R v Woods; R v Cheong

Supreme Court of NSW|2018-02-07|Before: Wilson J, Hunt J

Judgment

HER HONOUR: On 19 February 2018 the trials of Elefterios Fantakis, Andrew Woods, and Derek Cheong are listed to be heard before this Court. The accused Fantakis stands charged with murder; the accused men Woods and Cheong are each charged as accessories after the fact to that murder. The three accused were jointly arraigned on 6 May 2016, with each entering a plea of not guilty.
By Notice of Motion filed on 10 January 2018 the accused Woods moves the Court for an order severing his trial from that of the accused Fantakis. He relies upon an affidavit of his solicitor, Ahmed Dib, sworn on 9 January 2018, in support of the Motion.
By Notice of Motion filed on 17 January 2018 the accused Cheong moves the Court for the same order. He has filed and relies upon an affidavit of his solicitor, Chris Kapsis, affirmed on 23 November 2017, in support of the Motion. Each man argues that his trial will be incurably prejudiced if tried jointly with the accused Fantakis.
The Crown opposes the applications, arguing that the trials should be jointly heard.

The Cases in Support of the Motions

The accused each argue that the respective cases against them and that against Fantakis are materially different, with that against the principal both markedly stronger than that against Woods and Cheong and, in some respects, inflammatory. It is argued that evidence of events which do not involve Woods or Cheong, but relate to Fantakis only, are not admissible against them, and would only serve to impermissibly prejudice a jury against them. Mr Hughes for Mr Woods referred to this evidence as "guilt by association".
In particular, the accused complained of the prejudicial effect of the following evidence. 1. The threat by Fantakis to Mr Karmas on 8 June 2011 to "bury" him. Both accused argue that neither was involved in the making of the threat, but the evidence of its utterance is inflammatory. 2. The evidence that places Fantakis at both Warwick and Wilga Streets on 11 August 2011. The accused Woods, who disputes the meaning of the CCTV evidence of a van similar to his being in Wilga Street at the relevant time, says that this evidence does not involve him but would be prejudicial to his case. 3. The evidence of an aggressive argument between two male Greek speakers, which cannot establish the involvement of the non-Greek speaking Woods and Cheong, but relates only to Fantakis. In that the argument was said to be loud and vehement, the accused contend that this evidence is inflammatory. 4. The evidence of a lie (by omission) told by Fantakis to a Karmas family member, in failing to mention that Mr Karmas had gone from Warwick Street to Wilga Street on 11 August 2011. This evidence, which could go to consciousness of guilt in Fantakis, is not evidence concerning any act of the accused men. 5. The acts alleged against Fantakis with respect to the blue van, parking it at the mechanics premises in the early hours of 12 August 2012 and later cleaning it with bleach. Mr Woods disputes that he was the man who assisted Fantakis in cleaning the vehicle, and Cheong was not present. Both argue that this evidence strengthens the case against Fantakis but does not involve them, with its admission at trial potentially prejudicial to them. 6. The evidence of the repair work to the Wilga Street bedroom does not involve the accused Woods (although it does apply to Cheong). Woods submits that this is powerful evidence of consciousness of guilt that cannot apply to him, and would give rise to prejudice against him. 7. Forensic evidence recovered from the blue van - being DNA and mud consistent with having its origins in the Georges River area - go to strengthen the case against Fantakis but are not relevant to the cases against Woods or Cheong, there being no suggestion this evidence can be linked to either. 8. The written admissions in notes and letters, and the oral admissions in the video made by Fantakis, which are said to be "the most inflammatory and colourful admission" to committing murder and which, because of the "damnifying" nature of the evidence, could only "poison the well" against Woods, Fantakis' friend, and Cheong, his employee. It is argued that mere association with someone who apparently conducts himself in such a violent and bizarre way is incurably prejudicial. This is said to be particularly so in relation to the accused Woods, who is referred to in the video. It is submitted that, although nothing is said that directly implicates Woods in involvement in murder, the inference for his involvement is available both because of the apparently close relationship between Fantakis and Woods, and because of some aspects of what was said.
The accused contend, rather colourfully, that the trials should be severed because, the super added strength of those pieces of evidence against Mr Fantakis [..] have nothing but the potential and which will do nothing in reality more than wash over like some vile smelling liquid onto the presumption that ought attach to [each accused].
The Court was referred to a number of authorities, which are referred to below.

The Law

Section 347 of the Crimes Act 1900 (NSW) clearly contemplates the trial of an accessory being heard jointly with that of the principal, or separately, whether or not the principal has been tried and convicted. It provides: 347 Accessories after the fact - how tried and punished Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not.
Whether to present a joint indictment is a matter for the Crown, subject to the Court determining any application pursuant to s 21(2)(a) of the Criminal Procedure Act 1986 (NSW) for severance of the indictment.
The onus is on the applicant for a separate trial to demonstrate that a positive injustice would be occasioned to him or her, if a joint trial was held: R v Middis (unreported decision of the Supreme Court of 27 March 1991 per Hunt J). The applicant must establish that prejudice arising from a joint trial is one which cannot be cured by direction: R v Verma (1987) 30 A Crim R 441 at 446.
The applicable principles are well established. Ordinarily, where the alleged offences relate to common events, and where the matters that constitute the individual offences are so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together: R v McCarthy (1984) 14 A Crim R 155 at 159 per Street CJ (Reynolds and Miles JJ agreeing).
See also R v Assim [1966] 2 QB 249 at 261 and R v Annakin & Ors (1988) 37 ACR 131 at 138.
One instance where a separate trial will not be ordered is where the evidence admissible with respect to one count is also admissible in proof of the other count or counts: R v Verma. The governing factor is the interests of justice.
Among the matters to consider when determining where the interests of justice lay, are the importance of trial matters being heard in a timely way, the avoidance of inconvenience to witnesses, the question of conserving costs to the justice system and the community, the undesirability of inconsistent verdicts where two or more trials are held, the importance of the jury hearing "the whole story", and the interests of the accused.
The parties referred the Court to R v Baartman (unreported decision of the NSWCCA of 6 October 1994), in which the Court of Criminal Appeal adopted the statement of principles enumerated by Hunt J in Middis, as follows: "1 Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2 where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3 where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."
The same principles were given in Ross v R [2012] NSWCCA 207 at [24].
It is necessary for the Court to strike a balance between the public interest in related matters being jointly tried, and the interests of the accused in receiving a fair trial: R v Dellapatrona & Duffield (1993) 31 NSWLR 123 at 133; R v Fernando [1999] NSWCCA 66 at [212].
The Court was referred to some specific examples of how this discretion has been exercised on other occasions.
In Baartman the appellant was charged with murder in common with Crofts. Crofts was recorded by listening device making "colourful and extremely incriminating" comments about the murder, and implicating Baartman. The case against Baartman was confined to the fact that, sometime after the murder he was found in possession of the murder weapon, he was said to have made an admission to a female, and another witness said he had been present with he and Crofts when the murder was discussed.
The NSWCCA held that the admissions by Crofts, which were not admissible against Baartman, were "dramatic, incontrovertible, and highly prejudicial" to Baartman (at p.4) and could lead to impermissible prejudice to him. A separate trial was ordered.
In R v Pham [2004] NSWCCA 190 the Court considered whether the appellant should have been separately tried from his brother for an offence of murder. Whilst the appellant's brother had confessed to his involvement in the shooting in an interview with police, the only evidence against the appellant was the account of two witnesses whose credibility was the subject of serious challenge, and in circumstances where the brother's interview, inadmissible against the appellant, supported the version given by the witnesses. The Court concluded that it was not possible for the jury to make two separate assessments of the credibility of the witnesses, one of which was informed by the interview and one of which was not. On that basis, it was held that the appellant's trial should have been separate to that of his brother.
In R v Harpreet Singh [2012] NSWSC 869 Harrison J considered an application for a discharge of the jury after nine days of evidence, in circumstances where two significant witnesses unexpectedly sought to materially alter their evidence. The application was refused, with his Honour concluding that no prejudice flowed to the accused as a consequence of the change. (I am not certain of the relevance or utility of this decision to the present application.)
In Western Australia v Tolliday [2004] WASC 231 the accused Tolliday and his co-accused Oblak each sought an order severing their respective trials on a charge of murder from that of the other. Oblak submitted that he would be prejudiced by the admission of evidence relevant to Tolliday, concerning out of court statements made by the latter to the effect that the former had stated his intention to kill the deceased, that he had attacked the deceased and stabbed her four times, and then secreted the body with Tolliday's assistance. The case against Tolliday consisted of his extensive admisions (during which he implicated Oblak); the case against Oblak was circumstantial and relied upon opportunity, motive, and the telling of two lies said to evidence consciousness of guilt. The cases were different in nature, and that against Oblak was considerably weaker than that against Tolliday.
The trial judge concluded that the prejudice to Oblak occasioned by the jury seeing three separate recorded interviews in which Tolliday gave considerable details about the events surrounding the murder of the deceased and Oblak's responsibility for it, was incurable. Separate trials were ordered.
In R v Chami; R v TS (2002) 128 A Crim R 428; [2002] NSWCCA 136 revised 1.6.2009 the Court considered an appeal filed by Chami and TS against the orders of the trial judge refusing separate trials for each. Five persons were due to stand trial for a series of "gang rape" offences; Chami and TS had argued that their respective trials would be impermissibly prejudiced if not separately held. The trial judge did not agree. TS had been joined in an indictment relating to 19 incidents of sexual assault, only 2 of which he was alleged to be involved in. Evidence in relation to the other 17 counts was not relevant to TS, and was such as to establish "brutal, cruel, callous and horrifying" assaults.
For TS, the New South Wales Court of Criminal Appeal concluded that there was a "risk of guilt by association" (at [20]). Further, TS would be put to the expense of a trial that would continue for some months, in circumstances where the two counts relating to him could take no more than two weeks. A separate trial was ordered.
Chami's appeal was dismissed. The Court noted that, in that his defence to the counts against him was consent, it was open to the Crown to lead evidence of the other incidents to rebut his defence. Since the whole of the evidence was thus admissible, the Court held that considerations of avoiding inferences of guilt by association did not apply, with issues of costs and inconvenience to witnesses taking on paramount importance (at [33]).
The Crown additionally referred the Court to R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106, R v Oliver (1984) 57 ALR 543, Ross v R, Darwiche & Ors v R 209 A Crim R 424; [2011] NSWCCA 62, and R v Quami & Ors (no 3) [2016] NSWSC 15.

Consideration

In determining the Motions it is important to have regard to what it is that the Crown must prove against the accused men, and how it seeks to achieve that end.
The Crown's case against the accused Fantakis seeks to establish his liability for Mr Karmas' murder on the basis that he did an act with the intention of killing or causing him grievous bodily harm. It must prove that: 1. On 11 August 2011 at Punchbowl; 2. Elefterios Fantakis did a deliberate act which caused the death of Sam Karmas, 3. With the intention of killing him or causing him grievous bodily harm.
The deliberate act is that described by the accused Fantakis in his notes and video, that being the application of violence to Mr Karmas causing his death.
The Crown relies upon pieces of circumstantial evidence, such as evidence of motive and opportunity, DNA in the blue van, the mud on the van's wheels, and so on, together with the evidence of the apparent admissions made by the accused Fantakis to killing Mr Karmas, to establish its case.
To prove the charges of accessory after the fact to murder against the accused men Woods and Cheong, the Crown must prove each of those things set out at 86 - (3) and, further, that each 1. Knew that Fantakis committed the murder as alleged by the Crown; and afterwards, 2. At the alleged place and time; 3. Received, harboured, and maintained him.
The difference in the present case to all of those factual scenarios in the authorities to which the Court has been referred is that, if the Crown is to prove its case against Woods and Cheong, it must firstly prove to the satisfaction of the tribunal of fact that Fantakis committed the murder.
This is not a case where all three accused are charged with murder, and the case against each differs in nature and quality such that prejudice could be occasioned to one by evidence admissible only in the case against the other accused.
The evidence against Fantakis, including those parts of it which are most dramatic in nature, such as the video recording, form a necessary part of the proof of the Crown's case for accessory after the fact. In that sense, the evidence is admissible in the cases relevant to Woods and Cheong, since it goes to establish the commission of the murder, and the identity of the murderer that the accused are alleged to have assisted.
Cases where the evidence or a substantial part of it is admissible against each of the accused named in a joint indictment are typically those where an order for a separate trial will not be made, because considerations of costs and inconvenience take on greater weight.
Here, the evidence that goes to establish that the accused Fantakis murdered Mr Karmas as alleged by the Crown is part and parcel of the case against the two accessories, and the Crown would be entitled to lead all of that evidence in any trial against the accessories.
It was argued that, if the trials were severed and the trial of Fantakis proceeded, with a conviction recorded at the completion of the proceedings, the Crown could rely upon evidence of conviction at the subsequent trial of Woods and Cheong, without need to call the more dramatic evidence relevant to the guilt of Fantakis.
In that event the indictment could reflect the conviction of the principal, but it is not for this Court to decide an application of this nature on the basis of speculation as to what may or may not occur in the future. The outcome of any trial against the accused Fantakis is simply unknowable at this stage and will depend upon many, many unpredictable features. One example is the nature of any defence raised by the principal, there being at least a suggestion that a mental illness defence may be advanced.
Even were the trials to be severed, and the principal found not guilty, that is not necessarily a bar to the Crown proceeding against Woods and Cheong, necessarily calling the evidence available to it as to the commission of the murder by Fantakis. There is no issue estoppel in the criminal law.
There is authority for the proposition that an accessory convicted of that offence will not have his or her conviction quashed because the principal was acquitted: R v Williams (1932) 32 SRNSW 504 at 507. There, Street CJ said, "[…] two persons were at first put on their trial together, but afterwards separate trials were ordered and the present applicant was found guilty of being an accessory after the fact. Subsequently, his wife was put upon her trial for murder and found not guilty; and it has been suggested that in those circumstances this conviction cannot stand. I do not think that there is any substance in that submission. The Crimes Act, 1900 (s. 347), provides that every accessory after the fact to any felony may be indicted, convicted, and sentenced, as such accessory, either before, or together with, or after, the trial of the principal felon, whether such felon has been previously tried or not, or is amenable to justice or not. That section appears to me to be a clear authority enabling the Crown to put an accessory after the fact upon his trial, even though the principal felon may not yet have been brought to trial. No doubt, on the trial of the crime of being an accessory after the fact to another crime, in order to secure a conviction, the Crown must satisfy the jury that a crime has been committed to which the prisoner was accessory. Unless that is established, the whole case against him of being an accessory falls to the ground; but all that is necessary is that evidence should be given in the case sufficient to establish to the satisfaction of the jury that the principal crime was committed by somebody. If afterwards, for some reason, that principal, on being put upon his trial, is acquitted, that does not invalidate the earlier proceedings."
Street CJ referred to Morris v Tolman [1923] 1 KB 166 wherein Lord Hewart LCJ (with the concurrence of Avory and Sankey JJ) stated, It does not in the least follow because a principal is acquitted that another person may not be convicted of aiding and abetting.
The then Chief Justice observed that it could make no difference to the application of that principle that the charge was one of accessory rather than aider and abettor: "The principle must be the same" (at 508).
As is their right, neither the accused Woods nor the accused Cheong were prepared to make any concessions as to proof of the commission of the murder of Mr Karmas; the Crown is to be put to proof on every aspect of its case. That being so, and a conviction against Mr Fantakis at a separate trial being neither known nor inevitable, even at a trial involving only Woods and Cheong, the Crown would or may be obliged to call virtually all of the evidence it would lead against the accused Fantakis, to go to proof of the murder. For the same or substantially the same evidence to be called in two trials would lead to duplication, with a significant increase in inconvenience to the relevant witnesses, and to the costs to the justice system overall. There would be no amelioration to any asserted prejudice to Woods and Cheong, since the impugned evidence would be before the jury.
I accept that there may be prejudice to the accused from the chilling accounts of the murder given by the accused Fantakis in his diary notes and video recording, and by the association of each with him. However, the prejudice is that the evidence tends to prove that the accused Fantakis committed the murder as the Crown alleges, proof of that being a necessary element of proof of the charge of accessory after murder. It is not impermissible prejudice, and it is capable of being addressed by directions to the jury.

Directions

It will be necessary to direct the jury of the different elements that the Crown must prove in relation to the charges of accessory after murder. Those directions will involve a clear statement that the Crown relies upon the evidence of the video recording and those other parts of the evidence put in issue by the accused men (and referred to at [61] above) to prove that the accused Fantakis murdered Mr Karmas. The jury must be told in clear terms that it is no part of the Crown's case that either accused participated in the alleged murder.
Further, the ordinary requirements of a joint trial will apply. That is, it will be the trial judge's duty to separate for the jury's consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately: R Masters (1992) 26 NSWLR 450 at 455.
Having considered each of those matters, I am not persuaded that the accused men will be irremediably prejudiced if tried with the accused Fantakis, since the Crown's case against them is the same whether tried jointly or separately. I decline to order that the charges relating to Andrew Woods and Derek Cheong be severed from that against Elefterios Fantakis. The interests of justice are best served by a joint trial of the three accused.

orders

The Notices of Motion seeking severance of the indictment are dismissed.

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: 27 November 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Legislation Cited (2)

Cases Cited (12)

Cited By (2)