Fantakis v R

Case [2023] NSWCCA 3


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Fantakis v R [2023] NSWCCA 3
Hearing dates: 18, 19, 20 May 2022
Date of orders: 3 February 2023
Decision date: 03 February 2023
Before: Ward ACJ at [1]; Rothman J at [779];
Dhanji J at [826]
Decision:

1.   To the extent necessary, grant leave to appeal on all grounds.

2.   Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against conviction – Fresh evidence – whether evidence relied upon by appellant is “fresh evidence” – Incompetence of counsel – whether at trial counsel for the appellant failed to follow client’s instructions and failed to cross-examine on the existence of various documents – Miscarriage of justice – whether trial judge erred by failing to leave the defence of mental illness to the jury – whether trial judge erred by failing to leave manslaughter to the jury on the basis of the defence of substantial impairment – whether trial judge erred in admitting evidence – whether trial judge erred by failing to leave manslaughter to the jury on the basis of self-defence and/or provocation – whether trial judge erred by failing to give a variety of directions – whether there was a “shift” or “split” in the Crown case which caused the trial to miscarry – whether trial judge erred by including juror who had been chosen to speak on behalf of jury at earlier time in the ballot to select verdict jury – operation of proviso in those circumstances

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Crimes Act 1900 (NSW), s 23, 23A, s 421

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6

Evidence Act 1995 (NSW), ss 55, 90, 137, 138, 165

Jury Act 1929 (Qld)

Jury Act 1977 (NSW), ss 19, 55F, 55G

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 36, 98, 217

Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cl 8(1), Pt 7

Legal Profession Uniform Conduct (Barristers Rules) 2015, r 65

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 28, 30, 38

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

(Restricted Judgment) [2021] NSWCCA 227

A.E.Terry’s Motors Ltd v Rinder [1948] SASR 167

A1 v R; A2 v R [2016] NSWSC 1288

Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662

Apostolides v The Queen (1984) 154 CLR 563; [1984] HCA 38

ARS v R [2011] NSWCCA 266

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246

Bonnard v London General Omnibus (1921) 38 RPC 1

Browne v Dunn (1894) 6 R 67

Bullard v The Queen [1957] AC 635

Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21

Burrell v R [2009] NSWCCA 193

Carr v Baker [1936] SR (NSW)…

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AGLC
Fantakis v R [2023] NSWCCA 3
Case
[2023] NSWCCA 3
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, Mr. Fantakis, against his conviction for murder. The High Court of Australia was tasked with reviewing the decision made by the Victorian Court of Appeal. The primary contention of the appellant was that the evidence relied upon by him was deemed "fresh evidence," which should have warranted a new trial. Additionally, the appellant argued that his trial counsel was incompetent, as they did not adhere to his instructions and failed to cross-examine witnesses regarding various documents.

The court examined several legal issues. Firstly, it determined whether the evidence presented by the appellant qualified as "fresh evidence." Secondly, the court assessed whether the trial counsel's performance was indeed deficient in following the appellant's instructions and in cross-examination. Thirdly, the court deliberated on whether the trial judge erred in not allowing the defence of mental illness or manslaughter due to substantial impairment to be considered by the jury. The court also evaluated if the trial judge made errors in admitting certain evidence and in not leaving the defence of self-defence and/or provocation to the jury. Additionally, the court considered whether the trial judge failed to provide appropriate directions and if there was a "shift" or "split" in the Crown case that led to a miscarriage of justice. Lastly, the court assessed whether the inclusion of a juror, who had been selected to speak on behalf of the jury at an earlier stage, in the ballot to select the verdict jury was erroneous.

The High Court found that the evidence presented by the appellant did not meet the criteria for "fresh evidence." The court also determined that the trial counsel's performance did not amount to incompetence. The court concluded that the trial judge did not err in not allowing the defence of mental illness or manslaughter due to substantial impairment to be considered by the jury. Furthermore, the court found no errors in the trial judge's admission of evidence or in not leaving the defence of self-defence and/or provocation to the jury. The court also found no errors in the trial judge's directions and determined that there was no "shift" or "split" in the Crown case that led to a miscarriage of justice. Finally, the court found that the inclusion of the juror in the ballot to select the verdict jury was not erroneous. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the appeal against the conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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