Fantakis v R - [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) 301
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665
Colosimo v Director of Public Prosecutions [2006] NSWCA 293
Commissioner for Superannuation v Scott (1987) 13 FCR 404
Crane v Director of Public Prosecutions [1921] 2 AC 299
Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51
Davis v R [2017] NSWCCA 257
De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33
Decision restricted [2022] NSWCCA 95
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Director of Public Prosecutions (Vic) v Marijancevic (2011) 33 VR 440; [2011] VSCA 355
Director of Public Prosecutions v Shannon [1975] AC 717
DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318
Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Fabre v Arenales (1992) 27 NSWLR 437
Fang v R [2018] NSWCCA 210
Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
Flanagan v R [2013] NSWCCA 320
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gilham v R (2012) 224 A Crim R 22 [2012] NSWCCA 131
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Greenhalgh v R [2017] NSWCCA 94
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 47
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
Hofer v R [2019] NSWCCA 244
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ignjatic v R (1993) 68 A Crim R 333
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jack v Smail (1905) 2 CLR 684; [1905] HCA 25
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1
Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
La Rocca v R [2021] NSWCCA 116
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Lazarus Estates Ltd v Beasley [1956] 1QB 702
Lee Chun-Chuen v The Queen [1963] AC 220
Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 27 A Crim R 163
Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Lo Tin v R [1964] Crim LR 135
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31
Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160
Masciantonio v The Queen (1994-1995) 183 CLR 58; [1995] HCA 67
McKay v The Queen (1935) 54 CLR 1; [1935] HCA 70
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Mencarious v R [2008] NSWCCA 237
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
MIH v R [2007] NSWCCA 199
Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Mortada v R [2014] NSWCCA 36
Mulholland v R [2019] NSWCCA 257
Mulvihill v R [2016] NSWCCA 259
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Ng v The Queen (2003) 217 CLR 521; [2003] HCA 20
Nguyen v R [2008] NSWCCA 322
Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9
Nweke v R [2020] NSWCCA 153
O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
Palser v Grinling [1948] A.C. 291
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Anderson (1991) 53 A Crim R 421
R v Ayoub (1984) 2 NSWLR 511
R v Batte (2000) 49 OR (3d) 321
R v Birks (1990) 19 NSWLR 677
R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324
R v Burton (1986) 24 A Crim R 169
R v Caine (1990) 48 A Crim R 464
R v Cheatham [2000] NSWCCA 282
R v Christopher Robin Jones (NSWCCA, 2 August 1985, unreported)
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
R v Damic [1982] 2 NSWLR 750
R v Dempster [1924] SASR 299
R v Donnelly (1987) 96 A Crim R 432
R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep)
R v Em [2003] NSWCCA 374
R v Esposito (1989) 45 NSWLR 442
R v Fantakis [2018] NSWSC 1815
R v Fantakis, Woods and Cheong [2018] NSWSC 749
R v Fantakis; R v Woods [2018] NSWSC 1700
R v Fantakis; R v Woods [2018] NSWSC 1814
R v Foy (1922) 39 WN (NSW) 20
R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303
R v Grech; R v Kadir [2017] NSWCCA 288
R v Green (2002) 4 VR 471; [2002] VSCA 34
R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338
R v Hall [1971] VR 293
R v Hunter (No 2) [2013] NSWSC 1806
R v Irwin [1987] 1 WLR 902
R v Issa (Supreme Court NSW, Sperling J, 16 October 1995, unrep)
R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
R v Kemp [1957] 1 QB 399
R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v McIntyre [2000] NSWCCA 6
R v Meher [2004] NSWCCA 355
R v Micalizzi [2004] NSWCCA 406
R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480
R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226
R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
R v Murray (1987) 11 NSWLR 12
R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
R v Peisley (1990) 54 A Crim R 42
R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134
R v Petroulias (No 32) [2007] NSWSC 1302
R v Prasad (1979) 23 SASR 161
R v R (1981) 28 SASR 321
R v Riley [2020] NSWCCA 283
R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163
R v Shannon [1974] 2 All ER 1009
R v Shields (1967) VR 706
R v Short (1898) 19 LR (NSW) 385
R v Smith [1954] QWN 49
R v Sutton (1986) 5 NSWLR 697
R v Tumanako (1992) 64 A Crim R 149
R v Zaiter [2004] NSWCCA 35
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Re Bonny [1986] 2 Qd.R 80
Re Burford; Burford v Clifford [1932] 2 Ch 122
Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9
Re M’Naghten’s Case (1843) 8 ER 718
Re Migliorini; ex parte Silk Brothers (1974) 22 FLR 491
Reyne (a pseudonym) v R [2022] NSWCCA 201
Roach v R [2019] NSWCCA 160
Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192
Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160
Rondel v Worsley [1969] 1 AC 191
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Selby v R [2017] NSWCCA 40
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Sinclair v The Queen (1946) 73 CLR 316; [1946] HCA 55
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325
Spedding v State of New South Wales [2022] NSWSC 1627
Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56
Stingel v The Queen (1990) 171 CLR 312
Sulaeman v R [2013] NSWCCA 283
Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48
Tekely v R [2007] NSWCCA 75
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21
The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1
The Queen v Nguyen (2010) 242 CLR 491; [2010] HCA 38
The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13
The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1
Tillmanns Butcheries v Australasian Meat Industry Employees Union (1979) 42 FLR 331
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tran v The Queen (2000) 105 FCR 182; [2000] FCA 1888
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21
Xie v R [2021] NSWCCA 1

Texts Cited:
A Ligertwood, Australian Evidence Cases and Materials (1995, Butterworths)
B Collier, Second Reading Speech of the Legislative Assembly, Jury Amendment Act 2007 (NSW) (7 November 2007)
D Howard and B Westmore, Crime and Mental Health Law in New South Wales (2019, 3rd ed, LexisNexis Butterworths)
J D Heydon, Cross on Evidence (2015, 10th ed)
New South Wales Law Commission, Jury Selection (2007 NSWLRC 117)

Category: Principal judgment
Parties: Elefterios (Terry) Fantakis (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Ramage QC with T Woods (Applicant) (on grounds 1 and 2 only)
E Fantakis (Applicant – self represented on remaining grounds)
M Millward (Respondent)
Solicitors:
Andrews Solicitors (Applicant) (on grounds 1 and 2 only)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2013/297834; 2013/298264; 2021/248739
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

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

Date of Decision:

8 November 2018

Before:

Wilson J

File Number(s):

2013/297834

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 May 2018, Elefterios (Terry) Fantakis (the applicant) was found guilty by a jury of the murder of Elisha (Sam) Karmas. Mr Karmas was last seen shortly before 2pm on 11 August 2011 when he travelled with the applicant and one of the applicant’s two co-accused, Mr Derek Cheong, in the applicant’s van to the applicant’s mother’s home at Wilga Street, Punchbowl (the Wilga Street Property). The Crown case was that Mr Karmas was murdered by the applicant in the afternoon of 11 August 2011 and his body was disposed of by Mr Fantakis and his other co-accused, Mr Andrew Woods. Mr Karmas’ body has not been discovered. Mr Woods was found guilty of the sole count of being accessory after the fact to murder. Mr Cheong was found not guilty of the same offence. On 8 November 2018, the trial judge sentenced Mr Fantakis to a term of 24 years’ imprisonment, commencing on 3 October 2013 and expiring on 2 October 2037, with a non-parole period of 18 years expiring on 2 October 2031.

The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), raising eighteen grounds of appeal (some of which contained a number of sub-grounds). Leave is required pursuant to s 5(1)(b) of that Act as the grounds (as framed) are not confined to questions of law. For various grounds leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in circumstances where the direction which it is now contended ought to have been given by the trial judge was not sought by defence counsel who appeared for the applicant at trial.

To the extent necessary, leave to appeal was granted in respect of all of the grounds of appeal. The appeal was dismissed on all grounds.

As to grounds 1 and 2 (being that the trial miscarried because the trial judge failed to leave the defence of mental illness to the jury, and that the trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of substantial impairment).

The Court held (per Ward ACJ at [274]-[279], Rothman J agreeing at [825] and Dhanji J agreeing at [849]):

Per Ward ACJ at [274]-[279]:

The evidence was not sufficient to enliven a duty on the part of the trial judge to leave the defence of mental illness to the jury nor was it sufficient to raise such a duty in respect of the defence of substantial impairment.
As to the defence of mental illness, although a formal diagnosis of mental illness is not necessary, there was nothing in the evidence to lead to the conclusion that a mental illness defence was open or viable. The first suggestion that the applicant suffered from mental illness was in late 2011, after Mr Karmas’ disappearance, when the applicant’s then partner considered that he was depressed.
A mental illness defence requires that the applicant not have appreciated that the act of killing was wrong. The intercepted communications between the applicant and Mr Woods, the applicant’s obvious attempts to conceal evidence by cleaning the van and renovating the Wilga Street Property, and the applicant’s reaction to his deluded belief as to his brother’s death make it clear that the applicant appreciated that the act of killing a man was wrong.
As to the defence of substantial impairment, there was not a sufficient evidentiary foundation for a conclusion that a defence of substantial impairment was reasonably open or viable. Again, it is significant that the applicant’s then partner placed the deterioration of the applicant’s mental state towards the latter part of 2011 (after August 2011), and the writings and audio recordings manifesting the applicant’s delusional thoughts were only brought into existence in 2012.
Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246; Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; R v Shields (1967) VR 706; R v Ayoub (1984) 2 NSWLR 511; R v Cheatham [2000] NSWCCA 282; Lo Tin v The Queen [1964] Crim LR 135; R v Damic [1982] 2 NSWLR 750; R v Issa (Supreme Court (NSW) Sperling J, 16 October 1995, unrep); James v The Queen (2014) 253 CLR 475; [2014] HCA 6; Fang v R [2018] NSWCCA 210; Mencarious v R [2008] NSWCCA 237; Flanagan v R [2013] NSWCCA 320; Lane v R [2013] NSWCCA 317; R v Tumanako (1992) 64 A Crim R 149 considered.

Per Rothman J at [784]; [808]-[822]:

There is no evidence direct or indirect from which it is possible to conclude (other than by the existence of a theoretical possibility) that the applicant at the time of the conduct that caused the deceased’s death did not know the nature and quality of his act or that what he was doing was wrong.
There was no direct evidence that at the time of the applicant’s conduct the applicant was suffering a mental condition or psychosis that substantially impaired his capacity to understand the events. In and of itself a delusional belief is not an impairment of the mind.
The material in this trial includes proved delusional beliefs possessed by the applicant and a later diagnosed psychosis. While it would not be irrational to conjecture that the psychosis existed earlier and was causative of the delusions, it would also not be irrational to infer on the material that the psychosis developed much later, if it did develop, and there was no substantial or causative impairment of the mind affecting the applicant’s conduct.
From the applicant’s perspective the inference of substantial impairment and no substantial impairment would be equipoised. Since each of the existence and non-existence of a psychosis at the relevant time is available, neither inference can be drawn in a manner that satisfies the applicant’s burden of proof at the trial.
There was no requirement that the trial judge direct on the availability of manslaughter by reason of substantial impairment and no error on the part of the trial judge in failing to give the direction (nor did such failure deprive the applicant of an opportunity for acquittal or involve a miscarriage of justice). It is not for this Court on appeal to insist on the exercise of the trial judge’s discretion to provide such a direction in circumstances where the law does not require such a direction.
Carr v Baker (1936) SR (NSW) 301; Fabre v Arenales (1992) 27 NSWLR 437 considered.

Per Dhanji J at [826]-[849]:

The fact that a person has a delusional belief does not mean that they are suffering an abnormality of mind within s 23A of the Crimes Act. However, having regard to the particular nature of the delusions in this case, the timing and impact of the deaths of the applicant’s father and brother, the evidence of Dr Saker together with the fact that the applicant was, after 11 August 2011, suffering from serious mental illness, it is a rational inference that the delusions he suffered as at 11 August 2011 were the product of, at least, an emerging mental illness (though this is not the only inference necessarily available).

The question that then arises is whether there is evidence to sustain an inference that the applicant’s capacity to judge whether his actions were right or wrong or to control himself were substantially impaired. Evidence that the applicant sought to avoid liability is not probative of a capacity to understand right or wrong but it is also clear that the simple fact of an abnormality of mind cannot satisfy s 23A(1).
While an inference of mental abnormity is available, the nature and impact of the illness as at 11 August 2011, apart from the existence of delusional belief, is (as a result of the manner in which the case was run), quite uncertain. Further events, such as the police investigation, and on the basis on which the ground is premised, the applicant having killed Mr Karmas, were additional stressors after 11 August impacting on the applicant’s mental state.
There was no exploration of the impact of any mental abnormality extant as at 11 August 2011 generally nor any exploration of its impact on the applicant’s capacity to understand right or wrong. It does not follow from a delusional belief that Mr Karmas killed the applicant’s brother, that the applicant did not understand that it was wrong to kill Mr Karmas or that his understanding of this was impacted by any abnormality of mind. Evidence from which the impact of the mental abnormality could be judged was absent in this case.
The same analysis applies with respect to whether the evidence was capable of sustaining an inference on the balance of probabilities that the applicant’s capacity to control himself was substantially impaired.
The evidence was not such as to oblige the trial judge to leave the partial defence of substantial impairment, or the defence of mental illness, to the jury. It follows there was no miscarriage of justice in her Honour not doing so and grounds 1 and 2 must fail.

As to ground 3 (being that the verdict of the jury was unreasonable, unsafe and unsatisfactory).

The Court held (per Ward ACJ at [328]-[336], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

It was clearly open to the jury on the evidence adduced at trial to be satisfied beyond reasonable doubt that Mr Karmas died on 11 August 2011. It was also reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant had murdered Mr Karmas on the afternoon of 11 August 2011 at the Wilga Street Property and later disposed of his body. The circumstantial evidence pointing to that conclusion is overwhelming. It has not been established that the jury should have entertained a reasonable doubt as to the applicant’s guilt.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433; Mulholland v R [2019] NSWCCA 257; Dickson v R (2017) 94 NSWLR 476; Nweke v R [2020] NSWCCA 153; Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 considered.

As to grounds 4 and 5 (being that the Crown split its case, depriving the applicant of a fair trial and that a miscarriage of justice occurred by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown).

The Court held (per Dhanji J at [879]-[897], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]):

Whether a change in the Crown case in the course of the trial resulted in a miscarriage of justice is determined by reference to the fairness of the applicant’s trial. It cannot be said that there was a miscarriage of justice as a result of the reference to the 5 o’clock theory in the Crown’s closing address. Insofar as the applicant complained that his mother’s evidence was relevant to the alternative theory raised by the Crown in its final address, there were sound forensic reasons militating against calling the applicant’s mother. More significantly, while the applicant’s trial counsel agreed he had been taken by surprise, he regarded it to be advantageous to the applicant to rely on it as an indication of weakness in the Crown case.
King v The Queen (1986) 161 CLR 423; [1986] HCA 59; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487; Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192; R v Anderson (1991) 53 A Crim R 421 considered.

As to ground 6 (alleging failure to give certain directions and as to the summing up generally).

The Court held (per Dhanji J at [932], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]) that none of the individual sub-grounds was made out; nor was the cumulative effect of the sub-grounds such that the summing up lacked appropriate balance.

Ground 6(1)

As to ground 6(1) (failure to give a Shepherd direction), particular directions in relation to proof of a circumstantial case (such as a direction that the inference of guilt should not only be a rational inference, but rather, the only rational inference that can be drawn) are no more than “an amplification of the rule that the prosecution must prove its case beyond reasonable doubt”. The trial judge gave an entirely orthodox circumstantial evidence direction. No more was required.
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 applied.
Satisfaction of the elements beyond reasonable doubt necessarily implied satisfaction of the four steps identified by the applicant as intermediate facts, and vice versa. Each step relied on a body of circumstantial evidence which was to be considered together and not in a piecemeal fashion. There is no basis on which to conclude that the application of the standard of proof was undermined in any way by the absence of an “indispensable fact” direction.
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 applied.
As to the applicant’s complaint that proof that Mr Karmas returned to Wilga Street around 5pm on 11 August was an indispensable intermediate fact, for the reasons given with respect to grounds 4 and 5, it was open to the jury to conclude that the murder occurred earlier, in the “67 minute window”.
There was no single item of evidence which required a direction that it was necessary that the Crown prove that evidence beyond reasonable doubt.
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 considered.

Ground 6(2) - breaches of the Browne v Dunn rule

As to ground 6(2) (the complaint that the 5 o’clock theory was not advanced through cross-examination and that the applicant was taken by surprise by the prosecution address), no unfairness arose from the complained of denial of the opportunity to deal with this theory in the applicant’s evidence as it was plain on the applicant’s evidence that his version was that Mr Karmas left shortly after arriving at Wilga Street and never returned. As to the argument that a miscarriage was occasioned as a result of the point at which the Crown raised the alternative theory, this is dealt with in the context of grounds 4 and 5.
Browne v Dunn (1894) 6 R 67; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 applied.

Ground 6(3) – Jones v Dunkel

As to ground 6(3), which raises a complaint of a failure to give a “Jones v Dunkel direction” in relation to an asserted failure by the Crown to call the applicant’s mother, the situation is governed by what has come to be known as a Mahmood direction, the appropriateness of which is predicated on an expectation that the witness would be called.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; RPS v The Queen (2000) 199 CLR 620; [2000] HCA; Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 considered.
The Crown prosecutor advised the applicant’s counsel that he did not intend to call Mrs Fantakis; and no issue was raised by the applicant’s counsel as to the prosecutor’s decision. The evidence of the applicant’s counsel read on the appeal was that the applicant did not want his mother to be called. There was no application, after the Crown address in which the 5 o’clock theory was raised, to call Mrs Fantakis. It is not open to the applicant now to complain that the prosecution was obliged to call her. The applicant has not established a miscarriage of justice on the basis of a failure to give a Jones v Dunkel direction or a Mahmood direction.

Ground 6(4) – warning of danger to convict on “writing” evidence

As to ground 6(4), being a complaint that the trial judge failed adequately to warn the jury of the “danger of convicting the applicant solely on the writings and videos made by the applicant, taking into account that the evidence was not corroborated by any other evidence led by the Crown, and were made by the applicant who at the time was suffering from psychosis”, the Crown case did not rely “solely” on admissions of the applicant in the “writings”. The prosecution case accepted that parts of those materials were unreliable. The present case was not one akin to a prosecution case reliant on a single witness, where a warning may be required (or may have, at one time, been required) as to the need to be satisfied of the evidence of that witness beyond reasonable doubt, and the consequent need to scrutinise that witness’ evidence with care.
R v Murray (1987) 11 NSWLR 12 distinguished.

Ground 6(5) – the summing up was unbalanced

As to ground 6(5)(i), by which the applicant contends that the summing up was lacking in balance such that a miscarriage was occasioned, none of the matters raised by ground 6(5)(i) raises any issue of imbalance in the summing up, whether considered individually or cumulatively,
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 considered.
As ground 6(5)(ii) (the complaint that the trial judge “reinforced the existence of the writing evidence, whilst failing to raise the obvious contradiction made by the Crown on the first day of its closing that the only evidence going to the second case theory was not reliable and lacked credibility”), the trial judge’s discussion of that evidence was not “extensive” in the sense that any undue weight was given to it; and there was reference to the applicant’s response to that evidence. The trial judge properly characterised the manner in which the Crown sought to rely on the writing evidence and identified the potential issues as to its reliability. There was no unfairness in any failure to direct the jury with respect to the unreliability of the evidence suggesting Mr Karmas had returned to Wilga Street at around 5pm.
As to ground 6(5)(iii) (the complaint that the trial judge failed to “emphasise the obvious misconduct by detectives who made false and misleading statements” in relation to Ex AA, statements which the applicant contended were “obviously generated to [suit] the case being pursued by police”), there was no issue that the applicant was the author of this note (which on the Crown case related to a plan to dispose of the body) but there was an issue in relation to where it was found. In summing up, the trial judge instructed the jury that Mr Fantakis pointed out “the uncertainty of some of the police evidence about precisely where that note had been found, and he disputes that it was ever in the blue van”. Having regard to the way in which the applicant’s case was conducted, there was no unfairness in the manner in which her Honour dealt with this issue.
As to ground 6(5)(iv) (the complaint that no remarks were made on the “obviously flawed investigation” whereas the trial judge gave “an opinion about how circumstantial cases such as this can be very strong”), the trial judge in directing the jury as to the circumstantial case did not express any view as to the strength of the case; rather, the trial judge did no more than to point out, in orthodox fashion, that the strength of the case is not determined by classifying it as based on either direct evidence or circumstantial evidence. The trial judge made plain that the case was to be assessed on its merits. There is no substance in this complaint.
As to ground 6(5)(v) (the complaint that the trial judge failed to raise the second part of Mr Charawani’s evidence (which related to evidence in Mr Charawani’s cross-examination as to Mr George Karmas) and the complaint as to conduct by police that the applicant contends sought only to obtain evidence in support of conviction of the applicant), the evidence of Mr Charawani in this respect was not a major part of the applicant’s case; the trial judge directed the jury in relation to the defence theory with respect to possible “bad actors” around Mr Karmas; and the absence of reference to the particular evidence of Mr Charawani in this regard was not such as to render the summing up unbalanced. As to the complaint of bias in the police investigation which should have been dealt with by the trial judge, the focus of the prosecution with respect to Mr Charawani’s evidence was his evidence with respect to the threats made to kill Mr Karmas. This did not necessitate any direction as to bias in the investigation and there was no submission by the applicant’s counsel with respect to Mr Charawani’s evidence in this regard.
As to ground 6(5)(vi) (the complaint that the trial judge referred on multiple occasions to evidence that Mr Karmas’ DNA was located in the applicant’s van emphasising the presumptive test being of blood, omitting that the defence were not able to test this as the sample was destroyed), the trial judge made plain to the jury that the testing was no more than a presumptive test and reminded the jury that there are “many, many substances which can give false positives for human blood”. This was sufficient to ensure undue weight was not given to this evidence.
As to ground 6(5)(vii) (the complaint that the trial judge failed to tell the jury that Mr Karmas’ DNA may have been deposited as a result of transference), the trial judge not only referred to the multiple opportunities for Mr Karmas’ DNA to be deposited in the van prior to 11 August, but also told the jury that DNA could have been deposited by what was referred to as transference such as by being deposited by the applicant after he had been in contact with Mr Karmas. There is no merit in this complaint.
As to ground 6(5)(viii) (by which the applicant asserts that the emphasis and detail of the summing up was centred on the Crown’s case “while protecting the Crown’s case from criticism, notwithstanding, the unfairness caused by the Crown in advancing the second case theory after the evidence closed”), the “second case” or “5 o’clock” theory” has been dealt with in grounds 4 and 5. The summing up as a whole traversed the evidence and the respective cases of the Crown and the applicant in a fair and balanced manner. This sub-ground is not made out.

As to ground 7 (Non-disclosure of documents resulting in a miscarriage of justice).

The Court held (per Dhanji J at [945], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]):

As to the complaint that “NSW Police and the prosecution failed to disclose documents in existence causing a miscarriage of justice”, the applicant has not established a miscarriage of justice as a result of the non-disclosure with respect to any of the matters raised under this ground.
Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708.
As to ground 7(1) (concerning the phone records used to compile the spreadsheet marked as Exhibit J), it is clear that the information that was available was disclosed; and it has not been established that there was any relevant non-disclosure with respect to the telephone records.
As to ground 7(2) (concerning documents sought in item 13 of the applicant’s subpoena of 28 June 2017), the applicant’s complaint as to the non-disclosure is not made out. There is no basis for an inference of police misconduct. As to the further complaint in relation to the execution of crime scene warrants, and in particular a failure to film the execution of the warrant, the failure to appoint an independent observer and a failure to use property seizure forms and provide receipts to the occupant, there is no legislative foundation for the assertion that this amounted to misconduct and any asserted failings were available to the applicant to exploit at trial if it was considered expedient.
Part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) considered.
As to ground 7(3) (concerning documents held at the Bass Hill Police holding yard), to the extent that there was any inadequacy material as to the documentation and police record-keeping with respect to the van, this was a matter available to the applicant to exploit at trial to the extent that it was likely to assist him. No miscarriage of justice is established on the basis of any failure to produce documents included in this sub-ground.
As to ground 7(4) (concerning the odometer reading of the seized blue van), there was no non-compliance or other misconduct on the part of the police in this regard (and lack of cooperation by the police, or obfuscation with respect to later odometer readings was available to the applicant to exploit if it was considered expedient).

As to ground 8 (being that the trial judge erred in law by denying production of documents in relation to a subpoena filed by the defence on 16 March 2018).

The Court held (per Dhanji J at [956], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]):

Although the trial judge (applying the relevant test at the time) ruled that, having regard to the material in the police reports, it could not be said that it was “on the cards” that the material sought by the relevant paragraphs in the subpoena could assist the applicant, and did not apply a test of apparent relevance, nothing turns on this in the circumstances of the case. There was no error in the trial judge denying production of the documents referred to in this ground.

As to ground 9 (being that the trial judge wrongly admitted listening device evidence, Exhibits CS and CX on the grounds of consciousness of guilt).

The Court held (per Dhanji J at [957]-[979], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]):

The conduct in the present case satisfied the relevant criteria for relevance. The applicant had deliberately engaged in a discussion which related to causing harm to Detective Sergeant McGee. That conduct went to a material issue; it was relevant to establish that the applicant had a level of antipathy towards the lead investigator and an interest in doing her harm, and in doing so, to disrupt the investigation. It was open to infer that the applicant was motivated by an awareness that the investigation may uncover evidence of his guilt of the crime charged. The evidence was therefore relevant within the terms of s 55 of the Evidence Act.
As to the discretion under s 135 to exclude the evidence, or the requirement to do so under s 137, the trial judge correctly concluded that ss 135(b) and 135(c) had no application. The evidence was not, in the context of the trial, unduly lengthy. The evidence was relatively straightforward, albeit the Crown submitted some words could be made out while the applicant contended that other words were said, or at least that the Crown interpretation was not correct. While there was a dispute about the content, this did not make it misleading or confusing.
The real issue was whether the probative value of the evidence was substantially outweighed by “the danger that the evidence might be unfairly prejudicial” under s 135(a) or whether, pursuant to s 137, the “probative value [of the evidence was] outweighed by the danger of unfair prejudice to the defendant”. The terms of s 135 are permissive (“may refuse to admit”) while s 137 mandates exclusion (“must refuse to admit”) and is limited to evidence adduced by the prosecutor in criminal proceedings. Thus, where objection is taken to evidence led by a co-accused, it is only s 135 that has application. More significantly, s 137 does not require, as s 135 does, that the probative value be “substantially” outweighed.
Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 considered.

Unfair prejudice arises where there is a danger the jury will use the evidence in a manner adverse to the accused and logically unconnected with the purpose of its tender. The probative value of the evidence lies in the purpose for which it was tendered. That probative value is to be assessed on the basis of the definition of the term in the Dictionary of the Evidence Act: “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. Having regard to the word “could”, this is to be done without seeking to evaluate the reliability or credibility of the evidence.
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 considered.
The existence of a possible explanation consistent with innocence does not render the evidence inadmissible. The evidence in this matter was not “intractably neutral”. It was open to the jury to find the discussion was motivated by a concern that the participants’ involvement in the crimes charged would be revealed. To the extent the evidence suggested, or could be explained by, the mental illness of the applicant and Mr Woods, the trial judge had regard to this consideration. There was no error in the trial judge’s view (at [72]) that while “the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, [her Honour does] not regard the risk of that as a significant one”. In the context of the trial as a whole, the applicant himself relied on the existence of mental illness to explain his writings relied upon by the Crown as admissions.
Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22; R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 considered.
As to the other matters raised by the applicant, they were all theoretical possibilities. Evidence of other criminal or discreditable conduct is regularly put, or sought to be put, before a jury. While at times the nature of such evidence will be such that its prejudicial quality outweighs its probative value, the nature of the evidence in this case was not such that any prejudice on this basis could not be addressed with appropriate directions to the jury. The probative value of the evidence here was not outweighed by the danger of the unfair prejudice relied on before the trial judge. None of the further matters raised by the applicant on this appeal alters that conclusion.
As to the issue raised by the applicant with respect to the authenticity of the recordings and his reliance on evidence tendered in the Local Court together with the relevant transcript, the issue was known to him prior to his trial. The evidence is not relevantly “fresh” evidence. There was no challenge at trial as to the identity of the participants or the veracity of the recording, a matter as to which the applicant, given he was a participant, was in a position to give instructions. The applicant gave evidence and did not suggest he had not participated in the conversations attributed to him. In these circumstances admission of the evidence is not capable of establishing a miscarriage of justice in the relevant sense. The evidence sought to now be relied upon is not admissible on the appeal.
A1 v R; A2 v R [2016] NSWSC 1288; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 considered.

As to ground 10 (being that the trial judge erred by including the foreperson in the ballot process contrary to s 55(2)(a) [sic] of the Jury Act)

The Court held (per Ward ACJ at [373]-[389], Rothman J agreeing at [779] and Dhanji J agreeing at [980]), finding error as contended by ground 10 but applying the proviso and refusing the relief sought:

The clear legislative intention as expressed in s 55G of the Jury Act is that if an expanded jury has chosen one of its members to speak on behalf of the jury as a whole (as a foreperson) then that person is not to be included in the ballot required to determine the constitution of the verdict jury. Thus, there was an error in the manner in which the ballot was conducted. However, the error did not involve such a departure from the requirements of the trial as to lead to the conclusion that there was, as a result of the error without more, a substantial miscarriage of justice.
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31; Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48; R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 distinguished.
Crane v Director of Public Prosecutions [1921] 2 AC 299; Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50; R v Petroulias(No 32) [2007] NSWSC 1302 applied.

As to ground 11 (being that the accumulation of errors caused the trial to miscarry).

The Court held (per Ward ACJ at [392], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

This ground is in effect an overall miscarriage of justice ground predicated on the accumulation of asserted errors that have been dealt with (and dismissed) in other grounds. Ground 11 takes the matter no further.

As to ground 12 (being that the trial judge failed to give a fundamental direction to the jury of the need to separate the evidence between the two conflicting hypotheses relied upon by the Crown

The Court held (per Ward ACJ at [411]-[413], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

This ground of appeal relates to the complaints raised as to the conflicting case theories identified by the applicant (and has been considered in relation to various of the other grounds of appeal raised by the applicant – see grounds 3, 4 and 5). There was no miscarriage of justice in relation to the way in which the case was left to the jury in relation to the two windows of time within which the murder might be said to have occurred. It was open to the jury to conclude that the murder occurred within the first window of time.
As to the “conjunction proposition”, error has not been established arising out of the trial judge not having directed the jury to the effect that it must not take into account the text messages when or before assessing the 5 o’clock case theory. It does not necessarily follow from a conclusion that Mr Karmas had left the Wilga Street Property shortly after he arrived at 1.52pm, and did not return until at or about 5pm, that the text messages were sent by Mr Karmas. As the Crown notes, there was evidence as to the implausibility of those messages having been sent by Mr Karmas even if he were still alive at that time.
A direction of the kind for which the applicant now contends (concerning the so-called 5 o’clock case theory or conjunction proposition) was not sought by counsel for the applicant. No miscarriage of justice has been shown.

As to ground 13 (being that the trial miscarried as the trial judge wrongly admitted a number of documents).

The Court held (per Ward ACJ at [464]-[473], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

Noting that there is some uncertainty as to whether the exercise of discretion under s 90 of the Evidence Act is reviewable on appeal only on the principles stated in House v The Queen or the appropriate standard of appellate review is the correctness standard, it is unnecessary to address that question because whichever standard of review is applied, the conclusion of the trial judge that the evidence was admissible and should not be excluded pursuant to s 90 of the Evidence Act is correct.
House v The Queen (1936) 55 CLR 499; [1936] HCA 40; MIH v R [2007] NSWCCA 199; Sulaeman v R [2013] NSWCCA 283; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; R v Riley [2020] NSWCCA 283 considered.
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46; The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 applied.

As to ground 14 (being that there has been a miscarriage of justice in the trial of the applicant on account of the conduct by NSW Police during the course of the investigation).

The Court held (per Ward ACJ at [498]-[501], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

The complaints raised by the applicant as to the investigation into Mr Karmas’ disappearance and allegations of misconduct said to give rise to a substantial miscarriage of justice are not made good.
As to the criticisms of the police investigation, they were in any event were matters of which the jury was well apprised to take into account when assessing the evidence.
As to the complaints in relation to the execution of search warrants (and alleged failure to follow standard operating procedures, dealt with in relation to ground 7), there is a distinction between search warrants and crime scene warrants; and the absence of an independent observer or the failure to film the crime scene warrants does not amount to non-compliance with a statutory requirement.
As to the alleged breach of cl 8 of the LEPR Regulation, the obligation contained therein is qualified and in any event the applicant accepts that he was provided with notes of the crime scene warrant executed at the Wilga Street Property, which included property seizure forms. The applicant’s request to be provided receipts by the police officers was raised during the trial by the applicant’s counsel for a different forensic purpose (to explain the applicant’s view of the investigation and the impact it had upon him over time).
The applicant has no evidentiary basis for the assertion as to collateral purpose; nor is there any proper evidentiary foundation for the allegations of perjury or that evidence was “planted”. (The complaint made in relation to the response to item 13 of the 28 June 2017 subpoena is addressed in the context of ground 18.)

As to ground 15 (that there has been a miscarriage of justice in the trial of the applicant on account of NSW Police withholding and not disclosing computer data seized from the applicant).

The Court held (per Ward ACJ at [526], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

It is not established that the documents were not in fact contained in the prosecution brief (and as such accessible and available for use by the applicant in the course of the trial). In any event, even if the legal research documents were not provided to the applicant, this does not give rise to a miscarriage of justice in light of the fact that the applicant was represented by counsel at trial (and, as discussed below in consideration of ground 18, it must be concluded that there was no incompetence by the applicant’s counsel or failure to follow the applicant’s instructions).

As to ground 16 (that the trial judge failed to give a fundamental direction to the jury that they had to be satisfied of the truth of the admissions in the writing evidence beyond a reasonable doubt before being able to find the accused guilty of the 5 o’clock theory).

The Court held (per Ward ACJ at [546]-[547], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

The Crown case did not rely solely on the writings made by the applicant. As the trial judge made clear, there was evidence of the applicant’s mental state at the time of the writings that was said to affect the reliability of those writings and the jury was cautioned more than once as to the need to look for corroboration when considering the Crown’s circumstantial case. This is not a case where a direction of the kind here sought was required as a matter of law. Error has not been established arising out of the trial judge’s directions in relation to the use that could be made of the applicant’s writings.
Burns v The Queen and R v Green, (Restricted Judgment) [2021] NSWCCA 227; The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36; ARS v R [2011] NSWCCA 266 considered.
The fact that counsel did not raise any issue as to such a direction supports the conclusion that it was not thought that it was necessary for the jury’s appreciation of its task that such a direction be given. No miscarriage has been demonstrated in this regard and hence leave pursuant to r 4 of the Criminal Appeal Rules to rely on this ground of appeal should be refused but if leave were to be granted, this ground of appeal would not succeed.
Selby v R [2017] NSWCCA 40; Tekely v R [2007] NSWCCA 75 considered.

As to ground 17 (being that the trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of self-defence and provocation)

The Court held (per Ward ACJ at [577]-[580], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

As to self defence, the evidence of the writings did not raise a reasonably viable claim for an alternative verdict of manslaughter on the basis of excessive self-defence. There was nothing to corroborate the assertion that Mr Karmas had with him at any time on 11 August 2011 a taser; and the writings (if true) included a lengthy period of torture that could on no view have been seen as in self defence.
As to provocation, the writings do not leave reasonably open a defence of provocation. Accepting the version of facts most favourable to the applicant, there is no evidence that the applicant acted in an uncontrolled emotional state (particularly given that his conduct on his own account lasted for several hours and included disarming, punching, tasering and torturing Mr Karmas) nor that the applicant’s forming of a murderous intent was induced by the conduct of Mr Karmas (even if it is accepted that he was carrying a taser as the applicant contends). Further, no jury could have been other than satisfied that an ordinary person would not have formed an intention to commit grievous bodily harm or murder, as the applicant did, upon the mere sight of Mr Karmas carrying a taser (being a weapon). In the present case the evidence of the writings upon which the applicant relies is incapable of satisfying the essential elements of the partial defence.
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16; Masciantonio v The Queen (1995) 183 CLR 58 considered.

As to ground 18 (being ineptitude of Counsel – denial of due process)

The Court held (per Ward ACJ at [761]-[762], Rothman J agreeing at [779] and Dhanji J agreeing at [980]):

Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice. Appellate intervention by an appellate court on such a basis is a matter about which caution must be exercised. Counsel’s conduct is to be examined objectively, from the record of the trial. The relevant standard is whether the conduct was “incapable of rational explanation on forensic grounds”. It is insufficient for an applicant “simply to point to some failing, even a gross failing, of the legal representative who appeared”; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial.
Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; R v Birks (1990) 19 NSWLR 677; La Rocca v R [2021] NSWCCA 116; Xie v R [2021] NSWCCA 1; Roach v R [2019] NSWCCA 160; Davis v R [2017] NSWCCA 257 considered.
None of the matters referred to by the applicant under this ground of appeal (even if established) amounted to ineptitude or incompetence of the kind that would give rise to a miscarriage of justice and warrant the quashing of the convictions and a retrial.
As to ground 18A (that Counsel failed to utilise documents during the cross-examination of material witnesses, depriving the applicant of the fundamental right to a fair trial), this comprises a series of complaints (overlapping with complaints made in other grounds of appeal and within this same ground of appeal) which go no further than a complaint as to forensic decisions taken by the trial counsel as to cross-examination and the like (and, insofar as the complaint is as to a failure to put to prosecution witnesses serious allegations of misconduct or criminal conduct, there is not established to have been an evidentiary foundation to make such questioning proper in any event).
As to ground 18B (that Counsel failed to comply with instructions in relation to the subpoena served on 28 June 2017) this raises much of the same issues referred to in the previous sub-ground. The complaints under ground 18B relating to negotiation to narrow the subpoena again fall largely within counsel’s discretion (and, in various aspects, are without foundation).
As to ground 18C (that Counsel failed to seek relevant directions as instructed by applicant), the first and third complaints under ground 18C are dealt with in other grounds; and the second (as to Mrs Antonia Fantakis’ statement) goes nowhere as it is clear that the trial judge had that material before her at the time.
As to ground 18D (that the applicant’s legal representatives failed to research information and obtain expert evidence as to the Georges River Note (relevant to the applicant’s contention as to the advice given to him by a spiritual healer); and that Counsel failed to raise this issue in chief), it is difficult to see how some unidentified spiritual healer would have assisted the applicant but in any event there was ample evidence (even excluding Ex AA) to make it reasonably open to the jury to find the applicant guilty of murder and to exclude any rational explanation consistent with the hypothesis of his innocence.

Judgment

WARD ACJ: On 25 May 2018, following a trial before Wilson J and a jury of twelve, the applicant (Elefterios Fantakis, known as Terry) was found guilty on the sole count with which he was charged – the murder of Elisha (Sam) Karmas, who was last seen alive on 11 August 2011 and whose body has not since been found. The Crown case was that Mr Karmas was murdered by the applicant on the afternoon of 11 August 2011 and that his body was concealed or otherwise disposed of by the applicant and one of his two co-accused (Andrew Woods) in the early hours of 12 August 2011. Mr Woods was found guilty on the sole count against him of accessory after the fact to murder. The applicant’s second co-accused (Derek Cheong) was found not guilty on the sole count against him of accessory after the fact to murder.
On 8 November 2018, the applicant was sentenced to a term of imprisonment of 24 years commencing on 3 October 2013 with a non-parole period of 18 years. The non-parole period expires on 2 October 2031. The aggregate head sentence expires on 2 October 2037. There is no application for leave to appeal against sentence.
The applicant here seeks leave to appeal against his conviction on numerous grounds (seventeen in his initial notice of appeal and a further eighteenth ground raised at the hearing of the appeal). Leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) as the grounds of appeal (as framed) are not confined to a question of law. In relation to some of the grounds (6(1)-(5); 12 and 16), leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) in circumstances where the direction which it is now contended ought to have been given was not sought by defence counsel who appeared for the applicant at trial.
The applicant was represented on the present application by Senior and Junior Counsel in relation to grounds 1 and 2; but represented himself (via audio-visual link) in respect of the remaining grounds of appeal.
The Court received a large volume of material on the appeal which was relied upon by the applicant: submissions dated 30 April 2021 from his Counsel in relation to grounds 1 and 2; submissions dated 3 May 2021 by the applicant in relation to grounds 3-11; amended submissions dated 9 August 2021 by the applicant in relation to grounds 12-15; a second set of amended submissions dated 1 September 2021 by the applicant in relation to grounds 16 and 17; undated fresh evidence submissions from the applicant; and a lengthy document headed “Paragraphs 18(b) and (c): Cases & Outline to each Ground of Appeal” served with a cover letter dated 27 September 2021.

The applicant also relies on an affidavit sworn by him on 1 September 2021, including some annexures which the Crown maintains are not admissible as “fresh evidence” (Annexures A-P and R) (as to which see below at [153]- [158]). Following judgment being reserved the applicant has continued to forward to the Court correspondence relating to transcript of the trial which he maintains is of relevance; and the Court has received communications on behalf of Mr Fantakis from his co-accused, Mr Woods.
The Crown case was circumstantial (and the applicant here argues that there was very little scientific evidence to support the Crown case – the exception to this being evidence of Mr Karmas’ DNA on the inside of one of the doors to the applicant’s van and that sample testing presumptively for blood). In closing submissions at the trial, defence counsel then appearing for the applicant identified the central issues in relation to the charge against the applicant as being whether the Crown had established beyond reasonable doubt that Mr Karmas was dead and, if so, whether Mr Karmas’ death was occasioned by an act of the applicant.
The Crown, in addition to reliance on certain writings and recordings which were admitted into evidence as admissions by the applicant, relied upon evidence of motive as well as behaviour following the offence said to show a consciousness of guilt. The applicant says that the evidence of motive was critically important and that the Crown emphasised in closing that it was the applicant’s belief that Mr Karmas had killed the applicant’s brother (Nicholas Fantakis) which motivated the applicant to murder Mr Karmas (see at T 2430.25-30). The applicant maintains that the writings on which the Crown relied in this regard were made when he was psychotic and are unreliable.
In summing up to the jury, the trial judge put the Crown case to the jury as follows (at SU 66-67):

The Crown says that Mr Fantakis had, in the period between late May and early August 2011, become convinced that Maria Angeles and Sam Karmas had murdered Nicholas Fantakis, and possibly posed a threat to Mr Fantakis and his mother, and under the sway of that delusion, he threated to kill Mr Karmas and then did so.

and, at SU 79, her Honour said:

The Crown’s case [is] that he [Mr Fantakis] [was] in a state of mind which left him out of touch with reality. Mr Fantakis came to hold the belief that Mr Karmas, acting in league with Maria Angeles, had murdered his brother, in May 2011.

Grounds of Appeal

The grounds on which the applicant seeks leave to appeal against his conviction are as follows:

1.   The trial miscarried because the trial judge failed to leave the defence of mental illness to the jury.
2.   The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of the defence of substantial impairment.
3.   The verdict of the jury was unreasonable and cannot be supported having regard to the evidence and therefore was unsafe and unsatisfactory.
4.   The Crown did split/shift its case depriving the applicant of a fair trial, causing the trial to miscarry.
5.   Miscarriage of justice did occur by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown and Mr Price. [This is the so-called “5 o’clock theory”]
6.   Her Honour failed to give adequate directions during the summing up occasioning a miscarriage of justice.
7.   Non-Disclosure of documents resulting in a miscarriage of justice.
8.   Her Honour did error in law by denying production of documents in relation to a subpoena filed by the defence on 16 March 2018.
9.   Her Honour wrongly admitted Listening Device evidence, Exhibits CS & CX on the grounds of consciousness of guilt.
10. Her Honour did error [sic] in law by including the foreperson in the ballot process, in contravention to Section 55(2)(a) [sic] of the Jury Act.
11.   The accumulation of errors caused the trial to miscarry.
12.   Her Honour failed to give a fundamental direction to the jury of the need to separate the evidence between the two conflicting hypotheses relied upon by the Crown (amended ground).
13.   The trial miscarried as her Honour wrongly admitted a number of documents including:
(a)   A document seized from the applicant’s vehicle, namely Ex AA: “Georges River Note”; and
(b)   The writing & video evidence seized from the applicant’s home (new ground).

14.   There has been a miscarriage of justice in the trial of the applicant on account of the conduct by NSW Police during the course of the investigation (new amended ground).
15.   There has been a miscarriage of justice in the trial of the applicant on account of NSW Police withholding and not disclosing computer data seized from the applicant (new ground).
16.   Her Honour failed to give a fundamental direction to the jury that they had to be satisfied of the truth of the admissions in the writing evidence beyond a reasonable doubt before being able to find the accused guilty of the 5 o’clock theory.
17.   The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of self-defence and provocation.
18. There has been a miscarriage of justice within in the meaning of the Criminal Appeal Act 1912, s 6 because of ineptitude of trial counsel, including:
(a)   Counsel failed to utilise documents during the cross examination of material witnesses; depriving the appellant his fundamental right to a fair trial. The documents included:
(i)   Documents produced from a subpoena served on the Commissioner of Police on 3 August 2015;
(ii)   Supreme Court transcripts for a bail application heard on 18 August 2016, including the submissions filed by the appellant;
(iii)   Emails/faxes sent to detectives during the homicide investigation identifying the intent by this strike force (Flaggy) to withhold receipts of exhibits seized for an improper purpose; and
(iv)   Documents attached to subpoenas served on Commissioner of Police on 12 October 2015 and on 28 June 2017, including the appellant’s instructions.

(b)   Counsel failed to comply with instructions to press for the production of documents sought in the subpoena served on Commissioner of Police on 28 June 2017 or to make further enquiries.
(c)   Counsel failed to seek relevant directions as instructed by appellant, including:
(i)   Counsel failed to follow written instructions and seek that her Honour directs the jury on the conflict in evidence between the two case theories as they are not alternate case theories.
(ii)   Counsel failed to tender the statement made by Ms Antonia Fantakis during the argument to exclude the 5 o’clock theory from the jury’s consideration.
(iii)   Counsel failed to follow written instructions in relation to the jury ballot argument.

(d) Legal representatives failed to follow instructions to research information with regards to exhibit AA (Georges River Note) to corroborate the appellant’s defence that this note was part of an instruction attached to a spiritual healing incantation.

Evidence at trial

It is necessary (particularly in light of the unreasonable verdict ground of appeal – ground 3) to summarise in some detail the evidence adduced at the trial.

Background

Mr and Mrs Karmas had lived in a house at 32 Warwick Street, Punchbowl since a few months after their marriage in December 1985. As at the date of Mr Karmas’ disappearance (11 August 2011), Mr and Mrs Karmas lived there with their two children, Rebecca and Sarah.
At 34 Warwick Street, Punchbowl, there was a property which was owned and occupied by members of the Fantakis family. The Fantakis property was redeveloped in about 2006 into two duplexes (34A and 34B Warwick Street), one of which (34A) was sold but the other (34B) (which will be referred to in these reasons as the Warwick Street Duplex) was jointly owned by the applicant and his now deceased identical twin brother, Nicholas Fantakis.
In late 2007, Nicholas Fantakis commenced a relationship with Maria Angeles and, from about March or April 2008 until some time in early to mid 2011, the couple lived together at the Warwick Street Duplex. Nicholas Fantakis ceased living at that address some time before 27 May 2011. Ms Angeles continued living there until 23 June 2011.
The applicant’s mother, Antonia Fantakis, lived in a property at Wilga Street, Punchbowl (which will be referred to in these reasons as the Wilga Street Property) (this being the place at which the Crown contended that Mr Karmas was murdered by the applicant). When Nicholas Fantakis left the Warwick Street Duplex, he moved in with his mother at the Wilga Street Property.

Property dispute between Nicholas Fantakis and Ms Angeles

By early May 2011, following the breakdown of the relationship between Nicholas Fantakis and Ms Angeles, there was a dispute between them as to whether Ms Angeles was entitled to continue to reside at the Warwick Street Duplex and as to debts allegedly owed by Nicholas Fantakis to Ms Angeles because of investments she had made in their failed automotive business. Each retained a lawyer and correspondence was exchanged between the lawyers on about 11 May 2011 in relation to the dispute.

Death of Nicholas Fantakis

On 27 May 2011, Nicholas Fantakis committed suicide by hanging himself in a room at the Wilga Street Property. As will be noted in due course, the applicant did not accept that his brother had committed suicide and formed the firm belief that his brother had been murdered (and that Mr Karmas was involved in, or the leader of, a group of people that had murdered him).
Senior Constable Nathan Simpson, who gave evidence at the trial, attended the scene of Nicholas Fantakis’ death on 27 May 2011 and prepared a report to the Coroner in relation to it. Senior Constable Simpson gave evidence that he was approached by the applicant in the weeks after the death and that the applicant appeared to him to find it hard to accept that his brother had taken his own life.

Funeral for Nicholas Fantakis

After Nicholas Fantakis’ death on 27 May 2011, there was a dispute between the applicant and Ms Angeles both as to the distribution of Nicholas Fantakis’ estate and as to the arrangements regarding his funeral and burial. The dispute was such that Ms Angeles arranged to have a bodyguard accompany her to Nicholas Fantakis’ funeral. It was not in dispute at the trial that Mr Karmas became involved to some extent as a mediator or intermediary between the applicant and Ms Angeles. (It was the Crown case that the applicant came to resent Mr Karmas’ involvement in his dispute with Ms Angeles.)

Incident on 8 June 2011 at the Warwick Street Duplex

A number of witnesses gave evidence at the trial in relation to an incident on 8 June 2011 when the applicant and some other persons were observed by Mr Karmas to have entered the Warwick Street Duplex and removed numerous items of property (said to belong to Nicholas Fantakis). Ms Angeles reported the incident to the police and informed police that Mr Karmas had witnessed it. Senior Constable Southall, who gave evidence at the trial, responded to that report.
Senior Constable Southall gave evidence that she spoke to Mr Karmas and that he identified the applicant as having been responsible for the intrusion; and that, after speaking to the applicant by phone in her presence, Mr Karmas provided the applicant’s mobile number to her. No charges were laid in relation to the incident. The police formed the view, after making further enquiries with both Ms Angeles and the applicant, that it was a civil matter. (It was the Crown case that this incident was the source of some animus by the applicant towards Mr Karmas.)
One of those present on 8 June 2011 was Ms Amara Mantas, the then teen-aged daughter of Ms Patricia Mantas (the applicant’s then partner). Ms Amara Mantas gave evidence in the trial and, in the course of cross-examination by the Crown Prosecutor (with leave), Ms Amara Mantas agreed that she had told police that she recalled the applicant being angry that Mr Karmas was there and that, after Mr Karmas left, the applicant said to her “I don’t really like him” and “He’s just over here snooping”. Ms Amara Mantas agreed in her oral evidence that in telling that to the police she had told the truth. The applicant admitted in evidence that he had referred to Mr Karmas being “nosy” but said that he did not recall having said that he did not like Mr Karmas.

Evidence of threats made by applicant towards Mr Karmas

There was evidence at the trial about threats having been made by the applicant towards Mr Karmas.
Mr Karmas’ brother (Mr George Karmas) gave evidence that, some time after the funeral of Nicholas Fantakis, Mr Karmas spoke to him about property having been removed from the Warwick Street Duplex and that Mr Karmas said to him that he had told the police about it. Mr George Karmas gave evidence that, some time later, Mr Karmas told him that the applicant had come to his front door and said “I will bury you alive if you say anything more to the police”; to stay out of it; and that he (Sam) would regret what he did. Mr George Karmas said that he asked his brother Sam to organise a meeting between himself and the applicant; and that, a week or two later, he spoke to the applicant outside the Warwick Street Duplex in the presence of both Mr Karmas and Mr Cheong. Mr George Karmas’ evidence was that he asked the applicant whether he had threatened to kill his brother (i.e., Sam) because he had cooperated with police; and that the applicant did not reply and turned around and walked back into the property. Mr George Karmas said that, after they had left, Mr Karmas told him (George) that he felt sorry for the applicant, who had a “lot on his plate”.
Mr George Karmas gave evidence that he told police about the threat after Mr Karmas’ disappearance when he (George) was at the Karmas house on 12 August 2011; and Mr George Karmas confirmed that a statement, which he had prepared at the Karmas house and faxed to police on 12 August 2011, included the details of the threat that Mr Karmas had reported to him.
Another witness, Mr Khaled Charawani, a close friend of Mr Karmas, gave evidence that he and Mr Karmas would go for walks together during which they would talk; and that Mr Karmas told him that his neighbour’s son had committed suicide and about a family dispute that had arisen. Mr Charawani gave evidence that, about a couple of weeks before Mr Karmas’ disappearance, as they were walking along a particular stretch of Salt Pan Creek, Mr Karmas told Mr Charawani that the twin brother of the neighbour who had died (i.e., the applicant) had threatened “to knock me off”; and that, when Mr Charawani asked Mr Karmas what he meant, Mr Karmas said “He threatened to kill me”. Mr Charawani gave evidence that Mr Karmas told him that the threat was delivered in the course of Mr Karmas acting as a “go-between” between the twin brother (i.e., the applicant) and the girlfriend of the deceased (i.e., Ms Angeles).
There was also evidence from Mr Karmas’ sister (Mary Dunsmore) that Mr Karmas had visited her home a few days before his disappearance and appeared “worried”; and that when she asked him if everything was all right, Mr Karmas mentioned Terry (the applicant) and his brother and, grabbing his forehead, said “It’s all a big headache”. Mr Glenn Dunsmore (Mary Dunsmore’s husband) gave evidence that he understood from Mr Karmas that the applicant had taken offence to Mr Karmas’ involvement in the dispute between Ms Angeles and the Fantakis family.

Text messages

The Crown relied on the following two text messages that were recovered from the SMS inbox of one of two mobile phones found in the kitchen of the applicant’s home at the Wilga Street Property, as demonstrating (together with other evidence – see below) that the applicant had the belief (before Mr Karmas’ disappearance) that Mr Karmas was involved in his brother’s death:

26.6.11 It’s not over yet, but we’re gonna get ‘em. They are not going to get away with it. HE’S NOT GOING TO GET AWAY WITH IT!
8.7.11 Stop doing work at zorba’s and I’ll be there whenever you want. If we’re going to do this thing for nick then i don’t want you doing anything else just as i can’t.

It was the Crown case that the messages concerned the applicant’s belief that Mr Karmas was involved in his brother’s death.
The applicant admitted in evidence that he received each of those messages but he denied that they related to Mr Karmas. The applicant said that the first related to Ms Angeles and her solicitor, David Leamey; and that the second was connected to the fact that his brother had been engaged in the cultivation of cannabis at the Wilga Street Property and a property at Peats Ridge.
The Crown points out that the applicant’s evidence at trial as to the receipt of those messages was inconsistent with the applicant’s earlier denial that the phone used to receive the messages was his telephone. In particular, the Crown notes that, in the video of the execution of a search warrant at the Wilga Street Property on 14 August 2011, the applicant tells the police that: the phone was not his; he had no idea who it belonged to; and it may have belonged to a labourer or been left at the house by his brother.

Request for inquest into Nicholas Fantakis’ death

Senior Constable Simpson (who as noted above had attended the scene of Nicholas Fantakis’ death on 27 May 2011 and had prepared a report to the Coroner) gave evidence that some time prior to 2 August 2011 the applicant informed him that he and his mother wanted an inquest to be held into the death of Nicholas Fantakis. Senior Constable Simpson completed paperwork in connection with that request in which he recorded, inter alia, that the applicant and his mother did not believe that Nicholas would commit suicide at his mother’s unit and that the applicant was not satisfied that Nicholas tied the rope because of the particular knot that was used (see Ex 6F). (See also the applicant’s later document entitled “Complaint to the Coroner”, dated 28 March 2012 (Ex 17F).)

11 August 2011 – disappearance of Mr Karmas

The Crown relied on the circumstances in which Mr Karmas left his family home on 11 August 2011 (see below) as suggesting that, when he left, he was not intending to go far; as well as Mr Karmas’ uncharacteristic failure to honour social and work commitments he had made for later the same day and the following day, as demonstrating that something happened to him on 11 August 2011 that prevented him from honouring those commitments.
It is important to put into context the timeline of events on that day.

Morning of 11 August 2011

• Evidence of Mrs Karmas

Mrs Jenny Karmas last saw her husband at about 8.15am on 11 August 2011 when she left for work. Mrs Karmas gave evidence that Mr Karmas had been doing work for Mr Peter Ikonomou (a long standing friend of Mr Karmas and also his dentist) in Ashbury earlier that week and that Mr Karmas told her that he was not going to work at Peter’s that day because he had to order some materials. Mrs Karmas kissed him goodbye; and gave evidence that he said “Have a lovely day, darling”. Mrs Karmas gave evidence that her husband appeared to be fine.

• Evidence of Ms Rebecca Karmas

Ms Rebecca Karmas, one of the couple’s two daughters, gave evidence that, on the morning of 11 August 2011, Mr Karmas seemed fine and she recalled him being “almost jovial, making a bit of a joke” as she left for work.

• Evidence of Ms Sarah Karmas

The other of the couple’s two daughters (Ms Sarah Karmas) gave evidence that she saw Mr Karmas in the kitchen at their Warwick Street home some time after 8.30am. Ms Sarah Karmas gave evidence that she had breakfast and returned to her bedroom to study; and that, as she studied, she saw her father come and go from the front door, doing gardening; and that, later in the morning, she saw him in the backyard working on his ute, putting tools away.

It is to be noted that her Honour did not set aside paragraph (b). Ultimately, if there was to be any material of relevance, it was to be found in reports to police by Stephen Lafiatis and Mr Lafiatis. Of course, if such material led to further lines of enquiry, it was open to the applicant to pursue them, using the documents obtained to establish the potential relevance of the documents sought. The potential relevance of the reports to police by Stephen Lafiatis and Mr Lafiatis sought by paragraph (b) of the subpoena, to the disappearance of Mr Karmas was, as the trial judge acknowledged, somewhat tangential. However, from the applicant’s perspective, any support for the contention that there were other persons with an animus against Mr Karmas who may have been involved in his disappearance could only come through the material the trial judge allowed. There was nothing to suggest that any of the other material could provide any further support.
I am not of the view that the trial judge erred in denying production of the documents referred to in this ground. This ground must fail. To the extent that leave is required under s 5(1) of the Criminal Appeal Act, I would grant leave but reject ground 8.

Ground 9 - Her Honour wrongly admitted listening device evidence, Exhibits CS and CX on the grounds of consciousness of guilt

As a result of warrants granted to police, numerous conversations including conversations between the applicant and Mr Woods were recorded. Objection was taken to a part of the recordings taken on 25 and 26 November 2011. The Crown submitted the evidence was available to go to the jury as evidence of consciousness of the applicant’s guilt. The applicant submitted the evidence was inadmissible because it was not relevant (as required by s 55 of the Evidence Act 1995 (NSW)), or, failing this, because it was inadmissible pursuant to ss 135 or 137 of the Evidence Act.
Her Honour ruled substantial portions of the recordings to be inadmissible pursuant to s 137 of the Evidence Act. Two recordings, the first between 18:21 and 18:44 on 25 November and the second between 18:46 and 18:55 on the same date were found to be admissible: R v Fantakis; R v Woods [2018] NSWSC 1814. Those recordings formed part of what became Exhibit CS. (Other parts of Exhibit CS were recordings which were not relied on as consciousness of guilt, and not the subject of objection.) While determinations of relevance, and of inadmissibility pursuant to ss 135 and 137 generally involve questions of degree, they do not involve the exercise of discretion. As is ordinarily the case for determinations in the nature of evaluative judgements, review in this Court is on the basis of whether the decision at first instance was correct (and not whether the decision was open): see Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 (Rogerson v R; McNamara v R) at [542]-[548].
On the Crown case, the relevant recordings were of a discussion between the applicant and Mr Woods in relation to killing the officer-in-charge of the investigation, Detective Senior Constable McGee (Sergeant McGee by the time of her evidence in this trial), although on any view, the discussion was led by Mr Woods. It is convenient to consider this ground in the context of the manner in which the evidence was used in the trial.
In addressing the jury, the Crown referred to evidence that on 21 December 2011, Mr Woods was seen with a person fitting the description of the applicant at a café adjacent to the Bankstown Police Station, where Strike Force Flaggy was headquartered. Reference was made to the evidence of Inspector Doueihi that he became aware in November 2011 of possible threats towards Detective Sergeant McGee and advised the applicant and Mr Woods that there was a current investigation in place in this regard with the purpose of discouraging them from acting on any alleged threats. The Crown Prosecutor noted that both the applicant and Mr Woods denied the allegation when it was put to them. The Crown Prosecutor then addressed the two tracks in Exhibit CS, as follows:

“ … track 2, 25 November 2011 at 6.21pm, … Well you might think there’s no doubt about who [Mr Woods is] referring to and not a mistake as to what was said, “Officer-in-charge Flaggy dead.” “That won’t be a problem man, haha.”
Track 3 on 25 November 2011 at 6.46pm, … Woods says: “Gun, fuck this,” and as it’s been explained, ladies and gentlemen, and you might recall these recordings aren’t the best quality, so it’s a matter for you what you hear whether it’s “gun” or “get it done.” “We’ve got to get a gun,” or “get it done.” Fantakis says, “It’s the only fuckin’ way.” Woods: “What do you mean it’s the only fuckin’ way?” 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.” And then at p 10, Mr Woods says, “I want to influence the fuckin’ hunter,” obviously referring to Detective Senior Constable McGee.
Now the Crown relies upon this evidence as showing a consciousness of guilt by each of the accused in relation to their involvement of the murder of Sam Karmas. The Crown says that this evidence supports an inference that each accused planned to kill the officer-in-charge, Detective Senior Constable McGee, or wanted to see her dead because she was investigating the crime that they knew that they each had committed, and that this is another piece of circumstantial evidence that the Crown relies upon in relation to Mr Fantakis and Mr Woods, that they wanted to disrupt the investigation of which she was the officer-in-charge.”

In her summing up, the trial judge instructed the jury as follows:

“The Crown also relies on what has been referred to, on occasion, as the evidence of intimidation. That is, some telephone conversations and listening device product, intercepted conversations in evidence before you, which, if you agree with what the Crown says is on those recordings, you might think demonstrates some level of antipathy or hostility to police, to Strike Force Flaggy, and in particular, to Detective Sergeant McGee, who was in charge of the operation investigating Mr Karmas’ disappearance.
The Crown points you to track 2 of exhibit CS. That is a recording of a conversation between Mr Woods and Mr Fantakis on 25 November 2011 in the evening of that day, where there was a discussion which - it is up to you, but it seems to have been about finding out where Detective Sergeant McGee lived, wanting to blind her, “officer in charge of Flaggy dead” and so on. Mr Woods was the person who said those things; Mr Fantakis was engaged in that conversation with him.
Track 3 of exhibit CS, there is a reference which, depending on your conclusion, may be a reference to getting a gun, but you will recall there is a dispute between the parties as to whether it is “getting a gun”, or “getting it done”. It may be with the headphones you have, you will be able to work it out rather better than we could do so here in the courtroom. But if you conclude that that is a reference to getting a gun, then you may consider that that is evidence going to what the Crown says is contemplation of doing harm to Detective Sergeant McGee. You know from evidence from Detective Inspector [Doueihi] that he spoke to both Mr Fantakis and Mr Woods on the telephone, as it happened, about this suggestion that they wanted to harm Detective Sergeant McGee. He talked to them in July 2012. Each of them denied any such intent.”

Her Honour later gave directions in relation to the use of this evidence as evidence of a consciousness of guilt in terms that are not the subject of complaint (although it was submitted her Honour’s directions were not able to cure the prejudice resulting from the admission and use of the evidence).
Returning to the ruling on the admissibility of the evidence, her Honour, having referred to various authorities,^[16] said, with respect, correctly:

“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.”
16. Her Honour referred to Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Sutton (1986) 5 NSWLR 697; R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep); R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226; R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1; DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252; R v Smit & Ors [2004] NSWCCA 409; Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270.

The conduct in this case satisfied those three criteria. The applicant had deliberately engaged in a discussion which related to causing harm to Detective Sergeant McGee. That conduct went to a material issue; it was relevant to establish that the applicant had a level of antipathy towards the lead investigator and an interest in doing her harm, and in doing so, to disrupt the investigation. Finally, it was open to infer that the applicant was motivated by an awareness that the investigation may uncover evidence of his guilt of the crime charged. The evidence was therefore, as the trial judge found, relevant within the terms of s 55 of the Evidence Act.
Section 135 at the relevant time provided:

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 provided:

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.

The trial judge (at [67]) noted, correctly in my view, that ss 135(b) and 135(c) had no application. The evidence was not, in the context of the trial, unduly lengthy. The evidence was relatively straightforward, albeit the Crown submitted some words could be made out while the applicant contended that other words were said, or at least that the Crown interpretation was not correct. While there was a dispute about the content, this did not make it misleading or confusing.
The real issue was whether the probative value of the evidence was substantially outweighed by “the danger that the evidence might be unfairly prejudicial” under s 135(a) or whether, pursuant to s 137, the “probative value [of the evidence was] outweighed by the danger of unfair prejudice to the defendant”. It might be noted that the terms of s 135 are permissive (“may refuse to admit”) while s 137 mandates exclusion (“must refuse to admit”) and is limited to evidence adduced by the prosecutor in criminal proceedings. Thus, where objection is taken to evidence led by a co-accused, it is only s 135 that has application: Rogerson v R; McNamara v R. More significantly, s 137 does not require, as s 135 does, that the probative value be “substantially” outweighed.
Unfair prejudice arises where there is a danger the jury will use the evidence in a manner adverse to the accused and logically unconnected with the purpose of its tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. The probative value of the evidence lies in the purpose for which it was tendered. That probative value is to be assessed on the basis of the definition of the term in the Dictionary of the Evidence Act: “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. Having regard to the word “could”, this is to be done without seeking to evaluate the reliability or credibility of the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.
Before the trial judge, the applicant, joined by Mr Woods, submitted that the evidence was unfairly prejudicial on the following bases (as set out by the trial judge at [70]):

“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.”

With respect to the first matter, the existence of a possible explanation consistent with innocence does not render the evidence inadmissible. The evidence in this matter was not “intractably neutral”: see R v Ciantar (2006) 16 VR 26; [2006] VSCA 263; Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22. It was open to the jury to find the discussion was motivated by a concern that the participants’ involvement in the crimes charged would be revealed. To the extent the evidence suggested, or could be explained by, the mental illness of the applicant and Mr Woods, her Honour had regard to this consideration. I find no error in her Honour’s view (at [72]) that while “the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, [her Honour does] not regard the risk of that as a significant one”. In the context of the trial as a whole, it is to be observed that the applicant himself relied on the existence of mental illness to explain his writings relied upon by the Crown as admissions.
As to matters (2), (3) and (4), they were all theoretical possibilities. Evidence of other criminal or discreditable conduct is regularly put, or sought to be put, before a jury. While at times the nature of such evidence will be such that its prejudicial quality outweighs its probative value, the nature of the evidence in this case was not such that any prejudice on this basis could not be addressed with appropriate directions to the jury. The probative value of the evidence was, in my view, not outweighed by the danger of the unfair prejudice relied on before the trial judge.
Before this Court the applicant added to the above bases on which unfair prejudice was said to exist. In his most recent written submissions, he relied on the following factors:

“1.   Had no connection to the elements of the offence;
2.   Did not go towards negating any proposed defence;
3.   Did not go to any material issue at trial;
4.   Was evidence attached to a post offence that had yet to be adjudicated, charges that were eventually dismissed in 2021;
5.   Obviously, evidence that could be misused as tendency evidence;
6.   Insurmountable prejudice that could not be remedied by directions;
7.   The evidence was misleading due to the poor quality of the recordings and that the conversation had been taken out of context ([s] 135(b)).
8.   The makers of these conversation could not be compelled to be cross-examined to put the conversations into context (s135(b));
9.   Went against the presumption of innocence;
10.   Destroyed the character of the applicant who was the main witness in his own case; a person who was deemed a person of good character by the Court.”

Matters 1, 3, 5 and 6 have been dealt with above. As to matter 2, it is enough that the evidence went to proof of the Crown case. As to matter 4, it is not to the point that the evidence was the foundation of other charges or that those charges were dismissed. Quite apart from the need, in the context of proving a criminal offence, to prove a number of elements, the evidence was led here as part of a circumstantial case and did not have to be proved beyond reasonable doubt. Matter 7 has also been dealt with above. Alternative interpretations did not make it “misleading”, at least to the extent that its probative value was substantially outweighed by this danger. Similarly, as to any potential alternative context. While it is true that the makers of the conversations (or more relevantly, Mr Woods, given the applicant could, and did, choose to give evidence) could not be compelled, in the context of the onus of proof, and the directions to be given with respect to the drawing of inferences, this was not such as to cause the probative value to be substantially outweighed by the danger that the evidence might be misleading. As to matter 9, the evidence led against an accused in a criminal prosecution is, with limited exceptions, led to displace the presumption of innocence. As to matter 10, this effectively replicates the complaint made at first instance with respect to the use of the evidence as tendency evidence, or otherwise evidence of engaging in discreditable conduct and has been dealt with above.
While the ground refers to Exhibits CS and CX, only the portion of Exhibit CS referred to above was the subject of objection over its admission as evidence of a consciousness of guilt. It is also noted that the timing of the recordings in Exhibit CX do not fit within the timeframe of the recordings identified in submissions in support of the ground (see at Applicant’s Written Submissions, 3 May 2021 at [1319]).
Finally, before leaving this ground, the applicant raises an issue with respect to the authenticity of the recordings. The applicant, according to his submissions, was charged with an offence of intimidation of Detective Sergeant McGee, based on the recordings made between 24 and 29 November 2011. That charge was heard between 27 and 31 July 2020 at the Central Local Court. The applicant asserts that there is evidence, arising out of this hearing, that establishes that the discs received by the relevant section of the police for the purposes of being enhanced, were not, contrary to the assertion of Detective Sergeant McGee, the master copy. He seeks to rely on the evidence tendered in the Local Court together with the relevant transcript.
While the applicant seeks to raise this as fresh evidence, the issue was known to him prior to his trial. It was raised by him on the bail application in 2016. In his judgment, published as A1 v R; A2 v R [2016] NSWSC 1288, (A1 being a pseudonym for the applicant), Garling J said (at [95]-96]):

“[95] … A1, in his cross-examination of Sergeant McGee, established a discrepancy between statements of various police officers with respect to a DVD containing the product of a listening device which lawfully recorded conversations in which A1 was involved. It is readily apparent that there is inconsistency between the statements as to whether there was one or three discs containing the relevant recording.
[96] However, this challenge did not address itself to a more fundamental question, namely whether the recording contained the voices that the police contended for and whether it contained the contents asserted by the police. There was no challenge to these central facts. There is no reason, from this cross-examination, to doubt the integrity of the recordings.”

Having regard to the applicant’s awareness of the issue prior to trial, the evidence is not relevantly “fresh” evidence: see R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. There was no challenge at trial as to the identity of the participants or the veracity of the recording, a matter as to which the applicant, given he was a participant, was in a position to give instructions. The applicant gave evidence and did not suggest he had not participated in the conversations attributed to him. In these circumstances admission of the evidence is not capable of establishing a miscarriage of justice in the relevant sense: Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. The evidence sought to now be relied upon is not admissible on the appeal.

For the reasons set out above, ground 9 is not made out. To the extent that leave is required under s 5(1) of the Criminal Appeal Act, I would grant leave but reject ground 9.

Remaining Grounds

With respect to the remaining grounds, I agree with Ward ACJ.

**********

Endnotes

Decision last updated: 03 February 2023

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) 301 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 Colosimo v Director of Public Prosecutions [2006] NSWCA 293 Commissioner for Superannuation v Scott (1987) 13 FCR 404 Crane v Director of Public Prosecutions [1921] 2 AC 299 Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51 Davis v R [2017] NSWCCA 257 De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 Decision restricted [2022] NSWCCA 95 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Director of Public Prosecutions (Vic) v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 Director of Public Prosecutions v Shannon [1975] AC 717 DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Fabre v Arenales (1992) 27 NSWLR 437 Fang v R [2018] NSWCCA 210 Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Flanagan v R [2013] NSWCCA 320 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gilham v R (2012) 224 A Crim R 22 [2012] NSWCCA 131 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Greenhalgh v R [2017] NSWCCA 94 Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 47 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Hofer v R [2019] NSWCCA 244 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ignjatic v R (1993) 68 A Crim R 333 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jack v Smail (1905) 2 CLR 684; [1905] HCA 25 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50 King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 La Rocca v R [2021] NSWCCA 116 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Lazarus Estates Ltd v Beasley [1956] 1QB 702 Lee Chun-Chuen v The Queen [1963] AC 220 Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 27 A Crim R 163 Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Lo Tin v R [1964] Crim LR 135 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31 Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160 Masciantonio v The Queen (1994-1995) 183 CLR 58; [1995] HCA 67 McKay v The Queen (1935) 54 CLR 1; [1935] HCA 70 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Mencarious v R [2008] NSWCCA 237 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 MIH v R [2007] NSWCCA 199 Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 Mortada v R [2014] NSWCCA 36 Mulholland v R [2019] NSWCCA 257 Mulvihill v R [2016] NSWCCA 259 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Ng v The Queen (2003) 217 CLR 521; [2003] HCA 20 Nguyen v R [2008] NSWCCA 322 Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9 Nweke v R [2020] NSWCCA 153 O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Palser v Grinling [1948] A.C. 291 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Anderson (1991) 53 A Crim R 421 R v Ayoub (1984) 2 NSWLR 511 R v Batte (2000) 49 OR (3d) 321 R v Birks (1990) 19 NSWLR 677 R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324 R v Burton (1986) 24 A Crim R 169 R v Caine (1990) 48 A Crim R 464 R v Cheatham [2000] NSWCCA 282 R v Christopher Robin Jones (NSWCCA, 2 August 1985, unreported) R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Damic [1982] 2 NSWLR 750 R v Dempster [1924] SASR 299 R v Donnelly (1987) 96 A Crim R 432 R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep) R v Em [2003] NSWCCA 374 R v Esposito (1989) 45 NSWLR 442 R v Fantakis [2018] NSWSC 1815 R v Fantakis, Woods and Cheong [2018] NSWSC 749 R v Fantakis; R v Woods [2018] NSWSC 1700 R v Fantakis; R v Woods [2018] NSWSC 1814 R v Foy (1922) 39 WN (NSW) 20 R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303 R v Grech; R v Kadir [2017] NSWCCA 288 R v Green (2002) 4 VR 471; [2002] VSCA 34 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 R v Hall [1971] VR 293 R v Hunter (No 2) [2013] NSWSC 1806 R v Irwin [1987] 1 WLR 902 R v Issa (Supreme Court NSW, Sperling J, 16 October 1995, unrep) R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 R v Kemp [1957] 1 QB 399 R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v McIntyre [2000] NSWCCA 6 R v Meher [2004] NSWCCA 355 R v Micalizzi [2004] NSWCCA 406 R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480 R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226 R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 R v Murray (1987) 11 NSWLR 12 R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Peisley (1990) 54 A Crim R 42 R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 R v Petroulias (No 32) [2007] NSWSC 1302 R v Prasad (1979) 23 SASR 161 R v R (1981) 28 SASR 321 R v Riley [2020] NSWCCA 283 R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 R v Shannon [1974] 2 All ER 1009 R v Shields (1967) VR 706 R v Short (1898) 19 LR (NSW) 385 R v Smith [1954] QWN 49 R v Sutton (1986) 5 NSWLR 697 R v Tumanako (1992) 64 A Crim R 149 R v Zaiter [2004] NSWCCA 35 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Re Bonny [1986] 2 Qd.R 80 Re Burford; Burford v Clifford [1932] 2 Ch 122 Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9 Re M’Naghten’s Case (1843) 8 ER 718 Re Migliorini; ex parte Silk Brothers (1974) 22 FLR 491 Reyne (a pseudonym) v R [2022] NSWCCA 201 Roach v R [2019] NSWCCA 160 Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 Rondel v Worsley [1969] 1 AC 191 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Selby v R [2017] NSWCCA 40 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Sinclair v The Queen (1946) 73 CLR 316; [1946] HCA 55 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 Spedding v State of New South Wales [2022] NSWSC 1627 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 Stingel v The Queen (1990) 171 CLR 312 Sulaeman v R [2013] NSWCCA 283 Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48 Tekely v R [2007] NSWCCA 75 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 The Queen v Nguyen (2010) 242 CLR 491; [2010] HCA 38 The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13 The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 Tillmanns Butcheries v Australasian Meat Industry Employees Union (1979) 42 FLR 331 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tran v The Queen (2000) 105 FCR 182; [2000] FCA 1888 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 Xie v R [2021] NSWCCA 1
Texts Cited:	A Ligertwood, Australian Evidence Cases and Materials (1995, Butterworths) B Collier, Second Reading Speech of the Legislative Assembly, Jury Amendment Act 2007 (NSW) (7 November 2007) D Howard and B Westmore, Crime and Mental Health Law in New South Wales (2019, 3rd ed, LexisNexis Butterworths) J D Heydon, Cross on Evidence (2015, 10th ed) New South Wales Law Commission, Jury Selection (2007 NSWLRC 117)
Category:	Principal judgment
Parties:	Elefterios (Terry) Fantakis (Applicant) Regina (Respondent)
Representation:	Counsel: M Ramage QC with T Woods (Applicant) (on grounds 1 and 2 only) E Fantakis (Applicant – self represented on remaining grounds) M Millward (Respondent) Solicitors: Andrews Solicitors (Applicant) (on grounds 1 and 2 only) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2013/297834; 2013/298264; 2021/248739
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Fantakis; R v Woods [2018] NSWSC 1700 Date of Decision: 8 November 2018 Before: Wilson J File Number(s): 2013/297834