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Fantakis v The King (No 2)

Fantakis v The King (No 2)

Case [2023] NSWCCA 22 15 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fantakis v R (No 2) [2023] NSWCCA 22
Hearing dates: On the papers
Date of orders: 15 February 2023
Decision date: 15 February 2023
Before: Ward ACJ; Rothman J; Dhanji J
Decision:
The application to set aside or vary the orders made by the Court on 3 February 2023 is dismissed.

Catchwords:
CRIME — Application to vary or set aside orders dismissing conviction appeal

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
Fantakis v R [2023] NSWCCA 3
Gould v R; R v Gould [2021] NSWCCA 92
Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195
R v Koko [2022] QCA 216
R v Lapa (No 2) (1995) 80 A Crim R 398
R v Zaiter [2004] NSWCCA 35
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2

Category: Consequential orders
Parties: Elefterios (Terry) Fantakis (Applicant)
Rex (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

Judgment

THE COURT: On 3 February this year, this Court published reasons granting leave (to the extent necessary) dismissing an appeal brought by the applicant, Mr Elefterios (Terry) Fantakis, against his conviction by a jury of twelve for the murder of Mr Elisha (Sam) Karmas (Fantakis v R [2023] NSWCCA 3).
Mr Fantakis has now brought an application pursuant to Regulation 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the orders made by the Court (citing R v Lapa (No 2) (1995) 80 A Crim R 398 at 402 per Clarke JA) on the basis 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 on 16 May 2022, two days before the hearing in this Court, and was raised by him in the course of his oral submissions.
In those written submissions the error of law identified (at [40]), on which Mr Fantakis indicated…

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 The King (No 2)

Details

AGLC: Fantakis v The King (No 2) [2023] NSWCCA 22
Case: [2023] NSWCCA 22
Decision Date: 15 February 2023

CaseChat Overview and Summary

The case of Fantakis v The King (No 2) involved the appellant, Mr Fantakis, who sought to vary or set aside orders dismissing his conviction appeal. The matter was heard in the High Court of Australia. Mr Fantakis' conviction related to a criminal offence, and he sought to challenge the dismissal of his appeal against the conviction.

The central legal issue before the court was whether the appeal against the conviction could be reconsidered or if the orders dismissing the conviction appeal were to be upheld. The court had to examine the merits of the application and the grounds on which Mr Fantakis sought to challenge the dismissal of his appeal.

In delivering the judgment, the court held that the application to vary or set aside the orders dismissing the conviction appeal should be dismissed. The court found that the grounds put forward by Mr Fantakis did not warrant reconsideration of the dismissal of his appeal. The reasoning was based on the assessment of the merits and the legal principles governing appeals against criminal convictions. Ultimately, the court determined that the orders dismissing the conviction appeal should remain in place.

No further orders were made by the court in this regard. The decision affirmed the dismissal of Mr Fantakis' appeal against his conviction.

Orders