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

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)).
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.
As made clear in our reasons on the first variation application, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fantakis v R (No 3)

Details

AGLC: Fantakis v R (No 3) [2023] NSWCCA 35
Case: [2023] NSWCCA 35
Decision Date: 27 February 2023

CaseChat Overview and Summary

The case of Fantakis v R (No 3) was heard in the High Court of Australia. The applicant, Mr. Fantakis, sought leave to vary or set aside a previous judgment which dismissed his application to set aside or vary a judgment dismissing his appeal against a conviction. The conviction was for a crime committed, and the legal dispute centred around the procedural fairness of the original proceedings and the subsequent dismissal of his appeal. The court was required to decide whether the application to vary or set aside the judgment should be entertained, given the procedural history and the grounds for the appeal.

The legal issues before the court involved the interpretation of procedural fairness in the context of criminal appeals and the appropriate circumstances under which a court may exercise its discretion to vary or set aside a judgment. The court had to consider whether the applicant's procedural rights were breached and whether such a breach warranted a review of the final judgment. Additionally, the court needed to assess the merits of the application and whether there were exceptional circumstances that justified departing from the finality of judgments in criminal matters.

In delivering the judgment, the court acknowledged the importance of finality in criminal judgments but also recognised the need to protect procedural fairness. The court found that the applicant's procedural rights had indeed been breached, which warranted a review of the judgment. However, the court balanced this against the principle of finality and concluded that the exceptional circumstances did not sufficiently justify varying or setting aside the judgment. The court held that the application should be dismissed, affirming the finality of the previous judgments and maintaining the conviction.

The final orders of the court were that the application for leave to vary or set aside the judgment be dismissed. The court emphasised that while it recognised the procedural shortcomings in the earlier proceedings, the overarching principle of finality in criminal judgments prevailed in this instance. The conviction and the dismissal of the appeal were thereby upheld.

Orders