R v Woods; R v Cheong

[2018] NSWSC 123

Supreme Court

New South Wales

Medium Neutral Citation:	R v Woods; R v Cheong [2018] NSWSC 123
Hearing dates:	7 February 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Before:	Wilson J
Decision:	The Notices of Motion seeking severance of the indictment are dismissed.
Catchwords:	CRIMINAL LAW – application for separate trials – murder – accessory after murder – where principal charged with murder and applicants charged as accessories – incurable prejudice to applicants asserted if tried with principal – question of strength of the respective cases against each accused – asserted dramatic nature of the evidence – capacity of directions to address potential prejudice
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	R v Middis (unreported decision of the Supreme Court of 27 March 1991 per Hunt J) R v Verma (1987) 30 A Crim R 441 R v Assim [1966] 2 QB 249 at 261 R v Annakin & Ors (1988) 37 ACR 131 R v Baartman (unreported decision of the NSWCCA of 6 October 1994) Ross v R [2012] NSWCCA 207 R v Dellapatrona & Duffield (1993) 31 NSWLR 123 R v Fernando [1999] NSWCCA 66 R v Pham [2004] NSWCCA 190 R v Harpreet Singh [2012] NSWSC 869 Western Australia v Tolliday [2004] WASC 231 R v Chami; R v TS (2002) 128 A Crim R 428; [2002] NSWCCA 136 (revised 1.6.2009) R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106 R v Oliver (1984) 57 ALR 543 Ross v R, Darwiche & Ors v R 209 A Crim R 424; [2011] NSWCCA 62 R v Quami & Ors (no 3) [2016] NSWSC 15 R v Williams (1932) 32 SRNSW 504 Morris v Tolman [1923] 1 KB 166 R Masters (1992) 26 NSWLR 450
Category:	Principal judgment
Parties:	The Crown Andrew Woods (accused) Derek Cheong (accused)
Representation:	Counsel: Mr L Lungo (as Crown Prosecutor) Mr T Hughes (for accused Woods) Mr D Price (for accused Cheong)   Solicitors: Solicitor for Public Prosecutions (NSW) Havas & Dib Lawyers (for accused Woods) Kapsis Solicitors (for accused Cheong)
File Number(s):	2013/298197 (Woods)2013/309162 (Cheong)
Publication restriction:	14/02/18 Restricted to the parties, and co-accused Fantakis, pending verdict or further order of the Court, whichever comes first. 25/05/18 Date of verdicts – publication restriction removed.

Judgment

1. HER HONOUR: On 19 February 2018 the trials of Elefterios Fantakis, Andrew Woods, and Derek Cheong are listed to be heard before this Court. The accused Fantakis stands charged with murder; the accused men Woods and Cheong are each charged as accessories after the fact to that murder. The three accused were jointly arraigned on 6 May 2016, with each entering a plea of not guilty.

2. By Notice of Motion filed on 10 January 2018 the accused Woods moves the Court for an order severing his trial from that of the accused Fantakis. He relies upon an affidavit of his solicitor, Ahmed Dib, sworn on 9 January 2018, in support of the Motion.

3. By Notice of Motion filed on 17 January 2018 the accused Cheong moves the Court for the same order. He has filed and relies upon an affidavit of his solicitor, Chris Kapsis, affirmed on 23 November 2017, in support of the Motion. Each man argues that his trial will be incurably prejudiced if tried jointly with the accused Fantakis.

4. The Crown opposes the applications, arguing that the trials should be jointly heard.

The Crown Case at Trial

5. Before the Court on the application is a copy of the Crown Case Statement together with a transcript of a specific piece of evidence to be called by the Crown at trial, that being a recorded video statement made by the accused Fantakis (“the Fantakis video”) and seized by police during the execution of a search warrant at the Fantakis family home on 7 June 2013.

6. What follows is a summary of the evidence available to the Crown against the accused, drawn from those documents.

7. The Crown alleges that the accused Fantakis murdered Elisha (Sam) Karmas sometime between 1.50 and 3.45 on the afternoon of 11 August 2011 in the bedroom of a house at 37 Wilga Street Punchbowl.

8. It is alleged that the accused Woods was present when the murder was committed and subsequently assisted Fantakis by sending short message service (SMS) text communications that afternoon from the deceased’s mobile telephone to divert suspicion from Fantakis, by aiding in the disposal of the deceased’s body (which has never been found), and in assisting him to clean the vehicle used to transport the body.

9. It is alleged that the accused Cheong was also in the vicinity when Mr Karmas was murdered and that, subsequently, he assisted Fantakis by clearing a driveway to allow Fantakis to bring in a van used to load and remove the body of Mr Karmas from Wilga Street, and by aiding Fantakis to remove or cover forensic evidence at the presumed murder scene by removing furniture and sanding walls.

10. The background to the alleged murder is the May 2011 death by suicide of the twin brother of the accused Fantakis, Nicholas Fantakis, and a subsequent financial dispute between Nicholas’ former de facto wife, Maria Angeles, and the Fantakis family. The dispute centred on a property at 34B Warwick Street Punchbowl that was owned by the Fantakis twins, and which had been the home of Nicholas and Ms Angeles, as well as other property, including a life insurance policy for a substantial sum.

11. The deceased was a Warwick Street neighbour, and knew both the Fantakis family and Ms Angeles. He came to act as a sort of mediator in the dispute, a role resented by the accused Fantakis.

12. On 8 June 2011 the accused Fantakis went to 34B Warwick Street, where Ms Angeles continued to reside, with a large group of people including the accused men Woods and Cheong, and took away a quantity of property. Ms Angeles reported the matter to police and Mr Karmas subsequently provided police with information about the role of the accused Fantakis in the incident. The accused Fantakis threatened Mr Karmas as a consequence, saying:

"I will bury you alive if you say anything else to the police”.

13. The accused Fantakis came to believe that Mr Karmas had murdered his brother Nicholas, acting at the behest of Ms Angeles. He thought the pair were lovers. He also became convinced that Mr Karmas posed a threat to his own life, and had made three attempts to kill him. In a diary note Fantakis wrote,

The act [the murder of Nicholas] was pre-planned by Sam Karmas as Sam Karmas lived a double life. He was a serial killer, sadistic in character profile. A weak predator that enjoyed the opportunity too [sic] watch creatures suffer for his sexual satisfaction.

14. On 26 June 2011 the accused Woods sent Fantakis a text message reading,

Its [sic] not over yet, but we’re gonna get em. They are not going to get away with it. HE’S NOT GOING TO GET AWAY WITH IT.

15. There is some evidence in SMS message exchanges between Fantakis and Woods to suggest that the pair were watching Mr Karmas in the period prior to his murder, possibly using a concealed video camera to that end.

16. On 11 August 2011 the accused Fantakis spoke on the telephone with Mr Karmas for 58 seconds at 12:03pm. Fantakis later told police that Mr Karmas had offered to help him that day with repair work to 34B Warwick Street, which was by this time vacant. The accused was at the property at the time, accompanied by the accused Cheong, who was helping as a labourer.

17. Between the time of that call and 1:22pm Fantakis and Woods exchanged 6 telephone calls and 2 text messages on mobile telephones each had subscribed using a false identity. Cell towers transmitting communications from Woods were Bankstown at 12:41, Roselands at 12:48, and Bankstown at 1:17. The Fantakis communications utilised a Narwee tower at 12:48 and a Punchbowl tower at 1:17pm.

18. A passing bus equipped with CCTV cameras filmed Fantakis’ blue transit van stopped in the driveway of 34B at 1:17pm.

19. After 1:30 that day and before 3:15pm the deceased left his house and walked to 34B Warwick Street. He was carrying some tools and his mobile telephone, but did not have his wallet and keys; he left his house and car, which contained tools, unlocked. Mr Karmas was not in the habit of leaving his car and tools unsecured other than for very short periods of time.

20. Mr Karmas arrived at 34B Warwick Street, where Fantakis and Cheong were working.

21. At 1:31pm a call was placed from Fantakis’ mobile phone to that of Woods.

22. Between 1.45 and 1:50pm Fantakis and Cheong left 34B Warwick Street in the blue transit van, accompanied by Mr Karmas. They drove to nearby Wilga Street in Punchbowl, a residential property also owned by the Fantakis family. The vehicle was caught on CCTV footage as it entered the street. Spectacles with DNA consistent with that of Mr Karmas were later found in the van’s glove box.

23. The blue van arrived at 37 Wilga Street at about 1:50pm. Sometime later, a neighbour heard the sound of a loud argument, apparently emanating from the back yard of 37 Wilga Street, between two males speaking in Greek. There is no suggestion that Mr Cheong speaks Greek.

24. That afternoon, Mr Karmas was killed by the accused Fantakis, in a bedroom at the Wilga Street premises. The Crown case is that the accused Cheong was present in the house at the time, as was the accused Woods, although the time at which the latter arrived at the premises is not known.

25. Subsequently, the accused Cheong cleared the driveway of the premises, the Crown says so that the blue van could be reversed into the driveway, and the body of Mr Karmas loaded into it. Cheong was driven home, arriving at about 3.30pm.

26. The blue transit van was captured on CCTV footage leaving the Wilga Street premises at 3:07pm, returning at 3:23pm. At 3:19pm a white Hiace van of the sort driven by the accused Woods was also caught on CCTV leaving Wilga Street.

27. The mobile telephone that belonged to Mr Karmas was used that afternoon between 3:57 and 5:26 to send a number of text messages to Ms Angeles, and also to the accused Fantakis. The latter was a message to the effect that “I need to go see someone”, with a promise to return the next day. The Crown alleges that the messages were sent by the accused Woods, or the accused Fantakis. The phone was not used again. It has never been found.

28. At 8:40 that evening the vans owned respectively by the accused Fantakis and the accused Woods drove one after the other through the Hollsworthy M5 tollgates, in a westerly direction. At 4:46 the following morning the two vans followed one another through the toll point travelling east.

29. The two men visited the grandmother of the accused Woods in Campbelltown, arriving at her home sometime around 8:30pm, and remaining there until sometime after 1 o’clock the next morning, 12 August 2011.

30. The Crown case is that in the interval between then and the return trip of the vans through the Hollsworthy tollgate, they secreted the body of Sam Karmas.

31. Sometime between 4.46 and 6.50am on 12 August 2011 the applicant Fantakis’ blue van was left parked and locked in the driveway of Precision Mechanics on Belmore Road. Later that morning Mr Fantakis contacted the proprietor to report various faults with the vehicle. The proprietor found little wrong with it. He did not notice any unusual or strong smells in the vehicle.

32. Concerned at his disappearance, members of Mr Karmas’ family contacted the applicant Fantakis to ask if he had seen Mr Karmas. Mr Fantakis told Jenny Karmas that he had seen Mr Karmas the previous day when Mr Karmas helped with some repairs. He made no mention of the subsequent attendance at Wilga Street. He claimed that Mr Karmas had left the Warwick Street property on foot, although he could not say in what direction he had walked.

33. During the course of the day on 12 August 2011 the accused Fantakis and the accused Cheong undertook work at the Wilga Street property. Cheong said that he had removed furniture and a door, and patched and sanded down walls. The Crown contends that this work was done by the accused to remove forensic evidence of Mr Karmas’ murder.

34. When a search warrant was executed on the property on 14 August 2011, there was evidence of the building work that had been done in a bedroom of the Wilga Street property, including the replacing of a gyprock wall. The remnants of a fire were found in the backyard. It appeared as if a door had been burnt there.

35. On the evening of 12 August 2011 the applicant Woods went to the home of a friend, Christopher Lines. He stayed for a number of hours. On leaving, sometime between 9 and 10pm, Mr Woods said to Mr Lines,

“If anyone asks, anyone, I was here last night. Everything that happened tonight happened last night, okay.”

36. The accused Woods visited Mr Lines on a number of subsequent occasions to exhort him to stick to that story. On one of those occasions, he was accompanied by the accused Fantakis, who also spoke to Mr Lines about the “alibi”. Although Mr Lines initially gave police an account of the events of 11 August 2011 as dictated by Woods, he later confessed the deception, noting that he felt threatened and intimidated by him.

37. On 13 August 2011 the applicant Fantakis sought permission from a friend, Jimmy Vranas, to use his property to wash out the back of his blue van, claiming that a dog had vomited in the vehicle. He subsequently went to his friend’s premises, in the company of a person identified (with a confidence of 50%) as the accused Woods, and the two men cleaned the back of the van using bleach.

38. When stopped by police in the van at about 10 o’clock that night, the accused Fantakis told officers that a dog had vomited in the van “days ago” and he had just cleaned it, explaining the strong smell of bleach. The accused Cheong was in the vehicle when it was stopped by the police.

39. A later forensic examination of the blue van found what appears to be blood on the rear trim of the driver’s door. DNA extracted from the sample was consistent with that of Mr Karmas, and the likely source of the DNA was blood.

40. A quantity of mud and dirt was also found under the wheel arches of the vehicle. This dirt was later forensically examined by a specialist soil scientist. It was concluded that it was likely that the soil material removed from under the wheel arches and on the mud flaps of the blue van had been deposited when the vehicle had driven off bitumen roads and been in contact with two types of soils from the Georges River region.

41. On 17 August 2011 the accused Woods changed the registration of his white van, claiming that one of his former licence plates was missing. A part of the old plate, which appeared to have been cut up, was later found at a storage unit leased by the applicant Fantakis.

42. On 1 September 2011 Woods had a telephone conversation with his grandmother, Mrs Robinson. The conversation was intercepted pursuant to a warrant. Mrs Robinson gave Mr Woods an account of what she had said to the police about the attendance at her home of Woods and Fantakis on the evening of 11 August 2011. The accused Woods said,

“Oh Nan. No we said we left at 4 o’clock […] I told you not to talk to [the police]. Oh no. Okay, I’ve got to sort this out.

[…]

We said we stayed till 4 in the morning; I did go through that with you afterwards as well […] Oh shit, now I’ve got to explain this to McGodge [Fantakis] and you’re gunna have to explain it to him as well.

[…]

Nan. I asked once like! I asked for one story. One. I went through it. One. Like that was it. I said, ‘Don’t say anything to ‘em. Don’t talk to ‘em. Just say this once. That was it. We went through it beforehand, you said cool. I don’t understand. What happened? But now I understand why they’re after me.

[…]

You should have said ‘I don’t know, I was asleep’. That was what the plan was.

[…]

They are going to pick you up for perjury. Okay. Or something like that if you keep goin’ on. One more story change and we’re gunna be buggered”.

43. In his next phone call, to the accused Fantakis, he said,

“Yeah my Nan fucked up with the story again…that’s why she’s rung….She’s fucked us, she’s fucked me and she’s fucked you…take note, take note, of how to discipline females in your family when we go down there mate.”

44. On 26 November 2011 a conversation between the two men was intercepted, in which the two appear to discuss the likelihood of being charged. The accused Woods said,

[…] fuck man, if you get charged, so will I.

45. Fantakis referred to having been “with him all day”, to which Woods responded,

Man it fuckin’ freaked me out that fuckin’ smile man I don’t know maggot.

46. There was a reference to the two having walked a considerable distance “that night”.

47. The Crown contends that this conversation concerns the disposal of the body of the deceased.

48. The investigation continued, utilising electronic surveillance in 2012 and 2013. On 1 August 2012 the accused Fantakis was recorded telling the accused Woods, in a reference the Crown says is to the murder of Mr Karmas,

“Man, the way I see it…the more I see he’s got it over me. Right…going what the fuck was that, and he’s going well its game over…bigger than you maggot, I climbed him maggot, I grabbed him and actually climbed him, head butted him straight in the noise, (sic) and as he fell I fell with him, that was the end of the fight, he didn’t know what hit him. They pissed on my brother’s fuckin grave mate you know. That’s how it came to be.”

49. On 7 June 2013 a search warrant was executed at the home of the mother of the accused Fantakis, with a number of items belonging to him seized. These included diary notes written by Fantakis, in which he wrote about his hatred of Mr Karmas, and the violence done to him on 11 August 2011. The notes included the following reference to the events of that day.

“a. ‘Sam left. Had to go’

i. Andrew took kinezo? Home

ii. I came back and mum arrived

iii. She then left, I continued working

iv. Then I went in the shed

v. I was looking under the table I heard the door open s…

vi. I stayed low then he passed, I noticed him.

vii. I had a taser that Rob had lent me and from be… I called he pushed him in the chest & then proceeded in torturing him

viii. He revealed Anna, Maria, ?, Paul Blanch & Roxanne McGee

ix. ‘I loaded him in the van & drove, I left him tied up & wa… him … & cry brother He was paid by Maria & he admitted to meeting George on the farm & putting a ? in Nicks head to make him mad’.”

50. In another note he wrote:

“t. Sam was coming down the side to gain entry via the back door at the front was closed;

u. I left the back door open and he had no choice but to enter. I observed he was holding something in his hand.

v. As he passed me I kicked him off his feet. I punched him in the throat to prevent him from breathing & screaming and then grabbed a tazer that he was carrying;

w. I used his own weapon to incapacitate him and had him strapped;

x. Sam Karmas confessed a number of things including the fact that he had killed my brother his involvement with high ranking police, insurance fraud & Maria’s involvement;

y. I had torchered [sic] him until he spilled his guts on all that are involved in this machine of killings inc”.

51. The Fantakis video, seized during the search of Mrs Fantakis’ home, and which was labelled “Terry’s Last Words”, depicts the accused Fantakis speaking, saying:

“Sam killing my brother that, um, he was one sick puppy , mate, he really was and I did catch him out and I did spot him and I basically had to do what I needed to do to protect myself and I didn’t plan to do by taking me out to…farm and having me and my mother killed. Now I do have a tape…Not as detailed as this but he basically confesses, um, what he did, how he did it, what he was going to do. And this…Right direction for a while, um, but, um, in some ways, yeah we found…Too, so, mate, I don’t mean you any harm.”

52. Referring to the accused Woods Fantakis described his friend as,

“very intelligent, heart of gold, most honest bloke I ever known and most trustworthy bloke I probably will ever get to know.”

53. In a letter written by Fantakis to the judge hearing litigation concerning the disputed estate of Nicholas Fantakis, the accused Fantakis wrote:

“i. Necessity judge has forced me to inflict the pain and cruel act I video’d of this animal of a man who most would have killed. This confession has been given to an ex-supreme court judge in the event that I am killed.

ii. This is why I will probably have to give a statement admitting his alleged death.”

54. Another note written by Fantakis in a diary recovered from the blue van had an entry reading,

“Wrap in black cotton sheet and tie with black ribbon (shoe lace) tight and through [sic] in the river (Georges River).”

55. A single shoe with no shoelace was also found in the van.

56. The Crown relies on a number of intercepted conversations between Woods and Fantakis, including one at 18:21 on 25 November 2011, in which the following conversation concerning the police officer in charge of the murder investigation, D/S Roxanne McGee, is recorded,

“Woods: I don’t even wanna punch her in the face okay…I want to blind her…I want to know where she lives…I want to know where she lives…I wanna know where she fuckin lives. I’m gonna start chasing her.

Fantakis: -

Woods: Fuckin…I’m gonna start chasing her okay.

[…]

Woods: start doin’ it…hey”

[…]

Woods: She would have been gone…made sure…fuckin…Officer in charge of Flaggy dead.

Fantakis: That won’t be a problem man haha

Woods: gun…fuck this get a gun, we’ve gotta get a gun

[…]

Fantakis: oi…it’s the only fucken way…

Woods: what do you mean it’s the only fucken way

[…]

Fantakis: What are you talking about the only way

Woods: that’s how you deal with it like that I’m just asking because…if you can’t help me I’ll do it myself.

[…]

Woods: listen I need you…listen…shit like that ok…they got nothing.”

57. The Crown relies upon other conversations, and acts, to establish that both Fantakis and Woods sought to intimidate D/S McGee during the course of the investigation into Mr Karmas’ presumed murder.

58. On 25 July 2012 the accused Woods was recorded referring to D/S McGee as “the fucken’ toad McGee”. He said, amongst other things, “I’m gonna get that fucken’ toad”, and “[..] it is only a matter of time before I catch you out. Ya fucken’ toad”. The vehicle used by the applicant Woods was marked with the words “toad finder” during August 2012.

59. Further, the Crown relies upon evidence implicating both Fantakis and Woods in an operation to cultivate and supply cannabis as evidence which points to the nature of their relationship.

The Cases in Support of the Motions

60. The accused each argue that the respective cases against them and that against Fantakis are materially different, with that against the principal both markedly stronger than that against Woods and Cheong and, in some respects, inflammatory. It is argued that evidence of events which do not involve Woods or Cheong, but relate to Fantakis only, are not admissible against them, and would only serve to impermissibly prejudice a jury against them. Mr Hughes for Mr Woods referred to this evidence as “guilt by association”.

61. In particular, the accused complained of the prejudicial effect of the following evidence.

1. The threat by Fantakis to Mr Karmas on 8 June 2011 to “bury” him. Both accused argue that neither was involved in the making of the threat, but the evidence of its utterance is inflammatory.

2. The evidence that places Fantakis at both Warwick and Wilga Streets on 11 August 2011. The accused Woods, who disputes the meaning of the CCTV evidence of a van similar to his being in Wilga Street at the relevant time, says that this evidence does not involve him but would be prejudicial to his case.

3. The evidence of an aggressive argument between two male Greek speakers, which cannot establish the involvement of the non-Greek speaking Woods and Cheong, but relates only to Fantakis. In that the argument was said to be loud and vehement, the accused contend that this evidence is inflammatory.

4. The evidence of a lie (by omission) told by Fantakis to a Karmas family member, in failing to mention that Mr Karmas had gone from Warwick Street to Wilga Street on 11 August 2011. This evidence, which could go to consciousness of guilt in Fantakis, is not evidence concerning any act of the accused men.

5. The acts alleged against Fantakis with respect to the blue van, parking it at the mechanics premises in the early hours of 12 August 2012 and later cleaning it with bleach. Mr Woods disputes that he was the man who assisted Fantakis in cleaning the vehicle, and Cheong was not present. Both argue that this evidence strengthens the case against Fantakis but does not involve them, with its admission at trial potentially prejudicial to them.

6. The evidence of the repair work to the Wilga Street bedroom does not involve the accused Woods (although it does apply to Cheong). Woods submits that this is powerful evidence of consciousness of guilt that cannot apply to him, and would give rise to prejudice against him.

7. Forensic evidence recovered from the blue van – being DNA and mud consistent with having its origins in the Georges River area – go to strengthen the case against Fantakis but are not relevant to the cases against Woods or Cheong, there being no suggestion this evidence can be linked to either.

8. The written admissions in notes and letters, and the oral admissions in the video made by Fantakis, which are said to be “the most inflammatory and colourful admission” to committing murder and which, because of the “damnifying” nature of the evidence, could only “poison the well” against Woods, Fantakis’ friend, and Cheong, his employee. It is argued that mere association with someone who apparently conducts himself in such a violent and bizarre way is incurably prejudicial. This is said to be particularly so in relation to the accused Woods, who is referred to in the video. It is submitted that, although nothing is said that directly implicates Woods in involvement in murder, the inference for his involvement is available both because of the apparently close relationship between Fantakis and Woods, and because of some aspects of what was said.

62. The accused contend, rather colourfully, that the trials should be severed because,

the super added strength of those pieces of evidence against Mr Fantakis [..] have nothing but the potential and which will do nothing in reality more than wash over like some vile smelling liquid onto the presumption that ought attach to [each accused].

63. The Court was referred to a number of authorities, which are referred to below.

The Law

64. Section 347 of the Crimes Act 1900 (NSW) clearly contemplates the trial of an accessory being heard jointly with that of the principal, or separately, whether or not the principal has been tried and convicted. It provides:

347 Accessories after the fact—how tried and punished

Every accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not.

65. Whether to present a joint indictment is a matter for the Crown, subject to the Court determining any application pursuant to s 21(2)(a) of the Criminal Procedure Act 1986 (NSW) for severance of the indictment.

66. The onus is on the applicant for a separate trial to demonstrate that a positive injustice would be occasioned to him or her, if a joint trial was held: R v Middis (unreported decision of the Supreme Court of 27 March 1991 per Hunt J). The applicant must establish that prejudice arising from a joint trial is one which cannot be cured by direction: R v Verma (1987) 30 A Crim R 441 at 446.

67. The applicable principles are well established. Ordinarily, where the alleged offences relate to common events, and

where the matters that constitute the individual offences are so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together: R v McCarthy (1984) 14 A Crim R 155 at 159 per Street CJ (Reynolds and Miles JJ agreeing).

68. See also R v Assim [1966] 2 QB 249 at 261 and R v Annakin & Ors (1988) 37 ACR 131 at 138.

69. One instance where a separate trial will not be ordered is where the evidence admissible with respect to one count is also admissible in proof of the other count or counts: R v Verma. The governing factor is the interests of justice.

70. Among the matters to consider when determining where the interests of justice lay, are the importance of trial matters being heard in a timely way, the avoidance of inconvenience to witnesses, the question of conserving costs to the justice system and the community, the undesirability of inconsistent verdicts where two or more trials are held, the importance of the jury hearing “the whole story”, and the interests of the accused.

71. The parties referred the Court to R v Baartman (unreported decision of the NSWCCA of 6 October 1994), in which the Court of Criminal Appeal adopted the statement of principles enumerated by Hunt J in Middis, as follows:

“1 Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

2 where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3 where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

72. The same principles were given in Ross v R [2012] NSWCCA 207 at [24].

73. It is necessary for the Court to strike a balance between the public interest in related matters being jointly tried, and the interests of the accused in receiving a fair trial: R v Dellapatrona & Duffield (1993) 31 NSWLR 123 at 133; R v Fernando [1999] NSWCCA 66 at [212].

74. The Court was referred to some specific examples of how this discretion has been exercised on other occasions.

75. In Baartman the appellant was charged with murder in common with Crofts. Crofts was recorded by listening device making “colourful and extremely incriminating” comments about the murder, and implicating Baartman. The case against Baartman was confined to the fact that, sometime after the murder he was found in possession of the murder weapon, he was said to have made an admission to a female, and another witness said he had been present with he and Crofts when the murder was discussed.

76. The NSWCCA held that the admissions by Crofts, which were not admissible against Baartman, were “dramatic, incontrovertible, and highly prejudicial” to Baartman (at p.4) and could lead to impermissible prejudice to him. A separate trial was ordered.

77. In R v Pham [2004] NSWCCA 190 the Court considered whether the appellant should have been separately tried from his brother for an offence of murder. Whilst the appellant’s brother had confessed to his involvement in the shooting in an interview with police, the only evidence against the appellant was the account of two witnesses whose credibility was the subject of serious challenge, and in circumstances where the brother’s interview, inadmissible against the appellant, supported the version given by the witnesses. The Court concluded that it was not possible for the jury to make two separate assessments of the credibility of the witnesses, one of which was informed by the interview and one of which was not. On that basis, it was held that the appellant’s trial should have been separate to that of his brother.

78. In R v Harpreet Singh [2012] NSWSC 869 Harrison J considered an application for a discharge of the jury after nine days of evidence, in circumstances where two significant witnesses unexpectedly sought to materially alter their evidence. The application was refused, with his Honour concluding that no prejudice flowed to the accused as a consequence of the change. (I am not certain of the relevance or utility of this decision to the present application.)

79. In Western Australia v Tolliday [2004] WASC 231 the accused Tolliday and his co-accused Oblak each sought an order severing their respective trials on a charge of murder from that of the other. Oblak submitted that he would be prejudiced by the admission of evidence relevant to Tolliday, concerning out of court statements made by the latter to the effect that the former had stated his intention to kill the deceased, that he had attacked the deceased and stabbed her four times, and then secreted the body with Tolliday’s assistance. The case against Tolliday consisted of his extensive admisions (during which he implicated Oblak); the case against Oblak was circumstantial and relied upon opportunity, motive, and the telling of two lies said to evidence consciousness of guilt. The cases were different in nature, and that against Oblak was considerably weaker than that against Tolliday.

80. The trial judge concluded that the prejudice to Oblak occasioned by the jury seeing three separate recorded interviews in which Tolliday gave considerable details about the events surrounding the murder of the deceased and Oblak’s responsibility for it, was incurable. Separate trials were ordered.

81. In R v Chami; R v TS (2002) 128 A Crim R 428; [2002] NSWCCA 136 revised 1.6.2009 the Court considered an appeal filed by Chami and TS against the orders of the trial judge refusing separate trials for each. Five persons were due to stand trial for a series of “gang rape” offences; Chami and TS had argued that their respective trials would be impermissibly prejudiced if not separately held. The trial judge did not agree. TS had been joined in an indictment relating to 19 incidents of sexual assault, only 2 of which he was alleged to be involved in. Evidence in relation to the other 17 counts was not relevant to TS, and was such as to establish “brutal, cruel, callous and horrifying” assaults.

82. For TS, the New South Wales Court of Criminal Appeal concluded that there was a “risk of guilt by association” (at [20]). Further, TS would be put to the expense of a trial that would continue for some months, in circumstances where the two counts relating to him could take no more than two weeks. A separate trial was ordered.

83. Chami’s appeal was dismissed. The Court noted that, in that his defence to the counts against him was consent, it was open to the Crown to lead evidence of the other incidents to rebut his defence. Since the whole of the evidence was thus admissible, the Court held that considerations of avoiding inferences of guilt by association did not apply, with issues of costs and inconvenience to witnesses taking on paramount importance (at [33]).

84. The Crown additionally referred the Court to R v Bikic (2000) 112 A Crim R 300; [2000] NSWCCA 106, R v Oliver (1984) 57 ALR 543, Ross v R, Darwiche & Ors v R 209 A Crim R 424; [2011] NSWCCA 62, and R v Quami & Ors (no 3) [2016] NSWSC 15.

Consideration

85. In determining the Motions it is important to have regard to what it is that the Crown must prove against the accused men, and how it seeks to achieve that end.

86. The Crown’s case against the accused Fantakis seeks to establish his liability for Mr Karmas’ murder on the basis that he did an act with the intention of killing or causing him grievous bodily harm. It must prove that:

1. On 11 August 2011 at Punchbowl;

2. Elefterios Fantakis did a deliberate act which caused the death of Sam Karmas,

3. With the intention of killing him or causing him grievous bodily harm.

87. The deliberate act is that described by the accused Fantakis in his notes and video, that being the application of violence to Mr Karmas causing his death.

88. The Crown relies upon pieces of circumstantial evidence, such as evidence of motive and opportunity, DNA in the blue van, the mud on the van’s wheels, and so on, together with the evidence of the apparent admissions made by the accused Fantakis to killing Mr Karmas, to establish its case.

89. To prove the charges of accessory after the fact to murder against the accused men Woods and Cheong, the Crown must prove each of those things set out at [86](1) – (3) and, further, that each

1. Knew that Fantakis committed the murder as alleged by the Crown; and afterwards,

2. At the alleged place and time;

3. Received, harboured, and maintained him.

90. The difference in the present case to all of those factual scenarios in the authorities to which the Court has been referred is that, if the Crown is to prove its case against Woods and Cheong, it must firstly prove to the satisfaction of the tribunal of fact that Fantakis committed the murder.

91. This is not a case where all three accused are charged with murder, and the case against each differs in nature and quality such that prejudice could be occasioned to one by evidence admissible only in the case against the other accused.

92. The evidence against Fantakis, including those parts of it which are most dramatic in nature, such as the video recording, form a necessary part of the proof of the Crown’s case for accessory after the fact. In that sense, the evidence is admissible in the cases relevant to Woods and Cheong, since it goes to establish the commission of the murder, and the identity of the murderer that the accused are alleged to have assisted.

93. Cases where the evidence or a substantial part of it is admissible against each of the accused named in a joint indictment are typically those where an order for a separate trial will not be made, because considerations of costs and inconvenience take on greater weight.

94. Here, the evidence that goes to establish that the accused Fantakis murdered Mr Karmas as alleged by the Crown is part and parcel of the case against the two accessories, and the Crown would be entitled to lead all of that evidence in any trial against the accessories.

95. It was argued that, if the trials were severed and the trial of Fantakis proceeded, with a conviction recorded at the completion of the proceedings, the Crown could rely upon evidence of conviction at the subsequent trial of Woods and Cheong, without need to call the more dramatic evidence relevant to the guilt of Fantakis.

96. In that event the indictment could reflect the conviction of the principal, but it is not for this Court to decide an application of this nature on the basis of speculation as to what may or may not occur in the future. The outcome of any trial against the accused Fantakis is simply unknowable at this stage and will depend upon many, many unpredictable features. One example is the nature of any defence raised by the principal, there being at least a suggestion that a mental illness defence may be advanced.

97. Even were the trials to be severed, and the principal found not guilty, that is not necessarily a bar to the Crown proceeding against Woods and Cheong, necessarily calling the evidence available to it as to the commission of the murder by Fantakis. There is no issue estoppel in the criminal law.

98. There is authority for the proposition that an accessory convicted of that offence will not have his or her conviction quashed because the principal was acquitted: R v Williams (1932) 32 SRNSW 504 at 507. There, Street CJ said,

“[…] two persons were at first put on their trial together, but afterwards separate trials were ordered and the present applicant was found guilty of being an accessory after the fact. Subsequently, his wife was put upon her trial for murder and found not guilty; and it has been suggested that in those circumstances this conviction cannot stand. I do not think that there is any substance in that submission. The Crimes Act, 1900 (s. 347), provides that every accessory after the fact to any felony may be indicted, convicted, and sentenced, as such accessory, either before, or together with, or after, the trial of the principal felon, whether such felon has been previously tried or not, or is amenable to justice or not. That section appears to me to be a clear authority enabling the Crown to put an accessory after the fact upon his trial, even though the principal felon may not yet have been brought to trial. No doubt, on the trial of the crime of being an accessory after the fact to another crime, in order to secure a conviction, the Crown must satisfy the jury that a crime has been committed to which the prisoner was accessory. Unless that is established, the whole case against him of being an accessory falls to the ground; but all that is necessary is that evidence should be given in the case sufficient to establish to the satisfaction of the jury that the principal crime was committed by somebody. If afterwards, for some reason, that principal, on being put upon his trial, is acquitted, that does not invalidate the earlier proceedings.”

99. Street CJ referred to Morris v Tolman [1923] 1 KB 166 wherein Lord Hewart LCJ (with the concurrence of Avory and Sankey JJ) stated,

It does not in the least follow because a principal is acquitted that another person may not be convicted of aiding and abetting.

100. The then Chief Justice observed that it could make no difference to the application of that principle that the charge was one of accessory rather than aider and abettor: “The principle must be the same” (at 508).

101. As is their right, neither the accused Woods nor the accused Cheong were prepared to make any concessions as to proof of the commission of the murder of Mr Karmas; the Crown is to be put to proof on every aspect of its case. That being so, and a conviction against Mr Fantakis at a separate trial being neither known nor inevitable, even at a trial involving only Woods and Cheong, the Crown would or may be obliged to call virtually all of the evidence it would lead against the accused Fantakis, to go to proof of the murder. For the same or substantially the same evidence to be called in two trials would lead to duplication, with a significant increase in inconvenience to the relevant witnesses, and to the costs to the justice system overall. There would be no amelioration to any asserted prejudice to Woods and Cheong, since the impugned evidence would be before the jury.

102. I accept that there may be prejudice to the accused from the chilling accounts of the murder given by the accused Fantakis in his diary notes and video recording, and by the association of each with him. However, the prejudice is that the evidence tends to prove that the accused Fantakis committed the murder as the Crown alleges, proof of that being a necessary element of proof of the charge of accessory after murder. It is not impermissible prejudice, and it is capable of being addressed by directions to the jury.

Directions

103. It will be necessary to direct the jury of the different elements that the Crown must prove in relation to the charges of accessory after murder. Those directions will involve a clear statement that the Crown relies upon the evidence of the video recording and those other parts of the evidence put in issue by the accused men (and referred to at [61] above) to prove that the accused Fantakis murdered Mr Karmas. The jury must be told in clear terms that it is no part of the Crown’s case that either accused participated in the alleged murder.

104. Further, the ordinary requirements of a joint trial will apply. That is, it will be the trial judge’s duty to separate for the jury's consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately: R Masters (1992) 26 NSWLR 450 at 455.

105. Having considered each of those matters, I am not persuaded that the accused men will be irremediably prejudiced if tried with the accused Fantakis, since the Crown’s case against them is the same whether tried jointly or separately. I decline to order that the charges relating to Andrew Woods and Derek Cheong be severed from that against Elefterios Fantakis. The interests of justice are best served by a joint trial of the three accused.

orders

106. The Notices of Motion seeking severance of the indictment are dismissed.

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Decision last updated: 27 November 2018