Fantakis v R (No 3)

[2023] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

27 February 2023

Decision date:

27 February 2023

Before:

Ward ACJ; Rothman J; Dhanji J

Decision:

Refuse leave to bring the application to set aside or vary the judgment published on 15 February 2023 dismissing the earlier application to set aside or vary the judgment on the conviction appeal.

Catchwords:

CRIME — Application for leave to vary or set aside judgment dismissing application to set aside or vary judgment dismissing conviction appeal

Legislation Cited:

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.4

Cases Cited:

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

Fantakis v R [2023] NSWCCA 3

R v Spathis; R v Patsalis [2001] NSWCCA 476

Category:

Consequential orders

Parties:

Elefterios (Terry) Fantakis (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Ramage KC 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

Judgment

1. THE COURT: On 3 February 2023, this Court dismissed an appeal brought by the applicant, Mr Elefterios (Terry) Fantakis, against his conviction for the murder of Mr Elisha (Sam) Karmas (Fantakis v R [2023] NSWCCA 3). On 15 February 2023, this Court dismissed an application by Mr Fantakis pursuant to Regulation 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to set aside or vary the orders made by the Court (Fantakis v R (No 2) [2023] NSWCCA 22). Mr Fantakis has now filed a further application seeking leave under the said Regulation, this time to set aside or vary the most recent judgment (Fantakis v R (No 2)).

2. The basis on which the first application was made was that the Court did not include or deal with one of the grounds (ground 19) which had been foreshadowed by Mr Fantakis in written submissions filed by him shortly before the hearing of his appeal and then raised by him in the course of his oral submissions. The basis on which the present application is made is Mr Fantakis’ contention that the second judgment failed to consider and determine the “second limb” of Mr Fantakis’ reasoning in support of his additional ground 19 (as to whether or not the trial judge “did error [sic] in law during sentencing”). As noted in the first judgment, there has been no appeal from sentence. Nevertheless, Mr Fantakis contends that the alleged error during sentencing is critical to the assessment of ground 19.

3. As made clear in our reasons on the first variation application, the application was appropriate to be dealt with because, by oversight, ground 19 was not expressly addressed (although the reasoning on other appeal grounds covered the matters encompassed by ground 19) in the principal judgment. Reference was made in Fantakis v R (No 2) to authorities which make clear the permissible scope of such an application; and we noted that it was not an opportunity for Mr Fantakis to re-argue his appeal grounds.

4. What is evident from the various submissions and email communications sent by or on behalf of Mr Fantakis in support of the present application is that Mr Fantakis cavils with the decision and reasoning of this Court in Fantakis v R (No 2). Mr Fantakis complains that the judgment fails to address the argument and authorities in his earlier submissions dealing with the issue of conflicting hypotheses and fails to determine his complaint as to error during sentencing. His submissions cover (again) Mr Fantakis’ argument concerning the conflicting hypotheses, an argument that was dealt with in both the principal judgment and the first variation judgment. Complaint is also made that the first variation judgment (though on its face a judgment of the Court) did not include any separate determination or reasoning by Rothman J or Dhanji J (the erroneous assumption of Mr Fantakis being that it was solely a judgment of the presiding judge, Ward ACJ).

5. As recently as 27 February 2023, Mr Fantakis’ co-offender (Mr Woods) has emailed a further authority which Mr Fantakis has asked the Court to consider in relation to his argument that a unanimity direction was required (R v Spathis; R v Patsalis [2001] NSWCCA 476), referring in particular to what was said by Carruthers AJ, Heydon JA (as his Honour then was) and Smart AJ concurring, at [251], [253]-[255], [264] and [266]. This illustrates the problem that Mr Fantakis is here seeking that the Court’s decision in relation to his unanimity ground be revisited.

6. Mr Fantakis’ application to set aside or vary Fantakis v R (No 2) is not tenable. Not only has there been no application for leave to appeal against sentence (though Mr Fantakis now foreshadows filing such an application), and hence no occasion to determine if there was an error during sentencing as such, it is clear that Mr Fantakis’ complaint that his argument and authorities were not addressed is a complaint going to the conclusion that this Court has reached on ground 19 and/or as to the adequacy of the reasons for determination of that ground. It is not appropriate to deal with such a complaint by way of an application to vary or set aside the judgment.

7. Leave to bring the present application is refused. Were leave to have been granted, there being no proper basis for it, the application to set aside or vary the judgment published on 15 February 2023 would be dismissed.

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