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New South Wales |
Case Name: | Fantakis v R; Woods v R |
Medium Neutral Citation: | [2017] NSWSC 1840 |
Hearing Date(s): | 28 July 2017 |
Date of Orders: | 3 August 2017 |
Decision Date: | 3 August 2017 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | (1) The application for bail by Elefterios Fantakis is refused. |
Catchwords: | CRIMINAL LAW – application for bail – charges of murder and accessory after murder – where earlier application refused – s 74 Bail Act 2013 – show cause provision – length of delay in matter proceeding to trial – responsibility for delay – disadvantage in preparing a case from custody – willingness to comply with bail conditions – need for medical treatment |
Legislation Cited: | Bail Act 2013 (NSW) |
Cases Cited: | Cain (No 1) (2001) 121 A Crim R 365 |
Category: | Principal judgment |
Parties: | Elefterios Fantakis (Applicant) |
Representation: | Counsel: |
File Number(s): | 2017/161100 (Woods); 2017/194902 (Fantakis) |
Publication Restriction: | 03 August 2017 Restricted to the Parties. Proceedings the subject of a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010, such that the names of the applicants, the deceased, and witnesses likely to give evidence at trial, and any material which tends to identify these individuals, is suppressed, pending the conclusion of the trial or further order of the Court, whichever comes first. 08 November 2018 Conclusion of trial - Publication restriction removed. |
JUDGMENT
HER HONOUR: On 28 July 2017 the Court heard applications for bail brought by Mr Fantakis and Mr Woods, reserving its decision until today. The applicant Fantakis represented himself, whilst the applicant Woods was represented by his solicitor, Mr Havas.
The History of the Matter
This is a matter which has a lengthy history and, since the delay in its finalisation is a relevant feature of the applications, it is appropriate to refer to it at the outset.
The deceased, Mr Elisha (Sam) Karmas, was last seen on 11 August 2011 and it is the Crown case that he was murdered by the applicant Fantakis on the afternoon of that day, with his body subsequently secreted or otherwise disposed of. The applicant Woods is alleged to have aided Mr Fantakis in the disposal of Mr Karmas’ body.
The applicant Fantakis was arrested on 3 October 2013, after a lengthy police investigation. The applicant Woods was arrested the same day. Both men have remained in custody since that…
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- Case
- [2017] NSWSC 1840
- Decision Date
CaseChat Overview and Summary
The court was required to weigh the strength of the Crown's case against the applicants' arguments for bail, considering factors such as the length of the delay, the responsibility for the delay, the disadvantage to the applicants in preparing their case from custody, and their willingness to comply with bail conditions. Additionally, the court had to assess the necessity of medical treatment that could only be provided in the community.
The court found that despite the circumstantial nature of the Crown's case, it was compelling, with evidence of deeply felt antipathy from both applicants towards the deceased and a strong motive to kill. The court concluded that the delay in the matter proceeding to trial did not undermine the strength of the Crown's case, and the applicants' arguments for bail did not sufficiently outweigh the considerations against it. The court found that the applicants were unlikely to comply with bail conditions and that the need for medical treatment did not constitute a compelling reason for bail.
Accordingly, the court dismissed the applications for bail. The applicants were to remain in custody awaiting trial.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Fantakis additionally referred to his mental health and the diagnosis made by Dr Elliott in May 2017, noting that he is now in receipt of treatment considered necessary for his condition, and is willing to continue with treatment better provided in the community, pursuant to a community treatment order. Although it was in a different context (that of delay) he referred to himself as not being the same man he was four years ago.Consideration The starting point for the determination of the present application is an assessment of the strength of the Crown case, since that is also relevant to the likelihood and extent of any sentence that might also be imposed, and to risks such as flight, or the possibility that witnesses or evidence may be interfered with. That assessment can only be conducted in a limited way, since the evidence placed before the Court is largely from secondary sources, and there is no real opportunity for the applicants to test the evidence, in a way that can be done at trial. As the applicants point out, the Crown case in relation to the presumed murder of Mr Karmas is entirely circumstantial. Mr Karmas’ body has never been recovered and the fact of his death is to be inferred from the circumstance that, after leaving his own home to assist the applicant Fantakis with repair works at the Punchbowl property, he was never seen again. In the period of six years since his disappearance he has not contacted any family member, and nor has he accessed bank accounts and the like. The evidence for his murder by the applicant Fantakis, with the applicant Woods aiding Mr Fantakis subsequently, is also to be inferred from a series of circumstances. However, a circumstantial case is not necessarily a weak case. On the contrary, cases dependent upon the accumulation of pieces of circumstantial evidence can be very compelling. Having considered the evidence placed before the Court for the purposes of this application, I have concluded that this is such a case. There is clear evidence of deeply felt antipathy from both applicants towards Mr Karmas. That evidence is found in diary notes written by Mr Fantakis, and in various exchanges between the two applicants which were intercepted by police. That hostility has its origins in the belief each man held that Mr Karmas (and Ms Angeles) were responsible for the death of Nicholas Fantakis. Evidence of a strong motive to kill is available to the Crown. There is also evidence of opportunity, since the deceased left his own home on 11 August 2011 to go to the neighbouring Fantakis property to assist MrFantakis with some work to be undertaken there. The applicant Woods can be placed at the property at the same time. It is significant that the applicant Fantakis was, on the evidence, the last person to see Mr Karmas alive, with the applicant Woods at the property at about the relevant time or soon after. It is well open to any tribunal of fact to conclude that Mr Karmas was violently murdered after accompanying the applicant Fantakis to the Wilga Street property. In the handwritten notes (Annexure “O” to the affidavit of D/S McGee of 19 April 2017, Ex. B.35) Mr Fantakis recorded the attendance of Mr Karmas at Wilga Street, and then“As he passed me I kicked him off his feet. I punched him in the throat to prevent him from breathing and screaming and then grabbed a tazer that he was carrying. I used his own weapon to incapacitate him and had him strapped. […] I had torchered [sic] him until he spilled his guts on all that are involved in this machine of killing inc.”