This was held to be wrong. Windeyer J (with whom Innes and Foster JJ agreed on this point) said (at 359), […] with reference to the addition of the count for receiving, I am of opinion that what was done was wrong, and that the Judge had no power to add the count. The evidence necessary to support a charge of feloniously receiving is entirely different to that required to support a charge of larceny, and the Judge might just as well have added a count for murder.
Thompson and Gamble was very similar to Laird, in that the prisoners had been tried for larceny, with a count of receiving added to the indictment very late in the proceedings, by order of the trial judge. The jury convicted the prisoners of receiving. The NSW Court of Criminal Appeal (per Street CJ, Gordon and James JJ agreeing) concluded that the trial judge had no power to add a further count at that stage. Acknowledging that an indictment could be amended after the commencement of trial proceedings, the Chief Justice observed that the court was not empowered to allow a prisoner to be charged with a different offence to that upon which he had been indicted, after his trial had begun.
The prisoner in McManamy v Fleming was brought to trial on a charge of being a rogue and a vagabond but, just before the commencement of proceedings, the Crown brought a different charge of having no visible means of support. Although the prisoner objected that he was not ready to meet such a charge, his trial proceeded and he was convicted. The conviction was overturned on appeal, on the basis that the prisoner had been taken by surprise by the late change to the charge, and should have been granted an adjournment.
In Gregory, and although leave to appeal was ultimately refused by application of the proviso, the Court of Appeal (UK) held that the trial judge had been wrong in directing the jury as to the possibility of finding the prosecution case proved on the basis of a "middle ground", that being a basis of liability (as it happened, for handling stolen goods rather than the burglary offence charged) not advanced by the prosecution or addressed by the defendant.
Also in the Court of Appeal (UK) the conviction of the appellant in Falconer-Atlee was quashed due to a change in the prosecution case as opened to the jury, and as it was ultimately left to it by the trial judge. On a charge of theft of a dog (being a toy poodle), counsel for the Crown opened the case for the prosecution on the basis that the appellant had originally acquired the dog honestly but as the result of a mistake, but subsequently, having become aware of the mistake, dishonestly decided to appropriate the dog. The judge left the case to the jury on this basis, but also on the alternative basis that the appellant had acquired the poodle dishonestly at the outset by switching it for another poodle. The Court observed, Counsel for the Crown was therefore quite plainly there saying: "Never mind the limit I put on the Crown case in opening. If the evidence now justifies it, then you, the judge, should leave to the jury the alternative bases: either that she stole this dog in the house, or that, if she did not steal the dog in the house, then she misappropriated the dog once she learned of the mistake and knew the true facts through the telephone call which took place later on June 18." In the view of this Court, that was not the right thing to do. It was tantamount at that stage to adding a second count to the indictment in the middle of the trial. If the Crown had seen fit to do so, they could have opened this case in the alternative within the limits of the single count which they had charged. But once the Crown had elected to proceed upon one aspect of the case, what I have called the "section 3" aspect, the Crown ought not to have been allowed at the close of the case for the prosecution to go back upon what Mars-Jones J. during the argument called their election, and try to have the best of both worlds.
Of some significance to understanding that decision is the fact that the UK Theft Act 1968 had differing definitions of a dishonest taking, and created different offences dependent upon the circumstances. The change in the Crown's case meant that differing bases of liability were ultimately advanced.
The applicants in Cross and Channon were solicitors charged with fraud offences of a specific type. They were convicted but, on sentence, there was confusion as to whether the finding of guilt [in relation to a joint count 7] related to the offence charged, or to an alternative that had not been charged, but which better reflected the evidence (even though the relevant legislation had not been enacted at the time when the offences were said to have occurred). The Common Serjeant (or trial judge) was of the view that the jury could not have returned verdicts of guilty with respect to the offence charged as the evidence was insufficient. He regarded the alternative as available. The convictions on that count were later quashed, with the Court of Appeal (UK) holding that, where the prosecution foresees that a different charge may be the proper way to deal with the facts, there should be a specific count in the indictment charging it. It was wrong to leave the matter to the jury where there were alternatives available but not brought.
Having considered each of these cases, and not excepting Tangye, I am unable to conclude that they provide authority for the Court to make the order here sought by Mr Woods and Mr Fantakis. The circumstances of this case are materially different to those considered above.
There are more recent authorities although, like those referred to in King v The Queen, the circumstances that apply to them in my opinion offer little assistance in the present case. These cases are generally referred to as "time of the essence" cases and, typically, they arise in the context of prosecutions for child sexual assault offences, where the precise date on which the alleged offences occurred takes on a greater significance at trial than was previously understood.
In R v VHP (unreported decision of the NSWCCA, 7 July 1997) the indictment for an offence of homosexual intercourse averred a period of about five months as the period when the alleged offence occurred but, in evidence, the complainant said that the incident occurred on a particular date within that time frame. He referred to a bank transaction that he said he made just before the offence was committed against him. Bank records showed that the transaction the complainant described had not been made, and the appellant was able to raise an alibi for the date. When the jury asked questions about this anomaly, counsel for the appellant sought to have its consideration of the offence confined to the day given by the complainant, but directions to that affect were not clearly given. The appellant was found guilty.
On appeal the Court quashed the conviction and entered an acquittal, accepting the Crown's concession that, by the way in which the case had been conducted at trial, the particular date had been made an essential element of the offence charged, such that the Crown had to prove it beyond reasonable doubt. It had failed to do so. The Court observed, As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable. The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R 158 at 159-160 in the following terms: "From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence." There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (e.g. The King v Dean [1932] NZLR 753, R v Kringle [1953] Tas SR 52, R v Pfitzner (1976) 15 SASR 171, R v Macdonald (1996) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353).
In R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 the Crown was granted leave to amend the indictment to widen the timeframe averred as that in which the (sexual assault) offence had occurred. The Crown sought to make the amendment to accommodate evidence it became aware would emerge that would cast grave doubt on the timing originally particularised for the commission of the alleged offence. If the date as originally averred was maintained, the Crown case would have been seriously compromised, in that it could not have stood with other material evidence. Evidence of complaint would also likely have been rendered inadmissible. Subsequent to the amendment being made, the Crown sought to diminish the effect of the evidence that cast doubt on the timeframe (which was given by reference to the occurrence of a Royal wedding) by suggesting to the jury that the television broadcast referred to could have been a replay. That the footage seen was a replay was contrary to the evidence.
The Court of Criminal Appeal (Studdert J, with whom Heydon JA and Greg James J agreed) held that, There are cases where time has been made of the essence of the offence. This was such a case, because the complainant was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent - she said she was 100% sure - that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant's evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial […] (at [33]).
More recently, Cawthray v R [2013] NSWCCA 105 applied the same approach in a sexual assault case.
Assuming for present purposes that there was a "shift" in the Crown case, as the accused argue, any such shift relates only to a very narrow particular of the charge of murder. There has been no change or amendment to the charge left to the jury, no alteration in the conceptual basis of the Crown's case (that is, the basis of legal liability for the charge), and no amendment to what is relied upon in proof of any element of the offence that the Crown charges.
The change, if there is one, is in the Crown in opening referring to the principal offence having been committed at a time, not particularised by reference to hours and minutes, when Mr Cheong was present. Necessarily, that must have been after about 1pm - and perhaps more narrowly, after 2pm, soon after the accused's blue van was filmed entering Wilga Street (with Mr Fantakis, Mr Cheong, and Mr Karmas on board) - and before Mr Cheong arrived at his home that afternoon, at around 3.30pm.
The time at which the murder was alleged to have occurred was not further delineated in opening by the Crown, although evidence adduced by it gave rise to the possibility that the murder occurred at a time after Mr Cheong had left Wilga Street. (Whilst counsel for Mr Woods sought to rely upon a reference in the Crown Case Statement to the effect that the murder occurred between 1:50pm and 3:45pm, I do not consider it necessary to consider that argument further: a Crown Case Statement does not bind the Crown to the detail summarised therein.)
In his closing address the Crown Prosecutor referred to the evidence that pointed to the murder having occurred after Mr Cheong left Wilga Street on 11 August 2011, principally insofar as that was relevant to proof of the case against Mr Cheong. As the Crown properly conceded to the Court, in the context of a discussion as to the directions to be given to the jury, there was evidence in the Crown case before the jury (in the writings of Mr Fantakis, and in the interviews between police, and Mr Fantakis and Mr Cheong respectively) upon which the jury could conclude that Mr Karmas was murdered after the departure of Mr Cheong from Wilga Street. If that was a fact found by the jury, Mr Cheong was entitled to an acquittal (as the jury were ultimately directed).
Counsel for the Crown is entitled to comment on all the issues that arise at trial, including the question of whether the Crown has proved its case beyond reasonable doubt.
I am unable to discern a "shift" in the Crown's case against Mr Fantakis or in that against Mr Woods.
There being no material difference between the Crown case as it was opened to the jury, and the case left to the jury to consider, the accuseds' application must turn on questions of fairness and possible prejudice.
The Crown's case against Mr Fantakis in essentials was and is that, sometime after about 1pm on 11 August 2011 (that being the last time on which Mr Karmas was seen alive by someone other than an accused), at 37 Wilga Street, Elefterios Fantakis violently attacked Mr Karmas, and killed him, intending thereby to kill him or, at least, to do him grievous bodily harm.
The Crown's case against Mr Woods in essentials was and is that, after that event, and on being told of the crime by Mr Fantakis, Mr Woods took possession of the mobile phone belonging to the deceased and used it to send a number of text messages. He later assisted him to move Mr Karmas' body and conceal it. Necessarily, the murder must have been completed before 5:59pm on 11 August 2011, that being the time at which the first of the text messages was allegedly sent by Mr Woods (Ex. A).
The time at which the murder occurred is of limited significance to either the case relevant to Mr Fantakis or that relevant to Mr Woods, within a period between about 1pm to 5:59pm on 11 August 2011.
Mr Fantakis called a case and gave evidence himself. In his evidence he had an opportunity to, and did, address his movements for the whole of the afternoon of 11 August 2011, not restricted to the period 2pm to 3pm: T2297, T2304 - T2314, T236 - 237, T2370 - T2371, T2378 - T2383, T2388 - T2389, T2392, T2398, T2400, and T2403 - T2404, for example.
There was nothing in his evidence that gave rise to an alibi for the whole of the period after Mr Cheong's departure, or other matter which could cast doubt on the possibility of him having killed Mr Karmas on the afternoon of 11 August 2011, which he did not further pursue because he understood the Crown's case to be restricted to the period between 2pm and 3pm that day. On his evidence, the accused was alone at Wilga Street for, at least, two periods of time after Mr Cheong had left for the day, being before his mother arrived sometime shortly before 4pm, and after she left at around 5pm or 5.30pm, and his own departure from Wilga Street, at about 6.30pm.
In those circumstances, fairness does not dictate the necessity of confining the Crown to a case wherein the murder occurred in the period between 2 and 3pm on 11 August 2011.
That the offence occurred on the afternoon of 11 August 2011 can be established by reference to the evidence of Mr Karmas' family, who neither saw nor heard from him after about 1pm that day, and the admission of the accused Fantakis (to Karmas family members and to police in Ex. AX) that he was in Mr Karmas' company that afternoon. He was, on the evidence before the jury, if it is accepted, the last person known to have seen Mr Karmas alive, other than Mr Cheong.
On the whole of the evidence, it is open to the jury to conclude either, that Mr Karmas was murdered at a time when Mr Cheong was at Wilga Street, or at a time after Mr Cheong left and before 5:59pm that day. The basis of the former conclusion is the evidence in Ex. CO, showing the blue van entering Wilga Street, together with the assertions (or admissions) of both Mr Fantakis and Mr Cheong that Mr Karmas was in the van at the time, the discovery of his spectacles in the van's glove box, and the evidence of the text messages sent from Mr Karmas' mobile phone, in circumstances where family members deposed the messages were not consistent with having been sent by Mr Karmas. To accept that Mr Karmas was murdered when Mr Cheong was present, necessarily the jury would have to reject his account to police in the interviews he gave.
The basis of the latter conclusion is an acceptance of the account given to police by Mr Cheong, that he last saw Mr Karmas alive and walking away from Wilga Street, and an acceptance of the reliability of the account given by Mr Fantakis in his writings to the effect that Mr Karmas left Wilga Street and later returned, at a time when he was alone in the house.
Either basis is further predicated on acceptance by the jury of the reliability of the salient admissions in the Fantakis writings to his having violently assaulted Mr Karmas.
On the whole of the evidence, it would be open to the jury, acting reasonably, to treat part of the Crown case as reliable, that which supports a conclusion that the accused Mr Fantakis murdered Mr Karmas at Wilga Street on the afternoon of 11 August 2011, but not accept the evidence going to Mr Cheong's presence at the time of the commission of the alleged murder. There would be no illogicality or inconsistency in those conclusions: it would simply be a conclusion that accepted those portions of the Fantakis writings that referred to the departure of Mr Cheong, and the departure and return of Mr Karmas, as reliable, consistent with the assertions from Mr Cheong (a man of good character who had only a professional relationship with Mr Fantakis), in his interviews with police, as credible.
Although Mr Woods argued that he (and by implication Mr Fantakis) had been denied the opportunity to call Antonia Fantakis to give evidence, and thus prejudiced, I am unable to see how any prejudice arises in this regard. If the jury accepted the earlier time frame, there is no suggestion that Mrs Fantakis was present at the time and could have contradicted the Crown's case or offered any useful evidence. If the jury accepted the later time frame, there is again no suggestion that Mrs Fantakis was or would have been present for the whole of the relevant time period, and in a position to contradict or cast doubt upon the Crown case.
The Crown did not challenge Mr Fantakis' evidence before the jury that his mother had been at Wilga Street for part of the afternoon (something also referred to in the writings). It did not challenge that Mrs Fantakis had assisted her son in unloading the blue van.
Whilst counsel for Mr Woods asserted that, if called, Mrs Fantakis could have said that there was no body in the blue van when she was at Wilga Street, the Crown did not suggest that there was. The Crown alleged that Mr Cheong assisted Mr Fantakis after the murder by clearing a cluttered driveway so that the blue van could be backed up to the house to facilitate the removal of Mr Karmas' body; it did not suggest, and there is no reason to suppose, that the loading occurred immediately thereafter. It could have happened at any time prior to the van leaving Wilga Street at about 6:30pm that evening; common sense would suggest that such an activity would be more likely undertaken in hours of darkness.
Since there is no basis upon which to infer that Mrs Fantakis could have offered any relevant evidence as to Mr Woods' alleged involvement in sending text messages from a location in western Sydney, or in assisting the principal later, in the vicinity of Campbelltown, I cannot see any basis upon which to conclude that the absence of her evidence prejudiced or may have prejudiced Mr Woods.
If there was a potential unfairness to the accused in the jury being left to consider evidence of the commission of murder later in time than 3pm on 11 August 2011, that possibility must have been clear to the accused from such time as the brief of evidence containing the written admissions from Mr Fantakis was served on the accused. It is relevant to note that there was no application by Mr Fantakis for the severance of his trial from that of Mr Cheong. Mr Woods, whilst he sought to have his trial severed from that of Mr Fantakis, did not seek a separate trial from that of Mr Cheong, and did not raise this issue as a feature that could lead to prejudice if the accused were tried together.
If the issue of potential prejudice was not identified prior to the trial proceedings commencing, it should, at the very latest, have been comprehended when the Fantakis writings were tendered in evidence at trial.
It should have been even clearer after the Crown Prosecutor referred in closing address to evidence that raised the possibility of Mr Karmas' murder occurring after Mr Cheong left Wilga Street. It should have been yet clearer when counsel for Mr Cheong asked the jury to acquit his client on the basis that the weight of the evidence pointed to the crime occurring after 3pm. It should have been clearer still after a discussion between counsel and the Bench about the timing of the alleged murder: see T2557ff.
Despite that, no issue of prejudice to the accused was raised until the final closing address was almost completed. The fact that counsel saw no risk of prejudice to their respective clients earlier provides some support for my conclusion that there was no such risk.
Counsel for Mr Woods and counsel for Mr Fantakis were each able to deal with the issue of the timing of the alleged murder in closing address and did so effectively.
I cannot agree that there has been unfairness to Mr Fantakis or Mr Woods in the way the Crown case was presented, or left to the jury, or that their respective defences have been prejudiced in any way. To preclude the jury from considering the evidence going to a later time for the commission of the alleged murder would, on the other hand, have occasioned serious damage to Mr Cheong's defence.
The Crown's case against Mr Cheong in essentials was and is that, knowing of the commission of murder by Mr Fantakis due to his presence at Wilga Street when it occurred, Mr Cheong assisted the principal in clearing a driveway and cleaning up the murder scene.
By contrast with the cases against Woods and Fantakis, the time of the commission of the offence is of considerable significance to Mr Cheong, in that, if it occurred after about 3.07pm, the Crown could not prove the element of knowledge against him, and he would, as the Crown conceded, be entitled to his acquittal.
That argument was a prominent part of his case, and of his closing address to the jury. I have no hesitation in concluding that, to grant the application made by Mr Woods and Mr Fantakis, would have been to seriously undermine Mr Cheong's defence, and cause significant prejudice to him such that, in my view, he would have been denied a chance of acquittal fairly open to him.

At a glance

Court

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Judgment (7 paragraphs)

Parties

Cases Cited (5)

Cited By (2)