Fantakis v The Queen; Woods v The Queen - [2017] NSWSC 1840

Supreme Court

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. (2) The application for bail by Andrew Woods 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) Crime Commission Act 2012 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Cain (No 1) (2001) 121 A Crim R 365 Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 DPP v Tikomaimaleya [2015] NSWCA 83 Filipetti v R (1984) 13 A Crim R 335 Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
Category:	Principal judgment
Parties:	Elefterios Fantakis (Applicant) Andrew Woods (Applicant) Regina (Respondent Crown)
Representation:	Counsel: E. Wilkins SC (Respondent Crown) Solicitors: Elefterios Fantakis – litigant in person Havas & Dib Lawyers (Applicant Woods) Solicitor for the Department of Public Prosecutions (NSW) (Respondent Crown)
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…

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.

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Details

Case: [2017] NSWSC 1840
Decision Date: 3 August 2017

CaseChat Overview and Summary

The case of Fantakis v The Queen and Woods v The Queen involved applications for bail by the applicants, Fantakis and Woods, who faced charges of murder and accessory after the fact to murder, respectively. The matter came before the court following an earlier refusal of a bail application and involved considerations under section 74 of the Bail Act 2013. The applicants argued that the significant delay in the matter proceeding to trial, which they attributed to the Crown's responsibility, caused them a disadvantage in preparing their case from custody. They also highlighted their willingness to comply with bail conditions and the need for medical treatment available in the community.

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

Having regard to the objection taken by the applicant Fantakis to the correspondence from the officer in charge of the matter (Ex. A.11), I have had regard to only those parts of the document which contain statements of fact. Expressions of opinion are rejected from the tender.The Alleged Facts of the Murder and Accessory to Murder Charges The background to the murder of Mr Karmas is centred on a Punchbowl property owned by the applicant Fantakis and his late twin brother Nicholas. Mr Karmas was a neighbour and was known to the Fantakis family. From 2009 to April 2011 Nicholas Fantakis had lived with his de facto partner Maria Angeles in the Fantakis property. After the relationship broke down, Nicholas Fantakis moved out of the property, leaving Ms Angeles in possession. About a month later, on 27 May 2011, he committed suicide. Following Nicholas Fantakis’ death, there was a dispute between Ms Angeles and the Fantakis family about property, with Ms Angeles contending that she was owed a substantial sum of money by her former partner’s estate. She remained in possession of the Punchbowl property pending the discharge of this debt. The situation was volatile, with Ms Angeles feeling sufficiently threatened as to have a bodyguard accompany her to the funeral of Nicholas Fantakis. Mr Karmas came to act as a sort of intermediary between the parties, a role that Mr Fantakis resented. On 8 June 2011 the applicants, and a number of other persons, attended the Punchbowl residence and removed various items of property. Ms Angeles reported the matter to police, and Mr Karmas nominated the applicant Fantakis as having been responsible for the incursion, leading to an exacerbation in the tension. The applicant Fantakis threatened Mr Karmas. The applicant Fantakis came to hold the view that his brother had been murdered by Mr Karmas, acting at the instigation of Ms Angeles. He also believed that Mr Karmas had made attempts on his life. These views came to be shared by the applicant Woods, a close friend of the applicant Fantakis. On 26 June 2011 the applicant Woods sent a text message to the applicant Fantakis that read in part “It’s not over yet, but we’re gonna get ‘em”. The reference was to Mr Karmas and Ms Angeles. By early August 2011 Ms Angeles had moved out of the Punchbowl property, and the applicant Fantakis was in possession of it, undertaking work to ready it for lease. On 11 August 2011 the applicant Fantakis was at the Punchbowl property with a labourer, the third co-accused Derek Cheong (charged with accessory after the fact to murder). There was telephone contact between Mr Fantakis and Mr Karmas at 12.03pm that day. Between the time of that call and 1.22pm, there were six telephone calls and two text messages between the applicants, with each using a mobile telephone subscribed in false details. Sometime around 1.30pm Mr Karmas left his house to go to the Fantakis property, intending to help the applicant Fantakis with repair work there. He had some tools and his mobile phone with him, but did not take his wallet or keys, and left his house and car open.

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.”