R v Fantakis, Woods and Cheong

[2018] NSWSC 749

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Fantakis, Woods and Cheong [2018] NSWSC 749
Hearing dates:	9 May 2018
Date of orders:	09 May 2018
Decision date:	23 May 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Application refused
Catchwords:	CRIMINAL LAW – trial – accused charged with murder – co-accused charged with accessory after the fact to murder – application to confine the Crown case – question of a “shift” in the Crown case – significance of Crown opening address – whether accused prejudiced by asserted “shift”.
Cases Cited:	Cawthray v R [2013] NSWCCA 105 Cross and Channon (1973) 55 Cr. App. R. 540 Falconer-Atlee (1973) 58 Cr. App. R. 348 Gregory (1981) 77 Cr. App. R. 41 King v The Queen (1986) 161 CLR 423 McManamy v Fleming (1889) 15 VLR 337 R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 R v Laird (1893) 14 NSWLR 354 R v Tangye (1997) 92 A Crim R 545 R v Thompson and Gamble (1925) 42 WN (NSW) 71 R v VHP (unreported decision of the NSWCCA, 7 July 1997)
Category:	Principal judgment
Parties:	The Crown Accused - Elefterios [Terry] FANTAKIS Accused - Andrew WOODS Accused - Derek CHEONG
Representation:	Counsel: Mr L Lungo as Crown Prosecutor Mr I Todd for the accused Fantakis Mr T Hughes for the accused Woods Mr D Price for the accused Cheong   Solicitors: The Solicitor for Public Prosecutions Ms S Orya for the accused Fantakis Mr A Sahinovic for the accused Woods Mr C Kapsis for the accused Cheong
File Number(s):	2013/297834 Elefterios [Terry] FANTAKIS2013/298107 Andrew WOODS2013/309162 Derek CHEONG
Publication restriction:	23/5/2018 Restricted to the parties pending verdict, or other order of the Court, whichever is the sooner. 25/5/2018 Date of Verdicts – Publication restriction removed.

Judgment

1. On 26 February 2018 the accused were jointly arraigned before a jury panel. Elefterios Fantakis was charged with the murder of Elisha Karmas, on 11 August 2011, at Punchbowl in the State of New South Wales; he entered a plea of not guilty to the charge. Andrew Woods and Derek Cheong were charged as accessories after the fact to the murder. Mr Woods’ assistance was alleged to have been given between 10 August 2011 and 2 September 2011, at Punchbowl and other diverse places in the State; Mr Cheong’s assistance was alleged to have occurred between 10 and 14 August 2011 at Punchbowl. Both entered a plea of not guilty upon arraignment.

2. Excluding a number of days spent hearing evidence on the voir dire, the trial proceeded over 38 days of evidence. On the 39th day before the jury, 30 April 2018, the Crown Prosecutor commenced his closing address to the jury. The address continued into, and finished on, the 40th day of trial, 1 May 2018. That same day counsel for Mr Cheong commenced his closing address, finishing it on 2 May 2018. Counsel for Mr Woods followed, addressing the jury on 2 May 2018, 3 May 2018, and (with a non-sitting day and a weekend intervening), on 7 May 2018. The final address, that of counsel for Mr Fantakis, commenced on 8 May 2018, continuing for the whole of that day, and anticipated to conclude the following morning.

3. At the commencement of proceedings on 9 May 2018, the 45th day of proceedings before the jury, counsel for Mr Woods, joined (if but faintly) by counsel for Mr Fantakis, made an application to the Court for the Crown’s case to be limited, and the jury told to disregard the potential significance of some of the evidence tendered in the Crown case. Some initial argument was heard in the absence of the jury, with the matter further considered at the conclusion of the final closing address, and after the jury had been (necessarily) sent away for the balance of the day.

4. Having heard argument and submissions from all counsel, the application to limit or restrict the Crown’s case was refused. What follows are my reasons for that decision.

5. To make sense of the application made by Mr Woods and Mr Fantakis on 9 May 2018, and to understand it in its context, it is necessary to firstly set out in brief form the nature of the Crown case against the accused men and, secondly, to refer to the closing addresses of counsel.

The Crown’s Case

6. In opening to the jury on 28 February 2018, the Crown referred to evidence pointing to a background of hostility from Mr Fantakis and Mr Woods to Mr Karmas, including death threats from the former to the latter in the period preceding 11 August 2011, and said that,

The Crown case is that Mr Karmas was attacked and killed by Mr Fantakis at that property in Wilga Street [Punchbowl on 11 August 2011].

7. It was said that the evidence was that Mr Karmas had called upon Mr Fantakis at an address in Warwick Street, Punchbowl and, in company with him and Derek Cheong, subsequently attended another residential address owned by the principal accused at 37 Wilga Street. The Crown continued (at T123:08 – 20),

Mr Cheong later spoke to police and he told police that Mr Karmas walked out the front door of Wilga Street and down the footpath to the front gate. Mr Cheong told police at a later time that he closed the door and did not see Mr Karmas again.

The Crown case is that this was not correct, that is, Mr Cheong lied to the police about that, because the evidence will show that Mr Karmas never left the property alive.

Mr Cheong also told police that he and Mr Fantakis only were at that property at Wilga Street for five to 10 minutes. This again, on the Crown case, the evidence will show, I expect, that both those men, Mr Fantakis and Mr Cheong, were at the Wilga Street premises for over an hour.

8. The assistance rendered by the alleged accessories differed. Mr Cheong was said by the Crown to have been present on the property when Mr Fantakis assaulted and killed Mr Karmas and, having knowledge of the commission of the crime by virtue of his presence, subsequently aided the principal that afternoon by clearing a cluttered driveway to permit the principal to bring a van close to the house at 37 Wilga Street, to facilitate the removal of the body of the deceased; and, later, on 12 and 13 August 2011, by sanding and cleaning walls in the room where the offence was committed. This room came to be referred to during the trial as “the second bedroom”.

9. Mr Woods’ knowledge of the commission of murder was said to arise (inferentially) from information given him by the principal. The assistance he gave was alleged to be in sending a number of text messages from Mr Karmas’ mobile telephone on the afternoon of 11 August 2011; and, later that evening, by helping the principal to conceal the body of the deceased, in or near the Georges River in the Campbelltown area.

10. It was thus the Crown’s case as opened to the jury that Mr Karmas had accompanied Mr Fantakis to Wilga Street, had entered the property (contrary to the assertions of Mr Cheong), and was there set upon by the principal and murdered.

11. The Crown Prosecutor referred in his opening address to a number of documents written by Mr Fantakis, and upon which the Crown relied as admissions by him to a violent and murderous assault upon Mr Karmas on 11 August 2011.

12. These documents, found by police during a search of the home of the accused’s mother, Antonia Fantakis, on 7 June 2013, were ultimately put into evidence on 11 April 2018, and became exhibits CF, CG, CH, CJ, CK, CL, and CM. In some, there were accounts of an assault upon Mr Karmas, at Wilga Street on the afternoon of 11 August 2011. Others referred to matters that the Crown relied upon as going to the accused’s motive to wish to harm Mr Karmas. Ultimately, there was no dispute from the accused that he was the author of the documents.

13. In Ex. CF, a handwritten document, Mr Fantakis said (at p.17ff),

On the 11th August 2011, I was working at the duplex across from his [Mr Karmas’] home.

At approx 10am he called me from his home phone to ask if he could pop in and lend a hand.

He did not feel threatened as I had my labourer helping me Derrick [sic] Cheong

He came over then my mother arrived at about lunch time

[…]

(o) Sam helped Derik [sic] load up the van with some furniture […]

[…]

(t) on arriving to Wilga St we got out of the van & before walked into the house, Sam remembered that he left something out at his house.

(u) I offered to give him a lift but he insisted on walking.

(v) At approx. 2.15 my friend Andrew Woods popped in and took young Derrick [sic] home.

[…]

(b) Sam was coming down the side to gain entry […].

14. The document went on to refer to the violence inflicted upon Mr Karmas, this being necessarily at a time after his departure and that of Mr Cheong, and following Mr Karmas’ return to Wilga Street later in the afternoon.

15. In Ex CG, another handwritten entry, this time into a 2012 diary, Mr Fantakis referred again to the circumstances in which violence was inflicted upon Mr Karmas. Although without reference to a time, Mr Fantakis again gave an account of Mr Karmas leaving Wilga Street (“Sam left, had to go”), Mr Woods arriving and subsequently leaving to take Mr Cheong home, the arrival and departure of Antonia Fantakis, and the return of Mr Karmas, at which time the accused wrote that he attacked Mr Karmas.

16. In Ex. CJ, a document directed “Dear Judge”, Mr Fantakis wrote,

[…] after I was alone at approx. 5pm, he [Mr Karmas] entered the rear of my home […].

17. The document continues with a description of the torturing of Mr Karmas by the accused.

18. This evidence was relied upon by the Crown to establish that the accused had attacked and killed Mr Karmas at Wilga Street on 11 August 2011. To give rise to the liability of Derek Cheong as an accessory, the Crown’s case was that Mr Karmas was attacked after his arrival at Wilga Street at about 2pm, and prior to the departure of Mr Cheong from the premises at about 3pm. By reference to footage subsequently obtained from a number of closed circuit television security systems in operation in the area at the time, the Crown suggested that Mr Karmas was murdered between about 2pm and 3.07pm on 11 August 2011.

19. The Crown also tendered in evidence exhibits AX, AF and BB. Exhibit AX was an electronically recorded account of the events of 11 August 2011 given to police by Mr Fantakis on 13 August 2011. Exhibits AF and BB were, respectively, an electronically recorded account of the events of 11 August 2011 given to police by Derek Cheong on 14 August 2011, and a further “walk through” account given by him and electronically recorded on 18 August 2011. In each, the accused men both said that Mr Karmas arrived at Wilga Street, and almost immediately left it, stating that there was something he had to do or something he had forgotten.

20. Although the Crown disputed the accuracy of those assertions as to the departure of Mr Karmas from Wilga Street, the evidence sat with some other evidence given in the Crown case by George Karmas. George Karmas told the jury that he had arranged to meet his brother Sam at Sam’s house in Warwick Street between 2pm and 4pm on 11 August 2011, an appointment he was not in fact able to keep, although he did not let his brother know that, either in advance or at the time.

21. There was thus evidence before the jury, led by the Crown, upon which the jury could conclude that any assault upon Mr Karmas committed by Mr Fantakis on 11 August 2011 had occurred after Derek Cheong had left the premises at 37 Wilga Street, and at a time after Mr Karmas had left Wilga Street, probably having remembered his appointment with his brother, and subsequent to his return later in the day.

22. A necessary consequence of the jury accepting that evidence as reliable would be that the Crown failed to prove the accessorial liability of Derek Cheong, since his knowledge of the commission of the offence of murder by Elefterios Fantakis was said to arise because of his presence at the scene at the time. There was no suggestion, and no evidence to support an inference to the effect, that the relationship between Mr Fantakis and Mr Cheong was such that the former would confide his commission of a murder to the latter.

The Addresses of Counsel

23. As is customary, the Crown addressed the jury first. In his address the Crown Prosecutor outlined the Crown’s case consistent with that referred to in opening. That is, the Crown pointed to evidence that Mr Karmas accompanied the accused Fantakis and Cheong to Wilga Street at about 2pm, and submitted that Mr Karmas was thereafter murdered by Mr Fantakis, with Mr Cheong subsequently aiding him to conceal the crime. The Crown told the jury, by reference to CCTV footage in evidence as Ex. CO, that the version given by Mr Cheong in Ex. BB of he and Mr Fantakis remaining together at Wilga Street for only 5 or 10 minutes after the departure on foot of Mr Karmas “couldn’t be right” (at T2458:30). The Crown Prosecutor continued,

Mr Cheong told the police that the van - they turn up to Wilga Street, Mr Karmas or Sam says that he'd forgotten something or that he had to leave and that Mr Cheong left with Mr Fantakis, you might think five to ten minutes later. Ladies and gentlemen, that couldn't be right. Five to ten minutes later, even if they were there for ten minutes, you might think that's about 20 minutes. That blue van was in Wilga Street for 67 minutes and you might think during that period of time ladies and gentlemen was when Mr Sam Karmas was killed and it's the Crown case that the driveway was cleared by Mr Cheong to allow that blue van to be backed in so Mr Karmas' body could be loaded into the van [at T2458:34-43].

24. The Crown Prosecutor went on to acknowledge the evidence before the jury that raised the possibility that Mr Karmas had left Wilga Street in the early afternoon of 11 August 2011, and returned later that same afternoon.

Ladies and gentlemen there's almost an hour unaccounted for at Wilga Street by Mr Cheong. If Sam did not leave Wilga Street alive after first arriving then Mr Cheong must've been lying to the police when he stated Sam left, and you might think that is the same story given by Mr Fantakis, and you might ask yourselves well Mr Fantakis in his writing said Sam left and came back and then he attacked him. So that might be right. Maybe Sam did leave and then he came back as Mr Fantakis said he attacked him and he said that in three different writings of his.

Ladies and gentlemen if you accept Mr Fantakis is talking about what really happened, then you might think there are two explanations. Sam did leave and he came back. If he did leave and came back after Mr Cheong's been taken home, well as I said at the beginning of my closing when I was talking about circumstantial evidence and I gave an example well if the only evidence we have in relation to Mr Cheong is that he was there the next day and helping to repair the back room, well you may well not be satisfied beyond reasonable doubt that he knew that Sam Karmas had been killed if he wasn't there.

So if Sam did leave and then come back, you might be left with that result. However the only two persons who say Sam left are Mr Fantakis and Mr Cheong. There's no evidence ladies and gentlemen that Mr Sam Karmas left 37 Wilga Street on foot alive. As I referred to earlier, if he had something to do - if Mr Karmas had something to do, if he had to go home and he did get home, well he didn't do very much at home. He didn't pick up his wallet if he had to go somewhere, he didn't lock up his tools that he was very fond of, he didn't jump in his vehicle so he could drive out towards Westmead Hospital and make these text messages. So it would be my submission to you ladies and gentlemen that you wouldn't accept that Sam Karmas left Wilga Street on foot.

The other explanation and I'm going back to Mr Fantakis' writing saying Sam left, he came back and then he attacked him, is Mr Fantakis has told his story so many times of Sam leaving that he incorporated that into what he actually did to Mr Sam Karmas [at T2459:04-37].

25. The Crown conceded that, if the jury accepted that Mr Karmas left the Wilga Street property and later returned, being attacked and killed at that time, Mr Cheong was entitled to a verdict of not guilty. However, the Crown’s ultimate submission was that the jury would not accept the assertions of Mr Fantakis and Mr Cheong as to the timetable of events on the afternoon of 11 August 2011, and would accept the three cases advanced by the Crown as proved beyond reasonable doubt.

26. Counsel for Mr Cheong gave the next closing address. In summary, Mr Cheong’s submission to the jury was that he had been entirely honest with the police in the two voluntary interviews in which he had participated. He submitted that the jury would not be satisfied to the requisite standard that the Crown had proved that Elisha Karmas was in fact dead and, on that basis alone, the Crown had not proved its case against him, since he could not assist a murderer if there had been no murder. However, he argued, if the jury concluded that Elefterios Fantakis murdered Mr Karmas as the Crown alleged, it would conclude that the crime occurred later in the afternoon on 11 August 2011, at a time after he had left Wilga Street. That is, he submitted that the jury would accept his account and that of Mr Fantakis that Mr Karmas left Wilga Street at around 2pm on 11 August 2011, and further accept that the admissions of Mr Fantakis to assaulting Mr Karmas later, on his return to Wilga Street, were reliable accounts of a real event. He submitted that the jury would acquit him of the charge.

27. Counsel submitted (at T2492:35 – T2493:21),

What are the circumstances? What circumstances does the Crown say if you accept could lead you to only one rational conclusion? That is that Derek Cheong helped Terry Fantakis after he knew that Terry Fantakis had killed Sam Karmas. Well, the Crown relies on time or timing in two ways. Firstly, their theory of timing, the timing of Sam Karmas’ death, that it happened between 2 and 3.07. That’s the timeframe. Between the coming and going of the blue van between Warwick Street and Wilga Street and then going from Wilga Street to Derek Cheong’s home and back again, minus the time corrections or whatever, but we’re talking about an hour and five, an hour and seven minutes.

Secondly, the police allege that the time error made by Derek Cheong in his second interview with police which was conducted on 18/8/2011, a week after the disappearance of Mr Karmas, so a week later, when pressed, “How long were you there for”, he says, “Five to ten minutes”. That’s what he recalls and the Crown jump on that and say, “That was a deliberate lie”, “It wasn’t an error. It wasn’t a mistake. That was a deliberate lie”. So, when you put those two things together, then they say you take that and that, he must have known. That plus that, must have known. That’s the case. That’s the Crown case against Mr Cheong.

So, dealing firstly with the time of death. This is only a guess. The murder - if there was a murder, and remember, I’m dealing with the case against Mr Cheong, so I’m assuming certain facts to make an argument to you. If there was a murder, that murder could equally have happened much later after the blue van returned from Mr Cheong’s place back to Wilga Street, because you see it go. They arrive at around 2, the van then leaves, we know taking Derek Cheong home at about 7 minutes past 3 and then about 16 minutes later returns from Riverwood after it’s dropped off Mr Cheong. Straight back again. Then you’ve got all of this time up until when the van is spotted again around 8.30 or so in the evening and then you’ve also got the issues of toll gates and things like that. So, these are the time references in relation to that particular vehicle. But it could equally, if there was a murder, have occurred after Mr Cheong was dropped off. In fact, if you accept there was a murder, that’s the scenario that makes much more sense, on the evidence, when one takes into account the actions of Derek Cheong indicating no knowledge and the writings of Terry Fantakis, which we’ll come to.

28. The address of counsel for Mr Woods was the third of the addresses. The principal thrust of the address was that the Crown had failed to prove to the requisite standard that Mr Karmas was dead, or that Elefterios Fantakis had murdered him. Much time was spent in taking the jury through the (circumstantial) evidence that the Crown relied upon to establish that Mr Karmas died on 11 August 2011, and pointing out why, in counsel’s submission, that evidence fell short of proof beyond reasonable doubt. The jury was urged to consider what were asserted to be reasonable possibilities that Mr Karmas may have chosen to abandon his home and family and, perhaps, travelled overseas either illegally or on a passport issued by a foreign nation; or changed his name and be living elsewhere. Even if the jury was satisfied that Mr Karmas was dead, Mr Woods submitted that the proof that Mr Fantakis had killed him was negligible. Again, other possibilities which were asserted to be reasonable were highlighted, such as the possibility that harm had been done to him by three men of Mediterranean ethnicity, who had been seen by one witness (whose statement was read to the record in lieu of oral testimony) in company with Mr Karmas that day at around 2pm or 3pm.

29. In address Mr Woods sought to take advantage to some extent of the evidence relevant to the time at which the alleged murder occurred. Counsel submitted, (at T2550:35 – T2551:24),

Members of the jury, there was a shift in the Crown position and you’ll recall I’ve referred you to the evidence of Detective Sergeant McGee’s belief that the murder happened in a room in that time period and I’ve referred you to the learned Crown Prosecutor’s submissions in which he has put that Mr Sam Karmas never left Wilga Street alive. At p 2459 of the transcript, in the learned Crown Prosecutor’s closing address, and this is, members of the jury, day 40 of this trial, after the evidence is closed, this is what was said and it’s in the context of Mr Terry Fantakis’ writings, and you might ask yourselves, “Well, Mr Fantakis in his writings said Sam left and came back and then he attacked him. So that might be right”. Maybe Sam did leave and then he came back. As Mr Fantakis said, he attacked him and he said that in three different writings.

The Crown case was opened on a very specific allegation, the room, the time period, Sam Karmas on the Crown opening never left that room. Then you see the shift and it may be coincidental, it’s a matter for you, members of the jury, that the shift happens after the evidence is closed and in circumstances where there is no evidence at all but for the writings of Mr Fantakis that Sam Karmas ever went back after leaving and that material is not admissible against Mr Woods. So, though there is the day of 11 August referred to in the indictment, the fact of the matter is the whole investigative theory and the way the Crown case was open to you was on a very specific and narrow basis and you know what it is. But here said, “In his writings Fantakis say(as said), ‘Sam left and came back’ and then he attacked him”. So, that might be right.

Does that suggest to your minds, members of the jury, and it’s a matter for you to consider, that the Crown is entirely confident in the version it opened on and the theory espoused and conceded was the theory taken by the officer‑in‑charge, or have they moved away from that a bit might you think? As I say, there is no evidence of Sam Karmas ever coming back from Warwick Street if you accept the evidence I referred to yesterday. There’s reference made in the evidence of Mr Fantakis to the fact that Antonia Fantakis, his mother, was there that afternoon. She was not called as a witness before you and as I remind you, the Crown has described pejoratively, in another part of his address, those writings, “Oh perhaps they could be the ravings”. Do you remember that? So, the Crown, you might think, is trying to enlarge the period that it opened on to cover off that possibility. All I say about it, members of the jury, is you might think it bespeaks a shrinking confidence in the theory that seems to have guided the investigation.

30. Later in his address (at T2570:03 – 45) counsel for Mr Woods submitted to the jury that there was no corroboration for the suggestion in Mr Fantakis’ writings that Mr Karmas returned to Wilga Street later in the afternoon, and urged the jury to be very careful about concluding that that was what had occurred.

31. Another aspect of counsel’s address was to submit to the jury that, if it was satisfied that Mr Fantakis had committed murder, it could not be satisfied that Mr Woods had later assisted him. It was contended that there was no evidence that it was Mr Woods who sent text messages on the afternoon of 11 August 2011 using Mr Karmas’ mobile telephone and, that Mr Fantakis had two “windows of opportunity” in which to conceal the body of Mr Karmas without requiring or having the assistance of Mr Woods (at T2613:01 – T2617:01).

32. The final address, that by counsel for Mr Fantakis, commenced on 8 May 2018, and continued (unfinished) throughout the day.

33. Those addresses to that point had been given to the jury prior to Mr Woods making his application that the Court confine the Crown’s case to an allegation that Mr Karmas was murdered by Mr Fantakis between 2pm and 3pm on 11 August 2011, and at no other time that day.

The Application

34. The application as advanced by counsel for Mr Woods (at T2693:26) was for a direction from the Court,

along the lines that the jury's consideration of whether Mr Karmas was murdered at 37 Wilga Street, should be confined to the time period between the three men arriving and Mr Fantakis driving Mr Cheong home, that 67 minute window.

35. Although the accused had been on notice of the content of the documents written by Mr Fantakis for a period of years (they having been served as part of the police brief of evidence well prior to committal proceedings) it was submitted that Mr Woods and Mr Fantakis were prejudiced by what was characterised (as it had been in Mr Woods’ closing address) as “a shift” in the Crown case. It was contended that, had Mr Woods been aware of the possibility that the Crown would rely upon the Fantakis writings to go to the time of the murder, as opposed to simply its occurrence, either he or Mr Fantakis would have called evidence from Antonia Fantakis, or insisted that the Crown do so. Counsel submitted (at T2695:38),

Because in circumstances where the second period was first referred to in the Crown closing as a maybe, in circumstances where - I can take your Honour to all the evidence of the opening, but in those circumstances, we are prejudiced because if it were to be the Crown case, different from that which was opened on and the way it was run, and many, many times it was said that Mr Karmas never left that property alive. If that was to be a case, I would have had the opportunity to have had regard to the statement of Antonia Fantakis, which has her unloading the van, no mention of seeing a body, she was there in the afternoon and she wasn't considered to be necessary by us to be a witness to be called, because until the closing address, it was perfectly clear that the Crown was relying on the 67 minute period.

36. Counsel relied upon R v Tangye (1997) 92 A Crim R 545 as authority for the proposition that the Crown was restricted to the case it opened upon. The Court was directed to the following passage from the judgment of Hunt CJ at CL, at 17-18,

The obligation of the Crown prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist

37. Counsel for Mr Fantakis joined Mr Woods’ application, but did not assert that any particular prejudice had been occasioned to Mr Fantakis when the Crown Prosecutor referred to the evidence of a departure from and return to Wilga Street by Mr Karmas, as providing evidence that Mr Karmas was murdered later on 11 August 2011 than the Crown alleged.

38. Neither Mr Woods nor Mr Fantakis could refer the Court to any authority other than Tangye in support of the application to restrict or limit the Crown’s case in the way sought.

39. Counsel for Mr Cheong opposed the application, submitting that, if the requested direction were given to the jury, an important part of Mr Cheong’s case would be taken away from him, and he would be significantly prejudiced in his defence. Mr Cheong had argued before the jury that, if it concluded that count 1 (the charge of murder) had been established, it would conclude that the offence occurred not between 2pm and 3pm when he was still present at Wilga Street, but at some time after 3pm. Were that the jury’s conclusion, Mr Cheong’s acquittal necessarily followed.

40. Mr Cheong did not accept that the Crown’s case had “shifted”. Rather, it was argued that the Crown had gone to the jury from commencement to finish alleging that Mr Karmas was murdered between 2 and 3pm on 11 August 2011, but that the Crown in closing address had, properly, acknowledged that, if the jury were satisfied that Mr Karmas was murdered later that day, Mr Cheong would not have been present to acquire the knowledge of the commission of the crime necessary to establish accessorial liability.

41. The point was made that, if there was truly prejudice to Mr Woods or Mr Fantakis in the Crown adducing evidence consistent with a later time frame for the commission of the principal offence than that alleged, the time at which to raise the issue was, either, prior to the tender of the evidence, or, at latest, after the Crown’s closing address. Mr Cheong submitted through his counsel that, the point having been raised at such a late stage, he had been denied the opportunity to deal with it in either evidence or address. To direct the jury to the effect that it could only find the principal offence proved if satisfied that it occurred between 2pm and 3pm on 11 August 2011 was to deny Mr Cheong one of the “pillars” of his case (at T2728).

42. The Crown also opposed the application, arguing that there had been no “shift” in the Crown’s case in the course of the trial. It was submitted that, in address, the Crown had done no more than acknowledge the potential affect and significance to the case relevant to Mr Cheong, were the jury to conclude, as was open on the evidence, that the murder of Mr Karmas occurred after 3.07pm on 11 August 2011. The Crown contended that there was no basis for the Court to confine the jury’s consideration of the evidence by precluding it from having regard to exhibits tendered without objection.

Consideration

43. The first question in determining this application is whether, as asserted by counsel for Mr Woods, a jury is entitled to consider the evidence before it only insofar as it may be consistent with the opening address of the Crown Prosecutor.

44. The authority relied upon by Mr Woods for this proposition was Tangye, set out at [36] above.

45. Tangye needs to be considered in its particular context. It was a case in which the appellant was alleged to be one of a number of persons involved in an affray in a public street in Campbelltown. Whilst the Crown’s case against him was that he was a participant in a joint criminal enterprise, that basis for it was never clearly articulated by the Crown Prosecutor in opening address to the jury. Subsequently, and unnecessarily, the trial judge directed the jury in relation to common purpose, or extended joint criminal enterprise. In the course of dealing with later questions from the jury, the Crown clarified for the first time the basis of its case.

46. The paragraph from the judgment of Hunt CJ at CL (McInerney and Sully JJ agreeing), which is relied upon by the accused Mr Woods, was given against that background. The import of it was to stress the need for the Crown to clearly identify its case and the legal basis for it, that is, the nature of the case “in conceptual terms”, in opening its case to the jury and the court, particularly where there may be differing legal bases for liability for the charge. I do not accept that Tangye is authority for a principle that the Crown Prosecutor’s opening address serves to restrict the nature of the evidence which may be ultimately led and relied upon by the Crown, or to confine the jury to considering the evidence only insofar as it may fit within the detail of the Crown’s case against the accused as articulated in opening address.

47. There are cases where a deviation between the Crown’s case against an accused as outlined in opening address, and the case as it was ultimately left to the jury, has resulted in a miscarriage of justice.

48. In King v The Queen (1986) 161 CLR 423 two men were jointly charged as principals with the murder of the wife of one of the men. The case as advanced by the Crown was that the husband, as an accessory before the fact, had procured the second man to kill his wife. The case against the husband was left to the jury, at the request of the Crown Prosecutor, on the basis that the husband could be convicted if the jury was satisfied that he had arranged for some person, including a person other than the co-accused, to murder his wife.

49. The conviction of the husband was quashed by the NSW Court of Criminal Appeal with the matter going before the High Court on another issue. Whilst the principal issue to be considered was whether the CCA had been in error in ordering a new trial, rather than recording an acquittal, the Court concluded that the conviction could not have stood in circumstances where there had been a change in the nature of the Crown case, first made clear during the summing up of the trial judge. Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed; Mason, Murphy and Deane JJ in dissent as to the ultimate outcome, but agreeing on this point) said at 432,

No exception was taken before us to the finding of an irregularity or the quashing of a conviction. Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand.

50. The authorities cited by his Honour were R v Laird (1893) 14 NSWLR 354; R v Thompson and Gamble (1925) 42 WN (NSW) 71; McManamy v Fleming (1889) 15 VLR 337; Gregory (1981) 77 Cr. App. R. 41 at 47; Falconer-Atlee (1973) 58 Cr. App. R. 348 at 355 - 356; and Cross and Channon (1973) 55 Cr. App. R. 540 at 545 - 546.

51. In R v Laird, the Crown prosecuted the prisoner for larceny but, at the close of the evidence, a further charge of receiving was added. This was held to be wrong. Windeyer J (with whom Innes and Foster JJ agreed on this point) said (at 359),

[…] with reference to the addition of the count for receiving, I am of opinion that what was done was wrong, and that the Judge had no power to add the count. The evidence necessary to support a charge of feloniously receiving is entirely different to that required to support a charge of larceny, and the Judge might just as well have added a count for murder.

52. Thompson and Gamble was very similar to Laird, in that the prisoners had been tried for larceny, with a count of receiving added to the indictment very late in the proceedings, by order of the trial judge. The jury convicted the prisoners of receiving. The NSW Court of Criminal Appeal (per Street CJ, Gordon and James JJ agreeing) concluded that the trial judge had no power to add a further count at that stage. Acknowledging that an indictment could be amended after the commencement of trial proceedings, the Chief Justice observed that the court was not empowered to allow a prisoner to be charged with a different offence to that upon which he had been indicted, after his trial had begun.

53. The prisoner in McManamy v Fleming was brought to trial on a charge of being a rogue and a vagabond but, just before the commencement of proceedings, the Crown brought a different charge of having no visible means of support. Although the prisoner objected that he was not ready to meet such a charge, his trial proceeded and he was convicted. The conviction was overturned on appeal, on the basis that the prisoner had been taken by surprise by the late change to the charge, and should have been granted an adjournment.

54. In Gregory, and although leave to appeal was ultimately refused by application of the proviso, the Court of Appeal (UK) held that the trial judge had been wrong in directing the jury as to the possibility of finding the prosecution case proved on the basis of a “middle ground”, that being a basis of liability (as it happened, for handling stolen goods rather than the burglary offence charged) not advanced by the prosecution or addressed by the defendant.

55. Also in the Court of Appeal (UK) the conviction of the appellant in Falconer-Atlee was quashed due to a change in the prosecution case as opened to the jury, and as it was ultimately left to it by the trial judge. On a charge of theft of a dog (being a toy poodle), counsel for the Crown opened the case for the prosecution on the basis that the appellant had originally acquired the dog honestly but as the result of a mistake, but subsequently, having become aware of the mistake, dishonestly decided to appropriate the dog. The judge left the case to the jury on this basis, but also on the alternative basis that the appellant had acquired the poodle dishonestly at the outset by switching it for another poodle. The Court observed,

Counsel for the Crown was therefore quite plainly there saying: “Never mind the limit I put on the Crown case in opening. If the evidence now justifies it, then you, the judge, should leave to the jury the alternative bases: either that she stole this dog in the house, or that, if she did not steal the dog in the house, then she misappropriated the dog once she learned of the mistake and knew the true facts through the telephone call which took place later on June 18.”

In the view of this Court, that was not the right thing to do. It was tantamount at that stage to adding a second count to the indictment in the middle of the trial. If the Crown had seen fit to do so, they could have opened this case in the alternative within the limits of the single count which they had charged. But once the Crown had elected to proceed upon one aspect of the case, what I have called the “section 3” aspect, the Crown ought not to have been allowed at the close of the case for the prosecution to go back upon what Mars-Jones J. during the argument called their election, and try to have the best of both worlds.

56. Of some significance to understanding that decision is the fact that the UK Theft Act 1968 had differing definitions of a dishonest taking, and created different offences dependent upon the circumstances. The change in the Crown’s case meant that differing bases of liability were ultimately advanced.

57. The applicants in Cross and Channon were solicitors charged with fraud offences of a specific type. They were convicted but, on sentence, there was confusion as to whether the finding of guilt [in relation to a joint count 7] related to the offence charged, or to an alternative that had not been charged, but which better reflected the evidence (even though the relevant legislation had not been enacted at the time when the offences were said to have occurred). The Common Serjeant (or trial judge) was of the view that the jury could not have returned verdicts of guilty with respect to the offence charged as the evidence was insufficient. He regarded the alternative as available. The convictions on that count were later quashed, with the Court of Appeal (UK) holding that, where the prosecution foresees that a different charge may be the proper way to deal with the facts, there should be a specific count in the indictment charging it. It was wrong to leave the matter to the jury where there were alternatives available but not brought.

56. Having considered each of these cases, and not excepting Tangye, I am unable to conclude that they provide authority for the Court to make the order here sought by Mr Woods and Mr Fantakis. The circumstances of this case are materially different to those considered above.

57. There are more recent authorities although, like those referred to in King v The Queen, the circumstances that apply to them in my opinion offer little assistance in the present case. These cases are generally referred to as “time of the essence” cases and, typically, they arise in the context of prosecutions for child sexual assault offences, where the precise date on which the alleged offences occurred takes on a greater significance at trial than was previously understood.

58. In R v VHP (unreported decision of the NSWCCA, 7 July 1997) the indictment for an offence of homosexual intercourse averred a period of about five months as the period when the alleged offence occurred but, in evidence, the complainant said that the incident occurred on a particular date within that time frame. He referred to a bank transaction that he said he made just before the offence was committed against him. Bank records showed that the transaction the complainant described had not been made, and the appellant was able to raise an alibi for the date. When the jury asked questions about this anomaly, counsel for the appellant sought to have its consideration of the offence confined to the day given by the complainant, but directions to that affect were not clearly given. The appellant was found guilty.

59. On appeal the Court quashed the conviction and entered an acquittal, accepting the Crown’s concession that, by the way in which the case had been conducted at trial, the particular date had been made an essential element of the offence charged, such that the Crown had to prove it beyond reasonable doubt. It had failed to do so. The Court observed,

As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.

The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R 158 at 159-160 in the following terms:

"From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence."

There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (e.g. The King v Dean [1932] NZLR 753, R v Kringle [1953] Tas SR 52, R v Pfitzner (1976) 15 SASR 171, R v Macdonald (1996) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353).

62. In R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 the Crown was granted leave to amend the indictment to widen the timeframe averred as that in which the (sexual assault) offence had occurred. The Crown sought to make the amendment to accommodate evidence it became aware would emerge that would cast grave doubt on the timing originally particularised for the commission of the alleged offence. If the date as originally averred was maintained, the Crown case would have been seriously compromised, in that it could not have stood with other material evidence. Evidence of complaint would also likely have been rendered inadmissible. Subsequent to the amendment being made, the Crown sought to diminish the effect of the evidence that cast doubt on the timeframe (which was given by reference to the occurrence of a Royal wedding) by suggesting to the jury that the television broadcast referred to could have been a replay. That the footage seen was a replay was contrary to the evidence.

63. The Court of Criminal Appeal (Studdert J, with whom Heydon JA and Greg James J agreed) held that,

There are cases where time has been made of the essence of the offence. This was such a case, because the complainant was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent - she said she was 100% sure - that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant’s evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial […] (at [33]).

64. More recently, Cawthray v R [2013] NSWCCA 105 applied the same approach in a sexual assault case.

65. Assuming for present purposes that there was a “shift” in the Crown case, as the accused argue, any such shift relates only to a very narrow particular of the charge of murder. There has been no change or amendment to the charge left to the jury, no alteration in the conceptual basis of the Crown’s case (that is, the basis of legal liability for the charge), and no amendment to what is relied upon in proof of any element of the offence that the Crown charges.

66. The change, if there is one, is in the Crown in opening referring to the principal offence having been committed at a time, not particularised by reference to hours and minutes, when Mr Cheong was present. Necessarily, that must have been after about 1pm - and perhaps more narrowly, after 2pm, soon after the accused’s blue van was filmed entering Wilga Street (with Mr Fantakis, Mr Cheong, and Mr Karmas on board) - and before Mr Cheong arrived at his home that afternoon, at around 3.30pm.

67. The time at which the murder was alleged to have occurred was not further delineated in opening by the Crown, although evidence adduced by it gave rise to the possibility that the murder occurred at a time after Mr Cheong had left Wilga Street. (Whilst counsel for Mr Woods sought to rely upon a reference in the Crown Case Statement to the effect that the murder occurred between 1:50pm and 3:45pm, I do not consider it necessary to consider that argument further: a Crown Case Statement does not bind the Crown to the detail summarised therein.)

68. In his closing address the Crown Prosecutor referred to the evidence that pointed to the murder having occurred after Mr Cheong left Wilga Street on 11 August 2011, principally insofar as that was relevant to proof of the case against Mr Cheong. As the Crown properly conceded to the Court, in the context of a discussion as to the directions to be given to the jury, there was evidence in the Crown case before the jury (in the writings of Mr Fantakis, and in the interviews between police, and Mr Fantakis and Mr Cheong respectively) upon which the jury could conclude that Mr Karmas was murdered after the departure of Mr Cheong from Wilga Street. If that was a fact found by the jury, Mr Cheong was entitled to an acquittal (as the jury were ultimately directed).

69. Counsel for the Crown is entitled to comment on all the issues that arise at trial, including the question of whether the Crown has proved its case beyond reasonable doubt.

70. I am unable to discern a “shift” in the Crown’s case against Mr Fantakis or in that against Mr Woods.

71. There being no material difference between the Crown case as it was opened to the jury, and the case left to the jury to consider, the accuseds’ application must turn on questions of fairness and possible prejudice.

72. The Crown’s case against Mr Fantakis in essentials was and is that, sometime after about 1pm on 11 August 2011 (that being the last time on which Mr Karmas was seen alive by someone other than an accused), at 37 Wilga Street, Elefterios Fantakis violently attacked Mr Karmas, and killed him, intending thereby to kill him or, at least, to do him grievous bodily harm.

73. The Crown’s case against Mr Woods in essentials was and is that, after that event, and on being told of the crime by Mr Fantakis, Mr Woods took possession of the mobile phone belonging to the deceased and used it to send a number of text messages. He later assisted him to move Mr Karmas’ body and conceal it. Necessarily, the murder must have been completed before 5:59pm on 11 August 2011, that being the time at which the first of the text messages was allegedly sent by Mr Woods (Ex. A).

74. The time at which the murder occurred is of limited significance to either the case relevant to Mr Fantakis or that relevant to Mr Woods, within a period between about 1pm to 5:59pm on 11 August 2011.

75. Mr Fantakis called a case and gave evidence himself. In his evidence he had an opportunity to, and did, address his movements for the whole of the afternoon of 11 August 2011, not restricted to the period 2pm to 3pm: T2297, T2304 – T2314, T236 – 237, T2370 - T2371, T2378 – T2383, T2388 – T2389, T2392, T2398, T2400, and T2403 – T2404, for example.

76. There was nothing in his evidence that gave rise to an alibi for the whole of the period after Mr Cheong’s departure, or other matter which could cast doubt on the possibility of him having killed Mr Karmas on the afternoon of 11 August 2011, which he did not further pursue because he understood the Crown’s case to be restricted to the period between 2pm and 3pm that day. On his evidence, the accused was alone at Wilga Street for, at least, two periods of time after Mr Cheong had left for the day, being before his mother arrived sometime shortly before 4pm, and after she left at around 5pm or 5.30pm, and his own departure from Wilga Street, at about 6.30pm.

77. In those circumstances, fairness does not dictate the necessity of confining the Crown to a case wherein the murder occurred in the period between 2 and 3pm on 11 August 2011.

78. That the offence occurred on the afternoon of 11 August 2011 can be established by reference to the evidence of Mr Karmas’ family, who neither saw nor heard from him after about 1pm that day, and the admission of the accused Fantakis (to Karmas family members and to police in Ex. AX) that he was in Mr Karmas’ company that afternoon. He was, on the evidence before the jury, if it is accepted, the last person known to have seen Mr Karmas alive, other than Mr Cheong.

79. On the whole of the evidence, it is open to the jury to conclude either, that Mr Karmas was murdered at a time when Mr Cheong was at Wilga Street, or at a time after Mr Cheong left and before 5:59pm that day. The basis of the former conclusion is the evidence in Ex. CO, showing the blue van entering Wilga Street, together with the assertions (or admissions) of both Mr Fantakis and Mr Cheong that Mr Karmas was in the van at the time, the discovery of his spectacles in the van’s glove box, and the evidence of the text messages sent from Mr Karmas’ mobile phone, in circumstances where family members deposed the messages were not consistent with having been sent by Mr Karmas. To accept that Mr Karmas was murdered when Mr Cheong was present, necessarily the jury would have to reject his account to police in the interviews he gave.

80. The basis of the latter conclusion is an acceptance of the account given to police by Mr Cheong, that he last saw Mr Karmas alive and walking away from Wilga Street, and an acceptance of the reliability of the account given by Mr Fantakis in his writings to the effect that Mr Karmas left Wilga Street and later returned, at a time when he was alone in the house.

81. Either basis is further predicated on acceptance by the jury of the reliability of the salient admissions in the Fantakis writings to his having violently assaulted Mr Karmas.

82. On the whole of the evidence, it would be open to the jury, acting reasonably, to treat part of the Crown case as reliable, that which supports a conclusion that the accused Mr Fantakis murdered Mr Karmas at Wilga Street on the afternoon of 11 August 2011, but not accept the evidence going to Mr Cheong’s presence at the time of the commission of the alleged murder. There would be no illogicality or inconsistency in those conclusions: it would simply be a conclusion that accepted those portions of the Fantakis writings that referred to the departure of Mr Cheong, and the departure and return of Mr Karmas, as reliable, consistent with the assertions from Mr Cheong (a man of good character who had only a professional relationship with Mr Fantakis), in his interviews with police, as credible.

83. Although Mr Woods argued that he (and by implication Mr Fantakis) had been denied the opportunity to call Antonia Fantakis to give evidence, and thus prejudiced, I am unable to see how any prejudice arises in this regard. If the jury accepted the earlier time frame, there is no suggestion that Mrs Fantakis was present at the time and could have contradicted the Crown’s case or offered any useful evidence. If the jury accepted the later time frame, there is again no suggestion that Mrs Fantakis was or would have been present for the whole of the relevant time period, and in a position to contradict or cast doubt upon the Crown case.

84. The Crown did not challenge Mr Fantakis’ evidence before the jury that his mother had been at Wilga Street for part of the afternoon (something also referred to in the writings). It did not challenge that Mrs Fantakis had assisted her son in unloading the blue van.

85. Whilst counsel for Mr Woods asserted that, if called, Mrs Fantakis could have said that there was no body in the blue van when she was at Wilga Street, the Crown did not suggest that there was. The Crown alleged that Mr Cheong assisted Mr Fantakis after the murder by clearing a cluttered driveway so that the blue van could be backed up to the house to facilitate the removal of Mr Karmas’ body; it did not suggest, and there is no reason to suppose, that the loading occurred immediately thereafter. It could have happened at any time prior to the van leaving Wilga Street at about 6:30pm that evening; common sense would suggest that such an activity would be more likely undertaken in hours of darkness.

86. Since there is no basis upon which to infer that Mrs Fantakis could have offered any relevant evidence as to Mr Woods’ alleged involvement in sending text messages from a location in western Sydney, or in assisting the principal later, in the vicinity of Campbelltown, I cannot see any basis upon which to conclude that the absence of her evidence prejudiced or may have prejudiced Mr Woods.

87. If there was a potential unfairness to the accused in the jury being left to consider evidence of the commission of murder later in time than 3pm on 11 August 2011, that possibility must have been clear to the accused from such time as the brief of evidence containing the written admissions from Mr Fantakis was served on the accused. It is relevant to note that there was no application by Mr Fantakis for the severance of his trial from that of Mr Cheong. Mr Woods, whilst he sought to have his trial severed from that of Mr Fantakis, did not seek a separate trial from that of Mr Cheong, and did not raise this issue as a feature that could lead to prejudice if the accused were tried together.

88. If the issue of potential prejudice was not identified prior to the trial proceedings commencing, it should, at the very latest, have been comprehended when the Fantakis writings were tendered in evidence at trial.

89. It should have been even clearer after the Crown Prosecutor referred in closing address to evidence that raised the possibility of Mr Karmas’ murder occurring after Mr Cheong left Wilga Street. It should have been yet clearer when counsel for Mr Cheong asked the jury to acquit his client on the basis that the weight of the evidence pointed to the crime occurring after 3pm. It should have been clearer still after a discussion between counsel and the Bench about the timing of the alleged murder: see T2557ff.

90. Despite that, no issue of prejudice to the accused was raised until the final closing address was almost completed. The fact that counsel saw no risk of prejudice to their respective clients earlier provides some support for my conclusion that there was no such risk.

91. Counsel for Mr Woods and counsel for Mr Fantakis were each able to deal with the issue of the timing of the alleged murder in closing address and did so effectively.

92. I cannot agree that there has been unfairness to Mr Fantakis or Mr Woods in the way the Crown case was presented, or left to the jury, or that their respective defences have been prejudiced in any way. To preclude the jury from considering the evidence going to a later time for the commission of the alleged murder would, on the other hand, have occasioned serious damage to Mr Cheong’s defence.

93. The Crown’s case against Mr Cheong in essentials was and is that, knowing of the commission of murder by Mr Fantakis due to his presence at Wilga Street when it occurred, Mr Cheong assisted the principal in clearing a driveway and cleaning up the murder scene.

94. By contrast with the cases against Woods and Fantakis, the time of the commission of the offence is of considerable significance to Mr Cheong, in that, if it occurred after about 3.07pm, the Crown could not prove the element of knowledge against him, and he would, as the Crown conceded, be entitled to his acquittal.

95. That argument was a prominent part of his case, and of his closing address to the jury. I have no hesitation in concluding that, to grant the application made by Mr Woods and Mr Fantakis, would have been to seriously undermine Mr Cheong’s defence, and cause significant prejudice to him such that, in my view, he would have been denied a chance of acquittal fairly open to him.

orders

1. Application to limit the Crown case refused.

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Amendments

27 November 2018 - Associates stamp removed from end of judgment.

27 November 2018 - Coversheet Publication Restriction amended to read:

23/5/2018 Restricted to the parties pending verdict, or other order of the Court, whichever is the sooner

25/5/2018 Date of Verdicts – Publication restriction removed.

Decision last updated: 27 November 2018