Fantakis v Governor of Macquarie Correctional Centre

[2025] NSWSC 996

Supreme Court

New South Wales

Medium Neutral Citation:

Fantakis v Governor of Macquarie Correctional Centre [2025] NSWSC 996

Hearing dates:

26 August 2025

Date of orders:

02 September 2025

Decision date:

02 September 2025

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

(1)    To the extent necessary, order that the Governor of Macquarie Correctional Centre be joined as a defendant.

(2)    Dismiss the proceedings.

(3)    Order Mr Fantakis to pay the costs of the Governor of Macquarie Correctional Centre.

Catchwords:

PREROGATIVE RELIEF – habeas corpus – where plaintiff is serving a sentence of imprisonment for murder – conviction appeal dismissed – application to set aside or vary orders of Court of Criminal Appeal dismissed – whether the plaintiff’s detention is unlawful – where plaintiff does not contest the warrant committing him to prison – where orders of the Supreme Court as a superior court of record may be assumed valid unless set aside

CIVIL PROCEDURE – jurisdiction – inherent jurisdiction – declaratory relief – whether declarations sought by plaintiff are a collateral attack on his trial and sentence – whether the relief sought is available in the proceedings as presently constituted – where relief is not amenable to decision in these proceedings

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 71, 75

Felons (Civil Proceedings) Act 1981 (NSW), s 4

Cases Cited:

Dacich v Commissioner for Corrective Services [2020] NSWCA 359

Dacich v Governor of Dilwynia Correctional Centre [2021] NSWSC 1333

Dacich v Picton Local Court & Anor [2020] NSWSC 1714

Fantakis v Director of Public Prosecutions [2021] NSWCCA 271

Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317

Fantakis v R [2023] NSWCCA 3

Fantakis v R (No 2) [2023] NSWCCA 22

Fantakis v R (No 3) [2023] NSWCCA 35

Hugo Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402

R v Fantakis; R v Woods [2018] NSWSC 1700

Re Harrod [1978] 1 NSWLR 331

Re Officer in Charge of Cells, ACT Supreme Court;Ex parte Eastman (1994) 68 ALJR 668; [1994] HCA 36

State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Yates v Commissioner of Corrective Services NSW [2014] NSWSC 653

Category:

Principal judgment

Parties:

Elefterios (Terry) Fantakis (Plaintiff)
Governor of Macquarie Correctional Centre (First Defendant)
Director of Public Prosecutions (NSW) (Second Defendant)

Representation:

Solicitors:
Crown Solicitor for NSW (First and Second Defendant)

File Number(s):

2025/241113

Publication restriction:

NIL

JUDGMENT

1. HIS HONOUR: Elefterios Fantakis is currently serving a sentence of imprisonment for murder imposed upon him by Wilson J on 8 November 2018. By his amended summons filed on 30 July 2025, Mr Fantakis seeks the following relief:

“2. A writ of habeas corpus directed to the Governor of Macquarie Correctional Centre to bring the plaintiff before the Court pursuant to s 71 of the Supreme Court Act 1970.

3. An order that the plaintiff be released from custody forthwith.”

2. Section 71 provides relevantly as follows:

71 Habeas corpus

(1) The Court may, on an application for a writ of habeas corpus, give such judgment or make such order disposing of the proceedings as the nature of the case requires.

…

3. Mr Fantakis seeks other relief as well. This is referred to later in these reasons.

Background

4. The following procedural history should be noted.

5. Between 26 February 2018 and 25 May 2018, Mr Fantakis and a co-accused stood trial in this Court before Wilson J and a jury for murder and being an accessory after the fact to murder respectively. Each was found guilty: R v Fantakis; R v Woods [2018] NSWSC 1700 at [3].

6. On 8 November 2018, her Honour sentenced Mr Fantakis to imprisonment consisting of a non-parole period of 18 years, commencing on 3 October 2013, and expiring on 2 October 2031, with a balance of term of 6 years, expiring on 2 October 2037. The total term of the sentence is 24 years imprisonment.

7. On 17 November 2021, Mr Fantakis’ application for appeal bail was refused by the Court of Criminal Appeal: Fantakis v Director of Public Prosecutions [2021] NSWCCA 271. On 17 December 2021, Mr Fantakis’ appeal from that decision was dismissed: Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317.

8. On 3 February 2023, Mr Fantakis’ appeal against his conviction was dismissed: Fantakis v R [2023] NSWCCA 3. On 15 February 2023, Mr Fantakis’ application to set aside or vary the orders made on 3 February 2023 was dismissed: Fantakis v R (No 2) [2023] NSWCCA 22.

9. On 27 February 2023, the Court of Criminal Appeal refused Mr Fantakis’ application for leave to set aside or vary the judgment published on 15 February 2023 dismissing his earlier application to set aside or vary the judgment on the conviction appeal: Fantakis v R (No 3) [2023] NSWCCA 35.

10. Mr Fantakis is in custody as the result of his conviction for a serious indictable offence and may not institute any civil proceedings in any court except by the leave of that court granted on application: s 4 Felons (Civil Proceedings) Act 1981. In the interests of certainty and finality, it is appropriate to grant leave to Mr Fantakis to institute these proceedings nunc pro tunc.

Authorities

11. On return of a writ of habeas corpus, it is not for the person who has been detained to demonstrate that his or her detention is unlawful but for the detainer to show on the balance of probabilities that the detention is lawful. If that cannot be demonstrated, the plaintiff is entitled to immediate release: Dacich v Picton Local Court & Anor [2020] NSWSC 1714 at [12]. Where there is a court order or a warrant, which provides a sufficient justification, it is for the applicant to show some basis for casting doubt upon its regularity: Dacich v Commissioner for Corrective Services [2020] NSWCA 359 at [16].

12. Court orders are a “complete answer” to an application for habeas corpus, provided the detainer is holding the applicant lawfully in accordance with the orders and with the authority of the warrant that was executed in consequence of the judicial decision: Dacich v Governor of Dilwynia Correctional Centre [2021] NSWSC 1333 at [10]. There is no general law requirement that the information be recorded in a particular form, known as a warrant. However, a warrant may provide a sufficient (but not necessary) source of authority: Dacich v Commissioner for Corrective Services [2020] NSWCA 359 at [18] and [20].

13. An application that seeks to canvas the full history of a matter and identify error in a court’s conduct may constitute an inappropriate collateral attack on those decisions and cannot succeed while legitimate avenues of redress are available: Dacich v Governor of Dilwynia Correctional Centre [2021] NSWSC 1333 at [11]. Moreover, one cannot use habeas corpus as a collateral attack, including on a sentence that has been otherwise validly imposed: Dacich v Picton Local Court & Anor [2020] NSWSC 1714 at [17]. Caution may also be appropriate where habeas corpus is sought with respect to the determinations of appellate courts, so that the proceedings do not become an “inapposite ‘appeal’”: Dacich v Picton Local Court & Anor [2020] NSWSC 1714 at [18].

14. In Re Officer in Charge of Cells, ACT Supreme Court;Ex parte Eastman (1994) 68 ALJR 668; [1994] HCA 36, the applicant was in custody pursuant to several orders made by the ACT Magistrates Court. He argued that his detention pursuant to those orders was, and remained, illegal “for the reason that his original arrest was illegal”. That argument was rejected in these terms (at 669):

“The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. That being so, those orders, while they stand, provide an answer to Mr Eastman's present application.”

15. Authority also suggests that orders of the Supreme Court of New South Wales, a superior court of record, may be assumed to be valid unless set aside: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]; Yates v Commissioner of Corrective Services NSW [2014] NSWSC 653 at [52]-[55].

Mr Fantakis’ submissions

16. Mr Fantakis provided me with extensive written submissions, which cannot easily be summarised in these reasons. At the heart of his concerns is that his trial miscarried and that his conviction is a nullity by reason of a perceived inconsistency between the acquittal of one of his co-accused on a charge of being an accessory after the fact to the very murder of which Mr Fantakis was convicted. He is also concerned by the fact that the Crown proceeded upon alternative bases for his culpability that depend upon either the acceptance or the rejection of the evidence of his co-accused concerning a sighting of the deceased leaving Mr Fantakis’ house at a time after the Crown’s case that he was by then already dead. Among other things, this meant that no jury could have been satisfied beyond reasonable doubt about which version was true.

17. For these and other reasons, Mr Fantakis contended that his detention is unlawful “on the basis that the process adopted at trial and sentencing resulted in two separate nullities”. Mr Fantakis relies upon five grounds in his amended summons to make good this proposition:

“Ground 1: The legal consequences of orders made during closing submissions caused the jury to determine two mutually exclusive counts of murder in circumstances where the presented indictment only charged a single count of murder; a jurisdictional error rendering the trial a complete nullity.

Ground 2: The trial was vitiated during closing submissions where Wilson J made orders that caused a ‘shift’ in the Crown's case, permitting the jury to consider a new conflicting argument that was not in issue or squarely put to a single witness, including the plaintiff; a Wednesbury unreasonableness in circumstances where:

1. Findings made by the Court of Criminal Appeal establish that the orders were made on wrong primary findings (jurisdictional facts) and wrong principles; and

2. The trial judge descended into the arena after the learned Crown unequivocally submitted no reliance on the new argument, abandoning her fundamental duty to remain impartial and independent.

Ground 3: The trial judge failed to give a unanimity direction in circumstances where the jury considered two mutually exclusive counts against the plaintiff; a substantial miscarriage infringing on the R v Brown principle and s 80 of the Constitution.

Ground 4: A retrial would constitute an abuse of the court's process in circumstances where the Crown would be bound to conduct the same case at first instance; a case that failed on account of the jury's decision to acquit Mr Derek Cheong with whom the plaintiff shared a common factual matrix. To find otherwise would infringe on the principle of incontrovertibility.

Ground 5: At sentencing the trial judge impermissibly took on the role of the jury and then sentenced the plaintiff on a factual scenario (count) that failed at trial; two jurisdictional errors establishing the plaintiff's unlawful detention.”

The Governor’s submissions

18. The sentence of imprisonment imposed on Mr Fantakis by Wilson J on 8 November 2018 for the murder of Elisha Karmas expires on 2 October 2037. Despite several appeals, including his appeal against conviction, that sentence still stands. The Governor is holding Mr Fantakis lawfully in accordance with the sentence imposed by her Honour, and with the authority of the warrant that was executed in consequence of that sentence. The Governor says that this is a complete answer to Mr Fantakis’ application for a writ of habeas corpus: the sentence imposed by Wilson J presently stands and, as the order of a superior court, can be assumed to be valid unless disturbed.

Consideration

19. On 11 August 2025, Mr Fantakis filed a response to the Governor’s submissions. That document is extensive, consisting of 377 paragraphs of detailed legal argument. Paragraph 17 should immediately be noted:

“17. The plaintiff does not contest the warrant committing him to prison.”

20. A copy of that warrant was annexed to the affidavit of Luke Sampson affirmed on 15 July 2025 and is reproduced as follows:

21. In Hugo Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402, the Victorian Court of Appeal, dealing with an application by a prisoner for a writ of habeas corpus, said this at [10]:

“It follows that the order imprisoning Mr Rich is valid until it is set aside. That will only occur if his conviction appeal succeeds and his conviction and sentence are quashed. Unless and until that occurs, the order provides a complete legal authority for his detention.”

22. The Victorian Court of Appeal cited Re Harrod [1978] 1 NSWLR 331 at 333-4 in support of the view expressed at [10] of Rich. It is also instructive to record what that Court said at [5]:

“Habeas corpus and criminal trials

5 Quite simply, the application for habeas corpus is misconceived. It is a principle of very long standing that ‘a writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law. That this is the established position is confirmed by the most recent (2011) edition of Justice Robert Sharpe’s work ‘The Law of Habeas Corpus’, extracts of which were included by Mr Rich in his submissions. The learned authors put the position very clearly: ‘The writ of habeas corpus has never been used with effect where convictions or orders of courts of general common law jurisdiction are concerned’.”

23. Mr Fantakis’ application for a writ of habeas corpus is equally misconceived. Even without his acknowledgement that he does not contest the warrant committing him to prison, it stands until set aside as the legal authority for his detention.

Other relief

24. Mr Fantakis has sought additional relief in his amended summons. Paragraph 4 of that summons is in the following terms:

4. Pursuant to section 75 of the Supreme Court Act 1970 the applicant seeks orders for the following declarations, including:

(i) A declaration that the court at first instance heard two mutually exclusive counts of murder in circumstances where the presented indictment only charged a single count of murder, a process resulting in a complete nullity of the trial.

(ii) A declaration that the orders made by Wilson J in closing submissions were formulated on a wrong primary finding; a plainly wrong decision.

(iii) A declaration that Wilson J breached her duty to remain impartial and independent for having advanced the second count of murder (5OT) after the learned Crown submitted that the prosecution did not, and never did, seek to rely on the new argument (5OT).

(iv) A declaration that the plaintiff did not receive a unanimous decision in circumstances where the jury only delivered a single verdict against the applicant; infringing on s 80 of the Constitution.

(v) A declaration that Mr Derek Cheong and the plaintiff shared a common factual matrix with regards to the case opened and conducted by the Crown at trial, namely, the first case theory (FCT).

(vi) A declaration that the legal consequences associated with Mr Cheong’s acquittal meant that the only case propounded by the Crown, the FCT, failed at trial.

(vii) A declaration that the plaintiff was unlawfully sentenced on the first case theory (FCT) in circumstances where the FCT failed at trial.

25. The Governor submitted that these additional matters raised by Mr Fantakis in support of his application are a collateral attack on his trial and sentence: his amended summons is a conviction appeal faintly disguised as an application for habeas corpus and the matters raised in his written and oral submissions are not relevant to the question of the legality of his detention.

26. Leaving aside whether disturbing those orders is a permissible object of these proceedings, the Governor maintained that it is doubtful that relief sought by Mr Fantakis pursuant to s 75 of the Supreme Court Act in paragraph 4 of his amended summons is even available in the proceedings as presently constituted. The Governor submitted that Mr Fantakis’ enumerated disagreements with the decision of the Court of Criminal Appeal are not presently legitimately justiciable.

27. Quite apart from his application for a writ of habeas corpus, the Governor submitted that the relief sought by Mr Fantakis in paragraph 4 of his amended summons is doomed to fail and that the proceedings are liable to be dismissed as either not disclosing a cause of action or as an abuse of process.

28. It will be immediately apparent that the matters raised by Mr Fantakis in paragraph 4 of his amended summons are not amenable to decision in these proceedings.   The declarations that he seeks are directed to some of the very same complaints that were litigated in Mr Fantakis’ appeal against his conviction in the Court of Criminal Appeal. They have been finally decided. It is not open to me sitting as a single judge to adjudicate upon Mr Fantakis’ claims that the decision of the Court of Criminal Appeal dismissing the challenge to his conviction was wrong.

Conclusion

29. In the circumstances, it is inevitable that the present proceedings must be dismissed.

Orders

30. In these circumstances, I make the following orders:

1. To the extent necessary, order that the Governor of Macquarie Correctional Centre be joined as a defendant.

2. Dismiss the proceedings.

3. Order Mr Fantakis to pay the costs of the Governor of Macquarie Correctional Centre.

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Decision last updated: 03 September 2025