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Fantakis v R [2023] NSWCCA 3 (3 February 2023)
Last Updated: 3 February 2023
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Court of Criminal Appeal
Supreme Court
New South Wales
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Case Name:
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Fantakis v R
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Medium Neutral Citation:
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Hearing Date(s):
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18, 19, 20 May 2022
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Date of Orders:
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3 February 2023
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Decision Date:
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3 February 2023
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Before:
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Ward ACJ at [1]; Rothman J at [779];
Dhanji J at [826]
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Decision:
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1. To the extent necessary, grant leave to appeal on all
grounds.
2. Appeal dismissed.
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Catchwords:
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CRIME – Appeals – Appeal against conviction – Fresh
evidence – whether evidence relied upon by appellant is
“fresh
evidence” – Incompetence of counsel – whether at trial counsel
for the appellant failed to follow
client’s instructions and failed to
cross-examine on the existence of various documents – Miscarriage of
justice –
whether trial judge erred by failing to leave the defence of
mental illness to the jury – whether trial judge erred by failing
to leave
manslaughter to the jury on the basis of the defence of substantial impairment
– whether trial judge erred in admitting
evidence – whether trial
judge erred by failing to leave manslaughter to the jury on the basis of
self-defence and/or provocation
– whether trial judge erred by failing to
give a variety of directions – whether there was a “shift” or
“split”
in the Crown case which caused the trial to miscarry –
whether trial judge erred by including juror who had been chosen to
speak on
behalf of jury at earlier time in the ballot to select verdict jury –
operation of proviso in those circumstances
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Legislation Cited:
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Court Suppression and Non-publication Orders Act 2010 (NSW), s 7Crimes
Act 1900 (NSW), s 23, 23A, s 421Criminal Appeal Act 1912 (NSW), ss 5(1)(b),
6Evidence Act 1995 (NSW), ss 55, 90, 137, 138, 165Jury Act 1929
(Qld) Jury Act 1977 (NSW), ss 19, 55F, 55GLaw Enforcement (Powers and
Responsibilities) Act 2002 (NSW), ss 36, 98, 217Law Enforcement (Powers and
Responsibilities) Regulation 2005 (NSW), cl 8(1), Pt 7Legal Profession
Uniform Conduct (Barristers Rules) 2015, r 65 Mental Health (Forensic
Provisions) Act 1990 (NSW), ss 28, 30, 38Mental Health and Cognitive
Impairment Forensic Provisions Act 2020 (NSW) Supreme Court (Criminal Appeal)
Rules 2021 (NSW), r 4.15
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Cases Cited:
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Texts Cited:
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A Ligertwood, Australian Evidence Cases and Materials (1995,
Butterworths) B Collier, Second Reading Speech of the Legislative Assembly,
Jury Amendment Act 2007 (NSW) (7 November 2007) D Howard and B Westmore,
Crime and Mental Health Law in New South Wales (2019, 3rd ed, LexisNexis
Butterworths) J D Heydon, Cross on Evidence (2015, 10th ed) New South
Wales Law Commission, Jury Selection (2007 NSWLRC 117) |
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Category:
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Principal judgment
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Parties:
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Elefterios (Terry) Fantakis (Applicant)
Regina (Respondent)
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Representation:
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Counsel:
M Ramage QC with T Woods (Applicant) (on grounds 1 and 2
only)
E Fantakis (Applicant – self represented on remaining
grounds)
M Millward (Respondent)
Solicitors:
Andrews Solicitors
(Applicant) (on grounds 1 and 2 only)
Solicitor for Public Prosecutions (NSW)
(Respondent)
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File Number(s):
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2013/297834; 2013/298264; 2021/248739
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Publication Restriction:
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Nil
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Decision under appeal:
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Court or Tribunal:
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Supreme Court of NSW
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Jurisdiction:
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Criminal
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Citation:
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Date of Decision:
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8 November 2018
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Before:
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Wilson J
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File Number(s):
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2013/297834
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HEADNOTE
[This headnote is not to be read as part of the judgment]
On 25 May 2018, Elefterios (Terry) Fantakis (the applicant) was found guilty
by a jury of the murder of Elisha (Sam) Karmas. Mr Karmas
was last seen shortly
before 2pm on 11 August 2011 when he travelled with the applicant and one of the
applicant’s two co-accused,
Mr Derek Cheong, in the applicant’s van
to the applicant’s mother’s home at Wilga Street, Punchbowl (the
Wilga
Street Property). The Crown case was that Mr Karmas was murdered by the
applicant in the afternoon of 11 August 2011 and his body
was disposed of by Mr
Fantakis and his other co-accused, Mr Andrew Woods. Mr Karmas’ body has
not been discovered. Mr Woods
was found guilty of the sole count of being
accessory after the fact to murder. Mr Cheong was found not guilty of the same
offence.
On 8 November 2018, the trial judge sentenced Mr Fantakis to a
term of 24 years’ imprisonment, commencing on 3 October 2013
and
expiring on 2 October 2037, with a non-parole period of 18 years expiring on
2 October 2031.
The applicant sought leave to appeal against his conviction pursuant to s
5(1)(b) of the Criminal Appeal Act 1912 (NSW), raising eighteen grounds
of appeal (some of which contained a number of sub-grounds). Leave is required
pursuant to s 5(1)(b) of that Act as the grounds (as framed) are not confined to
questions of law. For various grounds leave is also required pursuant
to r 4.15
of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in circumstances where
the direction which it is now contended ought to have been given by the trial
judge was not sought by
defence counsel who appeared for the applicant at
trial.
To the extent necessary, leave to appeal was granted in respect of all of the
grounds of appeal. The appeal was dismissed on all grounds.
As to grounds 1 and 2 (being that the trial miscarried because the trial
judge failed to leave the defence of mental illness to the
jury, and that the
trial miscarried because the trial judge failed to leave manslaughter to the
jury on the basis of substantial
impairment).
The Court held (per Ward ACJ at [274]-[279], Rothman J agreeing at
[825] and Dhanji J agreeing at [849]):
Per Ward ACJ at [274]-[279]:
1. The evidence was not sufficient to enliven a duty on the
part of the trial judge to leave the defence of mental illness to the
jury nor
was it sufficient to raise such a duty in respect of the defence of substantial
impairment.
2. As to the defence of mental illness, although a formal
diagnosis of mental illness is not necessary, there was nothing in the
evidence
to lead to the conclusion that a mental illness defence was open or viable. The
first suggestion that the applicant suffered
from mental illness was in late
2011, after Mr Karmas’ disappearance, when the applicant’s then
partner considered that
he was depressed.
3. A mental illness defence requires that the applicant not
have appreciated that the act of killing was wrong. The intercepted
communications between the applicant and Mr Woods, the applicant’s obvious
attempts to conceal evidence by cleaning the van
and renovating the Wilga Street
Property, and the applicant’s reaction to his deluded belief as to his
brother’s death
make it clear that the applicant appreciated that the act
of killing a man was wrong.
4. As to the defence of substantial impairment, there was
not a sufficient evidentiary foundation for a conclusion that a defence
of
substantial impairment was reasonably open or viable. Again, it is significant
that the applicant’s then partner placed
the deterioration of the
applicant’s mental state towards the latter part of 2011 (after August
2011), and the writings and
audio recordings manifesting the applicant’s
delusional thoughts were only brought into existence in 2012.
Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246; Pemble v The
Queen (1971) 124 CLR 107; [1971] HCA 20; R v Shields [1967] VicRp 83; (1967) VR 706;
R v Ayoub (1984) 2 NSWLR 511; R v Cheatham [2000] NSWCCA 282;
Lo Tin v The Queen [1964] Crim LR 135; R v Damic [1982] 2 NSWLR
750; R v Issa (Supreme Court (NSW) Sperling J, 16 October 1995, unrep);
James v The Queen (2014) 253 CLR 475; [2014] HCA 6; Fang v R
[2018] NSWCCA 210; Mencarious v R [2008] NSWCCA 237; Flanagan v R
[2013] NSWCCA 320; Lane v R [2013] NSWCCA 317; R v Tumanako (1992)
64 A Crim R 149 considered.
Per Rothman J at [784]; [808]-[822]:
1. There is no evidence direct or indirect from which it is
possible to conclude (other than by the existence of a theoretical possibility)
that the applicant at the time of the conduct that caused the deceased’s
death did not know the nature and quality of his act
or that what he was doing
was wrong.
2. There was no direct evidence that at the time of the
applicant’s conduct the applicant was suffering a mental condition
or
psychosis that substantially impaired his capacity to understand the events. In
and of itself a delusional belief is not an impairment
of the mind.
3. The material in this trial includes proved delusional
beliefs possessed by the applicant and a later diagnosed psychosis. While
it
would not be irrational to conjecture that the psychosis existed earlier and was
causative of the delusions, it would also not
be irrational to infer on the
material that the psychosis developed much later, if it did develop, and there
was no substantial or
causative impairment of the mind affecting the
applicant’s conduct.
4. From the applicant’s perspective the inference of
substantial impairment and no substantial impairment would be equipoised.
Since
each of the existence and non-existence of a psychosis at the relevant time is
available, neither inference can be drawn in
a manner that satisfies the
applicant’s burden of proof at the trial.
5. There was no requirement that the trial judge direct on
the availability of manslaughter by reason of substantial impairment
and no
error on the part of the trial judge in failing to give the direction (nor did
such failure deprive the applicant of an opportunity
for acquittal or involve a
miscarriage of justice). It is not for this Court on appeal to insist on the
exercise of the trial judge’s
discretion to provide such a direction in
circumstances where the law does not require such a direction.
Carr v Baker (1936) SR (NSW) 301; Fabre v Arenales (1992) 27 NSWLR
437 considered.
Per Dhanji J at [826]-[849]:
1. The fact that a person has a delusional belief does not
mean that they are suffering an abnormality of mind within s 23A of the
Crimes Act. However, having regard to the particular nature of the
delusions in this case, the timing and impact of the deaths of the
applicant’s
father and brother, the evidence of Dr Saker together with the
fact that the applicant was, after 11 August 2011, suffering from
serious mental
illness, it is a rational inference that the delusions he suffered as at
11 August 2011 were the product of, at least,
an emerging mental illness
(though this is not the only inference necessarily available).
2. The question that then arises is whether there is
evidence to sustain an inference that the applicant’s capacity to judge
whether his actions were right or wrong or to control himself were substantially
impaired. Evidence that the applicant sought to
avoid liability is not probative
of a capacity to understand right or wrong but it is also clear that the simple
fact of an abnormality
of mind cannot satisfy s 23A(1).
3. While an inference of mental abnormity is available, the
nature and impact of the illness as at 11 August 2011, apart from the
existence
of delusional belief, is (as a result of the manner in which the case was run),
quite uncertain. Further events, such as
the police investigation, and on the
basis on which the ground is premised, the applicant having killed Mr Karmas,
were additional
stressors after 11 August impacting on the applicant’s
mental state.
4. There was no exploration of the impact of any mental
abnormality extant as at 11 August 2011 generally nor any exploration of
its
impact on the applicant’s capacity to understand right or wrong. It does
not follow from a delusional belief that Mr Karmas
killed the applicant’s
brother, that the applicant did not understand that it was wrong to kill
Mr Karmas or that his understanding
of this was impacted by any abnormality
of mind. Evidence from which the impact of the mental abnormality could be
judged was absent
in this case.
5. The same analysis applies with respect to whether the
evidence was capable of sustaining an inference on the balance of probabilities
that the applicant’s capacity to control himself was substantially
impaired.
6. The evidence was not such as to oblige the trial judge to
leave the partial defence of substantial impairment, or the defence
of mental
illness, to the jury. It follows there was no miscarriage of justice in her
Honour not doing so and grounds 1 and 2 must
fail.
As to ground 3 (being that the verdict of the jury was unreasonable,
unsafe and unsatisfactory).
The Court held (per Ward ACJ at [328]-[336], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. It was clearly open to the jury on the evidence adduced
at trial to be satisfied beyond reasonable doubt that Mr Karmas died
on 11
August 2011. It was also reasonably open to the jury to be satisfied beyond
reasonable doubt that the applicant had murdered
Mr Karmas on the afternoon of
11 August 2011 at the Wilga Street Property and later disposed of his body. The
circumstantial evidence
pointing to that conclusion is overwhelming. It has not
been established that the jury should have entertained a reasonable doubt
as to
the applicant’s guilt.
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen
(2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400;
[2011] HCA 13; Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30;
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Fennell v
The Queen [2019] HCA 37; (2019) 373 ALR 433; Mulholland v R [2019]
NSWCCA 257; Dickson v R [2017] NSWCCA 78; (2017) 94 NSWLR 476; Nweke v R [2020]
NSWCCA 153; Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35;
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 considered.
As to grounds 4 and 5 (being that the Crown split its case, depriving the
applicant of a fair trial and that a miscarriage of justice
occurred by her
Honour leaving to the jury a possible basis of conviction which had not been
relied upon by the Crown).
The Court held (per Dhanji J at [879]-[897], Ward ACJ agreeing at
[337] and Rothman J agreeing at [779]):
1. Whether a change in the Crown case in the course of the
trial resulted in a miscarriage of justice is determined by reference
to the
fairness of the applicant’s trial. It cannot be said that there was a
miscarriage of justice as a result of the reference
to the 5 o’clock
theory in the Crown’s closing address. Insofar as the applicant complained
that his mother’s evidence
was relevant to the alternative theory raised
by the Crown in its final address, there were sound forensic reasons militating
against
calling the applicant’s mother. More significantly, while the
applicant’s trial counsel agreed he had been taken by surprise,
he
regarded it to be advantageous to the applicant to rely on it as an indication
of weakness in the Crown case.
King v The Queen (1986) 161 CLR 423; [1986] HCA 59; KRM v The
Queen (2001) 206 CLR 221; [2001] HCA 11; Kirk v Industrial Court of New
South Wales (2010) 239 CLR 531; [2010] HCA 1; R v Kennedy (2000) 118
A Crim R 34; [2000] NSWCCA 487; Robinson v R (2006) 162 A Crim R 88;
[2006] NSWCCA 192; R v Anderson (1991) 53 A Crim R 421 considered.
As to ground 6 (alleging failure to give certain directions and as to the
summing up generally).
The Court held (per Dhanji J at [932], Ward ACJ agreeing at [337] and
Rothman J agreeing at [779]) that none of the individual sub-grounds was made
out; nor was the cumulative effect of the sub-grounds such that the summing up
lacked appropriate balance.
Ground 6(1)
1. As to ground 6(1) (failure to give a Shepherd
direction), particular directions in relation to proof of a circumstantial case
(such as a direction that the inference of guilt
should not only be a
rational inference, but rather, the only rational inference that can be
drawn) are no more than “an amplification of the rule that the prosecution
must prove its case
beyond reasonable doubt”. The trial judge gave an
entirely orthodox circumstantial evidence direction. No more was required.
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 applied.
2. Satisfaction of the elements beyond reasonable doubt
necessarily implied satisfaction of the four steps identified by the applicant
as intermediate facts, and vice versa. Each step relied on a body of
circumstantial evidence which was to be considered together
and not in a
piecemeal fashion. There is no basis on which to conclude that the application
of the standard of proof was undermined
in any way by the absence of an
“indispensable fact” direction.
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56; The Queen v
Hillier (2007) 228 CLR 618; [2007] HCA 13 applied.
3. As to the applicant’s complaint that proof that Mr
Karmas returned to Wilga Street around 5pm on 11 August was an indispensable
intermediate fact, for the reasons given with respect to grounds 4 and 5, it was
open to the jury to conclude that the murder occurred
earlier, in the “67
minute window”.
4. There was no single item of evidence which required a
direction that it was necessary that the Crown prove that evidence beyond
reasonable doubt.
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 considered.
Ground 6(2) - breaches of the Browne v Dunn rule
1. As to ground 6(2) (the complaint that the 5 o’clock
theory was not advanced through cross-examination and that the applicant
was
taken by surprise by the prosecution address), no unfairness arose from the
complained of denial of the opportunity to deal with
this theory in the
applicant’s evidence as it was plain on the applicant’s evidence
that his version was that Mr Karmas
left shortly after arriving at Wilga Street
and never returned. As to the argument that a miscarriage was occasioned as a
result
of the point at which the Crown raised the alternative theory, this is
dealt with in the context of grounds 4 and 5.
Browne v Dunn (1894) 6 R 67; MWJ v The Queen [2005] HCA 74; (2005)
80 ALJR 329 applied.
Ground 6(3) – Jones v Dunkel
1. As to ground 6(3), which raises a complaint of a failure
to give a “Jones v Dunkel direction” in relation to an
asserted failure by the Crown to call the applicant’s mother, the
situation is governed
by what has come to be known as a Mahmood direction, the
appropriateness of which is predicated on an expectation that the witness
would
be called.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; RPS v The Queen
[2000] HCA 3; (2000) 199 CLR 620; [2000] HCA; Mahmood v The State of Western
Australia (2008) 232 CLR 397; [2008] HCA 1 considered.
2. The Crown prosecutor advised the applicant’s
counsel that he did not intend to call Mrs Fantakis; and no issue was raised
by
the applicant’s counsel as to the prosecutor’s decision. The
evidence of the applicant’s counsel read on the
appeal was that the
applicant did not want his mother to be called. There was no application, after
the Crown address in which the
5 o’clock theory was raised, to call Mrs
Fantakis. It is not open to the applicant now to complain that the prosecution
was
obliged to call her. The applicant has not established a miscarriage of
justice on the basis of a failure to give a Jones v Dunkel direction or a
Mahmood direction.
Ground 6(4) – warning of danger to convict on “writing”
evidence
1. As to ground 6(4), being a complaint that the trial judge
failed adequately to warn the jury of the “danger of convicting
the
applicant solely on the writings and videos made by the applicant, taking into
account that the evidence was not corroborated
by any other evidence led by the
Crown, and were made by the applicant who at the time was suffering from
psychosis”, the Crown
case did not rely “solely” on admissions
of the applicant in the “writings”. The prosecution case accepted
that parts of those materials were unreliable. The present case was not one akin
to a prosecution case reliant on a single witness,
where a warning may be
required (or may have, at one time, been required) as to the need to be
satisfied of the evidence of that
witness beyond reasonable doubt, and the
consequent need to scrutinise that witness’ evidence with care.
R v Murray (1987) 11 NSWLR 12 distinguished.
Ground 6(5) – the summing up was unbalanced
1. As to ground 6(5)(i), by which the applicant contends
that the summing up was lacking in balance such that a miscarriage was
occasioned, none of the matters raised by ground 6(5)(i) raises any issue of
imbalance in the summing up, whether considered individually
or cumulatively,
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; Castle v The
Queen (2016) 259 CLR 449; [2016] HCA 46 considered.
2. As ground 6(5)(ii) (the complaint that the trial judge
“reinforced the existence of the writing evidence, whilst failing
to raise
the obvious contradiction made by the Crown on the first day of its closing that
the only evidence going to the second case
theory was not reliable and lacked
credibility”), the trial judge’s discussion of that evidence was not
“extensive”
in the sense that any undue weight was given to it; and
there was reference to the applicant’s response to that evidence. The
trial judge properly characterised the manner in which the Crown sought to rely
on the writing evidence and identified the potential
issues as to its
reliability. There was no unfairness in any failure to direct the jury with
respect to the unreliability of the
evidence suggesting Mr Karmas had returned
to Wilga Street at around 5pm.
3. As to ground 6(5)(iii) (the complaint that the trial
judge failed to “emphasise the obvious misconduct by detectives who
made
false and misleading statements” in relation to Ex AA, statements which
the applicant contended were “obviously
generated to [suit] the case being
pursued by police”), there was no issue that the applicant was the author
of this note (which
on the Crown case related to a plan to dispose of the body)
but there was an issue in relation to where it was found. In summing
up, the
trial judge instructed the jury that Mr Fantakis pointed out “the
uncertainty of some of the police evidence about
precisely where that note had
been found, and he disputes that it was ever in the blue van”. Having
regard to the way in which
the applicant’s case was conducted, there was
no unfairness in the manner in which her Honour dealt with this issue.
4. As to ground 6(5)(iv) (the complaint that no remarks were
made on the “obviously flawed investigation” whereas the
trial judge
gave “an opinion about how circumstantial cases such as this can be very
strong”), the trial judge in directing
the jury as to the circumstantial
case did not express any view as to the strength of the case; rather, the trial
judge did no more
than to point out, in orthodox fashion, that the strength of
the case is not determined by classifying it as based on either direct
evidence
or circumstantial evidence. The trial judge made plain that the case was to be
assessed on its merits. There is no substance
in this complaint.
5. As to ground 6(5)(v) (the complaint that the trial judge
failed to raise the second part of Mr Charawani’s evidence (which
related
to evidence in Mr Charawani’s cross-examination as to Mr George
Karmas) and the complaint as to conduct by police that
the applicant contends
sought only to obtain evidence in support of conviction of the applicant), the
evidence of Mr Charawani in
this respect was not a major part of the
applicant’s case; the trial judge directed the jury in relation to the
defence theory
with respect to possible “bad actors” around Mr
Karmas; and the absence of reference to the particular evidence of Mr
Charawani
in this regard was not such as to render the summing up unbalanced. As to the
complaint of bias in the police investigation
which should have been dealt with
by the trial judge, the focus of the prosecution with respect to Mr
Charawani’s evidence
was his evidence with respect to the threats made to
kill Mr Karmas. This did not necessitate any direction as to bias in the
investigation
and there was no submission by the applicant’s counsel with
respect to Mr Charawani’s evidence in this regard.
6. As to ground 6(5)(vi) (the complaint that the trial judge
referred on multiple occasions to evidence that Mr Karmas’ DNA
was located
in the applicant’s van emphasising the presumptive test being of blood,
omitting that the defence were not able
to test this as the sample was
destroyed), the trial judge made plain to the jury that the testing was no more
than a presumptive
test and reminded the jury that there are “many, many
substances which can give false positives for human blood”. This
was
sufficient to ensure undue weight was not given to this evidence.
7. As to ground 6(5)(vii) (the complaint that the trial
judge failed to tell the jury that Mr Karmas’ DNA may have been deposited
as a result of transference), the trial judge not only referred to the multiple
opportunities for Mr Karmas’ DNA to be deposited
in the van prior to
11 August, but also told the jury that DNA could have been deposited by
what was referred to as transference
such as by being deposited by the applicant
after he had been in contact with Mr Karmas. There is no merit in this
complaint.
8. As to ground 6(5)(viii) (by which the applicant asserts
that the emphasis and detail of the summing up was centred on the Crown’s
case “while protecting the Crown’s case from criticism,
notwithstanding, the unfairness caused by the Crown in advancing
the second case
theory after the evidence closed”), the “second case” or
“5 o’clock” theory”
has been dealt with in grounds 4 and
5. The summing up as a whole traversed the evidence and the respective cases of
the Crown and
the applicant in a fair and balanced manner. This sub-ground is
not made out.
As to ground 7 (Non-disclosure of documents resulting in a miscarriage of
justice).
The Court held (per Dhanji J at [945], Ward ACJ agreeing at
[337] and Rothman J agreeing at [779]):
1. As to the complaint that “NSW Police and the
prosecution failed to disclose documents in existence causing a miscarriage
of
justice”, the applicant has not established a miscarriage of justice as a
result of the non-disclosure with respect to any
of the matters raised under
this ground.
Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808; Grey v The
Queen [2001] HCA 65; (2001) 75 ALJR 1708.
2. As to ground 7(1) (concerning the phone records used to
compile the spreadsheet marked as Exhibit J), it is clear that the information
that was available was disclosed; and it has not been established that there was
any relevant non-disclosure with respect to the
telephone records.
3. As to ground 7(2) (concerning documents sought in item 13
of the applicant’s subpoena of 28 June 2017), the applicant’s
complaint as to the non-disclosure is not made out. There is no basis for an
inference of police misconduct. As to the further complaint
in relation to the
execution of crime scene warrants, and in particular a failure to film the
execution of the warrant, the failure
to appoint an independent observer and a
failure to use property seizure forms and provide receipts to the occupant,
there is no
legislative foundation for the assertion that this amounted to
misconduct and any asserted failings were available to the applicant
to exploit
at trial if it was considered expedient.
Part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) considered.
4. As to ground 7(3) (concerning documents held at the Bass
Hill Police holding yard), to the extent that there was any inadequacy
material
as to the documentation and police record-keeping with respect to the van, this
was a matter available to the applicant
to exploit at trial to the extent that
it was likely to assist him. No miscarriage of justice is established on the
basis of any
failure to produce documents included in this sub-ground.
5. As to ground 7(4) (concerning the odometer reading of the
seized blue van), there was no non-compliance or other misconduct on
the part of
the police in this regard (and lack of cooperation by the police, or obfuscation
with respect to later odometer readings
was available to the applicant to
exploit if it was considered expedient).
As to ground 8 (being that the trial judge erred in law by denying
production of documents in relation to a subpoena filed by the
defence on 16
March 2018).
The Court held (per Dhanji J at [956], Ward ACJ agreeing at [337] and
Rothman J agreeing at [779]):
1. Although the trial judge (applying the relevant test at
the time) ruled that, having regard to the material in the police reports,
it
could not be said that it was “on the cards” that the material
sought by the relevant paragraphs in the subpoena could
assist the applicant,
and did not apply a test of apparent relevance, nothing turns on this in the
circumstances of the case. There
was no error in the trial judge denying
production of the documents referred to in this ground.
As to ground 9 (being that the trial judge wrongly admitted listening
device evidence, Exhibits CS and CX on the grounds of consciousness
of
guilt).
The Court held (per Dhanji J at [957]-[979], Ward ACJ agreeing at
[337] and Rothman J agreeing at [779]):
1. The conduct in the present case satisfied the relevant
criteria for relevance. The applicant had deliberately engaged in a discussion
which related to causing harm to Detective Sergeant McGee. That conduct went to
a material issue; it was relevant to establish that
the applicant had a level of
antipathy towards the lead investigator and an interest in doing her harm, and
in doing so, to disrupt
the investigation. It was open to infer that the
applicant was motivated by an awareness that the investigation may uncover
evidence
of his guilt of the crime charged. The evidence was therefore relevant
within the terms of s 55 of the Evidence Act.
2. As to the discretion under s 135 to exclude the evidence,
or the requirement to do so under s 137, the trial judge correctly concluded
that ss 135(b) and 135(c) had no application. The evidence was not, in the
context of the trial, unduly lengthy. The evidence was relatively
straightforward,
albeit the Crown submitted some words could be made out while
the applicant contended that other words were said, or at least that
the Crown
interpretation was not correct. While there was a dispute about the content,
this did not make it misleading or confusing.
3. The real issue was whether the probative value of the
evidence was substantially outweighed by “the danger that the evidence
might be unfairly prejudicial” under s 135(a) or whether, pursuant to s
137, the “probative value [of the evidence was] outweighed by the danger
of unfair prejudice to the defendant”. The terms
of s 135 are permissive
(“may refuse to admit”) while s 137 mandates exclusion (“must
refuse to admit”) and is limited to evidence adduced by the prosecutor in
criminal proceedings.
Thus, where objection is taken to evidence led by a
co-accused, it is only s 135 that has application. More significantly, s 137
does not require, as s 135 does, that the probative value be
“substantially” outweighed.
Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160
considered.
4. Unfair prejudice arises where there is a danger the jury
will use the evidence in a manner adverse to the accused and logically
unconnected with the purpose of its tender. The probative value of the evidence
lies in the purpose for which it was tendered. That
probative value is to be
assessed on the basis of the definition of the term in the Dictionary of the
Evidence Act: “the extent to which the evidence could rationally
affect the assessment of the probability of the existence of a fact in
issue”. Having regard to the word “could”, this is to be done
without seeking to evaluate the reliability or credibility
of the evidence.
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Papakosmas v The
Queen (1999) 196 CLR 297; [1999] HCA 37 considered.
5. The existence of a possible explanation consistent with
innocence does not render the evidence inadmissible. The evidence in
this matter
was not “intractably neutral”. It was open to the jury to find the
discussion was motivated by a concern
that the participants’ involvement
in the crimes charged would be revealed. To the extent the evidence suggested,
or could
be explained by, the mental illness of the applicant and Mr Woods, the
trial judge had regard to this consideration. There was no
error in the trial
judge’s view (at [72]) that while “the jury could be prejudiced
against the accused because of the
suggestion (or reality) of their mental
illnesses, [her Honour does] not regard the risk of that as a significant
one”. In
the context of the trial as a whole, the applicant himself relied
on the existence of mental illness to explain his writings relied
upon by the
Crown as admissions.
Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22; R v Ciantar
(2006) 16 VR 26; [2006] VSCA 263 considered.
6. As to the other matters raised by the applicant, they
were all theoretical possibilities. Evidence of other criminal or discreditable
conduct is regularly put, or sought to be put, before a jury. While at times the
nature of such evidence will be such that its prejudicial
quality outweighs its
probative value, the nature of the evidence in this case was not such that any
prejudice on this basis could
not be addressed with appropriate directions to
the jury. The probative value of the evidence here was not outweighed by the
danger
of the unfair prejudice relied on before the trial judge. None of the
further matters raised by the applicant on this appeal alters
that
conclusion.
7. As to the issue raised by the applicant with respect to
the authenticity of the recordings and his reliance on evidence tendered
in the
Local Court together with the relevant transcript, the issue was known to him
prior to his trial. The evidence is not relevantly
“fresh” evidence.
There was no challenge at trial as to the identity of the participants or the
veracity of the recording,
a matter as to which the applicant, given he was a
participant, was in a position to give instructions. The applicant gave evidence
and did not suggest he had not participated in the conversations attributed to
him. In these circumstances admission of the evidence
is not capable of
establishing a miscarriage of justice in the relevant sense. The evidence sought
to now be relied upon is not admissible
on the appeal.
A1 v R; A2 v R [2016] NSWSC 1288; Mickelberg v The Queen (1989)
167 CLR 259; [1989] HCA 35; R v Abou-Chabake (2004) 149 A Crim R 417;
[2004] NSWCCA 356 considered.
As to ground 10 (being that the trial judge erred by including the
foreperson in the ballot process contrary to s 55(2)(a) [sic] of the Jury
Act)
The Court held (per Ward ACJ at [373]-[389], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]), finding error as contended by ground 10
but applying the proviso and refusing the relief sought:
1. The clear legislative intention as expressed in s 55G of
the Jury Act is that if an expanded jury has chosen one of its members to speak
on behalf of the jury as a whole (as a foreperson) then that person
is not to be
included in the ballot required to determine the constitution of the verdict
jury. Thus, there was an error in the manner
in which the ballot was conducted.
However, the error did not involve such a departure from the requirements of the
trial as to lead
to the conclusion that there was, as a result of the error
without more, a substantial miscarriage of justice.
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31; Tabalbag v R
(2016) 258 A Crim R 240; [2016] NSWCCA 48; R v Brown (2004) 148 A Crim R
268; [2004] NSWCCA 324; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR
937 distinguished.
Crane v Director of Public Prosecutions [1921] 2 AC 299; Katsano v The
Queen (1999) 199 CLR 40; [1999] HCA 50; R v Petroulias (No 32)
[2007] NSWSC 1302 applied.
As to ground 11 (being that the accumulation of errors caused the trial to
miscarry).
The Court held (per Ward ACJ at [392], Rothman J agreeing at [779] and
Dhanji J agreeing at [980]):
1. This ground is in effect an overall miscarriage of
justice ground predicated on the accumulation of asserted errors that have
been
dealt with (and dismissed) in other grounds. Ground 11 takes the matter no
further.
As to ground 12 (being that the trial judge failed to give a fundamental
direction to the jury of the need to separate the evidence
between the two
conflicting hypotheses relied upon by the Crown
The Court held (per Ward ACJ at [411]-[413], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. This ground of appeal relates to the complaints raised as
to the conflicting case theories identified by the applicant (and has
been
considered in relation to various of the other grounds of appeal raised by the
applicant – see grounds 3, 4 and 5). There
was no miscarriage of justice
in relation to the way in which the case was left to the jury in relation to the
two windows of time
within which the murder might be said to have occurred. It
was open to the jury to conclude that the murder occurred within the first
window of time.
2. As to the “conjunction proposition”, error
has not been established arising out of the trial judge not having directed
the
jury to the effect that it must not take into account the text messages when or
before assessing the 5 o’clock case theory.
It does not necessarily follow
from a conclusion that Mr Karmas had left the Wilga Street Property shortly
after he arrived at 1.52pm,
and did not return until at or about 5pm, that the
text messages were sent by Mr Karmas. As the Crown notes, there was evidence as
to the implausibility of those messages having been sent by Mr Karmas even if he
were still alive at that time.
3. A direction of the kind for which the applicant now
contends (concerning the so-called 5 o’clock case theory or conjunction
proposition) was not sought by counsel for the applicant. No miscarriage of
justice has been shown.
As to ground 13 (being that the trial miscarried as the trial judge
wrongly admitted a number of documents).
The Court held (per Ward ACJ at [464]-[473], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. Noting that there is some uncertainty as to whether the
exercise of discretion under s 90 of the Evidence Act is reviewable on
appeal only on the principles stated in House v The Queen or the
appropriate standard of appellate review is the correctness standard, it is
unnecessary to address that question because whichever
standard of review is
applied, the conclusion of the trial judge that the evidence was admissible and
should not be excluded pursuant
to s 90 of the Evidence Act is
correct.
House v The Queen (1936) 55 CLR 499; [1936] HCA 40; MIH v R [2007]
NSWCCA 199; Sulaeman v R [2013] NSWCCA 283; The Queen v Bauer
(2018) 266 CLR 56; [2018] HCA 40; R v Riley [2020] NSWCCA 283
considered.
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46; The Queen v
Swaffield (1998) 192 CLR 159; [1998] HCA 1 applied.
As to ground 14 (being that there has been a miscarriage of justice in the
trial of the applicant on account of the conduct by NSW
Police during the course
of the investigation).
The Court held (per Ward ACJ at [498]-[501], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. The complaints raised by the applicant as to the
investigation into Mr Karmas’ disappearance and allegations of
misconduct
said to give rise to a substantial miscarriage of justice are not
made good.
2. As to the criticisms of the police investigation, they
were in any event were matters of which the jury was well apprised to
take into
account when assessing the evidence.
3. As to the complaints in relation to the execution of
search warrants (and alleged failure to follow standard operating procedures,
dealt with in relation to ground 7), there is a distinction between search
warrants and crime scene warrants; and the absence of
an independent observer or
the failure to film the crime scene warrants does not amount to non-compliance
with a statutory requirement.
4. As to the alleged breach of cl 8 of the LEPR Regulation,
the obligation contained therein is qualified and in any event the applicant
accepts that he was provided with notes of the crime scene warrant executed at
the Wilga Street Property, which included property
seizure forms. The
applicant’s request to be provided receipts by the police officers was
raised during the trial by the applicant’s
counsel for a different
forensic purpose (to explain the applicant’s view of the investigation and
the impact it had upon him
over time).
5. The applicant has no evidentiary basis for the assertion
as to collateral purpose; nor is there any proper evidentiary foundation
for the
allegations of perjury or that evidence was “planted”. (The
complaint made in relation to the response to item
13 of the 28 June 2017
subpoena is addressed in the context of ground 18.)
As to ground 15 (that there has been a miscarriage of justice in the trial
of the applicant on account of NSW Police withholding and
not disclosing
computer data seized from the applicant).
The Court held (per Ward ACJ at [526], Rothman J agreeing at [779] and
Dhanji J agreeing at [980]):
1. It is not established that the documents were not in fact
contained in the prosecution brief (and as such accessible and available
for use
by the applicant in the course of the trial). In any event, even if the legal
research documents were not provided to the
applicant, this does not give rise
to a miscarriage of justice in light of the fact that the applicant was
represented by counsel
at trial (and, as discussed below in consideration of
ground 18, it must be concluded that there was no incompetence by the
applicant’s
counsel or failure to follow the applicant’s
instructions).
As to ground 16 (that the trial judge failed to give a fundamental
direction to the jury that they had to be satisfied of the truth
of the
admissions in the writing evidence beyond a reasonable doubt before being able
to find the accused guilty of the 5 o’clock
theory).
The Court held (per Ward ACJ at [546]-[547], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. The Crown case did not rely solely on the writings made
by the applicant. As the trial judge made clear, there was evidence of
the
applicant’s mental state at the time of the writings that was said to
affect the reliability of those writings and the
jury was cautioned more than
once as to the need to look for corroboration when considering the Crown’s
circumstantial case.
This is not a case where a direction of the kind here
sought was required as a matter of law. Error has not been established arising
out of the trial judge’s directions in relation to the use that could be
made of the applicant’s writings.
Burns v The Queen and R v Green, (Restricted Judgment)
[2021] NSWCCA 227; The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA
36; ARS v R [2011] NSWCCA 266 considered.
2. The fact that counsel did not raise any issue as to such
a direction supports the conclusion that it was not thought that it
was
necessary for the jury’s appreciation of its task that such a direction be
given. No miscarriage has been demonstrated
in this regard and hence leave
pursuant to r 4 of the Criminal Appeal Rules to rely on this ground of appeal
should be refused but if leave were to be granted, this ground of appeal would
not succeed.
Selby v R [2017] NSWCCA 40; Tekely v R [2007] NSWCCA 75
considered.
As to ground 17 (being that the trial miscarried because the trial judge
failed to leave manslaughter to the jury on the basis of
self-defence and
provocation)
The Court held (per Ward ACJ at [577]-[580], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. As to self defence, the evidence of the writings did not
raise a reasonably viable claim for an alternative verdict of manslaughter
on
the basis of excessive self-defence. There was nothing to corroborate the
assertion that Mr Karmas had with him at any time on
11 August 2011 a taser; and
the writings (if true) included a lengthy period of torture that could on no
view have been seen as in
self defence.
2. As to provocation, the writings do not leave reasonably
open a defence of provocation. Accepting the version of facts most favourable
to
the applicant, there is no evidence that the applicant acted in an uncontrolled
emotional state (particularly given that his conduct
on his own account lasted
for several hours and included disarming, punching, tasering and torturing Mr
Karmas) nor that the applicant’s
forming of a murderous intent was induced
by the conduct of Mr Karmas (even if it is accepted that he was carrying a taser
as the
applicant contends). Further, no jury could have been other than
satisfied that an ordinary person would not have formed an intention
to commit
grievous bodily harm or murder, as the applicant did, upon the mere sight of Mr
Karmas carrying a taser (being a weapon).
In the present case the evidence of
the writings upon which the applicant relies is incapable of satisfying the
essential elements
of the partial defence.
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16; Masciantonio v
The Queen [1995] HCA 67; (1995) 183 CLR 58 considered.
As to ground 18 (being ineptitude of Counsel – denial of due
process)
The Court held (per Ward ACJ at [761]-[762], Rothman J agreeing at
[779] and Dhanji J agreeing at [980]):
1. Where incompetence of trial counsel is alleged, the
question is whether what did or did not occur at trial occasioned a miscarriage
of justice. Appellate intervention by an appellate court on such a basis is a
matter about which caution must be exercised. Counsel’s
conduct is to be
examined objectively, from the record of the trial. The relevant standard is
whether the conduct was “incapable
of rational explanation on forensic
grounds”. It is insufficient for an applicant “simply to point to
some failing, even
a gross failing, of the legal representative who
appeared”; rather, what must be demonstrated is that what did or did not
occur
affected the outcome of the trial.
Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9; TKWJ v The
Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v The Queen [2005] HCA
8; (2005) 79 ALJR 662; R v Birks (1990) 19 NSWLR 677; La Rocca v R
[2021] NSWCCA 116; Xie v R [2021] NSWCCA 1; Roach v R 
[2019]
NSWCCA 160 
; Davis v R [2017] NSWCCA 257 considered.
2. None of the matters referred to by the applicant under
this ground of appeal (even if established) amounted to ineptitude or
incompetence of the kind that would give rise to a miscarriage of justice and
warrant the quashing of the convictions and a retrial.
3. As to ground 18A (that Counsel failed to utilise
documents during the cross-examination of material witnesses, depriving the
applicant of the fundamental right to a fair trial), this comprises a series of
complaints (overlapping with complaints made in other
grounds of appeal and
within this same ground of appeal) which go no further than a complaint as to
forensic decisions taken by the
trial counsel as to cross-examination and the
like (and, insofar as the complaint is as to a failure to put to prosecution
witnesses
serious allegations of misconduct or criminal conduct, there is not
established to have been an evidentiary foundation to make such
questioning
proper in any event).
4. As to ground 18B (that Counsel failed to comply with
instructions in relation to the subpoena served on 28 June 2017) this raises
much of the same issues referred to in the previous sub-ground. The complaints
under ground 18B relating to negotiation to narrow
the subpoena again fall
largely within counsel’s discretion (and, in various aspects, are without
foundation).
5. As to ground 18C (that Counsel failed to seek relevant
directions as instructed by applicant), the first and third complaints
under
ground 18C are dealt with in other grounds; and the second (as to Mrs Antonia
Fantakis’ statement) goes nowhere as it
is clear that the trial judge had
that material before her at the time.
6. As to ground 18D (that the applicant’s legal
representatives failed to research information and obtain expert evidence
as to
the Georges River Note (relevant to the applicant’s contention as to the
advice given to him by a spiritual healer);
and that Counsel failed to raise
this issue in chief), it is difficult to see how some unidentified spiritual
healer would have assisted
the applicant but in any event there was ample
evidence (even excluding Ex AA) to make it reasonably open to the jury to find
the
applicant guilty of murder and to exclude any rational explanation
consistent with the hypothesis of his innocence.
JUDGMENT
- WARD
ACJ: On 25 May 2018, following a trial before Wilson J and a jury of twelve,
the applicant (Elefterios Fantakis, known as Terry) was
found guilty on the sole
count with which he was charged – the murder of Elisha (Sam) Karmas, who
was last seen alive on 11
August 2011 and whose body has not since been found.
The Crown case was that Mr Karmas was murdered by the applicant on the afternoon
of 11 August 2011 and that his body was concealed or otherwise disposed of by
the applicant and one of his two co-accused (Andrew
Woods) in the early hours of
12 August 2011. Mr Woods was found guilty on the sole count against him of
accessory after the fact
to murder. The applicant’s second co-accused
(Derek Cheong) was found not guilty on the sole count against him of accessory
after the fact to murder.
- On
8 November 2018, the applicant was sentenced to a term of imprisonment of 24
years commencing on 3 October 2013 with a non-parole
period of 18 years.
The non-parole period expires on 2 October 2031. The aggregate head sentence
expires on 2 October 2037. There
is no application for leave to appeal against
sentence.
- The
applicant here seeks leave to appeal against his conviction on numerous grounds
(seventeen in his initial notice of appeal and
a further eighteenth ground
raised at the hearing of the appeal). Leave to appeal is required pursuant to s
5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal
Act) as the grounds of appeal (as framed) are not confined to a question of
law. In relation to some of the grounds (6(1)-(5); 12 and
16), leave is required
pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
(Criminal Appeal Rules) in circumstances where the direction which it
is now contended ought to have been given was not sought by defence counsel who
appeared
for the applicant at trial.
- The
applicant was represented on the present application by Senior and Junior
Counsel in relation to grounds 1 and 2; but represented
himself (via
audio-visual link) in respect of the remaining grounds of appeal.
- The
Court received a large volume of material on the appeal which was relied upon by
the applicant: submissions dated 30 April 2021
from his Counsel in relation to
grounds 1 and 2; submissions dated 3 May 2021 by the applicant in relation to
grounds 3-11; amended
submissions dated 9 August 2021 by the applicant in
relation to grounds 12-15; a second set of amended submissions dated 1 September
2021 by the applicant in relation to grounds 16 and 17; undated fresh evidence
submissions from the applicant; and a lengthy document
headed “Paragraphs
18(b) and (c): Cases & Outline to each Ground of Appeal” served with a
cover letter dated 27 September
2021.
- The
applicant also relies on an affidavit sworn by him on 1 September 2021,
including some annexures which the Crown maintains are
not admissible as
“fresh evidence” (Annexures A-P and R) (as to which see below at [153]- [158]). Following judgment
being reserved the applicant has continued to forward to the Court
correspondence relating to transcript of
the trial which he maintains is of
relevance; and the Court has received communications on behalf of Mr Fantakis
from his co-accused,
Mr Woods.
- The
Crown case was circumstantial (and the applicant here argues that there was very
little scientific evidence to support the Crown
case – the exception to
this being evidence of Mr Karmas’ DNA on the inside of one of the doors to
the applicant’s
van and that sample testing presumptively for blood). In
closing submissions at the trial, defence counsel then appearing for the
applicant identified the central issues in relation to the charge against the
applicant as being whether the Crown had established
beyond reasonable doubt
that Mr Karmas was dead and, if so, whether Mr Karmas’ death was
occasioned by an act of the applicant.
- The
Crown, in addition to reliance on certain writings and recordings which were
admitted into evidence as admissions by the applicant,
relied upon evidence of
motive as well as behaviour following the offence said to show a consciousness
of guilt. The applicant says
that the evidence of motive was critically
important and that the Crown emphasised in closing that it was the
applicant’s belief
that Mr Karmas had killed the applicant’s brother
(Nicholas Fantakis) which motivated the applicant to murder Mr Karmas (see
at
T 2430.25-30). The applicant maintains that the writings on which the Crown
relied in this regard were made when he was psychotic
and are unreliable.
- In
summing up to the jury, the trial judge put the Crown case to the jury as
follows (at SU 66-67):
The Crown says that Mr Fantakis had, in the period between late May and early
August 2011, become convinced that Maria Angeles and
Sam Karmas had murdered
Nicholas Fantakis, and possibly posed a threat to Mr Fantakis and his mother,
and under the sway of that
delusion, he threated to kill Mr Karmas and then
did so.
and, at SU 79, her Honour said:
The Crown’s case [is] that he [Mr Fantakis] [was] in a state of mind which
left him out of touch with reality. Mr Fantakis
came to hold the belief that
Mr Karmas, acting in league with Maria Angeles, had murdered his brother,
in May 2011.
Grounds of Appeal
- The
grounds on which the applicant seeks leave to appeal against his conviction are
as follows:
1. The trial miscarried because the trial judge failed to leave
the defence of mental illness to the jury.
2. The trial miscarried because the trial judge failed to leave
manslaughter to the jury on the basis of the defence of substantial
impairment.
3. The verdict of the jury was unreasonable and cannot be
supported having regard to the evidence and therefore was unsafe and
unsatisfactory.
4. The Crown did split/shift its case depriving the applicant
of a fair trial, causing the trial to miscarry.
5. Miscarriage of justice did occur by her Honour leaving to
the jury a possible basis of conviction which had not been relied
upon by the
Crown and Mr Price. [This is the so-called “5 o’clock
theory”]
6. Her Honour failed to give adequate directions during the
summing up occasioning a miscarriage of justice.
7. Non-Disclosure of documents resulting in a miscarriage of
justice.
8. Her Honour did error in law by denying production of
documents in relation to a subpoena filed by the defence on 16 March 2018.
9. Her Honour wrongly admitted Listening Device evidence,
Exhibits CS & CX on the grounds of consciousness of guilt.
10. Her Honour did error [sic] in law by including the
foreperson in the ballot process, in contravention to Section 55(2)(a) [sic]
of
the Jury Act.
11. The accumulation of errors caused the trial to miscarry.
12. Her Honour failed to give a fundamental direction to the
jury of the need to separate the evidence between the two conflicting
hypotheses
relied upon by the Crown (amended ground).
13. The trial miscarried as her Honour wrongly admitted a
number of documents including:
(a) A document seized from the applicant’s vehicle,
namely Ex AA: “Georges River Note”; and
(b) The writing & video evidence seized from the
applicant’s home (new ground).
14. There has been a miscarriage of justice in the trial of the
applicant on account of the conduct by NSW Police during the course
of the
investigation (new amended ground).
15. There has been a miscarriage of justice in the trial of the
applicant on account of NSW Police withholding and not disclosing
computer data
seized from the applicant (new ground).
16. Her Honour failed to give a fundamental direction to the
jury that they had to be satisfied of the truth of the admissions
in the writing
evidence beyond a reasonable doubt before being able to find the accused guilty
of the 5 o’clock theory.
17. The trial miscarried because the trial judge failed to
leave manslaughter to the jury on the basis of self-defence and provocation.
18. There has been a miscarriage of justice within in the
meaning of the Criminal Appeal Act 1912, s 6 because of ineptitude of trial
counsel, including:
(a) Counsel failed to utilise documents during the cross
examination of material witnesses; depriving the appellant his fundamental
right
to a fair trial. The documents included:
(i) Documents produced from a subpoena served on the
Commissioner of Police on 3 August 2015;
(ii) Supreme Court transcripts for a bail application heard on
18 August 2016, including the submissions filed by the appellant;
(iii) Emails/faxes sent to detectives during the homicide
investigation identifying the intent by this strike force (Flaggy) to
withhold
receipts of exhibits seized for an improper purpose; and
(iv) Documents attached to subpoenas served on Commissioner of
Police on 12 October 2015 and on 28 June 2017, including the
appellant’s
instructions.
(b) Counsel failed to comply with instructions to press for the
production of documents sought in the subpoena served on Commissioner
of Police
on 28 June 2017 or to make further enquiries.
(c) Counsel failed to seek relevant directions as instructed by
appellant, including:
(i) Counsel failed to follow written instructions and seek that
her Honour directs the jury on the conflict in evidence between
the two case
theories as they are not alternate case theories.
(ii) Counsel failed to tender the statement made by
Ms Antonia Fantakis during the argument to exclude the 5 o’clock
theory
from the jury’s consideration.
(iii) Counsel failed to follow written instructions in relation
to the jury ballot argument.
(d) Legal representatives failed to follow instructions to
research information with regards to exhibit AA (Georges River Note)
to
corroborate the appellant’s defence that this note was part of an
instruction attached to a spiritual healing incantation.
Evidence at trial
- It
is necessary (particularly in light of the unreasonable verdict ground of appeal
– ground 3) to summarise in some detail
the evidence adduced at the
trial.
Background
- Mr
and Mrs Karmas had lived in a house at 32 Warwick Street, Punchbowl since a few
months after their marriage in December 1985. As
at the date of Mr Karmas’
disappearance (11 August 2011), Mr and Mrs Karmas lived there with their two
children, Rebecca and
Sarah.
- At
34 Warwick Street, Punchbowl, there was a property which was owned and occupied
by members of the Fantakis family. The Fantakis
property was redeveloped in
about 2006 into two duplexes (34A and 34B Warwick Street), one of which (34A)
was sold but the other
(34B) (which will be referred to in these reasons as the
Warwick Street Duplex) was jointly owned by the applicant and his now deceased
identical twin brother, Nicholas Fantakis.
- In
late 2007, Nicholas Fantakis commenced a relationship with Maria Angeles and,
from about March or April 2008 until some time in
early to mid 2011, the couple
lived together at the Warwick Street Duplex. Nicholas Fantakis ceased living at
that address some
time before 27 May 2011. Ms Angeles continued living there
until 23 June 2011.
- The
applicant’s mother, Antonia Fantakis, lived in a property at Wilga Street,
Punchbowl (which will be referred to in these
reasons as the Wilga Street
Property) (this being the place at which the Crown contended that Mr Karmas was
murdered by the applicant).
When Nicholas Fantakis left the Warwick Street
Duplex, he moved in with his mother at the Wilga Street
Property.
Property dispute between Nicholas Fantakis and Ms
Angeles
- By
early May 2011, following the breakdown of the relationship between Nicholas
Fantakis and Ms Angeles, there was a dispute between
them as to whether Ms
Angeles was entitled to continue to reside at the Warwick Street Duplex and as
to debts allegedly owed by Nicholas
Fantakis to Ms Angeles because of
investments she had made in their failed automotive business. Each retained a
lawyer and correspondence
was exchanged between the lawyers on about 11 May 2011
in relation to the dispute.
Death of Nicholas Fantakis
- On
27 May 2011, Nicholas Fantakis committed suicide by hanging himself in a room at
the Wilga Street Property. As will be noted in
due course, the applicant did not
accept that his brother had committed suicide and formed the firm belief that
his brother had been
murdered (and that Mr Karmas was involved in, or the
leader of, a group of people that had murdered him).
- Senior
Constable Nathan Simpson, who gave evidence at the trial, attended the scene of
Nicholas Fantakis’ death on 27 May 2011
and prepared a report to the
Coroner in relation to it. Senior Constable Simpson gave evidence that he was
approached by the applicant
in the weeks after the death and that the applicant
appeared to him to find it hard to accept that his brother had taken his own
life.
Funeral for Nicholas Fantakis
- After
Nicholas Fantakis’ death on 27 May 2011, there was a dispute between the
applicant and Ms Angeles both as to the distribution
of Nicholas Fantakis’
estate and as to the arrangements regarding his funeral and burial. The dispute
was such that Ms Angeles
arranged to have a bodyguard accompany her to Nicholas
Fantakis’ funeral. It was not in dispute at the trial that Mr Karmas
became involved to some extent as a mediator or intermediary between the
applicant and Ms Angeles. (It was the Crown case that the
applicant came to
resent Mr Karmas’ involvement in his dispute with
Ms Angeles.)
Incident on 8 June 2011 at the Warwick Street
Duplex
- A
number of witnesses gave evidence at the trial in relation to an incident on
8 June 2011 when the applicant and some other persons
were observed by Mr
Karmas to have entered the Warwick Street Duplex and removed numerous items of
property (said to belong to Nicholas
Fantakis). Ms Angeles reported the
incident to the police and informed police that Mr Karmas had witnessed it.
Senior Constable Southall,
who gave evidence at the trial, responded to that
report.
- Senior
Constable Southall gave evidence that she spoke to Mr Karmas and that he
identified the applicant as having been responsible
for the intrusion; and that,
after speaking to the applicant by phone in her presence, Mr Karmas provided the
applicant’s mobile
number to her. No charges were laid in relation to the
incident. The police formed the view, after making further enquiries with
both
Ms Angeles and the applicant, that it was a civil matter. (It was the Crown
case that this incident was the source of some
animus by the applicant towards
Mr Karmas.)
- One
of those present on 8 June 2011 was Ms Amara Mantas, the then teen-aged daughter
of Ms Patricia Mantas (the applicant’s
then partner). Ms Amara
Mantas gave evidence in the trial and, in the course of cross-examination by the
Crown Prosecutor (with
leave), Ms Amara Mantas agreed that she had told police
that she recalled the applicant being angry that Mr Karmas was there and
that, after Mr Karmas left, the applicant said to her “I don’t
really like him” and “He’s just over
here snooping”. Ms
Amara Mantas agreed in her oral evidence that in telling that to the police she
had told the truth. The
applicant admitted in evidence that he had referred to
Mr Karmas being “nosy” but said that he did not recall having
said
that he did not like Mr Karmas.
Evidence of threats made by
applicant towards Mr Karmas
- There
was evidence at the trial about threats having been made by the applicant
towards Mr Karmas.
- Mr
Karmas’ brother (Mr George Karmas) gave evidence that, some time after the
funeral of Nicholas Fantakis, Mr Karmas spoke
to him about property having been
removed from the Warwick Street Duplex and that Mr Karmas said to him that he
had told the police
about it. Mr George Karmas gave evidence that, some time
later, Mr Karmas told him that the applicant had come to his front door
and said
“I will bury you alive if you say anything more to the police”; to
stay out of it; and that he (Sam) would regret
what he did. Mr George
Karmas said that he asked his brother Sam to organise a meeting between himself
and the applicant; and that,
a week or two later, he spoke to the applicant
outside the Warwick Street Duplex in the presence of both Mr Karmas and Mr
Cheong.
Mr George Karmas’ evidence was that he asked the applicant whether
he had threatened to kill his brother (i.e., Sam) because
he had cooperated with
police; and that the applicant did not reply and turned around and walked back
into the property. Mr George
Karmas said that, after they had left, Mr Karmas
told him (George) that he felt sorry for the applicant, who had a “lot on
his plate”.
- Mr
George Karmas gave evidence that he told police about the threat after
Mr Karmas’ disappearance when he (George) was at the
Karmas house on
12 August 2011; and Mr George Karmas confirmed that a statement, which he had
prepared at the Karmas house and faxed
to police on 12 August 2011, included the
details of the threat that Mr Karmas had reported to him.
- Another
witness, Mr Khaled Charawani, a close friend of Mr Karmas, gave evidence that he
and Mr Karmas would go for walks together
during which they would talk; and that
Mr Karmas told him that his neighbour’s son had committed suicide and
about a family
dispute that had arisen. Mr Charawani gave evidence that, about a
couple of weeks before Mr Karmas’ disappearance, as they
were walking
along a particular stretch of Salt Pan Creek, Mr Karmas told Mr Charawani that
the twin brother of the neighbour who
had died (i.e., the applicant) had
threatened “to knock me off”; and that, when Mr Charawani asked Mr
Karmas what he
meant, Mr Karmas said “He threatened to kill me”. Mr
Charawani gave evidence that Mr Karmas told him that the threat
was delivered in
the course of Mr Karmas acting as a “go-between” between the twin
brother (i.e., the applicant) and
the girlfriend of the deceased (i.e.,
Ms Angeles).
- There
was also evidence from Mr Karmas’ sister (Mary Dunsmore) that
Mr Karmas had visited her home a few days before his disappearance
and
appeared “worried”; and that when she asked him if everything was
all right, Mr Karmas mentioned Terry (the applicant)
and his brother and,
grabbing his forehead, said “It’s all a big headache”. Mr
Glenn Dunsmore (Mary Dunsmore’s
husband) gave evidence that he understood
from Mr Karmas that the applicant had taken offence to Mr Karmas’
involvement in
the dispute between Ms Angeles and the Fantakis
family.
Text messages
- The
Crown relied on the following two text messages that were recovered from the SMS
inbox of one of two mobile phones found in the
kitchen of the applicant’s
home at the Wilga Street Property, as demonstrating (together with other
evidence – see below)
that the applicant had the belief (before
Mr Karmas’ disappearance) that Mr Karmas was involved in his
brother’s death:
26.6.11 It’s 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!
8.7.11 Stop doing work at zorba’s and I’ll be there
whenever you want. If we’re going to do this thing for nick
then i
don’t want you doing anything else just as i can’t.
- It
was the Crown case that the messages concerned the applicant’s belief that
Mr Karmas was involved in his brother’s
death.
- The
applicant admitted in evidence that he received each of those messages but he
denied that they related to Mr Karmas. The applicant
said that the first related
to Ms Angeles and her solicitor, David Leamey; and that the second was connected
to the fact that his
brother had been engaged in the cultivation of cannabis at
the Wilga Street Property and a property at Peats Ridge.
- The
Crown points out that the applicant’s evidence at trial as to the receipt
of those messages was inconsistent with the applicant’s
earlier denial
that the phone used to receive the messages was his telephone. In particular,
the Crown notes that, in the video
of the execution of a search warrant at the
Wilga Street Property on 14 August 2011, the applicant tells the police that:
the phone
was not his; he had no idea who it belonged to; and it may have
belonged to a labourer or been left at the house by his
brother.
Request for inquest into Nicholas Fantakis’
death
- Senior
Constable Simpson (who as noted above had attended the scene of Nicholas
Fantakis’ death on 27 May 2011 and had prepared
a report to the Coroner)
gave evidence that some time prior to 2 August 2011 the applicant informed him
that he and his mother wanted
an inquest to be held into the death of Nicholas
Fantakis. Senior Constable Simpson completed paperwork in connection with that
request
in which he recorded, inter alia, that the applicant and his
mother did not believe that Nicholas would commit suicide at his mother’s
unit and that the applicant
was not satisfied that Nicholas tied the rope
because of the particular knot that was used (see Ex 6F). (See also the
applicant’s
later document entitled “Complaint to the
Coroner”, dated 28 March 2012 (Ex 17F).)
11 August
2011 – disappearance of Mr Karmas
- The
Crown relied on the circumstances in which Mr Karmas left his family home on 11
August 2011 (see below) as suggesting that, when
he left, he was not intending
to go far; as well as Mr Karmas’ uncharacteristic failure to honour social
and work commitments
he had made for later the same day and the following day,
as demonstrating that something happened to him on 11 August 2011 that
prevented him from honouring those commitments.
- It
is important to put into context the timeline of events on that
day.
Morning of 11 August 2011
• Evidence of Mrs Karmas
- Mrs
Jenny Karmas last saw her husband at about 8.15am on 11 August 2011 when she
left for work. Mrs Karmas gave evidence that Mr
Karmas had been doing work for
Mr Peter Ikonomou (a long standing friend of Mr Karmas and also his dentist) in
Ashbury earlier that
week and that Mr Karmas told her that he was not going to
work at Peter’s that day because he had to order some materials.
Mrs
Karmas kissed him goodbye; and gave evidence that he said “Have a lovely
day, darling”. Mrs Karmas gave evidence
that her husband appeared to be
fine.
• Evidence of Ms Rebecca Karmas
- Ms
Rebecca Karmas, one of the couple’s two daughters, gave evidence that, on
the morning of 11 August 2011, Mr Karmas seemed
fine and she recalled him being
“almost jovial, making a bit of a joke” as she left for
work.
• Evidence of Ms Sarah Karmas
- The
other of the couple’s two daughters (Ms Sarah Karmas) gave evidence that
she saw Mr Karmas in the kitchen at their Warwick
Street home some time after
8.30am. Ms Sarah Karmas gave evidence that she had breakfast and returned to her
bedroom to study; and
that, as she studied, she saw her father come and go from
the front door, doing gardening; and that, later in the morning, she saw
him in
the backyard working on his ute, putting tools away.
•
Evidence of Mr George Karmas
- Mr
George Karmas (Sam’s brother) gave evidence that Mr Karmas called him on
the morning of 11 August 2011 and invited him for
breakfast. Mr George Karmas
said that he agreed to attend but that he received call from a Dr Girgis
about a personal matter which
caused him to have to go to Town Hall in the city.
Mr George Karmas said that he spoke to Mr Karmas again as he was on the train
travelling into the city; and that he told Mr Karmas that he would see him
between 2 and 4pm. Mr George Karmas ultimately got caught
up in different
meetings and did not end up meeting Mr Karmas. Mr George Karmas’ evidence
is that he did not leave the city
until about 4pm, when he returned to Bankstown
to collect his car before driving to Ultimo. While he was in Bankstown, Mr
George
Karmas collected two women who accompanied him to a meeting in Ultimo.
Mr George Karmas gave evidence that, because he was pressed
to go to Ultimo, his
arrangement with Mr Karmas slipped his mind (something he described as
“the worst tragedy that I ever
did”). (Interposing here, on the
Crown’s primary case, Mr Karmas was already dead by 4pm on 11 August
2011.)
Around midday on 11 August 2011
- Ms
Josephine Chahine (a neighbour) gave evidence that Mr Karmas knocked on her door
(at 30 Warwick Street) some time before 12pm on
11 August 2011; that they had a
short conversation about when her husband was due to return from overseas; and
that Mr Karmas appeared
normal. The exchange between Ms Chahine and Mr Karmas
was witnessed by Mr Neil Jones who recalled it as having taken place at about
11am.
- At
12.03pm, Mr Karmas called the mobile phone of the applicant. The applicant later
told police that Mr Karmas told him that he had
noticed him working across the
road and offered to lend a hand. The timing of this call is confirmed by
telephone records (see Ex
J). (Between the time of that call and 1.31pm, there
were seven telephone calls and two text messages between the applicant and his
co-accused, Mr Woods.)
- Mr
Charawani (as noted above, a close friend of Mr Karmas) gave evidence that Mr
Karmas called him at about 12.05pm on 11 August 2011
and said that he was going
to go for a quick walk. They arranged to meet later that afternoon to go for a
walk. Exhibit J shows that
a call was made from the Karmas landline to Mr
Charawani’s mobile phone at 12.05pm. Mr Charawani’s evidence
is that
he had to get a blood test and go to the shops, and that he returned
home after completing those errands “probably midday or
after
midday” but that Mr Karmas did not come around later as arranged.
- Ms
Sarah Karmas gave evidence that, at about 1pm on 11 August 2011, she went into
the kitchen to have lunch; that Mr Karmas was there,
making a sandwich, and that
he appeared normal. Ms Sarah Karmas gave evidence that they had a conversation
about a date; and that,
after lunch, she returned to her bedroom to continue
studying and get ready for work. The last time Ms Sarah Karmas saw her
father
was when they finished having lunch together at about
1.20pm.
Sighting of Mr Karmas by Ms Nafla Rifai
- Mr
Charawani’s mother, Ms Nafla Rifai, who was unavailable to give evidence
at the trial, made a police statement, dated 14
August 2011, which was read by
consent at the trial. Ms Rifai was 73 years old at the time she made her
statement and lived at 23-25
Warwick Street. Ms Rifai said in her police
statement that:
...The last time I saw Sam was on Thursday 11 August 2011 around 2 to 3pm. At
the time I was standing at the door of my back yard
which is on the side of my
house on Lancaster Avenue...
On this afternoon I was looking down the street towards Sam’s house and I
could see Sam standing out the front of a new two-storey
house on Lancaster
Avenue just across the road from Sam’s house. At the time Sam was standing
with two to three other men out
the front of this two-storey house. The other
men were about Sam’s height, but I cannot remember anything they were
wearing.
They looked to be of Mediterranean background similar to Sam.
Out the front of the two-storey house is a bus stop with a bench. Sam and the
men were standing on the furthest side of the bench
travelling down Lancaster
Avenue away from me. I could see Sam and the men were talking to each other. The
men appeared to be wearing
normal clothes. I cannot remember exactly, but I
think they were wearing casual clothes. I cannot remember if any cars were
parked
out the front of the two-storey house when I saw Sam.
The house I saw Sam out the front of is where a young boy lived with his Asian
girlfriend. I did not know either of them, but I do
know the boy’s mother,
Antonia. The young boy recently hung himself, about two or three months ago, at
his mother’s house
located in a different street...
- The
house there described by Ms Rifai must be the Warwick Street Duplex (where
Nicholas Fantakis had lived with Ms Angeles prior to
his suicide at the Wilga
Street Property).
- Detective
Senior Constable Nolan gave evidence at the trial that she spoke to Ms Rifai in
Arabic on the afternoon of 14 August 2011;
and that Ms Rifai told her that she
last saw Mr Karmas on the day he went missing and that he was standing outside
the new townhouse.
Detective Senior Constable Nolan’s evidence was that
Ms Rifai said that “He was surrounded by other men, even though
it’s
far away from here I could still tell it was Sam standing there, I know Sam, we
are like family”. Detective Senior
Constable Nolan gave evidence that she
asked Ms Rifai to describe the other men with Mr Karmas but that she did not
recall that Ms
Rifai gave her a specific description of them. Detective
Sergeant McGee gave evidence that the distance at which Ms Rifai made those
observations was between approximately 50 to 60 metres (see T 2274.34-40).
- CCTV
footage taken outside the Jus Tiles store (at the corner of Wilga Street and
Punchbowl Road) at 2.12pm (Ex 20F) showed three
males. However, when it was
suggested to the officer in charge, Detective Sergeant McGee (who at the time of
the investigation was
a detective senior constable attached to the homicide
squad), that Ms Rifai’s observation of two to three males with Mr Karmas
who “looked to be of Mediterranean background” might have some
connection to the three males shown in the CCTV footage,
Detective Sergeant
McGee gave evidence that the males were identified as the proprietor of the
store (Jack Nassif) and two customers.
- It
was the Crown case that Ms Rifai’s evidence was not inconsistent with
Mr Karmas having been engaged in conversation outside
the Warwick Street
Duplex with the applicant and Mr Cheong prior to them leaving to go to the Wilga
Street Property (the Crown noting
the distance at which the observations were
made). The applicant disputes this.
Around 2pm – Mr Karmas
travels to the Wilga Street Property in the applicant’s van
- It
was not disputed that, shortly before 2pm on 11 August 2011, Mr Karmas travelled
with the applicant and Mr Cheong in the applicant’s
blue Ford transit van
from the Warwick Street Duplex to the Wilga Street Property. (Pausing here,
this would be consistent with
Ms Rifai having observed Mr Karmas with the
applicant and Mr Cheong slightly earlier than the earliest of the range that she
had
estimated but not, of course, consistent with the recollection that the men
were of Mediterranean appearance.)
- The
CCTV footage obtained from outside Jus Tiles showed the applicant’s blue
Ford Transit van turn left onto Wilga Street from
Punchbowl Road at 1.52pm on 11
August 2011. Other than Ms Rifai’s account that she saw Mr Karmas
outside the Warwick Street
Duplex between 2 and 3pm on 11 August 2011,
there was no further sighting of Mr Karmas after he went to the Wilga Street
Property
in the applicant’s blue van with the applicant and
Mr Cheong.
Telephone records
- Telephone
records showed that there was no phone activity recorded for mobile phone
services used by the applicant between 1.33pm
and 3.21pm on 11 August 2011;
and that calls to the applicant’s phone at 1.43pm, 1.44pm, 2.14pm and
2.40pm on that day were
unanswered (see T 2103.43-2104.9; see also Ex J). There
was also nil phone activity recorded for mobile phone services used by Mr
Woods
between 1.33pm and 3.30pm on 11 August 2011 (see Ex J).
- There
was nil phone activity recorded for the mobile phone and landline of
Mr Karmas over the same period (see Ex J). As noted above,
calls were
placed from the Karmas landline to the applicant and Mr Charawani at 12.03pm and
12.05pm, respectively. No further activity
is recorded for those services until
3.57pm when the mobile phone of Mr Karmas was used to send the first of four
text messages to
Ms Angeles (see below).
- As
to the possibility that Mr Karmas left the Wilga Street Property on foot some
time after he arrived at or about 1.52pm on 11 August
2011 (as the applicant
contended and as Mr Cheong told police), Detective Sergeant McGee gave evidence
that she had reviewed the
CCTV from Jus Tiles between 11 August 2011 and 13
August 2011 and that Mr Karmas was not seen on the footage (see T
2274.14-22).
Around 3pm on 11 August 2011
- The
applicant’s blue Ford transit van was recorded on CCTV footage travelling
at 3.09pm in the opposite direction (to that in
which it had been travelling at
around 2pm) down Wilga Street towards Punchbowl Road. The vehicle turned left
into Wilga Street from
Punchbowl Road at 3.25pm (see Ex CO).
- Two
witnesses, Robert Najdanovic and Kerrie Horton, each gave evidence that Mr
Cheong returned home at about 3.30pm or 4pm that day
(see T 376.21; T
389.36).
- Meanwhile,
at 3.15pm, Ms Sarah Karmas left for work. Her evidence is that she was running
late and left via the back door and back
gate. Ms Sarah Karmas did not see her
father but assumed he was home because the radio was on, his ute was parked at
an angle with
the toolboxes open and the shed was open. Ms Karmas gave evidence
that she yelled out “See you later, I am going to
work”.
Text messages from Mr Karmas’ phone between
3.57pm and 5.26pm
- Four
text messages were sent between 3.57pm and 5.26pm from Mr Karmas’ mobile
phone to Ms Angeles’ mobile phone (see Ex
J; see also the evidence of
Sergeant Dennett who compiled Ex J at T 1028.9-1029.12):
3:57:45pm looks like we have been found out. We need to talk ,
ill let you know when im almost there
4:54:43pm Im near your old workplace where are you?
4:58:15pm Im here waiting
5:26:16pm I cant wait any longer i have to go see someone about
our situation. Ill fill you in later
- Just
after the first of those messages, at 4.05pm, a message was sent from Mr
Karmas’ mobile phone to that of the applicant.
The applicant told police
that the message was that Mr Karmas could not come back and that he would catch
up with him (the applicant)
tomorrow (see Ex J).
- Enquiries
made by the police on 13 August 2011 with Vodafone in relation to the last cell
location of Mr Karmas’ mobile number
(including a request for
triangulation, i.e., the location of the phone when it was last connected to the
mobile network) disclosed
that Mr Karmas’ mobile phone was last connected
to the mobile network at 5.26pm on 11 August 2011; and that, at that time,
the
mobile phone connected to the network via a cell tower in Wentworthville. (A
map setting out the dominant coverage area of that
cell tower was part of
Ex BQ at pages 43-44.) A Vodafone engineer, Rupinder Mahli, gave evidence
that it was “highly likely”
that a call made from within the
dominant coverage area of a particular cell tower would go to that cell tower
(see T 1536.47).
- It
was the Crown case that the four messages sent to Ms Angeles’ phone and
the message sent to the applicant at 4.05pm were
not sent by Mr Karmas; rather
that they were sent by Mr Woods on the instructions of the applicant. In support
of that contention,
the Crown relied on the following matters.
- First,
the evidence of Mrs Karmas and Mr George Karmas that the content of the messages
was inconsistent with how Mr Karmas sent messages,
namely that he preferred to
call rather than send text messages because he was not good with technology and
tended to abbreviate
because he typed with only one finger (see, for example, T
153.8-15; T 344.22-29). Second, the evidence that it would have been very
difficult for Mr Karmas to have read and sent the messages without his glasses
(which the evidence suggested that he did not have
with him – since one
pair of his prescription glasses was found at the Karmas home and another pair
was found in the glovebox
of the applicant’s blue Transit van). Third, the
unchallenged evidence of Ms Angeles that the last time she saw or spoke to
Mr
Karmas was on 23 June 2011, the day she moved out of the Warwick Street Duplex
(T 444.14).
- The
fourth matter relied on by the Crown in this context was the location of
Mr Karmas’ phone when it was last connected to
the network at 5.26pm
(the Wentworthville cell), that being consistent with the actual sender of the
message operating under a mistaken
belief that Ms Angeles worked or had worked
at Westmead Hospital. The applicant acknowledged in evidence that, as at 11
August 2011,
he held such a belief and had referred to it in Ex CJ
(p 4).
- Fifth,
that the content of the first text message appeared to suggest that
Mr Karmas and Ms Angeles were engaged in an affair –
a proposition
rejected as fanciful by all other relevant witnesses and denied by Ms Angeles
but which accords with the suggestion
made by the applicant when interviewed by
police on 13 August 2011 (namely, that “maybe he’s found a little
floozy”)
and with similar comments in other conversations and documents
tendered in the trial (see Ex AX at 471-472; see also Ex CS at p 32).
- Finally,
the conversation recorded on a listening device between the applicant and Mr
Woods on 26 November 2011 (referred to below)
in which the applicant said to Mr
Woods that “he” (in context clearly a reference to Mr Karmas)
“was fucking Maria”
and that, when Mr Woods asked whether that had
come out yet, the applicant said that it would because “the phone does
magic
things” (see Ex CS at pp 24-25). The Crown contended that those
admissions demonstrated an awareness by the applicant of the
content of the text
messages to Ms Angeles, consistent with them having been sent with the
applicant’s knowledge and at his
behest.
Mrs Karmas and
Rebecca Karmas return home about 5.30pm
- Mrs
Karmas and Ms Rebecca Karmas each arrived home from work at about 5.30pm on 11
August 2011. Each gave evidence that, when she
entered the house, she noticed
that the radio was on, that Mr Karmas’ ute was parked across the driveway
(not in its usual
position) and that the toolboxes affixed to the back of his
ute were open (see T 141.34-43). The back door of the house was closed
but
unlocked and the kitchen windows were open. Various witnesses (including Mrs
Karmas – see T 141.49) gave evidence that
Mr Karmas was meticulous
with his tools and would not leave the toolboxes open if he had left the
property (which the Crown relied
on as demonstrating that Mr Karmas had not
intended to go far).
- Mrs
Karmas opened the door to the backyard and called out to her husband, believing
him to be at home. When Mrs Karmas later realised
that Mr Karmas was not in the
backyard, she thought that he may have gone to visit a neighbour (see T
142.10-20). Mrs Karmas gave
evidence that she noticed that her husband’s
wallet was sitting on the kitchen bench (see Ex C and Ex BA), and next to
Mr Karmas’
wallet was a glasses case with a pair of his prescription
glasses inside. A further pair of glasses belonging to Mr Karmas was located
in
the glove box of the applicant’s blue Ford transit van (as noted
above).
- Later
that night, Mrs Karmas found Mr Karmas’ keys on one of his toolboxes and
noticed that the shed door had also been left
wide open. Mrs Karmas’
evidence was that those keys were the only set of keys that Mr Karmas had, and
included keys for the
house, his ute and the toolboxes. Mrs Karmas tried
unsuccessfully to call her husband’s mobile throughout the night (see T
146.8-28).
12 August 2011
- When
Mr Karmas still had not returned home the following morning, Mrs Karmas
called Mr Karmas’ sister (Mary Dunsmore) at about
6.30am and also Mr
Karmas’ brother (Mr George Karmas). Mrs Karmas then went to all of their
neighbours and asked whether anyone
had heard from Sam; and she called a number
of contacts that she found in Mr Karmas’ diary. Mrs Karmas notified
police that
her husband was missing shortly thereafter (see
T 146.47-148.44).
- At
about 9am on 12 August 2011, Mrs Karmas called the applicant by phone and asked
him whether he had seen Mr Karmas. Mrs Karmas’
evidence was that the
applicant told her that Mr Karmas had been there (i.e., at the Warwick Street
Duplex) on the 11th, helping
to move some furniture and fix the locks. Mrs
Karmas’ evidence is that the applicant told her that at about 2.30pm
Mr Karmas
told him (the applicant) that he (Mr Karmas) had to go somewhere;
that the applicant offered Mr Karmas a lift, which Mr Karmas had
declined;
and that Mr Karmas left on foot from the Warwick Street Duplex. (It should be
noted that the account that Mrs Karmas said
the applicant gave her is
inconsistent with the undisputed evidence at trial that Mr Karmas had
travelled with the applicant and
Mr Cheong to the Wilga Street Property shortly
before 2pm – see below.) Mrs Karmas’ evidence was that the applicant
told
her that he had received a message from Mr Karmas at 4.05pm saying that he
was unable to come back and that he had something to do
or somewhere to be (see
T 148.11-37).
- Mrs
Karmas’ evidence was that she spoke to the applicant again about
20 minutes later in the company of Mary and Glenn Dunsmore
when the
applicant pulled up across the road at the Warwick Street Duplex.
Mrs Karmas’ evidence was that the applicant told
her that Mr Karmas
had left his tools behind (at the Warwick Street Duplex) and offered to return
them to her; that as Mr Cheong
went to get the tools, Mrs Karmas asked the
applicant if he saw which way Mr Karmas went when he left (“this way
or this way”,
indicating with her hands); and that the applicant replied
“Oh, I didn’t see which way he went, I was inside” (see
T
149.2-150.3). Mrs Karmas’ evidence in relation to that conversation with
the applicant was supported by that of Mary Dunsmore.
- As
noted above, it was not in dispute at trial that, shortly before 2pm on
11 August 2011, Mr Karmas travelled with the applicant
and Mr Cheong from
the Warwick Street Duplex to the Wilga Street Property in the applicant’s
blue Ford transit van. It was
the Crown case that the applicant’s
statements to Mrs Karmas, first by phone and later in person, that Mr
Karmas had left on
foot from the Warwick Street Duplex were lies told out of a
consciousness of his own guilt.
Mr Ikonomou’s
evidence
- Peter
Ikonomou had known Mr Karmas for 20 years and was both his friend and dentist.
Mr Ikonomou gave evidence that Mr Karmas had
worked at his house from Monday, 8
August 2011 until Wednesday, 10 August 2011; and that Mr Karmas told him that he
would return
to continue the work on Friday, 12 August 2011 if the materials he
had ordered were ready (see T 556.4-36).
- The
Crown notes that the evidence of Mr Ikonomou and Mrs Karmas that Mr Karmas
had worked at Mr Ikonomou’s house earlier in
the week and intended to
return to complete the work he had started but required materials was further
supported by an order to Universal
Roofing for materials which was found on the
fax machine in the Karmas home (Ex F) and Ex J, which shows contact from the
Karmas
landline to the phone and fax numbers of Universal Roofing at 10.52am and
10.57am on 11 August 2011, respectively.
Character
evidence
- The
Crown relied on character evidence of various witnesses to demonstrate that it
was out of character for Mr Karmas to leave his
home and family unannounced and
not return; and contended that something must have happened to him on 11 August
2011 that prevented
him from doing so.
- Mrs
Karmas described her husband as “a wonderful husband and father, a
family man. He was generous. He was kind. He loved helping other
people” (see T 141.2-4).
Her evidence was that he had never stayed out
all night and not returned until the next day; and that he was a devoutly
religious
man. Mr George Karmas described his brother as someone who took
care of everything and everyone and said that “he put God
first, his
family second, his friends and the world I guess third and himself last”
(see T 342.34-35). Mr Ikonomou described
Mr Karmas as a “9 to 5 guy,
a man of routine, reliable, very friendly” and said that he was a guy who
was always concerned
about things, like trying to help people (see T
554.32-35).
The disposal of the body of Mr Karmas
- It
was the Crown case that, between 1am and 4.36am on 12 August 2011, the applicant
disposed of the body of Mr Karmas with the assistance
of Mr Woods. The
timeline in this regard is as follows.
- At
6.28pm on 11 August 2011, the applicant’s blue Ford transit van was
recorded on CCTV footage travelling up Wilga Street and
turning right onto
Punchbowl Road (see Ex CO; T 2040.22).
- At
8.40pm, the applicant’s blue Ford transit van and Mr Woods’ white
van were recorded on CCTV footage travelling west
in convoy through the M5
Hammondville tollgates (Ex BR). Some time around then, the applicant and Mr
Woods arrived at the home of
Mr Woods’ grandmother, Ms Annie
Robinson.
- As
at August 2011, Ms Robinson lived in a unit on Dan Street, Campbelltown. Ms
Robinson gave evidence that Mr Woods and the applicant
arrived at her home at
about 8.30pm or 9pm on 11 August 2011. Ms Robinson had met the applicant
“a few times” before
(see T 586.2). Ms Robinson’s evidence is
that they chatted and watched TV as she crocheted; and that she could not
remember
precisely when Mr Woods and the applicant left because she did not look
at the clock but said it was “maybe 1 o’clock,
2
o’clock” (see T 586.20).
- An
intercepted telephone call (Ex L) between the applicant and Mr Woods at 4.01pm
on 1 September 2011, recorded Mr Woods telling the
applicant that
“nan’s fucked up with the story again” and that she told them
(i.e., the police) that they left
there at 1 o’clock. The applicant
responded to this that “Nah, she was asleep, how could she know what time
I left”
and “She crashed at fuckin’ eleven man”. Mr
Woods said, “Yeah, that’s what I said to her! I go,
‘Didn’t
you say that!’” and said that “Cause
she’s fucked us! She fucked me... and she’s fucked you”
and
discussed the two of them confronting his grandmother about the account she had
given to police.
- The
two vans, again travelling in convoy, were next recorded at 4.36am the following
morning travelling east through the tollgates
at Hammondville
(Ex BR).
Conduct of the applicant on 12 and 13 August
2011
- Some
time between 4.46am and 6.50am on 12 August 2011, the applicant left his blue
Ford transit van parked and locked in the driveway
of Precision Mechanics on
Belmore Road, Punchbowl. Some time later, the applicant contacted the mechanic,
Vince Spoto, by phone,
to report various faults with the vehicle: transit
stalling, possible fuel pump issues, no air to the windscreen, jumps out of
park.
Mr Spoto gave evidence that, upon an examination by the mechanic, little
was found to be wrong with the vehicle; and that he road-tested
the vehicle and
did not notice any issue with it jumping out of park (see T 913.44-914.1).
- When
asked if he had noticed any unusual smells in the vehicle, Mr Spoto initially
said there was an indication of possibly bleach
but later said that he could not
be sure whether it was that date (12 August 2011) or another date that he had
smelt bleach in that
vehicle (see T 917.1). Mr Spoto agreed that, as he told the
police on 15 August 2011, he did not notice any unusual smells in the
vehicle
and the vehicle did not have a vomit smell in it (relevant in light of the
applicant’s statements to others –
see below at [86]-[88]). The
applicant collected the vehicle that afternoon, having paid for the service in
cash. Mr Spoto said that
it was unusual for the applicant to leave the vehicle
at his shop without prior arrangement (see T 918.23).
- It
was the Crown case that the applicant took his vehicle to the mechanic
unannounced because he did not want to take it home because
of what may or may
not have been in the back of it.
- Sometime
after 4pm on 12 August 2011, the applicant attended the Warwick Street Duplex.
Constable Lees, who attended the premises
after noticing that the front door of
the duplex was open (and who was one of two officers who had attended at the
Karmas residence
in response to the report by Mrs Karmas that Mr Karmas was
missing), gave evidence of a conversation with the applicant. Constable
Lees’ evidence is that the applicant told her that Mr Karmas had helped
him fix some doors at the Warwick Street Duplex the
previous day, that he had
accompanied him to the Wilga Street Property between 2.30pm and 3pm to drop off
some furniture and that
he had received a message from Mr Karmas at 4.05pm (see
T 604.37-605.31). As Constable Lees was speaking to the applicant, Mr George
Karmas started yelling at the applicant and accused the applicant of having been
involved in his brother’s death, which the
applicant denied (see T
606.14-35).
- The
applicant attended Bankstown Police Station in the company of his mother at
about 10.45pm on 12 August 2011, where he spoke to
Detective Senior Constable
Haggerty. Her evidence is that the applicant told her that he had contacted his
QC who told him that he
should come down to the station, talk to police and give
them his alibi if necessary; and that, when asked why he would need an alibi,
the applicant said “I guess because of what Sam’s brothers were
saying” (referring to the confrontation that had
occurred in Warwick
Street with Mr George Karmas – see at T 1079.30). The applicant gave an
account of his interaction with
Mr Karmas on 11 August 2011, saying that
“Sam is my friend, we help each other all the time, he was just helping me
yesterday
fixing doors and moving some furniture. See I hurt my hand”
(see at T 1079.47-50). Detective Senior Constable Haggerty said
that the
applicant held up his hand and she noticed a circular sore on his palm that was
about the size of a 50-cent piece. The
same wound was described by Detective
Sergeant Stamoulis as “a healing wound, a little bigger than a ten cent
piece and a scab
had already begun to form” (see T 1390.39).
- On
the morning of Saturday, 13 August 2011, the applicant called Demetrious Vranas,
the owner of the Riverwood Quality Meats butcher’s
shop. Mr Vranas said
that the applicant said “My dog spewed in the back of the car, can
I use the shop to hose it out?” and Mr Vranas agreed. Mr Vranas’
evidence was
that the applicant had never previously used or asked to use Mr
Vranas’ shop to clean a vehicle (see T 562.48-563.18). Mr
Vranas attended
the shop at about 2pm and he saw the applicant cleaning his van (in the company
of another person, who the applicant
later identified was Mr Woods). Mr Vranas
said that, after he was finished, the applicant came into the shop and asked for
a bag
of bones for his dog (T 568.7).
- Mr
Angelakis, an employee of the shop who was working when the applicant (and Mr
Woods) arrived, gave evidence that the applicant
told him that his dog had
vomited in the back of the van. Mr Angelakis said that he gave the applicant a
broom and told him that
there was a bottle of White King (bleach) which he could
use if he needed it (see T 581.2-11).
- At
10pm on 13 August 2011, the applicant and Mr Cheong were travelling in the
applicant’s blue van along Moorefields Road, Croydon,
when it was stopped
by police. One of the officers involved in the vehicle stop, Detective Senior
Constable Delaney, gave evidence
that he noticed a strong odour coming from the
vehicle which he believed to be bleach or some other cleaning agent and that,
when
asked why his vehicle smelt like bleach, the applicant replied that it was
“Because I had my dog in the back of it and it was
sick. It needed to be
cleaned, which I just did” (see T 930.40). The other officers present at
the stop made similar observations
as to the smell coming from the vehicle.
- The
Crown notes that, despite having told a number of persons that it was his
dog that had vomited in the van including the police who interviewed him on 13
August 2011 and that “it reeked”, the
applicant later gave evidence
that it was “a dog that I picked up from a friend a week or so
earlier” (see T 2315.9-14).
Further, the Crown notes that Mr Spoto did
not notice a vomit smell in the vehicle when he serviced the van on 12 August
2011.
- The
Crown also relied on evidence regarding renovation work done to bedroom 2 at the
Wilga Street Property on 12 and 13 August 2011.
Mr George Katakis, a
friend of the applicant, gave evidence that he attended those premises some time
after 2.57pm on 13 August
2011 where he observed the applicant putting putty on
the ceiling; and he said that a young Asian labourer (Mr Cheong) was also
present.
Mr Katakis accompanied the applicant to the Warwick Street Duplex
where they collected some paint before returning to the Wilga
Street Property.
Mr Katakis said that he left not long after 6.42pm when he ordered pizza. He
said that he gave the applicant a
hand by sweeping but did not otherwise
participate in the work that was being done (see T 404.38-405.50).
- During
a crime scene examination conducted at the Wilga Street Property between 14 and
18 August 2011, it was noted that bedroom 2
appeared to be in a state of
renovation and that none of the other rooms appeared to be in the same state,
with the exception of
some tiles missing from the bathroom wall. There was
evidence from various police officers who participated in the execution of
a
search warrant at those premises commencing at 2.50am on 14 August 2011. Senior
Constable Coelho gave evidence that bedroom 2
appeared to have been freshly
painted and that parts of the walls and an area on the ceiling appeared to have
been patched (see T
1268.3; T 1270.33-1271.11). Detective Senior Constable
Velisavlejic gave evidence that it appeared to him that the room had been
freshly painted and that he could smell paint (see T 1284.49).
- It
was the Crown case that the timing of the work (and the fact that it was
confined to bedroom 2 of the Wilga Street Property) was
consistent with the
murder having taken place in that room on 11 August 2011. Furthermore, the
Crown argued that the fact that the
applicant was able to perform the work on
those dates undermined his evidence that he genuinely required the assistance of
Mr Karmas
(and Mr Cheong) to load items of furniture into his blue van and
unload it at the Wilga Street Property on 11 August 2011.
Crime
scene examination – Wilga Street Property
- It
was not in dispute at the trial that no forensic evidence consistent with having
originated from Mr Karmas was located at the Wilga
Street Property.
- Crime
scene examinations were conducted at the Wilga Street Property on three
occasions: between 14 and 18 August 2011, on 6 September
2011 and on 2 May
2013.
- Photographs
taken during the first of those examinations were tendered and marked Ex AO and
Ex AP. The first examination included
a fingerprint examination (see the
results set out in Ex BM). Fingerprints located at the Wilga Street Property
included those of
the applicant, Antonia Fantakis and Mr Woods. None of the
fingerprints developed during the examination was located inside bedroom
2.
Police did not have a set of fingerprints from Mr Karmas that could be used
for comparison purposes.
- The
second examination was a fingerprint examination conducted on 6 September
2011 by Senior Constable Watson on a filing cabinet
located in the rear garage
and a TV cabinet located on the footpath.
- The
third examination, on 2 May 2013, was conducted by crime scene officer, Dr
Jennifer Raymond. Bedroom 2 was examined using a series
of light source and
chemical techniques in an attempt to locate biological evidence (blood) or signs
of a clean-up. While some areas
of staining were detected using the light
sources, presumptive tests for blood on those areas returned negative results.
Areas of
sanding, repainting and patch-up were noted on the west wall. Dr
Raymond gave evidence that if there was blood on a surface such
as a wall and it
was washed off or the wall was cleaned and repainted, the laser may not detect
the presence of blood (see T 1462.38-44).
Examinations of the
applicant’s blue Ford transit van
- On
15 and 16 August 2011, Senior Constable Gibson conducted an examination of the
applicant’s blue Ford transit van at Western
Sydney Crime Scene garage
(which is located at Bass Hill Police Station). Photographs taken during the
examination are Ex AW.
- Detective
Sergeant Flippence gave evidence that on 17 August 2011 he conducted a crime
scene examination on the applicant’s
blue Ford transit van at Western
Sydney Crime Scene garage; that there was no visible blood staining and that
Luminol and Hemastix
testing (presumptive tests for the presence of blood) gave
positive presumptive reactions to a number of areas including the inner
trim of
the driver’s door (see T 1093.1-8). Photographs of those areas that were
taken during the examination were tendered
and marked Ex AD. Swabs of the areas
were obtained.
- Exhibit
AE is a series of 14 photographs taken of the blue van. Like some of the photos
in Ex AW, they show, inter alia, a bottle of bleach in the rear of the
van (Photos 12 and 13), a shoe with no shoelace (Photos 12 and 13) and a black
glasses case
in the glove box (Photo 14). Photographs taken during an
examination of the glasses case and its contents are Ex BH.
- The
evidence established that the glasses case found in the glove box of the
applicant’s blue Transit van contained a pair of
prescription glasses that
belonged to Mr Karmas. The glasses were identified by Mrs Karmas and by his
optometrist, Adrian Yap, who
gave evidence that they matched a prescription
issued to Mr Karmas on 11 April 2011 (Ex V; see also T 906.43-907.6). DNA
recovered
from swabs taken of the glasses was consistent with having originated
from Mr Karmas.
- On
9 September 2011, a further crime scene examination was conducted on the blue
Ford transit van by Senior Sergeant Veness at the
Western Sydney Crime Scene
garage. Senior Sergeant Veness removed the inner door trim of the
driver’s door and performed a
further Hemastix (presumptive) test on the
edge of the driver’s door which returned a positive indication for the
possible
presence of blood. DNA recovered from a swab taken from the door trim
is consistent with having originated from Mr Karmas (with
the profile expected
to occur in approximately 1 in 26 billion individuals in the Australian
population). It was noted that the
swab had a light staining over more than
three quarters of its surface (see Ex CN Item 27(a)).
- It
was the Crown case that that DNA evidence was consistent with the transference
of Mr Karmas’ DNA to the applicant (and the
applicant’s use of the
vehicle) after the applicant killed Mr Karmas. It was contended on behalf of
the applicant that the
DNA may have been deposited in that location in 2006
(five years before the alleged murder) when he and Mr Karmas worked together
in
Bronte for a period.
Enquiries as to the whereabouts of Mr
Karmas
- Police
enquiries in relation to the whereabouts of Mr Karmas established that:
according to records maintained by the Department of
Immigration and
Citizenship, Mr Karmas was listed as onshore since 26 July 2010 (i.e., that he
had not left the country); Mr Karmas
had not accessed his bank accounts since 8
August 2011 and no new bank accounts had been opened in his name; Mr Karmas had
not come
to the attention of any State or Territory police force; there was no
record of Mr Karmas having accessed Centrelink or made a claim
for any benefits
through Medicare; and there was no record on the COPS and RMS systems of any
interaction with Mr Karmas after his
disappearance on 11 August 2011, including
but not limited to an application for a driver’s licence.
- Attempts
were unsuccessfully made to locate Mr Karmas, including using him as the face of
the 2012 Missing Persons Week campaign which
was conducted between 29 July and 4
August 2012. Posters of Mr Karmas (Ex BU) were installed in various
locations including the
Bankstown area.
Evidence of
motive
- The
Crown alleged that, at the time of Mr Karmas’ disappearance, the applicant
had a hatred of him, fuelled in part by an erroneous
belief that Mr Karmas
(acting at the instigation of or together with Ms Angeles) was involved in and
responsible for the death of
his brother, Nicholas Fantakis, and by Mr
Karmas’ interference in a dispute between the applicant, Nicholas Fantakis
and Ms
Angles. The Crown relied on the evidence of a number of witnesses who
gave evidence that, in the period leading up to his disappearance,
Mr Karmas had
spoken to them regarding issues he was having with the applicant and had told
them that the applicant had made threats
towards him, including threats to kill
him (see above).
- The
applicant, in a document “Complaint to the Coroner” dated 28 March
2012 (which has been referred to above) (Ex 17F),
referred to the production of
a fraudulent Will (by Ms Angeles) and stated that “I believe that
the person who carried out this sick crime was someone that knew or someone of
respected status that he (Nicholas)
would let in the door” and that he
knew there had been “foul play”.
- The
Crown says that the belief that Mr Karmas was involved in and responsible for
the death of Nicholas Fantakis is a recurring theme
in the documents written by
the applicant. The Crown also relied on the terms in which the applicant
referred to Mr Karmas, both
in his writings and in conversations recorded by
listening devices, as evidence of his animosity towards Mr
Karmas.
Forensic evidence as to soil samples from blue
van
- On
12 June 2012, Senior Constable Gibson examined the applicant’s blue
Transit van (which had been seized from the applicant
on 13 August 2011) and
found a quantity of mud and dirt under the wheel arches of the vehicle. It was
photographed in situ (Ex AW pages 19-32) before soil samples were
collected from the wheel arches.
- The
soil samples were later examined by Professor Robert Fitzpatrick, a certified
professional soil scientist with a Doctor of Philosophy
Soil Science degree from
the University of Natal and over 40 years’ experience as a pedologist,
geo-chemist, mineralogist and
forensic soil scientist. Professor
Fitzpatrick’s analysis concluded that it was likely that the samples in
the wheel arches
and on the mudflaps of the vehicle were derived from primary
soil transfers (i.e., that they were flicked up from the place directly
when the
vehicle had driven off bitumen roads) and that the vehicle had been in contact
with: two types of wet native soils at the
western margins of the Hawkesbury
sandstone in the Georges River region (see the maps in slides 28 and 29 of Ex CB
and at pp 20-21
of Ex CC); and basalt-rich road metal covering dirt roads, that
was excavated (sourced and transported) from a basaltic rock quarry.
- Professor
Fitzpatrick gave evidence that the deposits recovered from the vehicle were
consistent with the vehicle having travelled
across those roads in wet
conditions and that the vehicle went into “a very wet area” (see
T 1829.36). Professor Fitzpatrick
agreed, in cross-examination, that it was
not possible to date the soil samples and said that the soil at the very back
and tucked
into the corners could have been there for a long time, but it was
his interpretation that the “stuff that’s heaped up
would have come
there recently, otherwise it would have fallen out” (see T
1836.15-17).
- The
Crown adduced evidence of data from the Bureau of Meteorology that revealed that
it had rained in the Campbelltown area between
9.30pm on 11 August 2011 and
8.30am on 12 August 2011, with most of the rain falling between 2.30am and
4.30am (Ex CR).
- It
was the Crown case that Professor Fitzpatrick’s evidence (as to the
samples having been recently deposited and that they
were consistent with having
been deposited when the vehicle went through “a very wet area” and
the likely area from which
the soils had originated), provided support for the
conclusion that the applicant’s blue Ford transit van had been used to
dispose of the body of Mr Karmas in the early hours of 12 August 2011 (when the
applicant drove to western Sydney and when it was
known to have been
raining).
Exhibit AA
- Exhibit
AA was a copy of a handwritten note on a single piece of lined paper:
[W]rap in black cotton [s]heet & tie with black ribbon (shoe lace) tight
and through (sic) in river (Georges River).
- The
Crown (suggesting that the note was written in future tense) contended that the
note set out what the applicant planned to do
to Mr Karmas and that other
evidence (including evidence of the applicant’s movements on 11, 12 and 13
August 2011, lies the
applicant told about his movements, various admissions
made by the applicant, and the evidence of Professor Fitzpatrick in relation
to
the soil samples recovered from the applicant’s blue Ford transit van)
supported a conclusion that the applicant disposed
of the body of Mr Karmas
and that he most likely did so in a manner consistent with the note.
- There
is an issue as to the location of the note, a copy of which became Ex AA
(relevant in relation to ground 13). Detective Senior
Constable Lye initially
gave evidence that she thought she found the note at the back of a blue diary
that had been seized from the
front seat of the applicant’s blue Ford
transit van following a vehicle stop on 13 August 2011 (see T 1051.18-28).
After making
further enquiries, Detective Senior Constable Lye the following day
gave evidence that she had inspected the physical exhibit and
recalled that the
note was found in a sleeve within a notepad that was contained within the
heat-sealed exhibit (see T 1110.48-1112.26).
Detective Senior Constable Lye
noted that the notepad (and other items described by the witness) were behind
the blue diary shown
in Ex Z (Photo 6). The original of the note was tendered
and marked Ex AG. Detective Senior Constable Lye gave evidence that the
EFIMS
system revealed that she was the first person to access the exhibit after it was
booked into the exhibit management system
on 13 August 2011 (see T
1122.29-33).
- The
applicant does not dispute that he was the author of the document (see
T 2337.28). However, the applicant’s evidence was
that the note was
never in his van; that it was in the garage at the Wilga Street Property with
two other pages; and that he wrote
the note after seeing a spiritual healer
following his brother’s death (see T 2337.30-2338.26). The applicant did
not respond
directly when asked in cross-examination whether he was suggesting
that the note was planted.
- The
Crown also relied on statements made by the applicant that were recorded by a
listening device (see below), which it alleged were
admissions to or connected
with his disposal of the body of Mr Karmas; and invited the jury to reject the
applicant’s evidence
that, in the early hours of 12 August 2011, he and Mr
Woods had been engaged in the disposal of cannabis
debris.
Searches conducted by police for the body of Mr
Karmas
- Two
searches were conducted during the course of the police investigation in an
effort to locate the remains of Mr Karmas. The first
took place on
24 November 2011 when police divers conducted an arch search of a section
of Salt Pan Creek downstream from the Henry
Lawson Drive bridge. The second
occurred over three days commencing on 26 August 2013 in an area of bushland at
the end of Franklin
Street in Leumeah. Nothing was located during either
search.
Evidence relied upon by the Crown to establish
consciousness of guilt
- The
Crown relied on the following evidence as demonstrating a consciousness of guilt
on the part of the applicant (and, in some cases,
his co-accused Mr Woods).
First, the evidence that the applicant had lied to Mrs Karmas on 12 August
2011 as to when he last saw
Mr Karmas. Second, evidence as to lies the applicant
told to police during his recorded interview on 13 August 2011 in relation to
his movements in the early hours of 12 August 2011 as well as his statement to
Mr Woods that Ms Robinson had not seen him leave because
she had been asleep (a
statement made in the course of Mr Woods complaining that his Nan was
“fucking it up” and “She’s
fucked me, she’s fucked
you”; see Ex L). Third, evidence from Mr Chris Lines (see below) that the
applicant told him
to “stick to the story” (that “story”
being a false account of Mr Woods’ movements on the evening of
11 August
2011). Fourth, evidence of conversations between the applicant and Mr Woods on
25 November 2011 during which the Crown
says they discussed killing the
officer in charge of the murder investigation, Detective Sergeant McGee
(Ex CS).
- As
to the evidence of Mr Lines, who was a friend of Mr Woods, he gave evidence that
Mr Woods attended his home in Leumeah at about
7pm on 12 August 2011. Mr
Woods prevailed upon him to provide a false account of Mr Woods’ movements
on 11 August 2011 by
telling police that “everything that happened tonight
(i.e., 12 August 2011) happened last night (i.e., 11 August 2011)”.
The Crown accepts that the actions of Mr Woods in that respect were not
admissible against the applicant. However, Mr Lines also
gave evidence that,
roughly two to three weeks later, Mr Woods visited his home in the company of
the applicant; and that Mr Woods
asked him whether he had heard anything more
about what was going on (referring to the police) and told him to “stick
to the
story”, at which point Mr Lines said that the applicant himself
told him to “stick to the story” (see T 645.45-48).
The applicant
denied having done so.
- As
to the conversations relating to Detective Sergeant McGee, the Crown relied on
portions of conversations recorded by a listening
device which, pursuant to a
warrant, had been installed in a white Toyota HiAce van (Ex CS). It was
the Crown case that the evidence
supported an inference that the applicant and
Mr Woods planned to kill Detective Sergeant McGee or see her dead because they
wanted
to disrupt the investigation of which she was the officer in charge; and
that this thereby demonstrated a consciousness of guilt.
(The admissibility of
those recordings is the subject of ground 9 of the grounds of appeal.)
- In
a conversation which the Crown alleged related to the officer in charge,
Mr Woods was recorded as saying that “I wanna know
where she lives
mate...I fuckin wanna know where she fuckin lives” and “I want her
moving, I want her upset ok...moving,
moving, moving....alright this is what we
do,.... This is about fucking survival” and the applicant replied
“You got
fucken charges” (see Ex CS p 6). The recording also
includes Mr Woods saying “Her vehicles in that same block you know...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... I’m gonna start
chasing her today”
and that “She would have been gone...made
sure...fuckin’... Officer in charge of Flaggy Dead”. (Strike Force
Flaggy
was the name given to the police investigation into the murder of
Mr Karmas.)
- It
was the Crown case that Mr Woods was then heard to say “Fuck this get a
gun, we’ve got to get a gun”. It was
suggested on behalf of the
applicant (and Mr Woods) that Mr Woods did not use the word “gun”
but said “it done”;
i.e., that he said “Fuck this get it done,
we’ve got to get it done” (see Ex CS p 9).
- The
applicant is then recorded as saying “It’s the only fucken
way” to which Mr Woods replied “that’s
how you deal with it
like that I’m just asking...if you can’t help me I’ll do it
myself...”. A short time
later, Mr Woods said, “I don’t wanna
fucken...I don’t... they drag you they drag me I said no...I don’t
like
it...I want to influence the fucken hunter...they have the upper... you
know what I mean...this barrister” (see Ex CS p 10).
- In
addition to the threats recorded in Ex CS, the Crown relied on evidence from
Detective Sergeant McGee that the applicant and Mr
Woods frequented the coffee
shop at the bottom of Bankstown Police Station (where the investigation was
based) and that she had seen
them there on numerous dates. Detective Senior
Constable Boland gave evidence that he had encountered Mr Woods in the company
of
an overweight and balding male of Greek appearance (who the Crown alleged was
the applicant) at that location in early January 2012.
Detective Sergeant
Doueihi gave evidence that he spoke to the applicant and Mr Woods by phone on 6
July 2012 and advised them that
police were investigating possible threats made
towards Detective Sergeant McGee.
Evidence of admissions made by
the applicant
- The
Crown relied on admissions recorded by a listening device on 25 November
2011 (Ex CS) when, in conversation with the applicant,
Mr Woods was
recorded as saying “cause he’s dead” and “It’ll
come out sure it will no worries.... We
just... like fuck you... was he
dead...yeah...no no no no look... it’s gonna go to court... you gonna go
to court you know”
followed by “were gonna get put in gaol”
(see Ex CS pp 4-5).
- On
26 November 2011, the following exchange was recorded (Ex CS pp24-25):
Applicant: ...they can charge you
Woods: They just can’t make it stick.
They can charge you with no body no thing you know that. Yeah
you know that
Applicant: ...my van
Woods: ...hey
Applicant: He was in my van, I never denied that...put it in
my van so you know.
Woods: Look at that, railways
Applicant: ...and...Warwick Street, so what, he was...and he
was fucking Maria there so.
Woods: Yeah hasn’t that come out yet?
Applicant: Nah, it will though
Woods: How do you know that?
Applicant: ...
Woods: What?
Applicant: ...the phone...the phone does magic things mate you
know
Woods: ...huh?
Applicant: ...the phone does magic things...
- It
was the Crown case that the above conversation concerned Mr Karmas. The
applicant denied that the reference to being charged without
a body was a
reference to Mr Karmas but agreed that the reference “he was fucking
Maria” was a reference to Mr Karmas
(see T 2348.20-2349.19). The Crown
contended that the conversation demonstrated an awareness by the applicant of
the content of
the SMS messages sent from the phone of Mr Karmas to
Ms Angeles from 3.57pm on 11 August 2011, consistent with them having been
sent
with his knowledge and at his behest.
- The
above conversation then immediately continued:
Woods: Fuck I’m amazed he didn’t peel as well
Applicant: He went brown quick
Woods: Hey
Applicant: He went brown quick
Woods: (laughs) haha yeah I know...he went fuckin black...
- It
was the Crown case that the above conversation, referred to the appearance of
the body of Mr Karmas after he had been killed and
that it supported the
conclusion both that the applicant had murdered Mr Karmas and that he and Mr
Woods together disposed of his
body.
- The
following exchange then occurred later in the same conversation:
Woods: ...Fuck how long did we walk that night?
Applicant: Heaps
Woods: Hey
Applicant: Yeah. And the next day I blow me van up. Yeah this
has been emotionally the hardest thing I’ve ever done. I don’t
know
what it’s like for you, fuck. Nick gave us the first warning.
Woods: I don’t think we’ll be charged for that
man
Applicant: Huh
Woods: I don’t think we’ll be charged for that
man
Applicant: ...
Woods: ...Huh
Applicant: I gotta fucken prepare myself in case I do
Woods: Fuck man, if you get charged so will I.
Applicant: ...
Woods: Why do you mean dickhead, what are you talking about,
as if I wouldn’t
Applicant: Nah cause I was with him all day
- It
was the Crown case that the reference to the “walk that night” and
the applicant’s response, “heaps”,
was a reference to the
disposal of the body of Mr Karmas in the early hours of 12 August 2011. The
applicant denied that the walk
was a reference to the disposal of Mr
Karmas’ body and said they were discussing a walk at Cronulla but
acknowledged that the
reference to being with him all day was a reference Mr
Karmas (see T 2365-2366).
- On
31 July 2012, the applicant was recorded by listening device speaking to Mr
Woods (Ex CX) in which the applicant said, “Fucking
Nick’s murder
got up me...When used to work with him...I fucking hated him mate” and
“I knew what I did was right
and I knew that he had done to Nick”
(see Ex CX p 11). It was the Crown case that the applicant was speaking of Mr
Karmas.
A short time later, the following exchange occurred:
Woods: And then we had to drive home...and I get home, I drove
home...Oh Get fucked..And I drive all the way back..And I’m
telling ya it
was ohhh..I was not.
Applicant: (Inaudible).. my agility maggot up and down that
fucking thing.. I don’t know man I was fucking.. I was.. I was..
Woods: I can’t believe he died like... where’s the
other one? Hold on a second I thought you said.. he was gone but
he was coming
back.
Applicant: (Inaudible) .. fucking cunt...(Inaudible)...
that’s cause he was helping her.
- It
was the Crown case that the above exchange concerned the disposal of
Mr Karmas’ body. The Crown says that the description
by Mr Woods of
driving home and having to drive all the way back is consistent with CCTV
footage captured at the M5 tollgates at
Hammondville which showed him driving
eastbound at 4.36am (in convoy with the applicant) before returning westbound at
7.01am (Ex
BR).
- The
Crown also relied on admissions made by the applicant in various pieces of
writing, a common theme of which was that he had assaulted
and tortured Mr
Karmas in his home at the Wilga Street Property (see below).
- In
a conversation recorded between the applicant and Mr Woods on 1 August 2012 (see
Ex CX p 17), the applicant made reference to a
number of officers involved in
the murder investigation before saying:
That cunt was bigger than you... and I climbed him maggot I grabbed him and
actually climbed up him, head butted him straight in
the nose and as he fell I
fell with him, and that was the end of the fight you know. He didn’t know
what hit him. Maggot he
pissed on my brother’s fucken grave mate, these
cunts. And that’s how came to be...
- In
a recording made by the applicant which he described as “my last will and
testimony in camera form” (Ex CE), the applicant
said, inter alia,
“I will be probably going into the police station having myself nominated
for this so called murderer (sic) of Mr Karmas who
he’s such an important
person that they spent so much money try to discover where a missing person has
gone ‘cause that’s
all he is a missing person. Ah, they still
haven’t murdered, murdered me...on the grounds, well no grounds actually,
with
no evidence, no money, no facts but I definitely am the one” (see Ex
CE p 17).
The applicant’s evidence
- The
applicant participated in an electronically recorded interview (ERISP) on the
evening of 13 August 2011. The interview was tendered
in the Crown case on 26
March 2018 and marked Ex AX. In that interview, the applicant told police that
he went to his Nan’s
house in Campbelltown at about 9pm, crashed on her
lounge and got up and left at about 4am (see Ex AX p 3).
- In
his evidence at trial, the applicant, among other things said that: he had never
had an argument with Mr Karmas and “never
had an issue with Sam in dispute
with any matter”; (when asked if he threatened Mr Karmas either to bury
him or kill him) said
“I refuse to accept that as being the truth”;
said that he asked Mr Karmas whether Mr Karmas could help Derek (Cheong)
move
some items of furniture which were upstairs at the Warwick Street Duplex, which
he said he would have struggled to move and
did not want to risk dropping
because he had burnt his left hand three or four days earlier and had always had
a back condition;
he only had Derek (Cheong) until about 3 o’clock so
he thought “You know what, I might as well get Derek and unload them
(referring to a TV unit and filing cabinet) before he has to leave” and
that Mr Karmas offered to come and give them a hand;
and said that he saw
Mr Karmas open the glove box and place his glasses inside (see T
2301-2312).
- The
applicant also said that Mr Karmas did not enter the house at the Wilga Street
Property on 11 August 2011; that Mr Karmas was
“just in the hallway”
when he suddenly remembered that he forgot something and left; and that he (the
applicant) offered
Mr Karmas a lift but he declined and said “I’d
walk” (see T 2297.14-29).
- The
applicant said that his mother arrived about 15 or 20 minutes before (he) got a
message from Mr Karmas and that his mother stayed
until about 5 or 5.30(pm)
“around that time” (see T 2312.30).
- The
applicant admitted that the work on bedroom 2 at the Wilga Street Property
commenced on 12 August 2011 (the day after Mr Karmas’
disappearance) but
said that the work was to repair damage to the room connected with his
brother’s use of the room in 2007
to cultivate cannabis.
- When
asked whether he believed, as at 2 August 2011 (the date of the request for an
inquest) that his brother had been murdered, the
applicant said that “I
just questioned his death” and that “Nick would never have done
that, to be found by his
mother” (see T 2298.29).
- Questioned
as to whether he intended to intimidate the officer in charge of the
investigation, the applicant said “I never had
any intentions to
intimidate her apart – I was in a way reacting to a lot of what was being
done to me” and said he was
confronted with what he regarded as an ongoing
barrage of intimidation towards him. As to whether he wanted to disrupt the
police
investigation, the applicant said “It’s not that I actually
wanted to disrupt the investigation. I wanted the investigation
to actually
start looking elsewhere” (see T 2326; 2378.1-3).
- In
relation to the documents that he had written, the applicant said that they were
“a form of therapy” in which he had
engaged that was discussed in a
book recommended by his psychologist, Dr Awit, which encourages writing
“whatever wild and
crazy ideas you have” as a way of dealing with
stressful situations; and he said that the videos and audio were the same (see
T 2327.11-35).
- The
applicant denied having disposed of the body of Mr Karmas in the early hours of
12 August 2011. The applicant gave evidence that
he left the Wilga Street
Property at about 6.30pm on 11 August 2011 because he had made arrangements to
meet Mr Woods to dispose
of cannabis residue (soil, roots, stems and vegetable
matter) that was being stored in Mr Woods’ back shed after he (the
applicant)
brought it down from Peats Ridge. He said that the residue was
contained in plastic bags and boxes. The applicant’s evidence
was that
they met near Roselands at about 8.15pm before driving out to
Ms Robinson’s house at Campbelltown where they spent
some time
because they wanted to wait until later in the night to dispose of the soil;
that they left in Mr Woods’ van at about
1.30am and drove for no more than
two to five minutes to an area of bush (near houses) where they disposed of the
residue; and that
they finished at about 4am and drove back to Ms
Robinson’s house where he collected his van and headed back to
Sydney.
- The
applicant said that he told the truth in his record of interview. The applicant
agreed that he did not tell police about disposing
of the cannabis with Mr Woods
but said this was because he did not think it had anything to do with the
disappearance of Mr Karmas.
In cross-examination, the applicant refused to
accept that he had lied to police when he told them that he was at
“Nan’s
house” on the lounge until 4am (on 12 August 2011),
describing this as an omission (see T 2368.37; 2380.30-40).
- The
applicant initially suggested that he needed to take his van out to Campbelltown
that night (as opposed to travelling with Mr
Woods) because he did not want to
be in a van full of cannabis and rubbish but later he said that he thought his
van might have been
needed to get rid of the material and then that Mr Woods
wanted him to follow behind him so he did not get pulled over by police.
The
applicant admitted having “stockpiled” items that had been used to
cultivate cannabis before getting a storage facility
at Rhodes.
- The
applicant gave evidence that part of the cannabis debris had been brought down
from Peats Ridge; a two hour drive away. The applicant
admitted that there were
places where he could have disposed of it between Peats Ridge and Sydney but
said that he did not dispose
of it there because it was broad daylight. The
applicant, when asked why he could not have done it at night from Peats Ridge,
said
that (after bringing it down) he had tried to go to the tip in Sans Souci a
couple of times.
- The
applicant agreed with the suggestion made by counsel for Mr Woods that he knew
from his friendship with Mr Woods that he (Mr Woods)
was involved in cannabis
supply and cultivation. The applicant agreed that he was aware that Mr Woods
had been pulled over by police
driving a vehicle in which a quantity of cannabis
was located and that, at that date, Mr Woods was “actively involved in the
cultivation of cannabis” (T 2403.9-11).
- The
applicant called two witnesses: a solicitor, Photios Vouroudis, and a
psychiatrist, Dr Stuart Saker, both of whom were interposed
in the Crown case.
Mr Vouroudis gave brief evidence on 23 April 2018 in relation to correspondence
he had exchanged in relation
to the property dispute between Nicholas Fantakis
and the applicant and Ms Angeles. Dr Saker gave evidence on 12 April 2018 (see
below).
“Fresh evidence” relied upon by the
applicant
- As
to the material contained within Annexures A-P and R to the affidavit sworn by
the applicant on 1 September 2021, the Crown’s
position is that this
material (to the extent that it is evidence at all) is not “fresh”,
rather it is “new”
evidence (citing Abou-Chabake v R (2004)
149 A Crim R 417; [2004] NSWCCA 356 (Abou-Chabake) at [63] per Kirby J,
with whom Mason P and Levine J agreed). Reference is made to the explanation of
the distinction given by McClellan
CJ at CL in Wood v R (2012) 84 NSWLR
581; [2012] NSWCCA 21 (Wood) at [707]:
“New evidence” is evidence that was available and not adduced at the
trial. “Fresh evidence” is evidence
which either did not exist at
the time of the trial or, if it did, could not then have been discovered by an
accused exercising due
diligence. [Citations omitted]
(See also Xie v R [2021] NSWCCA 1 (Xie) at [433]-[434] per the
Court (Bathurst CJ, R A Hulme and Beech-Jones JJ) as to the distinction
between fresh and new evidence.)
- It
is noted by the Crown that various of the annexures to the applicant’s
affidavit reproduce portions of transcripts of other
proceedings in which he has
been involved. They are said by the applicant to demonstrate lines of
cross-examination that could have
been (but were not) pursued at trial. The
Crown says in this regard that the propositions the applicant is recorded as
having put
to various police officers in those transcript passages were seldom
accepted by the witnesses.
- The
Crown says that the applicant does not appear to rely on the (new) evidence
contained in the annexures to his affidavit in the
sense contemplated in
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; rather, he relies
on it in the context of grounds 7 and 15, which relate to complaints regarding
the asserted non-disclosure of
relevant material.
- The
Crown accepts that in order for the applicant to advance his argument as to why
leave should or should not be granted the proposed
new evidence may be received
and considered by this Court. In that context, the Crown seeks leave to adduce,
in response, evidence
in the form of an affidavit of Detective Sergeant McGee
sworn on 13 October 2021. The Crown submits that the contents of the affidavit
demonstrate that assertions made by the applicant in relation to non-disclosure
of relevant material are without foundation.
- Further
and in any event, the Crown submits that the new evidence, properly understood,
does not establish the propositions for which
the applicant contends (foremost,
that the officer in charge, Detective Sergeant McGee, planted cannabis in the
vehicle of Mr Woods)
and accordingly the Crown submits that the proposed
evidence lacks sufficient cogency to warrant a grant of leave to rely upon
it.
- There
is no doubt that this evidence is not “fresh” evidence strictly
so-called. To the extent that it is relied on as
demonstrating possible lines of
questioning that were not pursued it will be treated only as
submission.
Consideration of grounds of appeal
- Turning
then to the grounds of appeal raised by the applicant (and in respect of which
leave is necessary) and noting that there is
some overlap between individual
grounds and the overarching unreasonable verdict ground, they are considered as
follows.
Grounds 1 and 2
Ground 1: The trial miscarried because the trial judge failed to leave the
defence of mental illness to the jury.
Ground 2: The trial miscarried because the trial judge failed to leave
manslaughter to the jury on the basis of the defence of substantial
impairment.
Evidence as to the applicant’s mental state
- It
is necessary in considering these grounds to have regard to the evidence at
trial in relation to the applicant’s mental state;
and, in particular,
evidence as to the applicant’s mental state at the time he is alleged to
have murdered Mr Karmas on 11
August 2011.
Lay
evidence
• Evidence of Ms Patricia Mantas
- As
noted earlier, the applicant’s former partner, Ms Patricia Mantas, gave
evidence at the trial. Ms Mantas’ evidence
was that she was in a
relationship “on and off” with the applicant for 14 years (see T
675.13); that the applicant attended
her daughter’s birthday party on
Sunday 7 August 2011, having visited his brother’s grave earlier that day;
that she
noticed that he was very “down” and depressed on that
occasion; and that there were moments after the death of his brother
when the
applicant was “quite down” (see T 678.17).
- Ms
Mantas became aware, after Mr Karmas went missing, that the applicant was under
police investigation; and she agreed that over
the following months, the
applicant started to develop some mental health concerns. Ms Mantas said
(at T 682.5-12):
There was a lot of things that just weren’t rational anymore. I put it
down to the stress of the whole situation, you know
the deaths, one, deaths,
two, then we’ve got the Maria Angeles scenario and wills being contested,
and then I just - that amount
of stress and pressure on a person has
consequences. I saw that he got depressed and then he was saying things that
just didn’t
make sense anymore...
- Having
been reminded that Nicholas Fantakis died in May 2011, Ms Mantas said that it
was “probably towards the end of 2011”
that she made those
observations, and added that she began to see some real changes “from
those months leading up to the end
of the year” (see T 682.14-34).
Ms Mantas thought that he was getting help from Dr Saker in Bankstown.
Ms Mantas agreed that
the applicant began to develop what appeared to her
to be delusional theories “towards the end of the year”
before adding that she was “shocking with dates and times” (see T
682.43-29). Ms Mantas
described the applicant as “depressed” around
her daughter’s birthday and said that “from August onwards
it was a
slow worsening” (see T 683.40). Ms Mantas agreed that the
applicant became delusional and began to discuss conspiracy theories with her
“a
few months later” than that period of August when he was
depressed (see T 683.44-50).
- Ms
Mantas’ evidence initially was that her relationship with the applicant
ended “probably a few months after Sam went
missing” but later Ms
Mantas said that it must have been the end of 2012 and that their relationship
gradually dissolved over
the course of 2012.
• Evidence of
Ms Amara Mantas
- Ms
Amara Mantas (the then 16 or 17 year old daughter of Ms Mantas), when asked
about the applicant’s mental state, said that
she did not particularly
notice a change in his mental state near the end of 2011 and into 2012.
Ms Amara Mantas said that at the
time she made her police statement (in
November 2013), she did not think there was anything strange (in the
applicant’s behaviour).
Ms Amara Mantas agreed that she did not know too
much about the police investigation until the applicant became paranoid about
her
mother helping the police; and when asked whether that was in 2012, she said
“I think so” (see T 703.4). Ms Amara Mantas
agreed with the
proposition that the applicant had discussed crazy theories and conspiracies
about police, this investigation and
the Supreme Court with her, but was unable
to recall when those discussions had taken place.
•
Evidence of Mr Harry Fandakis
- Harry
Fandakis, a distant cousin of John Fantakis (the late father of the applicant),
gave evidence. Asked, in cross-examination,
whether he observed that, in 2012
and 2013, the applicant was becoming more and more distressed, Mr Fandakis said
that he was not
a psychologist and that “I don’t know if he was
becoming more distressed. I could see that [the applicant] was sad. Saddened
by
the loss of immediate family” (see T 1000.1-2).
•
Police officers
- Counsel
for the applicant at trial elicited evidence from the two police officers who
interviewed the applicant on 13 August 2011
to the effect that they did not
observe any indication that the applicant was suffering from any mental illness.
Counsel for the
applicant also elicited evidence from Detective Senior Constable
Costa, who was present at the execution of a search warrant at the
Wilga Street
Property in the early hours of 14 August 2011, that the applicant did not
display “any signs of mental instability”
during the execution of
that search warrant (see T 1433.16-17). A video taken at the time of the
execution of the search warrant
showed the applicant’s interaction with
police on that occasion (Ex BD).
• Applicant’s
evidence
- The
applicant gave evidence that the state of his mental health started to
deteriorate “really badly” in 2012 when he
started to accuse Ms
Mantas and others of various things. The applicant said that by the end of 2012
he thought that everyone was
conspiring against him and he had a “mental
breakdown”. Counsel for the applicant at trial asked him when he began to
form “these rather bizarre views” and the applicant responded that
“I can’t even express what I was feeling
or thinking in September
2012, that’s when things really went pear shaped for me” (see T
2329.10-20).
Psychiatric evidence
- Each
of Dr Stuart Saker, a clinical psychiatrist, and Professor David Greenberg, a
forensic psychiatrist, gave evidence on 12 April
2018. Dr Saker was the
applicant’s treating psychiatrist. Professor Greenberg had neither treated
nor interviewed the applicant.
Dr Saker was called in the applicant’s case
but was interposed to give evidence during the Crown case. They each gave
evidence
on 12 April 2018. Dr Saker answered questions first and after he was
excused Professor Greenberg then answered questions. Counsel
for the applicant
says that their evidence was consistent as to the applicant’s mental ill
health.
• Dr Saker
- Dr
Saker first saw the applicant on 4 November 2011 and thereafter saw him on a
number of occasions up to and including 19 July 2013.
Dr Saker was taken in his
evidence through the records he maintained of the applicant’s presentation
during each of those
consultations.
- Dr
Saker gave evidence that the applicant had been referred to him by a GP for an
assessment of depressive symptoms. He said the applicant
told him he “had
difficulties with what he thought was a fraudulent will for his late
brother’s estate that was put in
by his late brother’s ex-de
facto”, and the applicant described that he “was being accused of
murdering someone
who had been missing” (see T 1952.22-36).
- On
4 November 2011, Dr Saker diagnosed the applicant with a major depressive
episode with a differential diagnosis of an adjustment
disorder with depressed
mood. Dr Saker prescribed Sertaline, an anti-depressant medication and referred
the applicant to a psychologist
for cognitive behavioural therapy for anxiety
and depression.
- Dr
Saker saw the applicant again on 24 November 2011. In relation to this
consultation, Dr Saker said (at T 1954.13-16):
I thought he had some paranoid, overvalued ideas, but then I also thought they
may have been true and that was a tension that I constantly
had with his
version. He hadn’t been suicidal and I encouraged him to take the
antidepressant.
- Dr
Saker next saw the applicant on 16 December 2011; and then again in January
2012. As to the January 2012 consultation, Dr Saker
noted that the applicant
“was still pursuing an inquest into his brother’s death, which he
didn’t believe was suicide”.
Further, Dr Saker said (at T
1955.29-31):
The applicant presented with his mother, had an angry affect, described his mood
as tense, had no formal thought disorder, had paranoid
over-valued ideas about a
police conspiracy, I thought.
- As
noted, Dr Saker described the applicant in January 2012 as having
“paranoid over-valued ideas about a police conspiracy”.
In March
2012, Dr Saker described him as having a preoccupation with police
harassment (in March 2012); on 5 April 2012 as having
“some mildly
paranoid over-valued ideas about police”; and on 21 May 2012 as being
“hypervigilant [meaning jumpy,
easily angered and suspicious] about the
police investigation” (see T 1955.17-1957.35).
- With
respect to this series of early consultations, there was the following exchange
with defence counsel appearing for the applicant
at trial (at
T 1957.1-1961.45):
TODD: Could I just pause there. Correct me if I’m wrong,
but, when you see someone for the first time, you have limited scope
to conduct
a diagnosis of any condition, but over time, with repeated consultations, you
have a better insight. Would that be fair
to say?
WITNESS SAKER: Yes, I think that’s fair to say.
[...]
TODD: Did you think at this point to prescribe him any other
medication?
WITNESS SAKER: I think I was starting to, to, to twig, to
prescribe him another medication. But the problem, the problem with private
practice is the acceptability of the, the alternative medication. So it’s
always a bit of a struggle if you say that –
to somebody that
they’re - you think that they might be delusional, or they might be
psychotic, and you try and prescribe an
antipsychotic they can reject that.
TODD: Do I understand they also not only reject the medication
but reject the analysis by you?
WITNESS SAKER: Reject the analysis and also reject the
clinician.
TODD: So stop seeing you?
WITNESS SAKER: Stop seeing you, yes.
TODD: Because it’s too confronting for them to take
it?
WITNESS SAKER: Yes.
- In
his notes of a consultation that took place in July 2012, Dr Saker recorded that
the applicant was not clearly psychotic but had
paranoid over-valued ideas and
that his fears and accusations seemed plausible because there was some evidence
that he had been threatened
and victimised. Dr Saker noted that the applicant
did not have auditory hallucinations and exhibited symptoms of major
depression.
- Dr
Saker next saw the applicant in October 2012, when the applicant reported that
he had broken up with his girlfriend three days
earlier because he believed her
house had been bugged and that she had been involved in it.
- The
applicant’s (anti-depressant) medication was changed in October 2012 when
it was noted that he was taking Alprazolam, an
anti-anxiety medication. As
noted in the exchange explained above, when questioned as to whether, as at
October 2012, he thought
to prescribe the applicant other medication,
Dr Saker said that he thought he was starting to “twig” to
prescribe him
another medication but did not, having concerns that a patient
might reject being prescribed an anti-psychotic medication.
- In
relation to each of the nine consultations that took place between
4 November 2011 and 9 October 2012, Dr Saker recorded that the
applicant
did not exhibit a formal thought disorder and that his insight and judgment were
good.
- In
a consultation on 16 December 2012, the applicant reported being stressed as a
result of having been charged with a drug offence,
that he had smelt somebody
nosing about his house who he then assaulted, and that the person had produced a
police badge. Dr Saker
on that occasion prescribed Asenapine and he gave
evidence that “I think given that I prescribed him an antipsychotic
medication,
I was concluding by this point that he was psychotic” (see T
1963.19-20).
- On
9 January 2013, the applicant attended a further consultation with Dr Saker
during which he produced a CT scan showing a circular
piece of calcification
which the applicant said was a bug that had been implanted in his head. Dr
Saker prescribed an alternative
anti-psychotic medication, Quetiapine (used
mainly to treat schizophrenia). Dr Saker noted on that occasion that the
applicant had
gone from having non-bizarre paranoid ideas to having a bizarre
persecutory delusion.
- On
20 February 2013, the applicant repeated his claim to have a transmitter
implanted in his head, and Dr Saker then noted that the
applicant appeared to
have an ongoing persecutor delusion to that effect. Dr Saker noted that the
applicant had been non-compliant
with the regime of antipsychotic medication. Dr
Saker prescribed a different antipsychotic medication, Aripiprazole, because it
has
fewer side effects and he thought it might be more acceptable to the
applicant.
- Dr
Saker next saw the applicant on 19 July 2013, prior to which he performed a
review, concluding (at T 1967.39-1968.2) that:
Over the course of the consultations with me, he provided convincing evidence to
me that he’d been bugged, followed and harassed
by police, this includes
confiscating his work vehicle, tools and possessions for over two years. During
2013, he expressed some
persecutory delusions to me that a transmitter had been
inserted into his brain, which he - when he found some calcification in his
brain on a routine CT brain, he had - he was no longer convinced of this and the
symptoms had gone back down to the level of a paranoid
overvalued idea.
My view is that he doesn’t have schizophrenia, but that he’s got
short periods of psychosis, when under intense pressure
from the police and has
similarly had short periods of depression, anxiety and despair over his
circumstances.
- Dr
Saker gave evidence about the consultation on 19 July 2013, and the following
exchange then occurred (at 1968.8-31):
TODD: You told us just then a moment ago that when under
stress, he was displaying psychosis, is that right?
WITNESS SAKER: Yes.
TODD: Is that a transient, that is it comes and goes type of
psychosis?
WITNESS SAKER: That, that was, that was my, my theory then. It
seemed to be that when he had a lot of pressure put on him the
psychotic
symptoms got worse. I suppose I saw him for a limited amount of time, so I
don’t know whether that was something
that was occurring before seeing me
or after seeing me. But during the time that he saw me, he seemed to be
definitely psychotic
and having persecutory delusions at times and sometimes it
seemed to go down to a paranoid overvalued idea and sometimes what he
was saying
kind of made sense.
He had evidence for some of the things that he was saying, and
it’s hard, it’s hard, when you look back at it, or
think about it,
because I think there’s one paradigm or world view where his brother Nick
committed suicide and that’s
probably my paradigm and world view. And
there’s on paradigm and world view which is almost an alternative
universe, when Nick
was murdered and there was a conspiracy of people and Terry
often had logic within that alternative universe. But if you live in
my
universe, it seems like a lot of what he said was at right angles to the truth.
- Questioned
as to whether “delusional disorder” was a diagnosis that he would be
comfortable making in respect of the applicant
the last time he saw him
(19 July 2013), Dr Saker’s response was “I think, yes. The only
thing that kind of interferes
with that diagnosis is that he’s had the
major depressive symptoms pretty consistently as well, so the, the psychosis got
worse
or got better, but the depression seemed to be fairly reasonably
unremitting” (see T 1969.3-6).
- Dr
Saker gave evidence (at T 1969.36) that he agreed with the opinion expressed by
Professor Greenberg in his report that:
i. [T]here is support that [the applicant] was initially
presenting with paranoid overvalued ideation about his ex-sister-in-law,
the
police and others with good insight and judgment in the initial months following
the alleged offences. However, at some unknown
date or period of time, his
mental state appears to have significantly deteriorated”;
ii. [T]here is documentation to suggest [the applicant] appears
to present with overt delusional psychotic beliefs, perhaps as
early as 27
October 2012, approximately 14 months after the alleged offence; and
iii. [The applicant’s] mental illness was emerging over a
period of time prior to his initial diagnosis of an overt psychotic
delusion on
30 January 2013. ... [T]he various stresses following the death of his brother,
such as him being a suspect in a murder
investigation, his financial problems et
cetera had some impact over time, which ultimately led to his psychotic
presentation in
year 2013.
- As
to when, in his opinion, there was more definitive evidence that the applicant
was suffering from an overt delusional psychotic
belief, Dr Saker said that it
was when the applicant reported having smelt the police officer (referring to
the consultation on 16
December 2012).
• Professor
Greenberg
- Professor
Greenberg, a forensic psychiatrist, reviewed documentation in relation to the
applicant but (as noted above) did not examine
the applicant. Professor
Greenberg gave evidence that, having never examined the applicant himself, he
could not make a specific
diagnosis but said that the applicant likely met the
criteria for having a paranoid delusional disorder and that there was an
emerging
paranoia culminating in a psychosis in late 2012 or early 2013. At
T 2003.30-44, Professor Greenberg said:
Looking at the documentation, there was information that [the applicant] had
seen Dr Saker from November 2011 until July 2013 and
that he had seen him over
that period with the key symptoms of paranoid ideation or overvalued thoughts
about persecution, which
culminated in him making a diagnosis of psychosis,
which is a mental illness, in January 2013. As well as in July 2013 making a
second
diagnosis that he wasn’t schizophrenic but suffered from a
fluctuating severity of symptoms of paranoia, the extreme being
a psychosis and
a lesser extreme not being a full mental illness would be overvalued ideas
I was also aware of the reports from Dr Elliott who is the psychiatrist in the -
a psychiatrist who saw him and diagnosed him with
delusional - paranoid
delusional disorder and a psychiatric registrar, that’s a medical doctor
in training to be a psychiatrist,
Dr Chan, made a similar diagnosis of
delusional disorder.
- Professor
Greenberg then said, at T 2004.1-7:
From that I was of the view that having not examined him I cannot make a
specific diagnosis, but from the information available to
me it’s likely
that he met the criteria for having a delusional - a paranoid delusional
disorder which is a psychotic illness
currently. Those are my conclusions that
there was an emerging paranoia culminating a psychosis in late 2012, early 2013.
- Professor
Greenberg expressed an opinion “on balance” that the applicant had a
mental illness, noting that he had been
treated for a long period of time for a
mental illness (see T 2004.35).
- Professor
Greenberg expressed some concern about the new information he had learned having
been present during Dr Saker’s evidence
(referring to
Dr Saker’s treatment of the co-accused, Mr Woods), noting that it was
quite unusual for an accused and co-accused
to have symptoms which are so
similar. Professor Greenberg’s evidence was that “I probably sway
to the opinion that
[the applicant] has a mental
illness”.
Evidence of writings and recordings
- It
is also relevant in this context to consider the writings and audio recordings
made by the applicant that are in evidence. The
Crown relied on a number of
written and audio-recorded admissions, these being the subject of objection
under s 90 of the Evidence Act 1995 (NSW) (Evidence Act),
on the basis that there was evidence from psychiatrists (Dr Saker and
Professor Greenberg) that the applicant was psychotic at the
time he made the
admissions; and that there was accordingly a danger of unfair prejudice. Her
Honour admitted the evidence for the
reasons given in R v Fantakis [2018]
NSWSC 1815 (the Admissibility Judgment).
- Exhibits
CF, CG, CH, CJ and CL consisted of writings or audio recordings made by the
applicant. Exhibit CX consisted of conversations
intercepted by a listening
device. It was not in dispute that the jury might consider some of what the
applicant said in those exhibits
to be a product of delusion. However, the
Crown emphasises the evidence as to the time when that material was
created.
- Detective
Senior Constable Brennan gave evidence that Ex CF was created no earlier than 11
August 2011 and no later than 7 June 2013
(when many of the items were seized
during a search warrant). There was evidence that Exs CF and CH had been
emailed by the applicant
to third parties on 12 and 13 December 2012 (which
therefore places Ex CF as being no later than mid-December 2012). Various of the
dates which appear on Exs CG, CJ and CL suggest that they were created in late
2012. The conversations recorded in Ex CX took place
in the period between 31
July 2012 and 3 August 2012. None of the material appears on its face to have
been created before 11 August
2011; and it is clear that much of the
material was created in 2012.
- The
content of those exhibits (which this Court was urged to consider in full on the
present application) may be summarised as follows.
Exhibit
CF
- Exhibit
CF comprises undated handwritten notes of the applicant, recounting his beliefs
as to the events of 27 May 2011, the date
of Nicholas Fantakis’ death. The
notes provide in detail the applicant’s reasons for believing that
Mr Karmas was responsible
for his brother’s death. The notes state
that “[t]he act [an attack of Nicholas Fantakis] was pre planned [sic] as
Sam
Karmas lived a double life” going on to state that Mr Karmas was
“a serial killer, sadistic in character profile”.
In the notes, the
applicant proceeds to outline his theory regarding his brother’s death,
opining (inter alia): that his brother had not hung himself; that what
had occurred was a “homocidal [sic]” hanging; that his brother was
being surveilled; that Mr Karmas had electrocuted Nicholas Fantakis prior to
contriving the supposed hanging; that another person
(Ms Genetzakis) assisted Mr
Karmas in effecting the murder; and that Mr Karmas had poisoned the
applicant’s father.
- In
the notes, the applicant refers to accosting Mr Karmas on 11 August 2011,
claiming that Mr Karmas was carrying a taser. The applicant
states that, as
Mr Karmas passed, he “kicked him off his feet”, punched him in
the throat to “prevent him from
breathing & screaming” and then
grabbed the taser. The applicant states that he “used [Mr Karmas’]
own weapon
to incapacitate him” and goes on to set out that Mr Karmas then
confessed to a number of things, including “that he had
killed [the
applicant’s] brother, his involvement with high ranking police, insurance
fraud & Maria’s [Angeles] involvement”.
The applicant goes on to
say that he “torchered [sic: tortured]” Mr Karmas “until he
spilled his guts on all that
are involved in this machine of killings”.
The applicant states that “the best thing for this animal [Mr Karmas] was
to let him go & he would disappear like the snake he was”, which,
according to the applicant, “infers [sic: implies]”
that “Sam
Karma’s [sic] is a missing man & that the only crimes that have been
committed are by the above”.
The applicant makes various other allegations
in the notes, including allegations that the coroner sold organs and removed
“[n]ano
mind control chips from victim’s brains ect [sic]”.
- Given
the references to Mr Karmas as a missing man (and the date reference to 11
August 2011), it is clear that these notes were made
after the disappearance of
Mr Karmas.
Exhibit CG
- Exhibit
CG comprises handwritten notes of the applicant in a page of a diary that is
dated Friday 19 October 2012 (and therefore can
only logically have been made at
some time after the 2012 diary was printed, even if the actual date on which the
entry was made
was not 19 October 2012). These notes detail how the applicant
met Mr Karmas, and his opinion of Mr Karmas. The note states that
the applicant
met the deceased when he was 17 years old. The applicant opined that Mr Karmas
had “fascinations of [sic] [his]
mother”. The applicant also states
that his brother was “asked to represent Australia in the bricklaying
Olympics, butt
[sic] had a mortgage”. The applicant alleges that someone
“placed spells” on him and his brother until his brother
“looked like a skeleton”. The applicant again there refers to
“torchoring [sic: torturing]” Mr Karmas and
goes on to say that
he “loaded him in the van & drove” and that he “left him
tied up & watched him”.
The references to torturing Mr Karmas are
consistent with the timing of these notes being after his
disappearance.
Exhibit CH
- Exhibit
CH comprises a handwritten note addressed to Judge White. In the note, the
applicant details messages he purports to have
sent to the Commissioner of
Police. The applicant goes on to state “[y]ou are probably wondering how I
convey these messages.
Since I know they monitor my phones I simply SMS these
messages to myself. I know they are being read”.
- The
applicant referred to Mr Karmas in this letter as “Mr Karmas the missing
man”. At the conclusion the applicant stated
that Mr Karmas “gave
him a confession” and that he was “released but alive & now you
know why he has staged
his disappearance”.
- In
the letter the applicant also details an encounter with “bikies”
stating that “if [he] didn’t have [his]
daughter, instead of hitting
2 motorbikes [he] would have run over all 12 [bikies]”.
- The
reference to Mr Karmas as “the missing man” clearly places this note
as having been made after the disappearance of
Mr Karmas.
Exhibit
CJ
- Exhibit
CJ is another handwritten letter dated 10 December 2012 to a judicial officer
(and hence is a document in its terms brought
into existence in late 2012). In
this letter, the applicant details the circumstances in which he alleges he
discovered a surveillance
device in his place of residence, which he further
alleges was placed there by a number of specified policemen and women. The
applicant
goes on to say:
Recently I discovered that this was an RF Booster used to send & receive
messages to the nano chip that has been intentionally
fitted into Mr
Wood’s brain whilst in the care of [a mental health facility]. I no [sic]
this does sound crazy but do some
research at a internet café [sic], not
at home, on mind control via nano technology. Its [sic] been in existance [sic]
since
the 1950’s [sic].
- Later
in the letter, the applicant opines that the “chip” in Mr
Woods’ brain “is special” and “allows
audio &
visual, i.e., they can see through his eyes”. The applicant goes on to
state that he chose to hand write the letter
as “all [his] computers have
been bugged & [his] internet & mobile phone”. The applicant then
says:
... I have to be honest with you, I have lived a double life due to my
upbringing. But I was mentored by a CIB agent who lives in
Tasmania ... He was
Prince Charles’s bodyguard whilst in Australia many years ago.
- The
applicant states that all seven attempts to have him killed “have
frustrated NSW finest assasins [sic]”. The applicant
outlines the nature
of the conspiracy in which he alleges he is involved. Under the heading
“the true story of the missing
man” the applicant says that prior to
the “disappearance” of Mr Karmas, he (i.e., Mr Karmas) made five
attempts
“to [sic] having [sic] me murdered”. The applicant explains
the altercation with the deceased that took place on 11 August
2011 and
goes on to say that he is “not proud of torchuring [sic: torturing] him
for a period of 3 hrs”, but then states
that “in this time [he]
gathered enough information to obtain the basic knowledge of his involvement in
this organisation of
Masonic justification (Illuminatis)”. The applicant
says that “after this time” (presumably meaning the period
of three
hours to which he has referred as involving the torture of Mr Karmas) he
“released Sam [Karmas]”, and that “there
is a reason why [the
deceased] cannot be found”, that he was intending to “save
face”.
- Relevantly,
the date of this letter is consistent with the timing of the first statements by
the applicant to Dr Saker as to the implantation
of a bug in his head (which
were recorded in the consultation of January 2013).
Exhibit
CL
- Exhibit
CL is a typed document headed “Police Investigation into Fraud
Allegations” which commences at par 187. The document
details the transfer
of a fraud investigation concerning Ms Angeles from Ashfield Local Area Command
to Bankstown Local Area Command,
where it was assigned to the same detective in
charge of the murder investigation. The applicant outlined his grievances
concerning
the investigation of the alleged fraud, and of the murder of the
deceased, as well as his opinions as to the circumstances of the
death of his
brother. The applicant went on to say the following:
I feel comfortable that my matter will be heard regarding the Murder of my
brother, if that means having to accept responsibility
for the murder of a
missing man, I then under oath accept responsibility of Mr Sam Karma’s
[sic] as long as I have my day in
court.
- Having
regard to the reference to “the murder of a missing man” in the
context of a reference to Mr Karma, it is clear
that this document came into
existence after the disappearance of Mr Karma.
Exhibit CS
- Exhibit
CS is a transcript of recordings taken from a listening device. The device was
installed between 24 November 2011 and 29 November
2011. On 25 November 2011,
the transcript records the following conversation (at pp 4-5):
WOODS: ... listen ... you know ... cause he’s dead ...
hey you know what will be in the van yesterday ...
FANTAKIS: ...
WOODS: It’ll come out sure it will no worries ... we just
... like fuck you ... was he dead ... yeah ... no no no look ...
it’s
gonna go to court ... you gonna go to court you know, you would have to be a
fool not to go ... you would have to be fed
poisoned pork you’re gonna
FANTAKIS: ...
WOODS: ... then they’re going ... we’re gonna get
put in gaol ... then we’ll be like ... you only get to go to
prison
you’re going to get caught ... only if you’re going to sort
something ... you need to serve something ... court
case ... private hospital
... I like that orderly ... when we go and see Nick huh ... very nice very nice
very nice ... fucken
...
WOODS: ... what’s the fucken story ... you ...
they’re going to find him ... storage ... taser injury
...
WOODS: ... we believe that .. you know like a ... suicide ...
all I’m saying is mate ... death by electrocution
- On
26 November 2011, the transcript records the following conversation (at pp
11-12):
WOODS (?): ... ok. Just listen. Eventually they always pick up
on this right the fuck ups. They back track through our text messages
ok.
WOODS (?): Yep
FANTAKIS(?): So we have to start saying palm this palm that
palm palm palm then eventually we will have them off us ok
WOODS: Yep
...
WOODS(?): He can ... As long as he doesn’t know the
motivation of our crime ... Shut up cunt ... Want to fucken annoy me,
try to
fucken hunt me down like I’m some sort of a
FANTAKIS(?): Criminal (laughs) ...
- Later
that day the applicant and Mr Woods had the following exchange (at p 24):
FANTAKIS: Welcome to Camden population fuck all
...
WOODS: ... Oh there is now Graham Hills Road, Graham Hills Road
that’s where it is ... ok Camden Valley Way you got a bit
to go yet ... do
do do ... (laughs) Fuck that if they got nothing then they can’t charge
you. What are you talking about dumb
cunt?
FANTAKIS: ... they can charge you
WOODS: They just can’t make it stick
WOODS: They can charge you with no body no thing you know that
...
FANTAKIS: ... my van
WOODS: ... hey
FANTAKIS: He was in my van, I never denied that ... put it in
my van so you know
- Later
on that same day, 26 November 2011, the transcript records the following
exchange (at p 25):
WOODS: Fuck I’m amazed he didn’t peel as well
FANTAKIS: He went brown quick
WOODS: Hey
FANTAKIS: He went brown quick
WOODS: (laughs) haha yeah I know ... he went fuckin black ...
- The
applicant and Mr Woods proceeded to discuss the amount of time they were walking
“that night”, and Mr Woods went on
to say that “the next day
[he blew his] van up”. Mr Woods then said that “this has been
emotionally the hardest
thing [he has] ever done”. Later that evening the
transcript records Mr Woods opining that he does not “think
[they’ll]
be charged for that” to which the applicant responds
“I gotta fucken prepare myself in case I do” (see Ex CS pp
29-30).
Exhibit CX
- Exhibit
CX is the transcript of recordings taken from a listening device. The first
track is a recording made between 4.37pm on 31
July 2012 and 2.17am on
1 August 2012. At one point in the recording, the applicant says that he
“knows what they are going
to try and do now ... they are going to try and
discredit [him] on lies” but that he had “already got that
covered”
and that there was “a reason why [he] did that ... [he] had
a reason ... [he] did it out of love ... [and] had nothing to gain
from it so
it’s not actually a crime”. Mr Woods responded to this by
saying “every fuckin stone unturned”
(presumably counselling the
applicant to leave no stone unturned in his preparation for the
trial).
Applicant’s submissions on grounds 1 and 2
- On
these grounds of appeal, Counsel for the applicant submits that the conviction
should be quashed and a new trial ordered. The complaint
here made is that,
notwithstanding the choice made by the applicant through his counsel to conduct
his defence on the basis that
he did not kill Mr Karmas, a complete defence to
liability (that of mental illness) was available on the evidence, and the trial
judge should have put it to the jury to secure a fair trial of the accused. It
is submitted that the failure by the trial judge to
put the defence of mental
illness occasioned a miscarriage of justice. Further, it is said that the
defence of substantial impairment
under s 23A of the Crimes Act 1900
(NSW) (Crimes Act) was also available on the evidence and that, if it
had been left to the jury, there may have been a verdict of manslaughter.
- Counsel
for the applicant notes that at trial defence counsel emphasised in closing that
there was no body, and no proof to the requisite
standard that Mr Karmas
was in fact dead; and that the applicant had given evidence denying the
allegation of murder and seeking
to explain several of the circumstances upon
which the Crown relied.
- It
is noted that, although the applicant did not advance a defence of mental
illness, the issue of the applicant’s mental state
was given considerable
attention during the trial because of a challenge made by the defence to the
reliability of various bizarre
yet incriminating statements made by the
applicant upon which the Crown relied as admissions; and that this was the
evidence which
the trial judge had admitted over objection. Defence counsel at
trial had argued, before the jury, that the evidence was seriously
doubtful
because it was generated at a time when the applicant was psychotic. The
admission evidence included various writings and
recordings such as Exs CF, CG,
CH, CJ, CL and CX (see above). In the writings comprising Ex CF, for example,
there is a suggestion
that Mr Karmas had confessed to murdering Nicholas
Fantakis, and in Ex CG there are references to the applicant torturing
Mr Karmas.
- Instead
of advancing mental illness as a full defence to the charge or seeking a verdict
of manslaughter on the basis of the defence
of substantial impairment, the
applicant through his counsel defended the charge on the basis that there was no
proof to the criminal
standard that Mr Karmas was dead or that he had killed
him. On the present appeal, it is submitted that, had defence counsel raised
the
defence of mental illness or substantial impairment or both as alternatives to
the primary defence which he was advancing, defence
counsel may have thought
that doing so would weaken considerably that primary defence (since raising
either or both of those defences
would necessarily have assumed that the
applicant had killed Mr Karmas).
- I
set out the relevant principles in due course. It is accepted by the applicant
that, in order to succeed on grounds 1 or 2 on this
appeal, the applicant must
show that it was incumbent upon the trial judge to leave the defence of mental
illness or the defence
of substantial impairment or both, in the circumstances
of the case. Reference is made to Pemble v The Queen (1971) 124 CLR 107;
[1971] HCA 20 (Pemble), in which Barwick CJ said (at 117-118):
There is no doubt that the course taken by counsel for the appellant at the
trial contributed substantially to the form of the summing
up. If the trial had
been of a civil cause, it might properly be said that the trial judge had put to
the jury the issues which had
arisen between the parties. But this was not a
civil trial. The decision of the House of Lords in Mancini v. Director of
Public Prosecutions following Lord Reading’s judgment in R. v.
Hopper and its influence in the administration of the criminal law must ever
be borne in mind (see Kwaku Mensah v. The King). Whatever course
counsel may see fit to take, no doubt bona fide but for tactical reasons in what
he considers the best interest
of his client, the trial judge must be astute to
secure for the accused a fair trial according to law. This involves, in my
opinion,
an adequate direction both as to the law and the possible use of the
relevant facts upon any matter upon which the jury could in
the circumstances of
the case on the material before them find or base a verdict in whole or in part.
[Citations omitted]
- Menzies
and Windeyer JJ relevantly agreed. Menzies J said (at 133) that “counsel
for the defence cannot effectively disclaim
a defence open to the accused upon
the evidence. The judge must submit that defence to the jury”.
- It
is noted that these principles have been affirmed on many occasions, for example
in Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246
(Basanovic), at [78]-[79] per Simpson AJA (with whom Bellew and Wilson JJ
agreed). In Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
(Fingleton), McHugh J said, at 198-199:
A trial judge is bound to put to the jury every lawfully available defence open
to the accused on the evidence even if the accused’s
counsel has not put
that defence and even if counsel has expressly abandoned it.
[...]
No doubt the course taken by counsel on each side put the learned trial judge in
a difficult position. To a considerable extent,
he would have had to instruct
the jury on matters that counsel who then appeared for the appellant had
eschewed. But as Barwick CJ
makes clear in Pemble, the proper administration of
the criminal law requires nothing less. The right of every accused to a fair
trial according to law cannot automatically depend on the forensic choices of
the counsel who represents the accused. [Citations
omitted]
- The
principles have also been affirmed in the specific context of the defence of
mental illness. In R v Ayoub (1984) 2 NSWLR 511 (Ayoub), Street
CJ (with whom Slattery J agreed) said at 514:
It is, of course, clear that, if the state of the evidence justifies it, a trial
judge will put to the jury the defence of mental
illness of his own motion. R
v Damic [1982] 2 NSWLR 750 is a recent instance of such a case.
Moreover, irrespective of whether or not the accused raises or disclaims such a
defence, a trial
judge, if he sees it as fairly open, may well have a positive
duty to put the defence himself: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR
107.
- In
R v Damic [1982] 2 NSWLR 750 (Damic), the trial judge left
the defence of mental illness to the jury against the wishes of the accused.
Street CJ (with whom Slattery
and Miles JJ agreed) said, at 762:
The trial judge was, as he reported to this Court, gravely concerned at the
implications from the point of view of justice of permitting
a man suffering
mental illness to be convicted of murder for which there were strong grounds for
doubting his true criminal responsibility.
If the judge had not intervened by
calling the psychiatrist this is the result which would very likely have ensued.
He was, in my
view, acting entirely properly in taking this course,
notwithstanding that the accused man did not in fact, and did not wish to,
set
up a defence of mental illness. Indeed, if the judge had refrained from taking
this course of his own motion, an unjust conviction
could well have resulted.
- It
is noted that in Damic the accused was unrepresented, but Counsel for the
applicant say that nowhere is it suggested that the principles deriving from
Pemble apply differently in cases where the accused is represented.
Ultimately, it is the task of the judge to ensure a fair trial of the
accused.
It is submitted that this extends to making sure that a person who was mentally
ill at the time of the offence (in the
sense of the Re
M’Naghten’s Case (1843) 8 ER 718) is not unjustly convicted. In
R v Foy (1922) 39 WN (NSW) 20, Cullen CJ (with whom Ferguson and James JJ
agreed) said:
... as it would be contrary to justice that a person should be convicted of a
crime committed whilst he was insane, merely because
he himself later does not
set up that defence, an issue on the question might properly be left to the jury
though he relies at the
trial on a defence on the merits only.
- More
recently, in Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 47
(Hawkins), an unanimous five-judge bench of the High Court said, at
517:
...if there be evidence that the accused was suffering from a mental disease
when the incriminated act was done and the evidence
is capable of supporting a
finding of insanity, the trial judge must give the jury a direction on that
issue.
- In
relation to ground 2, namely that the trial miscarried because her Honour failed
to leave manslaughter to the jury on the basis
of the defence of substantial
impairment, it is noted that this issue was dealt with in R v Cheatham
[2000] NSWCCA 282 (Cheatham). There, Spigelman CJ, with whom James
and Sperling JJ agreed, held that there was a miscarriage because there was
evidence to support
the defence and the accused had lost an opportunity to have
his crime reduced from murder to manslaughter on that basis (at [31]-[63]).
- It
is submitted by Counsel for the applicant that the trial judge in the present
case was required to leave the defence of mental
illness to the jury, subject to
the question whether there was evidence capable of supporting it; and, further,
that her Honour was
required to leave manslaughter to the jury on the basis of
the defence of substantial impairment (relying on Pemble,
Fingleton, Ayoub, Hawkins; and Cheatham).
- On
the evidence and in the circumstances of this case, it is accepted by Counsel
for the applicant that, if the applicant had killed
Mr Karmas, he would likely
have known the nature and quality of his act. What Counsel for the applicant
contends, however, (as the
basis for his potential acquittal on the ground of
mental illness would have been, had her Honour directed the jury on the matter)
is that it was reasonably open for the jury to find that the applicant did not
know that his act was wrong.
- Further,
it is noted that the test for the defence of substantial impairment is different
from (and less stringent than) the test
for mental illness. In the present
matter, Counsel for the applicant says that the potential basis for a finding of
substantial
impairment would have been that: the applicant was suffering from an
abnormality of mind (i.e., a delusional disorder); this substantially
impaired
his capacity to perceive events or control himself (saying that
“events” in the statutory offence should not
be construed
(narrowly)); and that the impairment was so substantial as to warrant a verdict
of manslaughter rather than murder.
- As
to the evidence regarding the applicant’s mental state, it is noted that
the question whether there is evidence capable of
supporting a defence to
liability (whether or not it is a complete defence) does not require this Court
to be satisfied that the
defence would have been made out if it had been raised;
rather, that the applicant merely needs to show that there was evidence which
could have supported the relevant finding.
- Counsel
for the applicant submits that there was strong evidence tending to prove that
the applicant was delusional at the time of
the offence to the point of
satisfying the requirements of the defence of mental illness (and also the
defence of substantial impairment).
Counsel for the applicant emphasises that
it was the Crown case that the applicant had a deranged motive to kill
Mr Karmas; and
that, at that time, the applicant was “out of touch
with reality” (it being said that the Crown case was that the applicant
had killed Mr Karmas because he was delusional). Counsel for the applicant
submits that the evidence upon which the Crown relied
to show that the applicant
was delusional was capable of supporting the proposition that the applicant was
“M’Naghten mentally ill”; and argues that they are, in
effect, the same proposition.
- Although
there was no specific evidence from a psychiatrist that the applicant was
mentally ill or psychotic at the time of the murder,
Counsel for the applicant
says that this is explained by the fact that the applicant did not consult a
psychiatrist until several
months had passed (noting that Dr Saker commenced his
treatment of the applicant in November 2011). In any event, Counsel for the
applicant submits that satisfying the M’Naghten test does not
require evidence that the accused had a formal diagnosis of mental illness at
the time of the offence; saying that in
many cases evidence as to the mental
state of the accused some time after the offence will illuminate his or her
mental state at
the time of the offence.
- Emphasis
is placed on the evidence of Ms Mantas (as the applicant’s long term
partner) to the effect that the applicant’s
mental condition was
deteriorating at the time of the offence; that she noticed him to be depressed
and irrational, and that he said
things that did not make sense anymore.
Counsel for the applicant draws from Ms Mantas’ evidence that the
applicant was, from
August 2011, discussing conspiracy theories, saying that
Ms Mantas’ evidence identified her daughter’s birthday party
on
7 August 2011 (four days before the commission of the offence on 11 August) as
around the time when she remembers the deceased
starting to talk to her about
delusional theories (cf above at [163]); and noting that the applicant had
visited Nicholas Fantakis’
grave at Rookwood Cemetery on the morning of
7 August 2011.
- Reference
is made to Ms Mantas’ evidence that, by August 2011, the applicant was
burdened with a number of financial responsibilities;
that the loss of his
father in November 2010 had a very bad effect on him; and that Nicholas
Fantakis’ death in May 2011 was
“the ultimate devastation” for
the applicant. It is noted that, in relation to the deaths of his father and
brother,
Ms Mantas said:
Q. With the death of his father and then brother, did you
observe whether or not Terry had to take over in terms of looking after
the
property that was left by those two men?
A. Terry did a lot, all that organisation. That burden seemed
to be left on his shoulders squarely.
- Reference
is also made to the following evidence of Ms Mantas as being to the effect that
the applicant became delusional following
Nicholas Fantakis’ death, and
that there was a slow worsening from August onwards (see at
T 682-683):
Q. Did the changes in his personality and mental state become
gradually worse and worse?
A. Well I thought he was trying to get some help from a
doctor.
Q. Do you know of a Dr Saker, S-A-K-E-R?
A. Dr Saker at Bankstown, correct. I didn’t see any
improvement.
Q. But he did begin to have what to you appeared to be
delusional theories?
A. Yes, yes, he did.
Q. Did they develop over time though?
A. What timeframe are we talking about?
Q. From the end of 2011 into 2012.
A. I think it developed around about from Nick’s death
onwards towards the end of the year, and after that I never saw Terry
much from
that Christmas.
Q. Did he begin to discuss conspiracy theories in the latter
part of 2011?
A. Absolutely, yes, so this is all after Nick’s death. In
my mind that’s where it’s all started from.
- It
is noted that, while Ms Mantas then said that she was “shocking with dates
and times”, Ms Mantas did vividly recall
the applicant being depressed
around the time of her daughter’s birthday (7 August 2011).
- Reference
is also made more generally to the evidence of Ms Mantas commencing at T 675 and
concluding at T 687. It is submitted that,
based on the evidence of Ms Mantas,
it would be accepted that the applicant’s mental condition declined
considerably following
the death of his brother Nicholas Fantakis in May 2011;
and that, by August 2011, the applicant was in a very “bad
state”.
- Counsel
for the applicant submits that, in addition to the evidence of Ms Mantas,
the psychiatric evidence from Dr Saker and Professor
Greenberg “tends to
suggest that the Crown case on delusion was correct”, and that the
applicant may well have been mentally
ill in the M’Naghten sense at
the time of the offence.
- Counsel
for the applicant argues that the evidence of Dr Saker as to the early
consultations and to the possibility that patients
may reject antipsychotic
medication as evidence that suggests that there may be a concern among private
practitioners not to make
a diagnosis of psychotic illness too readily, or to
prescribe drugs too readily to treat it, because of the risk that the patient
will reject the diagnosis. It is noted that Dr Saker adverted to these types of
concerns again at T 1971.16-27. Counsel for the
applicant says that this is
further evidence (in addition to the evidence given at T 1957) which may explain
why Dr Saker took some
time to diagnose and address the applicant’s
psychotic illness.
- In
any case, Counsel for the applicant says that, by 16 December 2012,
Dr Saker had concluded that the applicant was psychotic, and
had prescribed
the anti-psychotic drug Asenapine; and that Dr Saker presented an alternative
antipsychotic medication in January
2013, namely Quetiapine (the main purpose of
Quetiapine being to treat schizophrenia). It is noted that by this time Dr
Saker had
begun challenging the applicant’s paranoid claims, and that Dr
Saker considered whether he might have been wrong “from
the
beginning” and that the applicant might have been genuinely psychotic and
delusional throughout the period during which
he was treating him.
- Counsel
for the applicant submits that it is clear from the evidence of Dr Saker that
his view was that the applicant was psychotic
and delusional during the period
that he was seeing him. Pausing there, I note that Dr Saker expressed this view
in qualified terms,
stating at T 1968.19-22 that the applicant “seemed to
be definitely psychotic and having persecutory delusions at times and
sometimes it seemed to go down to a paranoid overvalued idea and sometimes what
he was saying kind of made sense” (emphasis
added). Counsel for the
applicant submits that the exchange extracted earlier from Dr Saker’s
evidence shows that Dr Saker
accepted that the applicant may have been psychotic
and delusional before that period, and that Dr Saker observed that the psychotic
illness was sometimes more intense and manifested itself more obviously when the
applicant was experiencing stress. It is noted
that Dr Saker said that,
although the applicant’s symptoms of depression were constant, the
symptoms of psychosis were not.
Counsel for the applicant points to the
following evidence given at T 1968-1969:
TODD: So the delusional disorder, was that a diagnosis you
would be comfortable with of Mr Fantakis, the last time you saw him?
WITNESS SAKER: I think, yes. The only thing that kind of
interferes with that diagnosis is that he’s had the major depressive
symptoms pretty consistently as well, so the, the psychosis got worse or got
better, but the depression seemed to be fairly reasonably
unremitting.
- It
is noted by Counsel for the applicant that at the trial defence counsel sought
to elicit evidence supporting the proposition that
the overt psychosis only
emerged later, that is, after a number of sessions with Dr Saker had taken
place. Counsel for the applicant
explains this as being because defence counsel
wished to demonstrate that the applicant was mentally ill at the time that he
(later)
made the bizarre statements upon which the Crown relied as admissions of
guilt; and that the next step would be for defence counsel
to argue that the
jury should reject the admission evidence as unreliable. However, Counsel for
the applicant says that the evidence
of Dr Saker allows for the conclusion that
the applicant was psychotic at all material times (i.e., when the applicant made
the statements
relied on as admissions but also earlier, when he was alleged to
have killed Mr Karmas in August 2011).
- Counsel
for the applicant submits that the jury would have been entitled to prefer the
evidence of Dr Saker over the evidence of Professor
Greenberg to the extent of
any inconsistency (given that the latter had not met or examined the applicant).
It is noted that it was
not put to Professor Greenberg that the applicant may
well have been mentally ill at the time of the alleged murder but Counsel for
the applicant submits that Professor Greenberg’s evidence in any event
does not disprove that the applicant was mentally ill
at that time.
- Counsel
for the applicant argues that the proposition that the applicant was mentally
ill at the time of the offence is supported
by Dr Saker’s evidence that
the applicant’s psychosis was more clearly on display during periods of
high stress. It
is said that the evidence inter alia of Ms Mantas shows
that the period leading up to 11 August 2011 was a period of high stress for the
applicant, which Counsel for the
applicant contends is consistent with the
conclusion that he was psychotic at that time.
- Finally,
Counsel for the applicant refers to the bizarre statements made by the applicant
upon which the Crown relied as admissions
(including Exs CF, CG, CH, CJ, CL and
CX) which the applicant did not dispute as emanating from him, though he
disputed their truth.
It is said that they contained obviously delusional
matters and assertions of false matters. Counsel for the applicant submits
that
the jury was, in effect, invited “to cherry pick or guess” matters
that might be admissions but to ignore the rest.
It is noted that, in closing,
defence Counsel submitted (at T 2705-2706) that “Obviously what he’s
in effect saying
to you is that was what I did, yes I did write those things
out, I didn’t do any of those things and I’m ashamed of that,
that
I’ve done that and I am not the same man”.
- Counsel
for the applicant submits that it is clear from the content of these suggested
admissions, and the evidence of the psychiatrists,
that the applicant was
suffering from a serious psychotic illness. This Court was asked to peruse the
various writings and recordings
and to accept that they include very bizarre
statements which show clearly that the applicant was deranged. (Pausing there,
this
Court has done so; and there is no doubt that the writings include bizarre
statements; but the difficulty is one as to timing of
the writings or
statements, bearing in mind that for most it is abundantly clear that they were
brought into existence at a later
time than the time of Mr Karmas’
disappearance.)
- On
the basis of the evidence referred to above (and other evidence in the Crown
case), it is submitted by Counsel for the applicant
that there is a real
possibility that the applicant was “M’Naghten mentally
ill” at the time of the offence. It is submitted that, on the evidence in
the Crown case, the applicant was deluded
as to the cause of his brother’s
death and the motivations of various people (particularly Mr Karmas and Ms
Angeles) in relation
to family property and other matters and that it was well
open to the jury to infer that the mental illness which undoubtedly afflicted
the applicant in 2012 and 2013 had afflicted him before then, and that it did so
at the time that he was alleged to have killed Mr
Karmas.
- It
is submitted that, on the evidence, the effect of the applicant’s
delusions might well have been that he did not know that
his act was wrong
according to the ordinary standards of right and wrong adopted by reasonable
people. It is submitted that this
finding was reasonably open, and thus the
issue of mental illness as a defence to the charge should have been left to the
jury (notwithstanding
the applicant’s decision at trial to rely solely on
a defence on the merits).
- Counsel
for the applicant further says that, on the evidence, it was open to the jury to
find that at the time of the offence the
applicant’s capacity to perceive
events (construing that term broadly) and to control himself may have been
seriously affected
by an abnormality of mind; and, hence, that the defence of
substantial impairment should have been left to the jury.
- Thus,
it is contended that the trial miscarried by reason of the trial judge’s
failure to put the defence of mental illness
to the jury and her failure to
leave manslaughter to the jury on the basis of the defence of substantial
impairment; and it is submitted
that this miscarriage should be remedied by
quashing the conviction and ordering that there be a new
trial.
Crown’s submissions
- The
Crown emphasises the timing of the deterioration in the applicant’s mental
state. In particular, the Crown points out that
the applicant himself gave
evidence that his mental health started to deteriorate badly in 2012; that by
the end of 2012 he had a
“mental breakdown”; and that it was in
about September 2012 that things went “pear shaped” and he began to
form “rather bizarre views”. The Crown says that this timeline is
consistent with the evidence of the two psychiatrists
(Dr Saker and Professor
Greenberg) and the evidence of Ms Mantas; as well as evidence of other witnesses
who said that the applicant
did not exhibit signs of mental illness in their
dealings with him in August 2011.
- The
Crown points out that neither of the two psychiatrists was asked to comment on
the applicant’s mental state as at 11 August
2011. The Crown notes that
Dr Saker, when asked to give an opinion as to when the applicant presented with
overt delusional psychotic
beliefs, referred to a belief reported by the
applicant during a consultation on 16 December 2012 (which was when Dr Saker
first
prescribed the applicant an anti-psychotic medication) and that Dr Saker
did not formally diagnose the applicant until July 2013
when he expressed the
view that the applicant did not have schizophrenia but did have “short
periods of psychosis when under
intense pressure from the police”.
Professor Greenberg, though he could not make a specific diagnosis (because he
had not examined
the applicant), considered that the applicant likely met the
criteria for having a paranoid delusional disorder and that there was
an
emerging paranoia culminating in a psychosis in late 2012 or early 2013 (some 18
months after the offence).
- Insofar
as the applicant places significant reliance on the evidence of Ms Mantas,
the Crown points out that, when questioned as to
when the applicant began to
talk about conspiracy theories, Ms Mantas agreed that it was not immediately
after Nicholas Fantakis’
death but “probably a few months
after” and then later said that it was definitely in “the latter
part of the year”
(which she was able to pinpoint by reference to her
daughter’s birthday being in August). It is noted that, having said that
she was “shocking with dates and times”, Ms Mantas gave evidence
that the applicant was depressed around her daughter’s
birthday (7 August
2011), and that the applicant had visited his brother’s grave before
attending the birthday party, but that
Ms Mantas agreed that “the
delusional happens later” (i.e., later than August 2011) and then said,
“now we’re
talking a few months later”. The Crown says that
Ms Mantas confirmed that the conspiracy theories of which the applicant spoke
included nanotech in his brain and the applicant accusing her of working with
the police (matters that emerge in the applicant’s
writings and in
references by Dr Saker of consultations in late 2012). The Crown says that Ms
Mantas’ difficulty with dates
is well illustrated by the response she gave
when asked if she separated from the applicant at the end of 2012, namely that
“I thought it was 11 but if it’s 12, it was around Christmas
time”.
- The
Crown points to other evidence as to when the applicant began to discuss the
conspiracy theories to which Ms Mantas had referred.
It is noted that Dr Saker
gave evidence that the applicant told him in October 2012 that he had broken up
with his girlfriend three
days earlier because he believed she was involved in
the bugging of her house; and that the applicant first reported the
“bug”
in his brain to Dr Saker on 9 January 2013 (both dates being
remote in time from the alleged murder).
- The
Crown thus submits that, properly understood, Ms Mantas did not give evidence
that the applicant started to talk to her about
delusional theories around her
daughter’s birthday (cf the applicant’s submissions at [33]) nor did
she give evidence
that by August 2011 the applicant was in a very bad state (cf
the applicant’s submissions at [37]). Rather, the Crown says
that
Ms Mantas’ evidence, properly understood, is that the applicant
started to talk to her about delusions or conspiracy theories
a few months after
August 2011.
- The
Crown attaches some significance to the fact that medical witnesses were called,
and none was asked questions which elicited a
foundation for a defence of mental
illness as contemplated in M’Naghten or substantial impairment. It
is accepted that the Crown case was that the offence was motivated in part by
the applicant’s
deluded belief that Mr Karmas was involved in or
responsible for his brother’s death but the Crown argues that the fact
that
an accused is motivated by a delusional belief does not, of itself, give
rise to a defence of mental illness (and cavils with the
applicant’s
submission that they are “in effect, the same proposition” (cf
applicant’s submissions at [31])).
- The
Crown points out that there was no evidence as to whether a delusional belief of
that character (without more and bearing in mind
other evidence regarding the
applicant’s presentation and behaviour at and around 11 August 2011)
amounted to a disease of
the mind. The opinion of Professor Greenberg, with
which Dr Saker agreed, was that various stressors on the applicant following
the
death of his brother (including but not limited to him being a suspect in a
murder investigation) had some impact over time and
ultimately led to his
psychotic presentation in 2013. The Crown says that this raises a real question
as to whether, even in 2013
when a diagnosis was first made, the applicant
should be regarded as suffering from a disease of the mind or whether his
presentation
involved the reaction of a sound mind to external stimuli including
stress producing factors. In any event, the Crown emphasises
that persons who
interacted with the applicant around 11 August 2011 did not regard him as
exhibiting signs of mental illness.
- It
is said that there was also no evidence as to whether (if the applicant was
suffering from a disease of the mind) the applicant
was labouring under such a
defect of reason that he did not know the nature and quality of the act or that
what he was doing was
wrong. It is noted that the applicant does not now
suggest that he did not know the nature and quality of the act (see
applicant’s
submissions at [27]) but that the applicant submits that
“the effect of the applicant’s delusions might well have been
that
he did not know that his act was wrong according to ordinary standards of right
and wrong adopted by reasonable people”
(see at [59]). The Crown submits
that there is no evidentiary foundation for that assertion.
- As
to ground 2, it is noted that the potential basis for substantial impairment is
said to have been “(a) that the applicant
was suffering from an
abnormality of the mind viz. a delusional disorder; (b) that this substantially
impaired his capacity to perceive
events or control himself; and (c) that the
impairment was so substantial as to warrant a verdict of manslaughter rather
than murder”
(see applicant’s submissions at [25]). The Crown
emphasises that there was no evidence that, as at 11 August 2011, he suffered
from “a delusional disorder” or that his capacity to perceive events
or control himself was substantially impaired (and
that Dr Saker even expressed
some equivocation about making that diagnosis in relation to the
applicant’s presentation the
last time he saw him on 19 July 2013).
- Finally,
while it is accepted that the approach taken by trial counsel is not
determinative, the Crown points to the observation of
the Full Court of the
Supreme Court of Victoria in R v Shields [1967] VicRp 83; (1967) VR 706 (Shields)
at 708, namely that:
In determining whether there was evidence of insanity, as is now claimed, it is
not without significance that the experienced counsel
for the accused at trial
did not at any stage invite the trial judge to put insanity to the jury, but
acquiesced when he did not...
- (Pausing
here, it is relevant to note that the Full Court in Shields went on to
say at 708 that it was not without significance that counsel for the accused
acquiesced “when His Honour indicated
that the evidence [of insanity] was
insufficient for that purpose”. The Full Court also emphasised that
“the trial judge
... was clearly of the opinion that, having regard to the
requirements of the criminal law, there was no evidence of insanity fit
to be
submitted to the jury”.)
- The
Crown says that the observation of the Full Court in Shields is
consistent with the observation by Simpson J, as her Honour then was, in
Basanovic to the effect that the fact that a particular strategy has been
adopted “does not relieve counsel – defence or prosecution
of the
obligation to bring to the trial judge’s attention any matter that ought
to be the subject of a direction”. The
Crown submits that, bearing in
mind that obligation, the failure of defence counsel at trial to raise the need
to leave either of
the defences that are now relied upon to the jury (and indeed
his explicit acknowledgment that he was not seeking that the defence
of mental
illness be left to the jury), can be seen as an acknowledgment that there was
not “some evidence to support it such
that the defence was fairly
open”.
Determination
Legal principles
- As
the Crown accepts, the duty of a trial judge extends to directing the jury with
respect to any defence or alternative verdict that
is reasonably open on the
evidence, notwithstanding that it has not been raised or relied on by the
accused person (see Basanovic at [78] citing Pemble).
- In
Pemble, Barwick CJ said (at 117-118):
Whatever course counsel may see fit to take, no doubt bona fide but for tactical
reasons in what he considers the best interest of
his client, the trial judge
must be astute to secure for the accused a fair trial according to law. This
involves, in my opinion,
an adequate direction both as to the law and the
possible use of the relevant facts upon any matter upon which the jury could in
the circumstances of the case upon the material before them find or base a
verdict in whole or in part.
... Here, counsel for the defence did not merely not rely on the matters not
sought to be raised; he abandoned them and expressly
confined the defence to the
matters he did raise. However, in my opinion, this course did not relieve the
trial judge of the duty
to put to the jury with adequate assistance any matters
on which the jury, upon the evidence, could find for the accused.
- This
principle has been applied both in the context of the defence of mental illness
(see Shields at 707-708; Damic; Ayoub) as well as in the
context of substantial impairment (see Cheatham; and see also Lo Tin v
R [1964] Crim LR 135, cited with approval in Damic; and R v
Issa (Supreme Court (NSW) Sperling J, 16 October 1995, unrep)).
- That
counsel may have adopted a strategy which might be damaged by proposing an
alternative verdict does not relieve the trial judge
of the obligation to direct
the jury with respect to the alternative verdict “provided that it is
viable on the evidence”
(see Basanovic at [82] citing James v
The Queen (2014) 253 CLR 475; [2014] HCA 6 (James) at [31]-[32] per
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
- The
relevant test has been stated (see Basanovic at [81]) as being
“whether there is evidence that could support the defence or alternative
verdict; that is, whether a case
for the alternative verdict based on the
evidence is viable” and as “if there was evidence reasonably capable
of supporting
the [defence]”; and in Fang v R [2018] NSWCCA 210
(Fang) at [61]-[63], as being “if there was some evidence to
support it such that the defence was fairly open” (applying the
test as
stated by Street CJ, with whom Slattery J agreed, in Ayoub). In
Cheatham, it was phrased as whether the defence was “reasonably
open on the evidence before the Court”. It is not suggested that
there is
a material difference between those formulations.
- At
the time of the present trial, the defence of mental illness was governed in New
South Wales by s 38 of the Mental Health (Forensic Provisions) Act
1990 (NSW), which gave effect to the common law principles concerning the
defence of mental illness (see as articulated in Fang at [65]-[71]); and
the defence of substantial impairment was governed by s 23A of the
Crimes Act which then provided that:
(1) A person who would otherwise be guilty of murder is not to
be convicted of murder if:
(a) at the time of the acts or omissions causing the death
concerned, the person’s capacity to understand events, or to
judge whether
the person’s actions were right or wrong, or to control himself or
herself, was substantially impaired by an
abnormality of mind arising from an
underlying condition, and
(b) the impairment was so substantial as to warrant liability
for murder being reduced to manslaughter.
- Nevertheless,
as expressed in the tests noted above, a trial judge is not bound to direct the
jury in relation to a defence unless
it is reasonable having regard to the
evidence (see Mencarious v R [2008] NSWCCA 237 at [65] per
McClellan CJ at CL, with whom James and Fullerton JJ agreed); that is,
“there must be some evidential basis” (Flanagan v R [2013]
NSWCCA 320 at [84] per Beazley P, as Her Excellency then was, Fullerton
and Campbell JJ) or “evidence capable of supporting a verdict of
manslaughter,
or that a verdict of manslaughter was ‘viable’”
(Lane v R [2013] NSWCCA 317 at [43] per Bathurst CJ, Simpson and
Adamson JJ). The duty is enlivened where the defence is reasonably open or
viable having regard to
the evidence.
- It
follows, therefore, that in relation to the substantial impairment defence the
evidence must be capable of establishing the elements
of the defence: first,
that the accused was suffering from an abnormality of mind at the time of the
offence arising from an underlying
or pre-existing condition; second, that the
accused’s capacity was substantially impaired; and, third, that the
impairment
must be so substantial as to warrant liability for murder being
reduced to manslaughter (see D Howard and B Westmore, Crime and Mental Health
Law in New South Wales (2019, 3rd ed, LexisNexis Butterworths) Chapter
8).
- There
is limited guidance as to the strength of evidence required to enliven the duty
of the trial judge to put to the jury the defence
of substantial impairment.
Generally, expert evidence will be necessary to establish the first element of
the defence. In this regard,
the remarks of Badgery-Parker J in R v
Tumanako (1992) 64 A Crim R 149 at 160 are relevant (although it should be
noted that they pertain to legislation which has subsequently been
amended):
The aetiology of the abnormality of mind is a matter which must be determined
upon expert evidence: Byrne [1960] 2 QB 396 at 403; Purdy [1982] 2
NSWLR 964 at 966. That is not to say, as Glass JA pointed out in Purdy,
that the expert evidence will fail in its purpose ‘merely because the
psychiatrist cannot be persuaded to adopt the statutory
terminology’. ...
There may be no legal requirement that medical evidence be adduced by an accused
person, but as the English
Court of Appeal pointed out in Dix (1982) 74
Cr App R 306 at 311, the need to establish that the accused person’s
abnormality of mind arose from one of the specified causes makes the
calling of
medical evidence a practical necessity.
- Having
carefully reviewed the evidence adduced at trial, I do not consider that the
evidence was sufficient to enliven a duty on the
part of the trial judge to
leave the defence of mental illness to the jury nor was it sufficient to raise
such a duty in respect
of the defence of substantial impairment.
- As
to mental illness, there was nothing in the evidence to lead to the conclusion
that a defence of mental illness was reasonably
open (or viable) as at the time
of the offence. While I accept that a formal diagnosis of mental illness is not
necessary, it is
relevant to note that the first occasion that there was a
diagnosis of psychosis (which is a mental illness) was in January 2013;
that the
first prescription of anti-psychotic medication was not until late 2012; and
that even Dr Saker did not raise a suggestion
of a mental illness earlier than
October 2012. Ms Mantas’ evidence placed the mental deterioration of
the applicant as occurring
a few months later than the August 2011 birthday
party at which she said the applicant was depressed.
- Moreover,
insofar as the requirement (for a mental illness defence) that the applicant not
have appreciated that the act of killing
was wrong, the intercepted
communications between the applicant and Mr Woods in November 2011 (and the
applicant’s obvious
attempts to conceal evidence – by the cleaning
of the van and the renovation works to the Wilga Street Property) as well as
the
applicant’s reaction to the deluded belief as to his brother’s death
make clear that the applicant appreciated that
the act of killing a man was
wrong.
- The
fact that the applicant was suffering from a deluded belief that Mr Karmas had
been involved in or the leader of persons involved
in the murder of his brother
at the time of the offence does not make a finding of mental illness reasonably
open on the evidence.
There is a distinction between a deluded belief and a
delusional disorder. No doubt for this reason, on the present appeal, Senior
Counsel for the applicant placed far more weight on ground 2 of the grounds of
appeal.
- As
to the defence of substantial impairment, the evidence at trial still does not
in my opinion provide a sufficient evidentiary foundation
for a conclusion that
a defence of substantial impairment was reasonably open and viable (so as to
warrant a finding of manslaughter
rather than murder) as would be necessary in
order to give rise to a duty on the part of the trial judge to leave this
defence to
the jury even though it was not raised by the defence. It is apparent
that the writings and audio recordings in which delusional
thoughts are
manifested were (consistently with the observations of those that were in a
position to make lay observations of the
applicant’s mental state) brought
into existence after Mr Karmas’ disappearance and for the most part the
most lurid
of these were not brought into existence until late 2012. Again, it
is significant that Ms Mantas ultimately placed the onset of
the delusional
thoughts and discussions and the deterioration in the applicant’s mental
state towards the latter part of 2011
(simply describing the applicant as at the
August 2011 birthday party as “down” and depressed; and later as
“quite
down”). This is consistent with the description of the
applicant’s demeanour on the video footage take at the time of
execution
of the search warrant on 14 August 2011 and lay observations of him at the
time.
- Thus,
grounds 1 and 2 are not made good.
Ground 3: The verdict of the
jury was unreasonable and cannot be supported having regard to the evidence and
therefore was unsafe
and unsatisfactory
Applicant’s submissions
- The
applicant, in his written submissions on this ground of appeal, emphasised the
importance of giving careful consideration to the
way in which the Crown case
was put to the jury, noting that the case against him was circumstantial and
hence that a verdict of
guilty could not be returned unless all reasonable
hypotheses consistent with innocence were excluded. In this regard, the
applicant
cited what was said in R v Gover (2000) 118 A Crim R 8; [2000]
NSWCCA 303 by Dunford J at [42] (Stein JA and Simpson J, as her Honour then was,
agreeing); as well as R v Hunter (No 2) [2013] NSWSC 1806; R v
McIntyre [2000] NSWCCA 6 at [30]- [31], [35]-[36] per Hulme J (Sully and
Hidden JJ agreeing) and Barca v The Queen (1975) 133 CLR 82; [1975] HCA
42 (Barca).
- The
applicant maintains that there is a potentially fatal lacuna in the Crown case,
namely, the absence of a body and any physical
or forensic evidence belonging to
Mr Karmas discovered at the Wilga Street Property notwithstanding the extensive
and sophisticated
crime scene examinations conducted by the police soon after
the disappearance of Mr Karmas (referring to the significant degree of
caution
that Street CJ said in R v Burton (1986) 24 A Crim R 169 was
required where there was the absence of a body and a circumstantial case).
- The
applicant contends that the Crown failed to present a case on evidence that was
cogent and compelling. In that regard, the applicant
points to the evidence of
Ms Rifai that she had seen Mr Karmas between 2 and 3pm on 11 August 2011
across the road from his home
while in the company of two or three men of
Mediterranean appearance (see above) (none of whom could have been either Mr
Cheong or
himself, given Mr Cheong’s Asian appearance and that Ms Rifai
was familiar with the applicant’s appearance). It is submitted
that the
Crown should not be permitted to rely on the submission that Ms Rifai’s
evidence was not inconsistent with Mr Karmas
being engaged in conversation
outside the Warwick Street Duplex with the applicant and Mr Cheong in
circumstances where the police
did not re-interview Ms Rifai after her initial
police statement. The applicant submits that as his blue van had been parked in
the
same line of sight, this favours the conclusion that what Ms Rifai was
describing was an event that occurred after Mr Karmas left
the Wilga Street
Property. The applicant says that this proposition was never asked of Mr Cheong
whilst assisting police during his
walkthrough interview on 18 August 2011 and
was never put to the applicant during cross-examination.
- The
applicant further argues that he and Mr Cheong were persons of good character;
and that evidence of good character is evidence
that could rationally affect
(directly or indirectly) the assessment of the probability that the accused
committed the offence or
offences charged.
- The
applicant says that the Crown failed to lead any evidence as to a motive for
which Mr Cheong would lie to police (he having no
connection with Mr Karmas
or the applicant) and points out that the absence of evidence of motive can be
taken into account, particularly
in a case based on circumstantial evidence
(citing De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 at [30]; J
D Heydon, Cross on Evidence (2015, 10th ed) at 235-236, there citing
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [59] per Brennan,
Gaudron and Gummow JJ and R v Batte (2000) 49 OR (3d) 321 at
[120]-[121]). The applicant suggests that this explains the advancing of the
“5 o’clock theory” (see below in
relation to ground 4 and 5)
(that being a proposition that excluded Mr Cheong), noting that Mr Cheong
maintained his position notwithstanding
the risk of an imminent custodial
sentence if convicted.
- The
applicant contends that the absence of any forensic evidence at the Wilga Street
Property, the ERISPs provided by Mr Cheong and
the applicant to the police, the
absence of motive for Mr Cheong to lie and the unchallenged evidence of Ms
Rifai, were four key
factual circumstances common to Mr Cheong and the
applicant. The applicant submits that a reasonable hypothesis of innocence was
thus not excluded by the Crown at trial; that being a common factual
circumstance shared by the applicant and Mr Cheong (citing Pell v The Queen
(2020) 268 CLR 123; [2020] HCA 12 (Pell) at [58]; [119]). It is
submitted that, consistent with the jury’s decision to acquit Mr Cheong, a
jury acting reasonably and
according to directions must have found that there
was a reasonable doubt in the applicant’s case.
- Referring
to the first case theory of the Crown identified in the trial judge’s
summing up at SU 153 and 155, the applicant
submits that a jury, acting
reasonably, must have acquitted the applicant as the cases against
Mr Cheong and the applicant did share
a common factual matrix (citing
The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 at 678 per Gibbs CJ,
Aickin, Wilson and Brennan JJ); and that, to assume that the applicant could
have been found guilty of the first
case theory, would give rise to facts and
evidence that would overturn/question Mr Cheong’s acquittal (which would
be impermissible
– citing Garrett v The Queen (1977) 139 CLR 437;
[1977] HCA 67).
- Insofar
as the Crown has submitted that the applicant cannot rely on
Mr Cheong’s account given in his ERISP and walkthrough
interview (at
[371] of the Crown’s submissions), the applicant says that the trial judge
directed the jury that they were entitled
to use this evidence with regard to
events asserted by Mr Cheong (at SU 154-155).
- Thus,
the applicant argues that, applying a practical and common sense approach, he
must have been convicted on the second case theory
(citing R v Christopher
Robin Jones (NSWCCA, 2 August 1985, unreported)); and he maintains that this
second case theory fails under scrutiny and should never have been
left for the
jury’s consideration (see his submissions in relation to grounds 4 and 5,
as to which I agree with Dhanji J’s
conclusions).
- Briefly,
since it is considered below in relation to grounds 4 and 5, as to the second (5
o’clock) case theory the applicant
says that the Crown failed to prove
beyond reasonable doubt that Mr Karmas returned to the Wilga Street Property;
and that this was
an indispensable intermediate fact. The applicant points to
the telecommunication records (see as discussed in more detail in relation
to
grounds 4 and 5) and argues that these established that Mr Karmas’
telephone handset was at Wentworthville at 5.30pm that
day and therefore it was
impossible for him to have been at the Wilga Street Property at or soon after 5
pm.
- The
applicant says that his writings were the only evidence to indicate that
Mr Karmas returned to the Wilga Street Property after
Mr Cheong was taken
home; and notes that the importance of corroboration as to the return of
Mr Karmas at 5pm was identified by her
Honour in directions to the
jury.
- The
applicant also relies on the absence of any physical, forensic or fingerprint
evidence located within the Wilga Street Property
belonging to Mr Karmas,
arguing that the fact that the extensive crime scene investigations did reveal
the location of DNA and fingerprints
belonging to the applicant and other
persons allowed for an inference that the alleged crime scene had not been
cleaned by him to
conceal the alleged violent attack on Mr Karmas.
- It
is argued that the inability of the Crown to prove the return of Mr Karmas to
the Wilga Street Property at or soon after 5pm, the
incontrovertible
telecommunications evidence (that his handset was at Wentworthville at 5.30pm),
and the forensic evidence identifies
a reasonable hypothesis consistent with
innocence that was not excluded by the Crown; and confirms that the delusional
writing were
(as the applicant maintained) delusional therapy writings authored
by the applicant whilst suffering from psychosis.
- The
applicant points to the evidence given by him at the trial offering an
explanation for his connection with the events that were
described in evidence;
and says that the Crown’s case stands or falls depending upon the
assessment of the writing and video
evidence seized by investigating police from
the applicant’s home on 7 June 2013. The applicant’s evidence was
that,
although he conceded having authored these writings, there was no truth in
these writings and that the writings were therapy writings,
as prescribed by his
psychologist, Dr Awit.
- The
applicant says that the jury had to be satisfied beyond a reasonable doubt as to
the truthfulness of the confession in these writings
(and also as to the
negation of his evidence beyond a reasonable doubt) before being able to act
upon this evidence and he contends
that there was a failure by the trial judge
to direct the jury on this issue (which is raised by ground 16 of the
applicant’s
submissions and is addressed by Dhanji J, with whom I agree).
The applicant maintains that his evidence (not contradicted by the
Crown) (to
the requisite test of beyond a reasonable doubt) was enough to suggest a
reasonable hypothesis consistent with innocence,
saying that it possessed a high
degree of acceptability and was not contrary to proven facts.
- It
is submitted that a jury acting reasonably had to accept the extensive and
compelling psychiatric evidence (a condition that the
applicant says was
self-evident on the face of the writing and video evidence) and that the jury
was not entitled to reject, as a
reasonable possibility, the alternative
explanation proffered by the applicant (referring to Cesan v The Queen
(2008) 236 CLR 358; [2008] HCA 52 at [130] per Gummow J).
- The
applicant maintains that although the evidence that had been led at trial might
excite suspicion, it was not sufficient to show
to the requisite test that Mr
Karmas did return to the Wilga Street Property at or about 5pm on 11 August
2011, and that Mr Karmas
was violently killed in the second bedroom (or, the
applicant says “anywhere in Punchbowl”).
- The
applicant emphasises that suspicion and conjecture, even grave suspicion, is not
a proper basis for the finding of guilt (citing
Wood at [827] per Rothman
J; and referring to Barca at 104-105 per Gibbs, Stephen, and Mason JJ for
the proposition that for an inference to be reasonable it must rest upon
something
more than mere conjecture). Reference is made in this regard to
R v Zaiter [2004] NSWCCA 35 at [10] per Ipp JA; and Director of
Public Prosecutions v Shannon [1975] AC 717 at 764; R v Shannon
[1974] 2 All ER 1009 at 1043 per Lord Simon of Glaisdale.
- The
applicant refers to authority for the proposition that, even making full
allowance for the advantages enjoyed by the jury, where
there is a significant
possibility that an innocent man has been convicted the Court is bound to act
and set aside the verdict (citing
Morris v The Queen (1987) 163 CLR 454;
[1987] HCA 50 (Morris) in this regard and emphasising the duty of this
Court to satisfy itself that there was “a sufficiency of legal evidence to
satisfy reasonable men to the exclusion of any reasonable doubt”, citing
Dixon J in McKay v The Queen (1935) 54 CLR 1; [1935] HCA 70, including a
duty to examine of the probative value of a confession). Reference is also made
to the discussion of Dixon J as to the
reliability of an admission made by a
schizophrenic in Sinclair v The Queen (1946) 73 CLR 316; [1946] HCA 55
(Sinclair).
- The
applicant places particular reliance on the decision in Morris as
support for ground 3 that the verdict was unreasonable and unsafe,
submitting that the Crown case in the present case is weaker than
the case of
Morris. Reliance is also placed on the High Court decision in
Pell. The applicant maintains that in the present case the Crown only
relied upon the “uncorroborated delusional writing evidence
that lacked
credibility, reliability and probative force to prove the 5 o’clock
proposition that resulted in the jury returning
a guilty verdict”. The
applicant contends that the jury must have attached undue weight to the
uncorroborated delusional writings,
failing appropriately to consider evidence
which was consistent with a reasonable hypothesis of innocence.
- The
applicant maintains that the “apparent discrepancies, inadequacies and
lack of probative force of the uncorroborated writing
evidence” should
lead to the conclusion that, even making full allowance for the advantages
enjoyed by the jury, there is a
significant possibility that an innocent man has
here been convicted.
- The
applicant, in particular, identifies the following matters at [838] of his
submissions: that he was a person of good character
and had no criminal record;
that there were no plans to meet with Mr Karmas on the 11 August 2011 and no
pre-planning with Mr Woods
going out to Granville; that the
telecommunications records are consistent with the applicant’s evidence
that Mr Karmas initiated
contact on 11 August 2011 (which he maintains supports
the inference that there was no substance to the alleged death threats); the
trial judge was not satisfied to the criminal test that Mr Karmas was lured to
the Wilga Street Property (citing [24] of the sentencing
judgment); that ERISP
and walkthrough interviews provided by Mr Cheong asserted that Mr Karmas left
the Wilga Street Property on
foot soon after his arrival at or soon after 1.50pm
and there being no animosity between Mr Karmas and the applicant (evidence that
the applicant says the jury must have accepted); the evidence from the
applicant’s treating psychiatrist, Dr Saker, that little
weight be
afforded to the writing and video evidence; the concurrence of Professor
Greenberg that the applicant was suffering from
psychosis; the trial
judge’s statement to the jury that the psychiatric evidence was credible
and the jury would need a pretty
good reason to reject it; that no admission was
ever made by the applicant to having murdered Mr Karmas; that the writings were
not
corroborated by any other independent evidence; that Mr Karmas did return to
the Wilga Street Property or that Mr Karmas had been
assaulted by applicant;
that three extensive and sophisticated crime scene investigations of the Wilga
Street Property (or any location
of relevance), failed to discover any
fingerprint or DNA belonging to Mr Karmas, and no physical evidence of a violent
murder; that
there was no evidence that the Wilga Street Property was cleaned to
destroy forensic evidence (and that the forensic evidence confirms
the discovery
of fingerprint and DNA evidence from a number of persons); that a reasonable
explanation was offered by the defence
as to the presence of Mr Karmas’
DNA on the applicant’s vehicle; the telecommunications evidence allowing
for the inference
that Mr Karmas could not have been in the Punchbowl area at or
soon after 5pm (as per the delusional writings), noting that Mr Karmas’
mobile handset pinged at Wentworthville at 5.26pm on 11 August 2011 and the
Crown failed to lead any evidence that Mr Karmas’
mobile handset had been
seized before 3.57pm or that another person took Mr Karmas’ mobile handset
to Wentworthville at 5.26pm;
that Detective Sergeant McGee conceded that there
was no evidence to prove that Mr Woods actually took possession of Mr
Karmas’
mobile handset, or that Mr Woods physically sent those
messages; that the only evidence adduced by investigating police at trial
was in
support of the proposition that Mr Karmas was murdered before 3.57pm; and that
the unchallenged evidence from Ms Rifai was
that she saw Mr Karmas between
2 and 3pm on 11 August 2011 (which it is said corroborates the version of events
asserted by the applicant
and Mr Cheong to police).
- The
applicant contends that the compounding improbabilities caused by the
unchallenged evidence and the grave doubts expressed by
the Crown with regard to
the writing evidence, required the jury, acting rationally, to have doubt about
the applicant’s guilt.
The applicant contends that at an inevitable
re-trial the Crown would be bound to conduct that same case in the first
instance (which
he says is a case that logically failed as a result of
circumstances and a series of unchallenged evidence), thus warranting orders
for
his acquittal.
- The
applicant further argues that the first trial “miscarried by reason of the
conduct of the Crown, Mr Price and her Honour
who acted in partisan in making
the applicant subject to a conceptually different and conflicting charge that
was not pleaded, argued
or put squarely to a single witness before the close of
evidence”, and in those circumstances (relying on what was said by
Kirby J
in Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15 at [539]), the
applicant argues that there should be no order for a new trial and orders of
acquittal should be entered.
Crown’s submissions
- The
Crown notes that many of the matters raised by the applicant in support of this
ground are duplicated in other grounds. Further,
the Crown notes that, in the
course of the applicant’s own submissions (as opposed to those prepared by
Counsel in relation
to grounds 1 and 2) the applicant makes reference to and
appears to rely upon material that was not before the jury (including but
not
limited to evidence heard on voir dire, the contents of MFIs, transcripts
of separate proceedings and, in some cases, parts of the brief of evidence). The
Crown says that
in many instances (because it did not form part of the evidence
before the jury) such material cannot be taken into account in the
way the
applicant contends; but says that the voluminous nature of the material filed by
the applicant makes it not possible to identify
every such occasion.
- The
Crown says that the submissions made by the applicant in support of this ground
are based on a number of fundamental misconceptions.
In this regard, the Crown
cavils with the suggestion emerging from the applicant’s submissions that
this ground should be evaluated
on the basis that the acquittal of Mr Cheong
demonstrates that the jury rejected the proposition that the applicant murdered
Mr Karmas
at the Wilga Street Property between 1.52pm and 3.07pm on 11 August
2011 (cf the applicant’s submissions at [12], [600]; [655]).
- While
the applicant does not contend that his conviction is inconsistent with the
acquittal of Mr Cheong, the Crown submits that the
principles that apply in
respect of inconsistent verdicts are instructive. It is noted that the
applicable principles in cases where
jury verdicts are said to be factually
inconsistent were set out by McHugh J in Osland v The Queen (1998) 197
CLR 316; [1998] HCA 75 at [118]- [121], his Honour noting at [118] that the issue
is determined by examining the evidence and the directions to the jury.
Reference is
also made to R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 ,
where a five-judge bench of this Court applied the same principles to
circumstances where allegedly inconsistent verdicts were
returned by the same
jury in a joint trial. It is noted that in that case, Howie and Johnson JJ said
at [44]:
...the question that arises is whether, in light of the evidence, the issues
raised and the directions given to the jury, ‘no
reasonable jury who had
applied their minds to the evidence could have arrived at the two different
verdicts’.
- It
is noted that in both those cases attention is directed to the evidence that was
admissible against the respective accused and
the directions that were given.
The Crown notes that in the present case the applicant relies on the account
given by Mr Cheong
in his ERISP and walkthrough video (which exhibits were not
admissible in the applicant’s case) and hence the applicant’s
reliance on those documents is misconceived. Further, the Crown notes that a
significant body of evidence that was admissible against
the applicant was not
admissible against Mr Cheong. Accordingly, the Crown says that the assumption
underlying the applicant’s
treatment of this ground (namely, that the jury
rejected the proposition that the applicant murdered Mr Karmas at the Wilga
Street
Property between 1.52pm and 3.07pm on 11 August 2011) is without
foundation.
- The
Crown contends that even if this ground of appeal did fall to be considered on
the basis that the jury rejected the proposition
that the applicant murdered Mr
Karmas at the Wilga Street Property between 1.52pm and 3.07pm on 11 August 2011,
the applicant’s
writings (Exs CF, CG and CJ) were not the only evidence
that supported the conclusion that Mr Karmas returned to that address later
that
afternoon (see the submissions of the Crown in relation to ground 6(4) set out
at [216] of the Crown’s submissions).
- As
to the other matters relied upon by the applicant, the Crown makes the following
observations, noting that not all of the applicant’s
contentions need to
be separately addressed (their significance falling to be assessed in light of
the evidence as a whole).
- First,
as to the submission that the body of Mr Karmas was not found and that
“extensive land and water searches failed to find
any evidence to support
the theory that was developed from Exhibit AA”, the Crown says that
this misstates the extent of searches conducted by police (see above). That
said, the Crown accepts that it
is undeniable that Mr Karmas’ body was not
found, nor was any murder weapon found; and that this was a circumstantial
case.
- As
to the proposition based on the evidence of Ms Rifai, the Crown submits that her
evidence (see above from [43]) does not give rise to a reasonable hypothesis
consistent with innocence; rather, her evidence must be considered in the
context
of all the other evidence, including evidence as to the distance at
which the observations were made.
- As
to the absence of DNA, fingerprints or clothing belonging to Mr Karmas after the
three forensic examinations of the Wilga Street
Property and the submission as
to the absence of any physical evidence that a violent crime was committed
against Mr Karmas at the
Wilga Street Property, the Crown says that it was not
in dispute that no forensic evidence consistent with having originated from
Mr
Karmas was located at the Wilga Street Property but that the significance of
that fact fell to be considered in light of other
evidence relied upon by the
Crown to establish that the applicant was responsible for the murder of Mr
Karmas and the disposal of
his body. It is submitted that this was not a matter
that was of such a character that, either of itself or in combination with
other
matters, required the jury to have entertained a reasonable doubt as to his
guilt.
- As
to the applicant’s submission that there was no evidence that the Wilga
Street Property was cleaned to destroy any forensic
evidence and the assertion
that ample fingerprint and DNA evidence belonging to other persons was recovered
from that location, the
Crown says that this submission misstates the evidence.
As to the fingerprint examination, it is noted that none of the fingerprints
located was found in bedroom 2. Further, it is noted that the evidence before
the jury included evidence of renovation works conducted
in bedroom 2 at the
Wilga Street Property on 12 and 13 August 2011; and that it was the Crown
case that the timing of the work, and
the fact that it was confined in bedroom 2
of the premises, was consistent with the murder having taken place in that room
on 11
August 2011.
- Insofar
as the applicant relies on matters said to undermine his motive to kill Mr
Karmas, including an assertion that the Crown failed
to prove that the
applicant’s animus towards Mr Karmas continued after 23 June 2011 when Ms
Angeles moved out of the Warwick
Street Duplex, the Crown says that the
applicant’s submissions overlook the nature and extent of the evidence
relied upon by
the Crown in relation to motive (which is summarised at [31]-[49]
of the Crown’s submissions and has been referred to above).
- Insofar
as the applicant further submits that evidence that Mr Karmas initiated contact
with him (by telephone) on 11 August 2011
is not consistent with the applicant
having previously made death threats towards him, the Crown says that this
submission overlooks
evidence as to the character of Mr Karmas (particularly
that of Mr Charawani who described Mr Karmas as a devoutly religious man
who believed that whatever happened to him would be God’s will, as well as
the evidence of Mr George Karmas that his brother
told him that he felt sorry
for the applicant notwithstanding that he had earlier threatened to kill
him).
- The
Crown notes that the applicant relies on a submission by counsel who appeared
for Mr Woods to the effect that the Crown failed
to exclude the sighting of Mr
Karmas by his daughter, Ms Sarah Karmas, between 2 and 2.30pm on 11 August 2011
“coming and going
from his ute” (see applicant’s submissions
at [18]). The Crown points out that the trial judge directed the jury during
the summing up that this submission misrepresented the evidence of Ms Sarah
Karmas. At SU 45, the trial judge interposed to note
that this submission
referred to the evidence of Mrs Dunsmore that Mrs Karmas had told her that Sarah
had seen her father between
2 and 2.30pm, which the trial judge emphasised was
hearsay evidence. The trial judge further noted that Ms Sarah Karmas gave
evidence
that she last saw her father at 1pm.
- Insofar
as the applicant repeats criticisms made of the police investigation as well as
allegations of serious impropriety on the
part of numerous police officers
including the officer in charge, Detective Sergeant McGee, the Crown addresses
those submissions
in response to the individual grounds of appeal to which they
relate (see below).
- The
Crown notes that the applicant relies on the psychiatric evidence which he
asserts demonstrated that his writings should not be
believed, and that little
weight should be given to them. The Crown contends (for the reasons given in
addressing ground 13 –
see below from [450]) that it was open to the jury
to regard aspects of the writings of the applicant as sufficiently reliable; and
that the question of the weight to be afforded to them was entirely a matter for
the jury.
- The
Crown also notes that in his submissions, the applicant refers at a number of
points to evidence of Dr Saker that was not before
the jury (in particular at
[91]; [96]; [616]-[618]; [622]-[623]). The Crown notes that, in the course of
giving evidence in the
trial, Dr Saker was not asked directly to comment on the
writings or audio recordings made by the applicant. The reasonableness
of the
jury’s verdict is not to be judged by reference to evidence that was not
before the jury.
- Finally,
the Crown emphasises that the Crown case against the applicant was
circumstantial and, as such, the evidence must not be
analysed in a piecemeal
way; rather, the whole of the evidence and the inferences which are available to
be drawn from it must be
considered and weighed (The Queen v Hillier
(2007) 228 CLR 618; [2007] HCA 13 (Hillier) at [46] per Gummow, Hayne and
Crennan JJ). The Crown submits that the applicant’s approach in many
respects concentrates upon
specific circumstances relied upon by the Crown to
the exclusion of other circumstances; and the Crown says that such an approach
is erroneous (the Crown referring to Gilham v R (2012) 224 A Crim R 22;
[2012] NSWCCA 131 at [466] per McClellan CJ at CL, Fullerton and Garling JJ,
citing R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480; at [42]
per Dunford J and Burrell v R [2009] NSWCCA 193 at [55] per Giles
JA).
- The
Crown submits that (for the reasons given in its submissions at [294] – in
summary, the evidence of motive, the fact that
the applicant was the last person
to see Mr Karmas alive, the fact that Mr Karmas’ glasses and DNA were
found in the applicant’s
vehicle, the evidence in relation to the four
text messages sent from Mr Karmas’ phone to Ms Angeles, the evidence
supporting
the conclusion that the applicant disposed of Mr Karmas’ body
in the early hours of 12 August 2011, admissions made by the
applicant, and
evidence of the applicant’s consciousness of his own guilt), the evidence
against the applicant was compelling;
and that none of the matters relied upon
by the applicant was such as to have caused the jury to have reasonable doubt
about his
guilt nor are they of such significance as to cause this Court to
entertain a doubt that the jury ought to have
had.
Determination
- There
is no dispute as to the applicable principles where it is contended that a
verdict is unreasonable. The question is whether, upon the whole of the
evidence, it was open to the jury to be satisfied beyond reasonable doubt that
the accused was guilty
(see M v The Queen (1994) 181 CLR 487; [1994] HCA
63 (M) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v The
Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243
CLR 400; [2011] HCA 13 at [13]- [14], [22] per French CJ, Gummow J and Kiefel J,
as her Honour then was).
- In
Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30 (at [113]) the High
Court expressed the test as being whether it was “open to the jury to be
satisfied of guilt beyond reasonable
doubt, which is to say whether the jury
must, as distinct from might, have entertained a doubt about the
applicant’s guilt” (emphasis in original). (See also The Queen v
Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay); Fennell
v The Queen [2019] HCA 37; (2019) 373 ALR 433; at [82], where the approach
to such an assessment in a circumstantial case was explained.)
- When
considering whether a verdict is unreasonable, the Court is to make its own
independent assessment as to the sufficiency and
quality of the evidence. The
question for the Court is whether, notwithstanding there is evidence upon which
a jury might convict,
it can be said that it would nonetheless be dangerous in
all the circumstances to let the verdict of guilty stand (M at 492).
- In
Baden-Clay the Court noted at [47] that, “in considering a
circumstantial case, all of the circumstances established by the evidence
are to be considered and weighed in deciding whether there is an inference
consistent with innocence
reasonably open on the evidence”. The evidence
is not to be looked at in a piecemeal fashion (see Mulholland v R [2019]
NSWCCA 257 at [68] per Ierace J (with whom Simpson AJA and Wilson J agreed);
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84] per Bathurst
CJ, Johnson and Fullerton JJ, and Nweke v R [2020] NSWCCA 153 at [19] per
McCallum JA, Davies and Button JJ, considering Baden-Clay at
[46]-[48]).
- It
is not disputed that the burden of persuasion that appellate interference is
required rests with the applicant (Mackenzie v The Queen (1996) 190 CLR
348; [1996] HCA 35 at 370 per Gaudron, Gummow and Kirby JJ, with whom Dawson and
Toohey JJ agreed).
- More
recently, in Pell at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle,
Gordon and Edelman JJ), the High Court made clear that the tests expressed
in
the above cases are essentially the same (at [45]).
- Conscious
of the need to undertake my own independent assessment of sufficiency and
quality of the evidence, I have set out in some
detail above the evidence that
was adduced at trial. In my opinion, it was clearly open to the jury on that
evidence to be satisfied
beyond reasonable doubt that Mr Karmas died on 11
August 2011. Mr Karmas has not been seen since then, nor is there any record of
him being alive after that date. Mr Karmas failed to honour social and other
commitments in the days following 11 August 2011 and
his disappearance was
uncharacteristic. Police enquires and searches have produced no trace of him
(other than the presumptive testing
for blood on the DNA sample from the inside
door of the applicant’s van).
- It
was also in my opinion reasonably open to the jury to be satisfied beyond
reasonable doubt that the applicant had murdered Mr Karmas
on the afternoon of
11 August 2011 at the Wilga Street Property and later disposed of his body; and
I am satisfied that the jury
ought not to have entertained a reasonable doubt on
that question.
- The
circumstantial evidence pointing to that conclusion is overwhelming; including
the manner in which Mr Karmas left his personal
items (keys) at the Karmas
house, the doors unlocked, the shed door open and his ute and toolbox unsecured
(which is inconsistent
with Mr Karmas having intended more than a short absence
from his home; and consistent with Mr Karmas leaving the house at a time
when
his daughter, Ms Sarah Karmas, was still at home). There is no dispute that Mr
Karmas went to the Wilga Street Property in the
applicant’s blue van at
about 2pm. The evidence of the applicant at the trial as to Mr Karmas’
movements that afternoon
was inconsistent with the account he gave to Mrs Karmas
on 12 August 2011 (such as whether Mr Karmas had gone into the Wilga Street
Property at all). There is no CCTV footage showing Mr Karmas returning from the
Wilga Street Property on foot, as the applicant suggests
he did; and the
purported sighting of Mr Karmas by Ms Rifai (a 73 year old some 50-60m away)
outside the Warwick Street Duplex at
2-3pm is not sufficient (given her age and
the distance involved) to raise a reasonable doubt in that regard, particularly
in light
of the undisputed fact that Mr Karmas had travelled in the blue van to
the Wilga Street Property at just before 2pm. Mr Cheong’s
account of
events (in evidence as Ex AF and Ex BB) also does not raise a reasonable doubt
in this regard because Mr Cheong was not
in bedroom 2 of the Wilga Street
Property on the afternoon of 11 August 2011 (albeit that Mr Cheong said he
cleaned out and prepared
bedroom 2 for renovation works the following morning on
12 August 2011 with the applicant). Nor does Mr Cheong’s acquittal
assist
the applicant for the reasons explained by Dhanji J in considering grounds 4-5
below.
- The
accounts given by the applicant of the trip to Ms Robinson were inconsistent
(such as his initial explanation that he was on the
couch until 4am as opposed
to his later evidence that he went out with Mr Woods for a period during that
time); and the suggestion
that the trip was to conceal evidence of cannabis use
is fanciful in light of the content of the later intercepted telephone
conversations
between the applicant and Mr Woods and the temporal coincidence
with Mr Karmas’ disappearance. Moreover, the evidence as to
the
applicant’s support for the proposition that other witnesses (Ms Robinson
and Mr Lines) should stick to stories that provided
some form of alibi for the
applicant and/or Mr Woods is telling.
- The
evidence of Mr Spoto as to the lack of a smell of vomit when the car was left
for him to be serviced on 12 August 2011 is telling
when taken into
consideration with the evidence of Mr Vramas and his employee as to the excuse
given by the applicant for the van
to be cleaned on 13 August 2011. This, taken
with the coincidence in timing of the paintwork in bedroom 2 at the Wilga Street
Property
the day after the disappearance of Mr Karmas, strongly suggests an
attempt to conceal evidence of his murder at that location.
- The
text messages from Mr Karmas’ telephone (taken with the intercepted
conversation about the “magic” that phones
can work and the
apparently mistaken belief that Ms Angeles worked or had worked at Westmead) are
only credibly explicable as being
an attempt to provide an explanation for
Mr Karmas’ disappearance which was inconsistent with the truth (and
the applicant
must have known of the text messages in order to make the
statements he made to Mr Wood in the intercepted conversation).
- The
reliance placed by the Crown on the writings went largely as to motive but even
if those writings were the unreliable product
of a (by then) psychotic or
delusional mind, there is ample other evidence to warrant the conclusion that
the applicant had a firm
belief before Mr Karmas’ disappearance that
Mr Karmas was involved in Nicholas Fantakis’ death and that the
applicant
bore animosity towards Mr Karmas not only because of that deluded
belief but also because he had acted as an intermediary between
the applicant
and Ms Angeles after Nicholas Fantakis’ death (including the evidence
of Mr George Karmas).
- Thus,
there is ample and sufficient evidence (leaving aside the admissions in the
applicant’s writings and the more vexed question
of whatever be the real
meaning of Ex AA) to conclude that it was reasonably open to the jury to be
satisfied beyond reasonable doubt
about the applicant’s guilt.
- The
applicant has therefore not demonstrated that the verdict was unreasonable or
unsupported by the evidence, and accordingly, this
ground of appeal should be
dismissed.
Grounds 4-9
- Grounds
4-9 have been considered by Dhanji J (see below) and, for the reasons his Honour
gives, none of those grounds has been made
good.
Ground 10: Her
Honour did error [sic] in law by including the foreperson in the ballot process,
in contravention to Section 55(2)(a) [sic] of the Jury Act
- On
11 May 2018, immediately prior to the jury retiring to commence deliberations, a
ballot pursuant to s 55G of the Jury Act 1977 (NSW) (Jury Act) was
conducted (see SU 178). The applicant contends that the trial judge erred in
failing to exclude the jury foreperson from the
ballot in contravention of
s 55G(2)(a) of the Jury Act; and says that the trial judge did so
with no legitimate basis “possibly causing unnecessary pressure on the
dynamics of the
jury”, dynamics that the applicant says cannot be
monitored or externally remedied. The applicant identifies this ground as
a
“narrow ultra vires as her Honour deliberately sought not to comply with a
statutory procedure”.
- The
Crown (to anticipate the Crown’s submissions referred to below) says that
the resolution of this issue depends, in part,
on whether there was a jury
foreperson at the relevant time but that, even if there was any error in
excluding the jury foreperson
from the ballot, the error is not one that
undermines the constitution or integrity of the jury and the proviso should
apply.
- Section
55G of the Jury Act provides, relevantly, as follows:
55G Ballot where additional jurors on jury in criminal
proceedings
(1) If the jury in criminal proceedings consists of more than
12 persons (the expanded jury) immediately before the jury is
required to retire to consider its verdict, the jury for the purposes of
considering and returning
the verdict (a verdict jury) is to be
constituted by only 12 members of the expanded jury.
(2) A verdict jury is to be constituted by –
(a) if the expanded jury has chosen one of its members to speak
on behalf of the jury as a whole (a foreperson) – the
foreperson and 11 other members of the expanded jury selected by ballot, or
(b) if there is no foreperson – 12 members of the
expanded jury selected by ballot.
(3) The ballot for a verdict jury must be conducted by the
presiding judge or an officer of the court by –
(a) placing in a box provided for that purpose the cards
provided under section 28(3) for all of the members of the expanded jury (other
than the foreperson, if any), and
(b) drawing out of that box those cards, one after another, and
calling out the identification numbers on those cards, until 11
or 12 persons
(as the case requires) are selected.
(4) A verdict jury continues to constitute the jury for the
trial until the trial concludes unless the court has given a direction
under
subsection (5)
...
- By
way of background to this complaint, it is not in dispute that, on
26 February 2018, a jury of 15 was empanelled in accordance
with s 19(2) of
the Jury Act and that, by 10 May 2018, the jury consisted of an expanded
jury of 13 jurors (two jurors having been individually discharged during
the
course of the trial).
- On
10 May 2018, in the absence of the jury and at the end of the second day of the
summing up, the trial judge raised with Counsel
the issue as to how the ballot
provision under s 55G operated, noting that ordinarily there was an assumption
from the fact that the same person was sitting in the same seat (i.e., that
customarily occupied by the foreperson) every day that that person was chosen as
the foreperson of the jury and that when the issue
had arisen as to one of the
jurors who had been discharged (for misconduct) the person in that seat had
spoken for the jury (see
SU 125).
- The
Crown Prosecutor and Counsel for the applicant (Mr Todd) indicated their view
that the foreperson would automatically be out of
the ballot and in the verdict
jury; Counsel for Mr Woods (Mr Hughes) playing the role of devil’s
advocate raised for consideration
the observation that it seemed incongruous
with directions commonly given to juries that they could choose a foreperson and
could
change this at any time; and that all jurors were equal (SU 126).
- The
following morning (11 May 2018) the issue was revisited with Counsel in the
absence of the jury and before the summing up continued.
- The
Crown Prosecutor remained of the view that the foreperson should be excluded
from the ballot, saying (see SU 127) that:
...it’d be my view that it appears that before there is a foreperson and
she has been the foreperson through the trial and,
in fact, when she came in to
give evidence in relation to the other, should I say, recalcitrant juror, so it
would be my submission
that when your Honour completes the summing up that
excluding the other person, the other cards go in the ballot and they’re
drawn out, the associate draws out 11 and the remaining juror is then told to
leave or asked to leave.
- The
trial judge accepted that this was one interpretation, and might well be the
accurate one, but expressed concern as to the issue
that Mr Hughes had raised,
pointing to two aspects to the direction given to the jury at the start: first,
that the foreperson had
no greater importance or responsibility (which her
Honour considered would tend to stand rather awkwardly with s 55G) and, second,
the fact that the jurors had been told that they could change their foreperson
at any time (SU 127). The parties were
given an opportunity to consider their
positions further and the matter was adjourned to the following day.
- Relevantly,
her Honour expressed concern that to make an enquiry as to whether the jury had
a foreperson (and explain why that enquiry
was being made) would perhaps put an
unhelpful burden on the jury because it could lead to discontent or disharmony
in the jury room
(i.e., if jurors were forced to say whether they wished the
foreperson to stay or to be in the general ballot with everyone else).
Her
Honour raised the possibility that the reference to “if” in s
55G(2)(a) might be interpreted in a wide way, consistent with the standard
direction to juries at the commencement of trials as to the role
of the
foreperson, to obviate the need to have what might be a divisive elevation of
one juror over the others. Her Honour accepted
that the same person had occupied
the chair customarily used by a jury foreperson throughout the trial and had
filled the role of
foreperson when a spokesperson had been needed (that being a
reference to the occasion on 3 May 2018 – see T 2563 – when
the
issue about intimidation by one of the jurors had arisen) but noted that there
was nothing to say that the jurors would not at
some point, indeed when they
were constituted a verdict jury, change their foreperson (SU 128). Both Counsel
for Mr Woods and Counsel
for Mr Cheong saw force in the concern that there could
be disharmony if one person were “elevated” by being excluded
from
the ballot. Counsel for the applicant (Mr Todd) expressed the opinion that it
was a vexed question and the issue was left for
further consideration.
- The
issue was again raised later that morning (see SU 166-168). Counsel for the
applicant made reference to a report of the NSW Law
Reform Commission which had
recommended that the foreperson be excluded from the ballot as “it avoids
the need to elect a new
foreperson or speaker which could have a disruptive
effect on the deliberations of the jury” (see SU 167) but expressed the
concern as to the weight that the foreperson might then be deemed to have had by
the other jurors (a concern that the trial judge
shared).
- Her
Honour then said:
I think subject to anything more any of you want to say, I’m inclined to
just treat the foreperson as having been the foreperson
up until now, but in
common with the direction to the jury that they can change their foreperson at
any time to proceed on the basis
that we cannot be certain that the jury wishes
to maintain the same person in that role and therefore we cannot be certain that
the
jury has chosen one of its members to speak on its behalf one [sic;
presumably once] they’re a verdict jury.
They’ve certainly had someone to speak on their part as an extended jury,
but on that basis, it seems to me there is room for
doubt that they have chosen
one of their members as the verdict jury, and on that basis proceed with all 13
numbers in the ballot
box. Do you want to say anything about that, anybody?
- Counsel
for the applicant indicated that he did not wish to be heard against that
proposal (as was also the position of Counsel for
Mr Woods) (see SU 168).
- At
the close of the summing up, the ballot was held. The juror who had been seated
throughout the trial in the customary seat of the
jury foreperson (and who had
affirmed on 3 May 2018 that she was the foreperson of the jury) was included in
the ballot and it was
she who was then excluded from the verdict jury as a
result of the ballot.
Applicant’s submissions
- The
applicant submits that the legislation is clear and that there was no legitimate
reason not to comply with the ballot process
as mandated by the Jury Act.
The applicant says that excluding the foreperson from the ballot would not have
prevented the verdict jury from re-electing another
person from the deliberation
process and that her Honour’s “finding” ([sic]) “were
without foundation and
unreasonable”. Complaint is also made as to the
failure to furnish adequate reasons which may itself constitute an error of
law
(see the applicant’s submissions at [1524]), though this is not an appeal
ground per se.
- The
applicant further maintains that his position was that the foreperson should be
excluded from the ballot ([1525]) and that written
instructions or notes were
provided to Mr Todd of Counsel seeking that the foreperson be excluded (from the
ballot), including reference
to a recent trial that had dealt with an identical
scenario (see his submissions at [1536]). Those written instructions were not
before the Court but the applicant professed a willingness to produce them if
necessary. Insofar as the Crown asserts (in the Crown’s
submissions at
[279]) that Counsel for the applicant did not wish to be heard against the
proposal that the foreperson be included
in the ballot (referring to SU 168.3),
the applicant says that it is “plainly obvious” that his counsel
refused to follow
the applicant’s written instructions that the ballot be
conducted according to legislation (an issue that he identifies as
raised in
ground 18C(3) of the appeal – see [2352]-[2338] of the applicant’s
submissions).
- The
applicant maintains that the decision to include the foreperson in the ballot
resulted in the removal of the elected foreperson
from the verdict jury and that
this triggered “an unnecessary shake up to the jury dynamic” as it
forced the jury to
elect a new foreperson ([1530]).
- The
applicant refers generally to authorities referred to by the Law Reform
Commission (in particular, to Ng v The Queen (2003) 217 CLR 521; [2003]
HCA 20 (Ng)) as recognising that there are good practical reasons for
retaining a foreperson at the end of a trial, and particularly a long
trial (see
per Kirby J in Ng at [73]-[77]). In Ng, Kirby J said at [75], with
respect to the Victorian equivalent to s 55G, that the “obvious reason for
retaining the foreperson on the jury was that this would obviate the necessity
of making a fresh
choice at a very late stage in the trial”. (The Crown
points out that McHugh J at [17] in the same case observed that the policy
behind the immunity of the foreperson from being balloted out was “not
clear”.)
- The
applicant’s complaint is that, as there is not an entitlement “to
know the goings on of the jury”, the impact
of her Honour’s decision
(i.e., that the person who had identified during the trial as the foreperson not
being one of the
verdict jurors as mandated by legislation) cannot be
examined.
- The
applicant’s position is thus that the decision to include the
“foreperson” in the ballot was without any legitimate
basis and was
in contravention to the legislation. The applicant says that that this was not a
discretionary decision and that her
Honour was bound to follow the process
mandated by the Jury Act (and for “good practical reasons”
– adopting the language used in Ng).
- The
applicant relies upon this ground as a standalone ground of appeal which the
applicant says warrants an order to quash the conviction
and order a
re-trial.
Crown’s submissions
- The
Crown points to the position taken by the applicant’s counsel at trial,
namely that it was appropriate in the circumstance
of the case to proceed on the
basis that it was not certain whether the jury wished to maintain the foreperson
in that role and that
it was therefore doubtful whether that juror was the
foreperson for the purpose of s 55G of the Jury Act (noting that the term
“foreperson” is not defined in that legislation). (As noted above,
the applicant contends that
this approach was contrary to his written
instructions.)
- The
Crown submits that it was open to the trial judge to conclude that, as at
11 May 2018, it was not certain that the jury had chosen
one of its members
to speak on its behalf; and therefore that there was not a foreperson at that
time. It is submitted that, in reaching
that conclusion, the trial judge was
well placed to make an assessment of the jury over the course of the trial and
in particular
as at 11 May 2018 (as, the Crown says, were trial counsel who the
Crown emphasises concurred with the approach suggested by her Honour).
The Crown
submits that the applicant has not shown that it was not open to her Honour to
conclude that there was not a foreperson
at the time the ballot was conducted;
and hence that this ground of appeal should be dismissed.
- The
Crown goes on to argue that even if it were to be concluded that the trial judge
erred in failing to exclude the juror in question
from the ballot, it is for the
applicant to demonstrate that that error gave rise to a miscarriage of justice.
It is submitted that
it is of considerable significance that neither the trial
judge nor any of the counsel involved in the trial (who again it is submitted
were in the best position to judge the atmosphere at trial), apprehended that
there was a real risk that the absence of the juror
in question from the verdict
jury would disrupt the jury’s deliberations (and, indeed, that this
possibility was explicitly
considered and rejected). The Crown says that there
is nothing in the manner in which the jury conducted itself during its
deliberations
insofar as their questions and requests are concerned that
suggests that the jury was disrupted in any way by what occurred.
- Further,
and in the alternative, the Crown contends there was no substantial miscarriage
of justice that arose from the way in which
the ballot was conducted. It is
submitted that, if it were to be concluded that the trial judge erred in failing
to exclude the juror
in question from the ballot, that is an error to which the
proviso in s 6 of the Criminal Appeal Act should apply. It is submitted
that an error (if it be an error) of the kind asserted does not amount to a
fundamental failure to observe
the requirements of the trial process (reference
here being made to Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50
(Katsano) at [41] per Gaudron, Gummow and Callinan JJ).
- The
Crown refers to Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31
(Maher) where it was held that a failure to comply with a mandatory
legislative provision relating to the constitution and authority of
the jury may
render the trial a nullity or involve such a miscarriage of justice as to
require the conviction to be set aside. The
Crown submits that, properly
understood, the asserted error in the present case does not answer that
description.
- It
is submitted that a common feature of Maher, and cases it considered
(R v Smith [1954] QWN 49, R v Hall [1971] VicRp 35; [1971] VR 293, R v Short
[1898] NSWLawRp 78; (1898) 19 LR (NSW) 385 and R v Dempster [1924] SAStRp 53; [1924] SASR 299), is that the
non-compliance with legislative provisions or mandatory procedures resulted in a
person or persons sitting on the jury
when not entitled to do so.
- In
Maher, two charges were added to the indictment after the jury had been
sworn; the jury was not re-sworn and found the appellant guilty
of one of the
added charges even though it had not been sworn to try the issues on that count;
and it was held in those circumstances
that there was a failure to comply with
mandatory provisions governing ‘the constitution and authority’ of
the jury.
Similarly, in Johns v The Queen (1979) 141 CLR 409; [1979] HCA
33, the accused challenged a juror; his counsel withdrew the challenge,
purportedly overriding the accused’s decision; the juror
was not stood
aside and was included in the jury; and it was held that the accused had been
denied his right to challenge, the jury
had accordingly not been constituted
according to law and the trial was a nullity.
- The
Crown says that the same feature (that the non-compliance resulted in a person
or person sitting on the jury when not entitled
to do so) is replicated in cases
which subsequently considered Maher. In particular, reference is made to
R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324 (Brown),
where the jury included a juror who had not been duly summoned to attend on the
particular day and who therefore was not entitled
to be selected to serve on the
jury; and R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134
(Petroulias) where the jury which was empanelled included a juror who was
disqualified from serving on a jury because he was subject to an order
disqualifying him from driving a motor vehicle.
- Reference
is made to Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 it was held
that a failure to discharge a juror in circumstances where there was a distinct
possibility that the juror had engaged
in misconduct which enlivened a mandatory
requirement that they be discharged, amounted to a failure to comply with a
mandatory provision
relating to the “constitution and authority of the
jury”. The Crown says that, as in the abovementioned cases, the principle
referred to in Maher was applied in circumstances where the failure to
comply with a mandatory legislative provision or procedure was such as to
undermine
the integrity of the verdict.
- The
Crown says that, in contrast, in the present case the verdict jury was a jury
comprising of twelve jurors, each of whom was eligible
to be selected as a juror
and who had been duly sworn. It is said that the jury returned a unanimous
verdict in relation to the single
charge against the applicant and did so in
circumstances where a ballot was conducted in accordance with an approach
endorsed by
counsel for the applicant. The Crown says that the singular concern
to which the requirement in s 55G(2)(b) to exclude the foreperson
(if there
is a foreperson) appears to be directed (namely, the avoidance of the
possibility that the need to elect a new foreperson
will have a disruptive
effect on deliberations) was explicitly considered and rejected; and that there
is no evidence that it materialised.
- It
is submitted that this was not a case in which the asserted non-compliance with
a legislative provision resulted in a person sitting
on the jury who was not
entitled to do so; nor could it be said that the asserted non-compliance
otherwise undermined the integrity
of the verdict. Thus, the Crown submits that
the decision of High Court in Maher does not preclude the application of
the proviso in this case.
- It
is noted that while this Court has also observed that there is no room for the
application of the proviso in circumstances where
there has been a failure to
comply with (mandatory) statutory prerequisites in s 55F(2), that is because
those provisions involve
an abrogation of a fundamental common law right to a
unanimous verdict. The Crown says that the asserted non-compliance in the
present
case is of a markedly different character. Reference is made to the
observation of McHugh J in Ng, that the foreperson ordinarily does no
more than pronounce the jury’s verdict and regularise the jury’s
discussion of
the issue. It is noted that there is nothing to stop the jurors
changing the foreperson as often as they like; and that s 55G itself
contemplates that the possibility that there may not be a foreperson at all.
- The
Crown contends that the evidence against the applicant (which has been
considered in detail earlier in these reasons) was compelling
(pointing to: the
evidence of motive; that the applicant was the last person to see Mr Karmas
alive; the circumstances in which Mr
Karmas left his house and fact that his
glasses were found in the applicant’s van; the finding of Mr Karmas’
DNA on the
applicant’s vehicle (noting the improbability of the
explanation proffered on behalf of the applicant); the evidence as to
the four
text messages sent from Mr Karmas’ phone to Ms Angeles on 11 August
2011; the supporting the conclusion that the applicant
(and Woods) disposed of
Mr Karmas’ body in the early hours of 12 August 2011; other evidence of
admissions made by the applicant;
and evidence that the applicant had
demonstrated, both by lies and conduct, a consciousness of his own guilt); and
submits that this
is a matter in which this Court can rely on the jury verdict
(referring to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at
[43]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 (Hofer),
which affirmed the decision of this Court in Hofer v R [2019] NSWCCA
244).
- Accordingly,
the Crown submits that, even if Ground 10 were to be made out, the appeal ought
to be dismissed on the basis that “no
substantial miscarriage of justice
has actually occurred” within the meaning of s 6(1) of the Criminal
Appeal Act.
Determination
- The
difficulty with the proposition put by the Crown to the effect that it was open
for the trial judge to conclude that there was
doubt as to whether there was a
foreperson at the time that the ballot was conducted is not simply that the same
person had occupied
the chair customarily used by a jury foreperson throughout
the trial but, significantly, that this person had affirmed on 3 May 2018
that
she was the foreperson (see T 2563.5-7) when the issue as to intimidation by a
jury member had arisen (see at SU 125).
- It
is sufficiently clear that, as at 3 May 2018, the jury had chosen a foreperson
as at the time of the ballot; and while it may well
be correct to say that there
was nothing to say that the jury had not chosen to elect a new foreperson after
that time, there was
also nothing to indicate that it had. There is therefore a
difficulty in proceeding on the basis that, because the jury had the power
to
change their foreperson at any time during the trial, the Court could not be
certain that the jury wished to maintain the same
person in role of the
foreperson (and therefore the Court could not be certain that the jury had
chosen one of its members to speak
on its behalf once they became a verdict
jury). Indeed, whether the jury could change its chosen foreperson focuses on
the wrong
issue – the question is whether “the expanded jury has
chosen one of its members to speak” (see s 55G(2)) and here
the jury had
clearly done so (and had given no indication that this had changed).
- In
any event, if there was any doubt as to whether the jury had a foreperson at the
relevant time, one course open to her Honour was
to make an enquiry of the jury
as to whether they had a foreperson before the ballot was to take place. The
trial judge declined
to adopt this course on the basis that it would require an
explanation to the jury as to why the enquiry was being made, which would
potentially place some burden or create disharmony in the jury “if they
were forced to say that they’d like their foreperson
to stay or
they’d like their foreperson to be in the general ballot with everybody
else” (see at SU 127). Even assuming
that such an explanation would have
been required, or that the enquiry would have had the potential consequence of
creating such
a burden, such a concern does not provide a basis upon which to
depart from the process mandated by s 55G by drawing an inference
(contrary to
available evidence) that no foreperson was chosen by the jury.
- In
this regard, while I cannot accept the applicant’s criticism as to the
lack of a “foundation” for the course
that was chosen or that there
were unreasonable findings (since it is abundantly clear from the concerns
expressed by the trial judge
and shared by the various counsel appearing at the
trial that disharmony on the jury, with a disruptive effect on deliberations,
might arise if the person who had been identified on 3 May 2018 as the
foreperson were to be excluded from the ballot), the difficulty
in the course
that was adopted is that the clear legislative intention as expressed in s 55G
is that if an expanded jury has chosen
one of its members to speak on behalf of
the jury as a whole (as a foreperson) then that person is not to be included in
the ballot
required to determine the constitution of the verdict jury.
- That
legislative intention is reflected in the relevant extrinsic materials,
including the report of the New South Wales Law Commission,
Jury
Selection (2007 NSWLRC 117) and the second reading speech of Mr Barry
Collier as to the Jury Amendment Act 2007 (NSW) (7 November 2007), both
of which explain that the purpose of the provision is “to avoid the need
for another foreperson
to be elected” (which it is suggested in the
Jury Selection report could have a disruptive effect on the deliberations
of the jury).
- Thus,
there was an error in the manner in which the ballot was conducted. The question
that arises is as to the consequence of that
error.
- As
noted above, the Crown contends that, even if her Honour was wrong not to
exclude the foreperson from the ballot, the appellant
has not established the
error was such as to amount to a “miscarriage of justice” in the
sense it operated to his detriment.
However, in accordance with cases such as
Maher and Katsano, it appears that some irregularities will
constitute a wrong decision on a question of law, or a miscarriage of justice
for the purposes
of s 6(1) of the Criminal Appeal Act, without the need
to consider whether the error operated to the prejudice of the appellant. As
those cases demonstrate that there
will be cases where an error or irregularity
will give rise to a substantial miscarriage of justice even though it has not
affected
the verdict (cf Hofer at [41]; [102]).
- In
cases such as Maher and Katsano (and also the present), the
question may be seen as being whether there has been, in the relevant sense, a
“verdict of the
jury” at all, that question being resolved by
whether there was a jury constituted as mandated by the relevant statute. If
not, there is no question but that there has been a substantial miscarriage of
justice on the basis of a failure to observe a fundamental
requirement of a
criminal trial. As was said in Katsano at [35]:
35 At one level, the decisions in Maher and Johns
are concerned with failure to comply with mandatory legislative provisions
relating to the constitution and authority of the jury.
At another, as is clear
from the judgment of the Court in Maher, they are concerned with
“failure to observe the requirements of the criminal process in a
fundamental respect”, of which
the failure to observe mandatory provisions
relating to the constitution and authority of the jury is but an example. A
conviction
simply cannot stand if the trial process is flawed in a fundamental
respect.
[Citations omitted]
- The
question then is whether the error in the present case is one to which the
proviso can be applied, or whether it is “fundamental”
and thus, in
the statutory language, amounts without more to a “substantial miscarriage
of justice”.
- This
Court in Brown noted (at [49]) that a strict approach has been adopted in
this country with respect to whether a failure to comply with provisions
governing the constitution and authority of the jury will result in the trial
becoming a nullity. To this end, I note the observations
made by Mason CJ,
Wilson J, Brennan J (as his Honour then was), Dawson and Toohey JJ in Maher
at 233, (the Court there considering the Jury Act 1929
(Qld)):
The provisions of the Jury Act and of the Code which govern the
constitution and authority of the jury as the tribunal of fact in a criminal
trial are mandatory,
for the entitlement to trial by jury which s.604 of the
Code confirms is trial by a jury constituted in accordance with the Jury
Act and authorized by law to try the issues raised by the plea of not
guilty. A failure to comply with those provisions may render a
trial a nullity,
at least in the sense that the conviction produced cannot withstand an appeal:
see Crane v Public Prosecutor (1921) 2 AC 299. In any event it involves
such a miscarriage of justice as to require the conviction to be set aside.
- It
may also be noted that in R v Petroulias (No 32) [2007] NSWSC 1302,
Johnson J at [15] drew attention to the fact that, upon the commencement of the
Jury Amendment Act 2007 (NSW) and the operation of s 55G of the Jury
Act the position of the foreperson took “on a statutory
form”.
- Nevertheless,
a majority of the High Court (Gaudron, Gummow and Callinan JJ) subsequently held
in Katsano at [41] that “not every legislative provision is a
mandatory one” and said that, in respect of the Juries Act 1967
(Vic), “[s]ome of its provisions are clearly mandatory (eg, ss 14 and 17,
dealing with the number of jurors, and ss 20 and
23, dealing with random
selection)” (at [42]), thus leaving open the possibility that
non-compliance with the Jury Act might not always undermine the integrity
of the verdict. It is also relevant to note that the majority in that case drew
a distinction
between complaints that the jury panel was not properly
constituted (in the sense that there was non-compliance with mandatory
procedures
which resulted in a person or persons sitting on the jury when not
entitled to do so) and complaints that a particular person was
not a member of
the jury finally chosen, only the former of which resulted in the trial becoming
a nullity (see at [43]).
- Having
regard to those authorities, I accept the Crown’s submission that the
error is one to which the proviso in s 6 of the Criminal Appeal Act
applies. In Crane v Director of Public Prosecutions [1921] 2 AC 299,
cited above with approval by the High Court in Maher, Lord Sumner equated
a miscarriage of justice in that case with the deprivation “of the
protection given [to the accused] by
essential steps in the criminal
procedure” (see at 331). If a miscarriage of justice is understood in this
way, it cannot be
said that such a miscarriage was occasioned by the trial
judge’s error. In Maher, the failure to observe the requirement of
the criminal process to have the jury sworn to try the issues on every count was
fundamental
because it was a precondition to the jury’s capacity to
deliver a verdict. Similarly, in Tabalbag v R (2016) 258 A Crim R 240;
[2016] NSWCCA 48 (to which the Crown makes reference in its submissions), the
Court found that compliance with the eight hour period prescribed in
s 55F(2) is
an essential procedural step that must be taken before the next step of giving a
majority verdict direction (see at [61]).
By contrast, the exclusion of a
foreperson from a ballot does not have the quality of a precondition for a
properly constituted jury.
Despite s 55G it remains the case that no one juror
has any greater rights than any other. Given that an accused has no right to
have a particular person on his or her jury (as opposed to a right to exclude a
prospective juror), the exclusion of the foreperson
did not have the result that
the jury which resulted was not a properly constituted jury. My view in this
regard is strengthened
when regard is had to the fact that s 55G does not
require the jury to choose a foreperson before the ballot takes place; indeed,
the provision expressly contemplates a situation in which the jury has not made
a choice of a foreperson. Further, it cannot be said
that the purpose of
excluding the foreperson pursuant to s 55G is to provide the accused with any
protection or procedural fairness;
while the extrinsic materials suggest that
the purpose is to facilitate the jury’s task, McHugh J noted at 528 in
Ng that the policy behind the exclusion of the foreperson is not clear.
- Maher
may be further distinguished on the basis that here the applicant was not
deprived of his right to object to the course taken at trial
by the trial judge.
At SU 167-168, as noted above, Counsel for the applicant at trial agreed with
her Honour’s approach and
did not make any objections when given the
opportunity to do so.
- The
present case is more like Katsano than Maher (or Brown). In
terms of the description in Katsano at [43], the present case is one
where the complaint “is not that the jury panel was not properly
constituted but that a particular
person was not a member of the jury finally
chosen”.
- Accordingly,
Maher does not preclude the application of the proviso in this case. The
fact that the foreperson was not excluded from the ballot was not
such a
departure from a mandatory provision relating to the authority and constitution
of the jury as to deny the constitutionality
of the applicant’s trial.
That is another way of saying that the error did not involve such a departure
from the requirements
of the trial as to lead to the conclusion that there was,
as a result of the error without more, a substantial miscarriage of justice.
The
enquiry required by the proviso is as to the “tendency or
propensity” of the error “to have affected the basis
on which the
trial jury actually reached its verdict in the totality of the events that
occurred in the trial that was had”
(see Gageler J in Hofer at
[121].) In the present case, the error had no such impact.
- Ground
10, though the error has been established, does not therefore result in the
relief here sought by the applicant.
Ground 11: The accumulation
of errors caused the trial to miscarry
- This
ground is in effect an overall miscarriage of justice ground predicated on the
accumulation of asserted errors that have been
dealt with in other grounds; and
was only briefly addressed in submissions by the applicant (see at [1540]-[1542]
of the applicant’s
submissions dated 3 May 2021, albeit there treating
this as ground 10 and stating that it is relied upon as a standalone ground of
appeal warranting an order quashing the convictions and having the matter
reheard according to law – a formulation adopted
by the applicant in his
submissions in respect of numerous other grounds).
- Reliance
is placed on The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 for
the proposition that, even if any one ground of appeal is not sufficient, an
accumulation or aggregation of errors might nevertheless
be enough to result in
a miscarriage of justice.
Determination
- Having
regard to the conclusions reached on the remaining grounds, this ground 11 takes
the matter no further. Ground 11 is not made
good.
Ground 12: Her
Honour failed to give a fundamental direction to the jury of the need to
separate the evidence between the two conflicting
hypotheses relied upon by the
Crown
- This
ground of appeal is related to the complaints raised as to the conflicting case
theories identified by the applicant (and has
been considered in relation to
various of the other grounds of appeal raised by the applicant). Reference in
particular is made by
the applicant to the matters addressed in support of
ground 3 (at [44]-[51], [123]-[157] of his initial submissions) as well as the
matters raised in his amended submissions in addressing this ground. The
applicant’s complaint is that the trial judge failed
to provide a
necessary direction to the jury that certain evidence attached to the first case
theory had to be separated when assessing
the “5 o’clock
theory”, as the two alternate hypotheses were conflicting and could not
stand together. The applicant
maintains that such a direction was fundamental to
prevent a real risk that the jury would take an impermissible path of reasoning;
and says that, on that basis, leave should be granted pursuant to r 4.15.
- The
applicant maintains that it was incumbent on her Honour to direct the jury that
the evidence in support of the “conjunction
proposition” (here
referring to that identified in the Crown’s submissions at [72]), had to
be put to one side when assessing
the 5 o’clock proposition. The applicant
says that, more importantly, the jury needed to understand that the 5
o’clock
proposition had to be assessed on the basis that the accused were
not sending the text messages between 3.57pm and 5.26pm (saying
that the 5
o’clock proposition is formulated on the basis that Mr Karmas is still
alive at 5.00pm). The applicant says that
the Crown does not contest the
applicant’s position that each theory had to be assessed with different
evidence (seeking only
to rely on the fact that counsel who appeared for the
applicant did not seek such a direction).
- The
applicant maintains that the two case propositions were mutually exclusive and
that the jury was misled to the effect that the
jury could use the same evidence
for both propositions “assuming that the two theories were alternate case
theories”.
- The
applicant maintains that he thereby lost a real chance of acquittal, asserting
that the direction had to be given by her Honour
even though it was not asked
for (referring in this context to Mortada v R [2014] NSWCCA 36 at [81]
per Leeming JA, Hall and Schmidt JJ).
- In
his amended submissions, the applicant sets out the two case theories (see at
[1547]-[1550]; and [1551]-[1552]). The first case
theory is that Mr Karmas was
murdered between 1.50pm and 3.07pm on 11 August 2011 by the applicant in the
presence of Mr Cheong;
and, essentially, the “conjunction
proposition” is said to be that text messages sent from Mr Karmas’
phone on
11 August 2011 were not sent by Mr Karmas, as he was already murdered;
and were sent by Mr Woods at the behest of the applicant to
give a false
application that Mr Karmas was still alive. The second case theory is the
so-called 5 o’clock theory (that Mr
Karmas left the Wilga Street Property
soon after 2pm and returned at or soon after 2pm and was then murdered by the
applicant).
- The
applicant says that on the second case theory the conjunction proposition (that
Mr Karmas did not send any of the text messages
in question) cannot be taken
into account. Further, the applicant contends that the substantial evidence led
by the Crown in support
of the conjunction proposition had to be put to one side
by the jury before assessing the 5 o’clock case theory.
- In
this regard, the applicant also cavils with the Crown’s submission (at
[300]) that the Crown did not lead any evidence or
rely on any argument that any
of the accused obtained Mr Karmas’ mobile handset between 3.57pm and
5.00pm in order to have
sent the initial text messages (referring to the direct
evidence given by the Karmas family, evidence from the optometrist, Mr Yeo,
and
the cell tower evidence tendered against Mr Woods (see footnote 263 to his
submissions at [1550])).
- The
applicant says that it was paramount that the jury be directed that the evidence
attached to the conjunction proposition had to
be put to one side when assessing
the 5 o’clock proposition; and that it would have been relevant to direct
the jury that the
evidence supporting the conjunction proposition negated the 5
o’clock proposition. The applicant argues that the failure to
give the
direction meant that the jury had been misled or mistaken on a relevant issue
and that therefore the verdict was unsafe
and unsatisfactory.
- The
applicant refers to the evidence of Detective Sergeant McGee (T 2184), who it is
said conceded that there was no evidence to prove
that Mr Woods actually took
possession of Mr Karmas’ mobile handset, or that Mr Woods physically sent
those messages. In other
words, the applicant says that it was either Mr Karmas
or someone he met after leaving the Wilga Street Property (other than the
applicant) who was sending the messages between 3.57pm and 5.27pm on 11 August
2011.
- The
applicant emphasises that if Mr Karmas was sending those messages between 3.57pm
and 5.27pm then the telco records confirm the
impossibility that Mr Karmas could
have returned to the Wilga Street Property at or soon after 5.00pm (as the phone
“pinged”
at Wentworthville at 5.27pm). The applicant says that if it
was someone else, other than the accused, sending those text messages,
then the
applicant has an alibi conclusive of innocence.
- As
noted, the applicant contends that the jury was misled that they could use the
same evidence for both propositions assuming that
the two theories were
alternate case theories. Rather, the applicant says that both propositions were
mutually exclusive and had
to be assessed as separate counts (and also requiring
separate verdicts). It is submitted that this has caused the verdict to be
unsafe and unsatisfactory as the jury were misled or mistaken on an essential
issue before the jury was asked to find facts on the
established evidence; and
that as the jury was not directed to the correct path of reasoning the applicant
did lose a chance of acquittal.
Reference is made in this context to Domican
v The Queen (1992) 173 CLR 555; [1992] HCA 13 (Domican) per
Brennan J, as his Honour then was, at 570-571 as to the application of the
proviso to s 6(1) of the Criminal Appeal Act:
The general principle is this: where, on the evidence and consistently with the
directions of the trial judge, it is open to a jury
to convict on any of two or
more independent bases, a misdirection or an inadequate direction which would
vitiate a conviction on
one of those bases necessarily results in the setting
aside of a guilty verdict despite the availability of another sound basis for
conviction. That is because it is not possible to conclude that a guilty verdict
has been founded on a sound basis when it was open
to the jury to convict on a
basis affected by the misdirection or inadequate direction. A Court of Criminal
Appeal cannot apply a
proviso by speculating either that the jury acted on a
body of evidence which was unaffected by the misdirection or inadequate
direction;
nor can the Court speculate that, if the jury had acted on such
evidence, they would have convicted. If a misdirection or inadequate
direction
would vitiate a conviction based on identification evidence and that basis of
conviction was open to the jury, it is impossible
to be satisfied that, by
reason of the misdirection or inadequate direction, the accused did not lose a
chance of acquittal.
- The
applicant says that the proviso is inapplicable and that the compounding
improbabilities “which could not be excluded by
the Crown, combined with
the sole reliance on the uncorroborated delusional writings” warrant
orders for an acquittal as it
is said that this case could not succeed in the
event of a re-trial (see [1571]).
- The
applicant thus maintains that in the present case it is possible that the jury
arrived at its verdict on an unsustainable theory
(the 5 o’clock theory)
that was improperly and unfairly pressed by the Crown relying upon
uncorroborated evidence (the writings)
that the Crown submitted as being
unreliable and lacking credibility. Reference is made to Tran v R (2000)
105 FCR 182; [2000] FCA 1888 (Tran) in this
context.
Crown’s submissions
- The
Crown complains that the applicant has not identified with any precision the
“fundamental direction” which he now
asserts ought to have been
given (cf Greenhalgh v R [2017] NSWCCA 94 (Greenhalgh) at [21] per
Basten JA, with whom Button and N Adams JJ agreed); and the Crown emphasises
that such a direction was not sought at
trial by the experienced counsel who
appeared on behalf of the applicant.
- As
to the “conjunction proposition” (i.e., the applicant’s
submission that the jury ought to have been directed
that, if they concluded
that it was reasonably possible that Mr Karmas had left the Wilga Street
Property shortly after he arrived
at 1.52pm and did not return until at or about
5pm (as the applicant’s writings suggested), it would necessarily follow
that
Mr Karmas, and not the applicant or someone acting on his behalf, was
responsible for sending the four text messages to Ms Angeles
between 3.57pm and
5.26pm, and that the jury must therefore put to one side evidence relied upon by
the Crown to establish that Mr
Karmas did not send those messages), the Crown
points out that this submission appears to assume that, if the jury found that
Mr
Karmas was still alive at 5pm on 11 August 2011, then Mr Karmas must have
been the author of the messages sent by his phone.
- The
Crown says that such a submission involves a substantial oversimplification of
the Crown case and ignores the nature of the evidence
that the Crown relied upon
to prove that Mr Karmas was not the author of the messages (and that the
messages were instead sent by
Mr Woods with the applicant’s knowledge and
at his behest). Thus, the Crown maintains that the assumption that underlies the
applicant’s submissions is unfounded.
- Insofar
as the applicant further asserts that “it would have been relevant to
direct the jury that evidence supporting the conjunction
proposition did negate
the 5 o’clock theory” (see his submissions at [1555]), the Crown
points out that this matter was
addressed in submissions by Counsel for the
applicant at the trial but a direction in those terms was not sought on the
applicant’s
behalf at trial. The Crown says that this would have only
served to highlight the importance of that body of evidence and how compelling
it was to proof that Mr Karmas had been murdered (by the applicant) prior to the
first message.
- The
Crown submits that the applicant has not established that the absence of the
direction for which he now contends constitutes either
legal error or a
miscarriage of justice; that leave under r 4.15 should be refused, or
alternatively, in the event that leave is
granted, this ground of appeal should
be dismissed.
Determination
- Consideration
of issues relating to the two case theories has been addressed by Dhanji J in
respect of grounds 4 and 5 (see below)
and in the context of the consideration
of ground 3 above. I agree with Dhanji J’s reasons for concluding that
there was no
miscarriage of justice in relation to the way in which the case was
left to the jury in relation to the two windows of time within
which the murder
might be said to have occurred and with the conclusion (see at [895]) that it
was open to the jury to conclude that
the murder occurred within the first
window of time. As to the so-called conjunction proposition, error has not been
established
arising out of the trial judge not having directed the jury to the
effect that it must not take into account the text messages when
or before
assessing the 5 o’clock case theory. It does not necessarily follow from a
conclusion that Mr Karmas had left the
Wilga Street Property shortly after he
arrived at 1.52pm and did not return until at or about 5pm, that the text
messages were sent
by Mr Karmas. As the Crown notes, there was evidence as to
the implausibility of those messages having been sent by Mr Karmas even
if
he were still alive at that time.
- Moreover,
a direction of the kind for which the applicant now contends (concerning the
so-called 5 o’clock case theory or conjunction
proposition) was not sought
by counsel for the applicant (as one would expect would have been sought had it
been perceived that it
was advantageous or necessary for the applicant for such
a direction to be made). In those circumstances, no miscarriage of justice
has
been shown. This ground of appeal is not made good.
Ground 13:
The trial miscarried as her Honour wrongly admitted a number of documents,
including: a document seized from the applicant’s
vehicle (Ex AA: the
“Georges River Note”) and the writing and video evidence seized from
the applicant’s home.
- This
ground relates to evidence admitted over the objection of the applicant. On 22
February 2018, the trial judge heard on the voir dire evidence and
submissions on an application brought by the applicant for the exclusion of that
evidence pursuant to s 90 or s 137 of the Evidence Act. (It is relevant
to note that there was no application on that occasion or at the trial for the
exclusion of that evidence pursuant
to s 138 of the Evidence Act; cf the
submission now advanced in respect of the Georges River Note.)
- On
26 February 2018, for the reasons set out in the Admissibility Judgment, her
Honour held that the evidence the subject of the present
complaint was
admissible and should be admitted.
Georges River Note – Ex
AA
- Turning
first to the Georges River Note (which has been referred to above – see at
[114]), this is a
handwritten note, written on a single piece of lined paper, which the police
discovered in a blue diary that had been
located inside the applicant’s
blue Transit van that was seized by the police on 13 August 2011. The
original note was tendered
and marked Ex AG, while a copy of the note was
tendered and marked Ex AA (the applicant’s submissions refer variously to
Ex
AA and Ex AG but nothing turns on this).
- It
was the Crown case that the note set out what the applicant planned to do to Mr
Karmas and that other evidence (including evidence
of the applicant’s
movements on 11, 12 and 13 August 2011; lies the applicant told about his
movements, various admissions
made by the applicant; and the evidence of
Professor Fitzpatrick in relation to the soil samples recovered from the
applicant’s
blue Ford transit van) supported a conclusion that the
applicant had disposed of the body of Mr Karmas and that he most likely did
so
in a manner consistent with the note.
- The
applicant claimed in his evidence at trial that the Georges River Note was never
in his van; that it was in the garage at the
Wilga Street Property with two
other pages and that he wrote it after seeing a spiritual healer following his
brother’s death.
The applicant does not suggest that the Georges River
Note was not in his handwriting. The Crown points out that, when asked at the
trial whether he was suggesting that the Georges River Note was
“planted”, the applicant did not give a direct response
(cf his
submissions on the present application); and the Crown notes that it was not
suggested to any of the officers who were involved
in finding the note that it
had been planted.
Applicant’s submissions
- The
applicant says that on a closer inspection what is actually written on the
Georges River Note is not (as was recorded at [13]
of the Admissibility
Judgment):
... wrap in black cotton sheet and tie with black ribbon (shoe lace) tight and
through [sic; throw] in the river (Georges River)
but, rather, was:
Imagine all nasty into black, wrap in black cotton sheet and tie with
RIBBON (shoe lace) tight and through in the river (Georges River)
[Emphasis added in applicant’s submissions]
- The
applicant submits that the Georges River Note had no probative value (see his
submissions at [1185]) (elsewhere saying that it
was speculative and of
“very little probative value”); and that any probative value would
be outweighed by the prejudice
of raising a case theory that took up a
substantial period of the Court’s time “to convince the jury of a
proposition
that was without foundation’” (see the applicant’s
submissions at [1592] and [1623]); and hence that it should
have been excluded
pursuant to s 137 of the Evidence Act (see the applicant’s
submissions at [1622] and [1681]).
- The
applicant says that the prosecution’s interpretation or reliance on this
note (to infer that it described the method utilised
by the applicant to dispose
of Mr Karmas’ body in the Georges River) was without any foundation. The
applicant says that the
note had no nexus to the disappearance of Mr Karmas (and
“no real nexus to the proposition that Mr Karmas had been disposed
of in
the Georges River”) (see the applicant’s submissions at [560]-[583];
[1604]). In this regard, the applicant points
out that the note makes no mention
of Mr Karmas nor of “anything sinister” (such as the disposal
of a body); and the
applicant argues that the reference to the wrapping of
something with a ribbon is an unlikely process in the discarding of a large
body
(see his submissions at [1586]).
- The
applicant maintains that the theory that Mr Karmas was disposed of in the
Georges River was not corroborated with evidence in
the prosecution brief or
received by the Court during the trial. The applicant refers to evidence from
the police experts to the
effect that a body would need to be heavily weighed
down or it would float to the surface (and what would be required to submerge
a
body and keep it from floating to the surface) and the applicant points out that
this “critical process” (i.e., the
weighing down of the body) is not
included in the note or in any other evidence discovered during the
investigation. The applicant
argues that if the note amounted to instructions as
to how to dispose of the body, then the body of Mr Karmas would inevitably have
been found floating. It is said that the reference in the note in closed
brackets to the Georges River was to provide an example
of a river; and that the
reference to a shoe lace, also in closed brackets, was an example of an
alternative to the use of a ribbon.
The applicant maintains that this was a
“speculative note” that was taken out of context (see his
submissions at [1593]);
and that it was of very little probative value.
- Complaint
is made that, by allowing the admission of the Georges River Note, the Crown was
permitted to lead a substantial quantity
of evidence against the applicant that
was “totally speculative and of very little probative value” (see
his submissions
at [1598]; the applicant referring in this context to evidence
from the soil expert, Professor Fitzpatrick, that soil found under
the mud
guards of the applicant’s vehicle may have come from the Georges River
region).
- As
adverted to above, in these submissions (though not in his evidence at trial)
the applicant’s contention is that the Georges
River Note was
“planted” by police in his diary (see, for example, his submissions
at [508]; [1599]; [1603]); and it
is said that a false and misleading statement
was generated by the police in relation to the search of the applicant’s
vehicle,
including the discovery of the blue diary (see the applicant’s
submissions at [540]-[559]; [1600]). The applicant’s evidence
at the trial
was that the Georges River Note was the last page of a larger document and was
taken out of context; and, as noted above,
that it had nothing to do with the
disappearance of Mr Karmas (see the submissions at [560]-[583]; [1604]);
and that the Georges
River Note was located at the Wilga Street Property. (This
is related to the complaint in ground 14 as to the police investigations
–
see below.)
- This
ground of appeal is also related to ground 18 (as to incompetence of counsel)
which is considered in due course (see below).
- The
applicant maintains that this evidence should have been excluded pursuant to s
138 of the Evidence Act on the basis that the evidentiary foundation of
the evidence was thin and any probative value it may have had would be
outweighed
by unfair prejudice; and that it should have been excluded pursuant
to s 137 of the Evidence Act (and the applicant accuses defence counsel
of acting with ineptitude by not utilising evidence during the cross-examination
of the
four officers involved in the discovery of this evidence – see the
related submissions in respect of ground 18 below).
- The
applicant refers to the references in the trial judge’s sentencing
judgment (see R v Fantakis; R v Woods [2018] NSWSC 1700 at [34]) to the
effect that her Honour was satisfied to the requisite standard that the Georges
River Note was found in the blue van owned
by the applicant and was undoubtedly
written by him, and that it is a reference to the concealment of Mr
Karmas’ body; from
which the applicant draws the conclusion that the
Georges River Note was obviously of fundamental importance to the Crown’s
case against the applicant. The applicant also refers to [35] of the sentencing
judgment, where her Honour said that:
The offender Fantakis’ evidence about Ex AG being notes concerning a
ritual that a wise woman had recommended to him, is evidence
that, from
observing the offender as a witness, I regard as a series of patent and
transparent falsehoods. These lies themselves
provide some support for my
conclusion about the meaning of what is recorded on the note. [Emphasis as per
the applicant’s
submissions]
- The
applicant draws from this passage of the sentencing reasons that the failure of
counsel to address this issue (see ground 18 below)
had a serious impact on the
applicant’s credibility (saying that it cannot be said that the jury did
not take the same view
of the applicant’s evidence as did her Honour).
Thus, the applicant contends that the admission of the “note” and
the supporting evidence (which he describes as a major theme of the Crown case),
occasioned a miscarriage warranting a retrial (see
the applicant’s
submissions culminating at [1625]).
- For
those reasons, the applicant submits that the trial judge was wrong to admit the
Georges River Note (on the basis that its probative
value was far outweighed by
the prejudice of its admission) and, further, contends that the trial judge
failed to provide adequate
reasons for its admissibility (see [1681] of his
submissions).
Crown’s submissions
- The
Crown says that the applicant’s argument in relation to Ex AA is
misconceived for a number of reasons. First, the Crown
says that the fact that
the Georges River Note did not mention Mr Karmas by name or make reference to
the disposal of a body did
not deprive the Georges River Note of its probative
value. Second, the Crown says that the admissibility of the other evidence
relied
on by the Crown (such as the soil sample evidence summarised in the
Crown’s submissions at [73]-[86]) was not predicated on
the admissibility
of the Georges River Note. Third, the Crown argues that the suggestion the
Georges River Note took up a substantial
period of the Court’s time
(because of that other evidence) is misconceived. Further, the Crown says that
the applicant has
misstated the nature and extent of the searches made of the
Georges River.
- Insofar
as the applicant asserts that the Georges River Note was planted by police (see
his submissions at [1599]), the Crown says
that the evidence does not support
that assertion and (as noted above) that defence counsel for the applicant did
not advance such
a suggestion at trial.
- Thus,
the Crown contends that Ex AA was not wrongly admitted (and nor was Ex AG
wrongly admitted).
Writing and Video Evidence
- Turning
then to the “writing and video evidence” that the applicant contends
was wrongly admitted, this relates to evidence
seized from the applicant’s
home on 7 June 2013 (Exs CE, CF, CG, CH, CJ, CK, CL and CM). It was not
ultimately in dispute that
the applicant was the author of the relevant
documents and that he had made the recordings.
- The
Crown sought the admission of this evidence as admissions by the applicant to
murdering Mr Karmas and disposing of his body. The
applicant sought the
exclusion of this evidence again pursuant to ss 90 or 137 of the Evidence
Act on the basis that the purported admissions were unlikely to be reliable
(relying on the evidence of Dr Saker) and that to admit them
would be unfair to
the accused. This application was dealt with by the trial judge in her
Admissibility Judgment. The trial judge
dismissed the application.
- As
to the application made under s 90, the issue of reliability of the admissions
was in the context of whether the seized materials represented truthful
admissions as
opposed to representations that were the product of fantasy or
delusion (since it was accepted that the applicant was the author
of the
materials). The Crown points to the recognition by the trial judge in the
Admissibility Judgment (at [56]) that “[u]nreliability
is certainly
material to consideration of fairness or unfairness but, whilst it may be a
‘touchstone’ of unfairness,
it is not the sole consideration”,
her Honour citing The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1
(Swaffield) at [54] per Toohey, Gaudron and Gummow JJ for this
proposition.
- The
trial judge, having considered (from [14]-[34]) the evidence as to the
applicant’s mental state at the time of the making
of the documents relied
on as admissions, identified (at [50]) the relevant question as being whether
the circumstances of the applicant’s
mental illness “extant to a
greater or lesser extent at the time of making the admissions” was such
that the truth of
what was said could not be known, and it would be unfair to
the accused to admit them. Insofar as the evidence of the applicant’s
mental state concerned the applicant’s consultations with Dr Saker from
November 2011 until January 2013, the Crown notes that
that evidence is largely
consistent with the evidence that was given by Dr Saker at trial.
- The
Crown notes that, on the voir dire (but not in evidence before the jury),
when asked about a video recording made by the applicant, Dr Saker said that
(speaking of
the period of time in which he saw the applicant) any information
that comes from the applicant “is highly unreliable as he
has untreated
persecutory delusions and has an extremely skewed view of reality’’.
However, Dr Saker accepted that a
person who is subject to delusions is capable
of making truthful statements. It is noted that Dr Saker did not have access to
any
of the prosecution material that would have permitted him to assess the
validity of the concerns expressed by the applicant to him
upon which that
opinion was based (concerns which the Crown points out primarily related to the
police investigation). The Crown
notes that Dr Saker accepted that were it not
for the fact that he had himself been summoned to attend the Crime Commission,
he would
have viewed the applicant’s statement that he was being
investigated by the Crime Commission as unreliable (see [66] of her
Honour’s reasons).
- The
trial judge observed (at [64]) that the jury would be asked to consider the
whole of the evidence (which her Honour noted at [65]
would include the evidence
from Dr Saker and from Professor Greenberg, and which might be supplemented by
evidence from other doctors);
and her Honour was of the view that the jury would
be able validly to conduct an assessment of the confessional statements and
appropriately
apportion weight to that evidence. (On the present application,
the Crown emphasises that, in that respect, the jury was in a vastly
superior
position to Dr Saker in terms of the ability to assess the reliability of the
admissions.)
- Her
Honour noted that the jury would also have before it other evidence which would
inform and enlighten the assessment made of the
confessional material (see [68])
and that the veracity of the admissions did not fall to be assessed in a vacuum.
At [69], her Honour
said that it would be open to the jury to conclude that the
weight of the evidence to be called by the Crown supported the veracity
of
aspects of the confessions and was of the opinion that if that conclusion was
one that was open it was a matter for the jury.
Her Honour did not conclude that
the admission of the evidence would involve unfairness to the accused, or that
the jury would use
the evidence or be affected by it in a way not permitted by
law (citing Pfennig v The Queen (1995) 182 CLR 461; [1995]
HCA 7; at 528 per McHugh J). Accordingly, her Honour (at [70]) declined to
exercise the discretion pursuant to s 90 in relation to this evidence.
- As
to the application pursuant to s 137 of the Evidence Act, her Honour did
not reach any different conclusion (see at [71]). Her Honour considered that the
probative value of the confessional
statements, if accepted, was very high (see
at [73]-[75]). As to the question of unfair prejudice, her Honour did not accept
(as
the applicant contended) that there was a danger that the jury would place
too much weight on the evidence and fail properly to consider
the whole of the
case, or that, if such a danger existed, it was so significant as to outweigh
the probative value of the evidence
(see at [79]), noting that it would be open
to the applicant to highlight the potential unreliability of the admissions (by
pointing
to the content of the admissions themselves, “much of it bizarre
in nature”, and by calling evidence from the doctors
as to his mental
state) (see at [80]); and that it was likely that a direction pursuant to
s 165(2) as to the potential unreliability of the admissions would need to
be given (see at [82]).
- Her
Honour considered that it could be argued that the chilling nature of some of
the admissions could provoke an emotional or irrational
response, but that this
danger needed to be viewed in the overall context of the allegations (this being
a murder trial) and in light
of the directions which would ordinarily be given
to jurors to consider the evidence dispassionately and without allowing emotion
to sway them (see at [84]).
- Her
Honour concluded, balancing the probative value of the evidence against the
danger of unfair prejudice to the applicant, that
the evidence was not excluded
by operation of s 137 (see at [85]).
Applicant’s
submissions
- The
applicant here maintains the submissions made on the application to exclude this
evidence as to the unreliability of the evidence
in question, noting that it was
acknowledged (and, the applicant says, demonstrated on the balance of
probabilities) that the writings
and video recordings were made by the applicant
while suffering from psychosis. Reference is made to the statement by the trial
judge
in her sentencing judgment at [26] that:
The detail of what is recorded as having occurred, which sometimes varied, is
not evidence which can be accepted to the same high
standard of proof as
establishing precisely what happened to Mr Karmas.
- As
to the application pursuant to s 90 of the Evidence Act, the applicant
says that her Honour erred in not having excluded the writings and video
evidence because the unreliability of that
evidence should have been the
fundamental concern; and the effect such evidence would have on the fairness of
the trial.
- The
applicant points to the recognition that common law principles relating to the
admissibility of admissions by persons suffering
from a mental disorder or
disability are applicable to the relevant provisions of the Evidence Act
(citing R v Donnelly (1987) 96 A Crim R 432 at 441 per Hidden J).
Reference is made by the applicant to observations made in Em v The Queen
(2007) 232 CLR 67; [2007] HCA 46 (Em) by Gleeson CJ and Heydon J at
89 [56]; [72]-[73] and by Gummow and Hayne JJ at [109]; including observations
in the joint judgment
of Gleeson CJ and Heydon J to the effect that the
reliability of evidence was a factor affecting the fairness of its use; and to
observations of Gummow and Hayne JJ in that case. Reference is also made to the
earlier decision of this Court (in R v Em [2003] NSWCCA 374) in which
Howie J (with whom Ipp JA and Hulme J agreed) held at [110] that under s 90 the
reliability of the evidence may be significant but that if its reliability is
accepted then an assessment of the probative value
has little significance in
the exercise of the discretion (and that the primary judge had there erred in
taking the lack of probative
value of the evidence into account in exercising
the discretion in favour of the Crown in that case). (It is noted that Howie J
there
also observed that the less probative weight that evidence has the less
likely its admission is going to result in an unfair trial.)
- The
applicant submits that in the present case the unreliability of the evidence was
substantial and that, combined with the highly
prejudicial nature of the
evidence, there was great risk that the trial would be unfair as the jury would
attach undue weight to
the evidence. The applicant points to the trial
judge’s recognition (at [76] of the Admissibility Judgment) of the
proposition
that ‘[p]rejudicial evidence will be unfairly so where there
is a real danger of the evidence being misused in some way, or
given more weight
than it deserves”.
- The
applicant submits that the feared misuse of this evidence became a reality, it
being asserted by him that he was convicted solely
on this evidence (i.e., the
writings and video evidence) and that this was evidence that was uncorroborated
with any other evidence
before the Court. It is submitted that the jury must
have given undue weight to this evidence (and that this is a true indication
of
the unfairness of it having been allowed into evidence; the unreliability of
which being said to be supported by unchallenged
psychiatric evidence).
- The
applicant also raises in this context complaints that the Crown relied upon this
evidence only to “cherry pick admissions
of violence against Mr
Karmas” (referring to the Crown’s opening submissions at the trial
at T 126); and raises the complaint
as to the advancing of the 5 o’clock
theory (dealt with in relation to ground 3 above and ground 4 below), contending
that
the conduct of the Crown Prosecutor resulted in a significant denial of
procedural fairness.
- As
to the dismissal by the trial judge of the application to exclude the evidence
pursuant to s 137 of the Evidence Act, again the applicant submits that
her Honour erred. The applicant contends that it was plainly wrong and
unreasonable for the trial
judge to conclude that there was no real danger of
unfair prejudice in the admission of the evidence (as stated at [80] of the
Admissibility
Judgment).
- The
applicant concedes (at [1662] of his submissions) that the evidence had
probative value but contends that the prejudice of this
“uncorroborated” evidence was insurmountable (and that this is
reflected in the jury’s decision to convict him
and to ignore other
evidence); and that the prejudice “goes somewhat deeper” when it was
conceded by the Crown and accepted
by the Court that he was a person of good
character (see applicant’s submissions at [1663]). The applicant says that
the failure
to reject the evidence cannot be considered without regard to what
was said by the trial judge in summing up (raising in this context
the complaint
made under ground 6(4) as to an inadequate warning direction (see above)). The
applicant also maintains that this supports
grounds 3 and 4 (see in relation to
those grounds elsewhere in these reasons).
Crown’s
submissions
- The
Crown notes that the focus of the applicant’s submissions both at trial
and on appeal, in relation to the writings and video
evidence in question is on
the potential unreliability of the admissions.
- The
Crown says that it was not in dispute that aspects of the documents and videos
made by the applicant were delusional and so unworthy
of belief that no weight
should be placed on them (such as the applicant’s belief that a retired
judge and various police officers
involved in the investigation into Mr
Karmas’ murder were complicit in the murder of his brother). However, the
Crown argues
that the jury was well-placed to evaluate the reliability of the
admissions contained within the documents on the evidence before
it.
- So,
for example, the Crown says that it would have been well open to the jury, on
the evidence, to have drawn a distinction between
the reliability of the
writings insofar as they concerned the applicant’s theories about his
brother’s death (of which
he had no direct knowledge) and the reliability
of admissions concerning his involvement in the murder of Mr Karmas (the latter
involving
the applicant describing things he had seen, heard and had done
himself, whereas the former did not).
- The
Crown further says that the reliability of numerous aspects of the writings in
the exhibits challenged by this sub-ground of appeal
were supported by other
evidence in the trial, including (by way of example) the following.
- First,
the applicant’s account, in Ex CF, of the circumstances in which he
retrieved the property of his brother from the Warwick
Street Duplex is said to
be consistent with other evidence about the event, including the evidence of
Ms Amara Mantas as to the animosity
shown by the applicant towards
Mr Karmas (which evidence formed part of the Crown Case in relation to the
applicant’s motive).
- Second,
the Crown says that numerous aspects of the admissions recorded in Ex CF in
relation to his interactions with Mr Karmas on
11 August 2011 are supported by
other evidence in the trial, including but not limited to evidence that Mr
Karmas’ glasses
were found in the glovebox of the vehicle. The Crown notes
that the admissions which are extracted at [11] of her Honour’s
Admissibility Judgment (which are not here reproduced) included admissions made
by the applicant to assaulting Mr Karmas upon his
return to the Wilga Street
Property. (The Crown refers also to the admissions recorded in Ex CG, at p 10 of
the typed aide memoire
and Ex CJ at p 8 thereof.) It is also noted that the
applicant’s claim that he assaulted Mr Karmas is supported by an admission
made by the applicant in the course of a recorded conversation with Mr Woods (Ex
CX), in which the applicant said:
...man, the way I see it the bigger the frame, the more he thinks he’s got
it over me, right. Within two seconds, he’s
going what the fuck was that,
and it’s like well its game over... That cunt was bigger than you... and I
climbed him maggot
I grabbed him and actually climbed up him, head butted him
straight in the nose and as he fell I fell with him, and that was the
end of the
fight you know. He didn’t know what hit him... Maggot he pissed on my
brother’s fucken grave mate, these cunts...
And that’s how it came
to be.
- The
Crown says that the assertion in Exs CF and CG that (when Mr Karmas returned to
the Wilga Street Property) Mr Karmas was armed
with a taser was contrary to
unchallenged evidence concerning Mr Karmas’ character and thus shown to be
unreliable (and it
is noted that it did not form part of the admission made to
Mr Woods which is recorded in Ex CX).
- Third,
the Crown says that the reference (in Ex CG at p 10 of the typed aide memoire)
to having loaded Mr Karmas in the van is supported
by the evidence regarding the
applicant’s participation in the disposal of Mr Karmas’ body.
- Fourth,
the Crown says that the reference in Ex CG to two detectives having come to his
home to request the return of their listening
device (see p 6 of the typed aide
memoire) is a reference to an actual event, as the evidence of Detective
Sergeant McGee (as she
then was) demonstrated (the Crown also referring here to
Ex CJ at p 3).
- Fifth,
insofar as the documents were replete with references to the applicant’s
belief that Mr Karmas was involved in the murder
of the applicant’s
brother, the Crown says that it was not the accuracy of that belief but the fact
that the applicant held
it that made it probative (as part of the Crown case in
relation to motive).
- The
Crown thus maintains that the applicant has not shown either that the trial
judge’s refusal to exercise her discretion to
exclude “the writing
and video evidence” was attended by error of the kind referred to in
House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The
King), or that her Honour erred in failing to exclude the evidence
pursuant to s 90 of the Evidence Act.
- As
to the application of s 137, it is noted that the applicant contends that it was
“plainly wrong and unreasonable” for the trial judge to conclude
that there was no real danger of unfair prejudice to the applicant in the
admission of the evidence (see applicant’s submissions
at [1659]); and, in
effect, that the danger of unfair prejudice (a danger that the jury would place
undue weight on the evidence)
was realised because the jury found him guilty of
the “5 o’clock theory” (see submissions at [1679]). The Crown
says that these submissions are misconceived (referring to the submissions made
by the Crown in relation to grounds 3 and 4 of the
grounds of appeal relating to
the said theory). In summary, the Crown says that the applicant’s
assumption that this appeal
must be determined on the basis that the jury
rejected the proposition that the applicant murdered Mr Karmas at the Wilga
Street
Property between 1.52pm and 3.07pm on 11 August 2011 is without
foundation. Further and in any event, the Crown says that the writing
evidence
was not the only evidence that supported the conclusion that, if he left there,
Mr Karmas returned to the Wilga Street Property
(the Crown referring to its
submissions at [216]).
- The
Crown maintains that the probative value of the confessional statements, if
accepted, was very high (as her Honour accepted) and
notes that the applicant
himself concedes that the evidence had probative value (see applicant’s
submissions at [1662]).
- The
Crown says that there was, properly considered, no real risk that the jury would
place undue weight on the evidence. It is accepted
that if the jury had formed
the view that any one or more of the confessional statements was or were
unreliable, it would have placed
no weight on them. However, the Crown says that
any danger that the jury might misuse the evidence in some way or give the
evidence
more weight than it deserved was ameliorated by the clear and careful
directions given to the jury in relation to that body of evidence
in the course
of the summing up (as considered in relation to ground 6(4)). The Crown says
that the applicant’s complaints
as to the adequacy of those directions,
many of which are repeated in submissions made under this ground 13, ignore the
careful directions
that were given by the trial judge on the issue. The Crown
thus maintains that the trial judge did not err in declining to exclude
the
evidence under s 137.
Determination
- At
the outset it may be noted that there is some tension in the authorities as to
whether the exercise of discretion under s 90 is reviewable on appeal only on
the principles stated in House v The King (see MIH v R [2007]
NSWCCA 199 per Campbell JA, with whom Hidden J and Smart AJ agreed, at
[53]-[54], which was subsequently applied in Sulaeman v R [2013] NSWCCA
283 at [96] per R A Hulme J, with whom Beazley P, as Her Excellency
then was, and Bellew J agreed) or (as is the case in relation to appellate
review of a decision on an application under s 137) the appropriate
standard of appellate review is the correctness standard (see The Queen v
Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] in the context of tendency
evidence and the discussion by Bathurst CJ, with whom Button and Wilson JJ
agreed, in R v Riley [2020] NSWCCA 283 at [89]- [114]; albeit there it was
unnecessary to reach a final conclusion on the issue).
- However,
as the Crown anticipated, it is unnecessary here to address that question
because (as was the case in Em – see the judgment of Gleeson CJ and
Heydon J at [55]), whichever standard of review is applied, the conclusion of
the trial
judge that the evidence was admissible and should not be excluded
pursuant to s 90 of the Evidence Act is both correct and no error has
been shown in the decision not to exclude that evidence.
- As
noted by the Crown, s 90 is concerned with the right of an accused to a fair
trial and whether there is a risk of improper conviction (Swaffield) and
it has been described as a “final or safety net provision” available
after the more specific exclusionary provisions
of the Evidence Act have
been considered and applied (see Em at [109], per Gummow and Hayne
JJ).
- As
to the admission of Ex AA (and to the extent that the ground encompasses Exhibit
AG), no error has been shown in the decision of
the trial judge to admit the
Georges River Note. The application made to her Honour was expressly made
pursuant to ss 90 and 137 of the Evidence Act. Her Honour correctly
addressed the relevant principles applicable when considering an application
made pursuant to those provisions.
- Her
Honour noted (at [42]) that there was no question of police impropriety in
respect of the Georges River Note; and insofar as the
applicant now contends
that it was planted by police, there is no evidence that supports that assertion
(see the consideration of
this issue in the context of ground 14 below). Her
Honour addressed (so far as was possible on the evidence) the circumstances in
which the admissions were made and found it reasonable to conclude that those
circumstances included the applicant’s mental
illness (at [52]), then
addressing the question of unfairness to the applicant in the admission of the
evidence and, in that context,
the potential unreliability of the evidence. No
House v The King error has here been shown; nor, if the test be the
correctness of the decision, has the decision to admit the evidence been shown
to be wrong.
- As
to the refusal to exclude the evidence pursuant to s 137, her Honour correctly
addressed the question whether the probative value of the evidence was
outweighed by the prejudicial effect
of its admission and, with respect, reached
the correct conclusion. This evidence, though potentially unreliable because of
the applicant’s
mental state at the time, was nevertheless of probative
value and her Honour correctly concluded that the feared prejudice from its
admission could be addressed by appropriate directions to the jury.
- As
to the submission now made that the evidence should have been excluded pursuant
to s 138 of the Evidence Act, no such application was made at the time
and there was no error of the trial judge in not addressing an application not
made.
- As
to the writings and video evidence, again no error has been established. Her
Honour correctly considered the evidence having regard
to the circumstances in
which the confessional statements or admissions were made, considered the
potential unreliability of the
evidence and the question of unfairness as to its
admission (for the purposes of s 90) and then correctly assessed its probative
value and whether that was outweighed by the potential prejudice of its
admission. For
the reasons advanced by her Honour in the Admissibility Judgment
the evidence was admissible and was not required to be excluded.
- Neither
of the sub-grounds of ground 13 is made good.
Ground 14: There
has been a miscarriage of justice in the trial of the applicant on account of
the conduct by NSW Police during the
course of the investigation.
- This
ground of complaint (sought to be considered as a “separate ground that
the verdict was unsafe”) makes allegations
that the investigation into
Mr Karmas’ disappearance was flawed and compromised (the applicant
relying in this context on submissions
made at [240]-[583] in respect of ground
3); and the applicant contends that the gravity and propensity of the alleged
misconduct
gives rise to a substantial miscarriage of justice. Various of the
complaints made by the applicant under this ground are raised
in relation to
other grounds. The complaints include the following serious allegations.
- First,
that police officers wilfully neglected their duty by failing to comply with
standard operating procedures for search warrants
in the course of executing
crime scene warrants, and that they did so for “the collateral
purpose to have a flexible use of exhibits seized” (see the
applicant’s submissions at [243]-[307]in particular
[258]). Specifically,
the applicant emphasises that the crime scene warrants executed during the
course of the investigation “had
not followed SOP’s (Standard
Operating Procedures) attached to search warrants as mandated by
legislation” (citing s 98 of the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) (LEPRA)), including that the crime
scene warrants had not been filmed, no independent observer was appointed, and
further alleges that the
police officers contravened cl 8(1) of the Law
Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) (LEPR
Regulation) (then in force) by failing to provide him with receipts
acknowledging exhibits seized (see his submissions
at [267]; [298]).
- Second,
that police officers intentionally failed to produce (in response to Item 13 of
a subpoena for production issued to the Commissioner
of Police on 28 June
2017) evidence that is now relied upon by the applicant (see the
applicant’s submissions at [260]-[266]),
which is said to demonstrate that
an exhibit seized from the Wilga Street Property was planted and unlawfully
destroyed in the drug
matter of the co-accused Mr Woods.
- Third,
that Detective Sergeant McGee lied on oath in an affidavit sworn by her on 15
February 2013 and during her evidence given during
the trial (see the
applicant’s submissions at [309]-[314] and Annexure I to the
applicant’s affidavit sworn 1 September
2021; this complaint relates to
the applicant’s assertion that the standard operating procedures for
search warrants applied
to the execution of crime scene warrants).
- Fourth,
that Detective Sergeant McGee planted a quantity of cannabis that was seized
from the Wilga Street Property (the applicant’s
home) in a vehicle driven
by Mr Woods (submissions at [316]-[341]). Pausing here, insofar as the applicant
alleges that a drug exhibit
was planted by the officer in charge (submissions at
[1615]), the Crown says that there is no evidence to support that assertion
and
it is contrary to evidence given by the applicant at
trial.
Applicant’s submissions
- As
to the criticisms of the police investigation, they are outlined in the
Crown’s submissions below. Broadly, it is alleged
by the applicant that
the investigation was conducted with: a wilful neglect of duty “at such a
systemic level warranting a
strong inference the investigation was in pursuit of
a an [sic] unlawful conviction”; the “Planting” of evidence
by
the officer in charge; the inability of the police to prove the continuity of
crucial exhibits that had been tendered during the
trial; and the failure of the
police to follow relevant lines of investigation.
- The
applicant complains that all seven known crime scene warrants, and other
searches of the applicant’s vehicles, were unlawfully
executed; and
contends that the entire Crown case “was propounded with circumstantial
evidence gathered by the very same officers
who acted with such a dereliction of
duty to obtain an unlawful conviction” (see at [1689] of his submissions).
The applicant
also relies on the matters raised in ground 18 in support of this
ground (see below) (and raises this in response to the Crown’s
contention
that the applicant, on appeal, is seeking to run a vastly different case to that
upon which he relied at trial).
- The
applicant says that the logic of the “fruit from the poisonous tree”
approach is straightforward; and that the State
should not be permitted to gain
an advantage from an unlawful act.
- It
is submitted that the conduct of the investigation falls in the most serious end
of the range of the spectrum of improper conduct
(as it was known to be illegal
and was pursued for the purpose of obtaining a benefit advantage), here citing
Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011]
VSCA 355 (DPP v Marijancevic) at [67] per Warren CJ, Buchanan and Redlich
JJA; and that the misconduct was calculated to injure the public interest and
the administration
of justice.
Crown’s submissions
- The
Crown complains (as adverted to above) that under this ground the applicant is
attempting, on appeal, to run a vastly different
case to that which he relied
upon at trial; and that, in doing so, the applicant relies, in part, on evidence
which he asserts is
fresh evidence including documents contained in Annexures B,
E, F, G, H and I of his fresh evidence affidavit. The Crown contends
that this
material is not fresh (but new) evidence, and that it lacks sufficient cogency
to warrant a grant of leave to rely upon
the evidence.
- It
is noted that the applicant also relies on material that he was aware of at the
time of trial, but which was not adduced at trial
and does not now form part of
the material that is before this Court (including, for example, evidence said to
have been given by
Detective Sergeant McGee on a bail application before Garling
J on 18 August 2016 - see in this respect the applicant’s submissions
at
[295]-[296]).
- The
Crown addresses the allegations as to the failure to produce documents in
response to item 13 of the 28 June 2017 subpoena and
as to the planting of a
drug exhibit in the context of ground 7 (see below) and says that there is no
evidence to support them.
- Insofar
as the allegations relating to the standard operating procedures are concerned,
the Crown says that documents produced by
the applicant himself demonstrate
that, at the time this investigation was conducted, those procedures did not
apply to the execution
of crime scene warrants. The Crown notes that Annexure Q
to the applicant’s affidavit sworn 1 September 2021 is a document
that
originally formed part of the police brief and supports the Crown’s
submission that at the time of the investigation a
distinction existed between
the procedure to be followed with respect to crime scene warrants and search
warrants. In particular,
the document shows that there was no requirement at
the time for crime scene warrants to involve the use of an independent observer,
and that “the Code of Practice does not specify which, if any, parts of
search warrant SOPs were applicable to crime scene
warrants” (see Annexure
Q at p 52).
- It
is further emphasised by the Crown that the applicant was served with the notes
of the crime scene warrant executed at his premises
at the Wilga Street Property
commencing on 14 August 2011. As for the applicant’s submission that he
was not provided with
receipts contrary to cl 8 of the LEPR Regulation, the
Crown notes that the applicant’s counsel at trial raised the absence
of
receipts with Detective Senior Constable Scipione and put the issue to what is
said to be a more effective forensic use (that
is, the absence of receipts
influenced the applicant’s view as to the unfairness of the police).
- The
Crown addresses the criticisms made of the police investigation as follows.
- First,
as to the alleged failure to reinterview Ms Rifai in relation to her sighting of
Mr Karmas (applicant’s submissions at
[346]; [478]-[482]), the Crown says
this issue was addressed in the evidence of Detective Sergeant McGee who
explained that she did
not consider the description provided by Ms Rifai to be
inconsistent with other evidence.
- Second,
as to the alleged failure of the officer in charge to make inquiries in relation
to a transfer of $50,222.72 made from the
account of Ms Angeles on 13 August
2011 (see the applicant’s submissions at [347]-[365]), the Crown says that
investigations
were conducted in relation to the transfer (albeit not by the
officer in charge) which concluded that it appeared that Ms Angeles
had fallen
victim to a “Nigerian fraud” scam.
- Third,
as to the alleged failure of police to reinterview Ms Angeles after her phone
records were obtained (see the applicant’s
submissions at [368]-[373]),
the Crown notes that Detective Senior Constable Scipione, one of two detectives
who obtained a statement
from Ms Angeles on 20 October 2011, gave evidence that
he did not believe he asked Ms Angeles questions by reference to telephone
records but said that if he had, and it was relevant, he would have included it
in her statement. The Crown says that this criticism
relates to a challenge,
made in cross-examination, of Ms Angeles’ account as to precisely when she
had viewed each of the four
text messages sent to her from the mobile phone of
Mr Karmas on 11 August 2011. The Crown says that the issue was of no real
moment,
noting that it was not suggested at trial that Ms Angeles had any
involvement in the murder of Mr Karmas.
- Fourth,
as to the failure of police to investigate the movements of Mr George Karmas on
11 August 2011 (see the applicant’s
submissions at [376]), the Crown notes
that Detective Sergeant McGee explained that Mr George Karmas provided an
account of his movements
in a police statement and call charge records were
obtained for his phone. The Crown says that it was not suggested to Mr George
Karmas on either occasion that he gave evidence that the two were inconsistent
with one another.
- Fifth,
as to the criticisms into the adequacy of and the conclusions reached by fraud
investigations conducted by NSW Police in relation
to separate allegations of
fraud against Ms Angeles and Mr George Karmas (see the applicant’s
submissions at [379]-[404]),
the Crown says that the applicant has made a series
of unsubstantiated allegations including as to the involvement of Mr Leamey and
a potential connection between “the $3 million fraud” and the
transfer of $50,222.72; and that that there is no evidentiary
foundation for the
allegations.
- Sixth,
as to the omission of reference in the first statement of Mr Charawani to
concerns Mr Karmas had expressed to him about the
involvement of his brother Mr
George Karmas with Mr Lafiatis (see the applicant’s submissions at
[405]-[470]), the Crown notes
that Mr Charawani gave evidence that
Mr Karmas told him that he was concerned that his “‘real estate
brother’’
(i.e., Mr George Karmas) was “ripping off an
old Greek guy” and that he had mentioned it to the police officer to whom
he provided a statement but “he wasn’t interested”‘.
The Crown says that Mr Charawani did not embrace the
suggestion, put to him in
cross-examination, that the officer told him they were only focusing on one
person; and notes that the
officer in question (Sergeant McAllister) gave
evidence that he did not really recall taking the statement due to the passage
of
time but as to whether he directed Mr Charawani to focus on only one
person, he answered “I can’t recall but I doubt
it”.
- Seventh,
as to the alleged failure of the police investigation to follow up three
possible sightings of Mr Karmas that were reported
to Crime Stoppers Australia
(see the applicant’s submissions at 472]), the Crown says that the
sightings were referred to in
evidence by Detective Sergeant McGee; and that
there was no evidence that police failed to investigate them.
- Eighth,
as to the alleged failure of police to conduct an investigation around the home
of Ms Robinson (see the applicant’s
submissions at [472]-[476]), the Crown
says that it is unclear what it is suggested would have been achieved by that
since it was
not in dispute that the applicant and Mr Woods had attended that
address on the evening of 11 August 2011. Further, insofar as it
is suggested
that police should have conducted a CCTV canvass, Detective Sergeant McGee noted
that it was a suburban area (and such
a canvass is unlikely to have been
productive).
- Ninth,
as to the applicant’s submissions (at [496]-[583]) in relation to evidence
which the applicant asserts supports the conclusion
that Ex AA (the Georges
River Note) was planted by police, the Crown says (referring to the submissions
made in relation to ground
13), that the evidence does not support that
assertion; and that no such submission was advanced at trial. It is again noted
that
no application to exclude that evidence pursuant to s 138 of the
Evidence Act was made.
- Overall,
the Crown says that the jury was well placed to make an assessment of the
adequacy or otherwise of such aspects of the police
investigation as were before
the Court, assisted by the submissions of counsel; and that it was well open to
them to reject the criticisms
that were made as being unfounded, unreasonable or
of little moment. It is said that the further allegations made by the applicant
for the first time on appeal are unfounded.
Determination
- The
criticisms of the police investigation into Mr Karmas’ disappearance,
insofar as they go to the complaint that adequate
enquiries were not made, are
comprehensively addressed by the Crown and in any event were matters of which
the jury was well apprised
to take into account when assessing the
evidence.
- As
to the complaints in relation to the execution of search warrants (and alleged
failure to follow standard operating procedures,
dealt with in relation to
ground 7), the applicant has failed to appreciate that, at the time of the
investigation, a distinction
existed between search warrants and crime scene
warrants and accordingly has failed to establish that the absence of an
independent
observer or the failure to film the crime scene warrants amounts to
non-compliance with a statutory requirement. With respect to
the alleged breach
of cl 8 of the LEPR Regulation, it is noted that the obligation contained
therein is qualified (receipts for things
seized must be provided “if the
occupier is then present and it is reasonably practicable to do so”
[emphasis added]) and in any event the applicant accepts that he was provided
with notes of the crime scene warrant executed
at the Wilga Street Property,
which included property seizure forms (see at T 8.7-33; 126.1-7 and at p 9 of
NSW Police Force Forensic
Services Group Initial Report dated 14 August 2011;
see also the evidence of Detective Senior Constable Scipione at trial at T
1753.13-43).
It is also significant that the applicant’s request to be
provided receipts by the police officers was raised during the trial
by the
applicant’s counsel albeit for a different forensic purpose, that is, to
explain the applicant’s view of the investigation
and the impact it had
upon him over time (see, for example, the cross-examination by the
applicant’s counsel at trial at T
1661.47-50; T 1750.31-1753.43; see
also the applicant’s examination in chief at T 2323.10-2325.5).
- Further,
the applicant has no evidentiary basis for the assertion as to collateral
purpose. The very serious allegation of perjury
has no proper evidentiary
foundation; nor is there any evidentiary basis for the also very serious
allegation that evidence was “planted”.
As to the complaint made in
relation to the response to item 13 of the 28 June 2017 subpoena, this is
addressed in the context of
ground 18 below.
- This
ground of appeal is not made good.
Ground 15: There has been a
miscarriage of justice in the trial of the applicant on account of NSW Police
withholding and not disclosing
computer data seized from the applicant.
- The
complaint raised by ground 15 relates to the alleged non-production of a large
volume of computer data that had been seized by
the police from the
applicant’s home (the Wilga Street Property) on 7 June 2013. The data in
question is identified as computer
data compiled by the applicant during the
course of the two year homicide investigation prior to his arrest on 3 October
2013. The
applicant says that the withholding of this data has occasioned
unfairness to him.
Applicant’s submissions
- The
applicant complains that the NSW Police seized a substantial quantity of data
that the applicant had been compiling over a two
year period during the course
of the investigation and while acting as self-litigant in other criminal and
civil matters that were
the subject during the applicant’s murder trial;
and that, notwithstanding s 217 of the LEPRA and the repeated request to have
this material made available three years before the trial, this material was
withheld by the NSW Police. The applicant says that,
subsequent to the
applicant’s murder trial, the applicant was able to compel production of
his computer data (during the hearing
of what he refers to as the
“Intimidate Police” proceedings) (being Annexure 7 to the affidavit
deposed by the applicant
on 11 May 2022); and argues that the production of this
material shows that NSW Police did intend to mislead the Supreme Court (by
asserting in the Crown’s response that this data had been produced to
Burwood Local Court).
- The
applicant disputes the contention by the Crown that these documents were served
on the applicant as part of the brief of evidence
in the murder trial. The
applicant maintains that the prosecution brief included only some of the data
found within the computer
data seized from his home on 7 June 2013; and says
that the data that was finally produced by the police in 2020 includes in excess
of 2 Terabytes of data that had originally been seized (the applicant referring
to Annexure 7 to the affidavit deposed to by him
on 11 May 2022, being
correspondence sent to him by the NSW Police Force regarding his request to be
served digital files contained
on three external hard drives which consisted of
files seized from the applicant’s and Mr Woods’ personal storage
devices).
In this regard, the applicant says he relies upon the same legal
principles and authorities as those under ground 7 (see the analysis
of this
ground below).
- The
applicant says that the fundamental issue is that the NSW Police refused to
provide a copy of the data to which the applicant
says he was entitled pursuant
to s 217 of the LEPRA. It is noted that the data was first sought in a subpoena
served on the Commissioner
of Police on 12 October 2015 (just prior to the
applicant’s committal hearing). In this context, the applicant also refers
to ground 18 in which he complains that defence counsel then acting for him
“negotiated and narrowed” his subpoena served
on the Commissioner of
Police on 28 June 2017 without his consent or knowledge.
- The
applicant complains that the computer data withheld by the police would have
assisted the defence during the cross-examination
of all the leading detectives
as to the integrity and credibility of the investigation (this being a paramount
consideration in a
circumstantial case). In particular, it is submitted that if
there was evidence to support an inference that the officer in charge
had
planted evidence during the course of the investigation (see below) then an
acquittal would have been a reasonable conclusion.
- The
applicant makes a succession of complaints as to the response to subpoenas
issued on his behalf.
- The
applicant says that the computer data contained “portions” of Mr
Woods’ “drug matter” and said that
this confirms that an
exhibit seized from the applicant’s home during the execution of a crime
scene warrant (278/11 executed
between 14-18 August 2011) (being Ex X0000 803
009) was “utilised/planted in Mr Woods isolated drug matter”.
(Pausing
here, it may be noted that in oral submissions, the applicant does not
refer to these documents, which he accepted in cross-examination
during the
appeal at T 12.35-40 and T 13.31-35 were provided to him, but rather
refers to legal documents, including the bench book,
procedures and SOPs, that
he had been relying upon or gathered during the course of the investigation
– see at T 104.49-105.19.)
- A
consistent complaint by the applicant is that the execution of search warrants,
including in this instance the search warrant executed
shortly after Mr
Karmas’ disappearance, was not filmed, that there was no appointed
independent observer, no use of property
seizure exhibit forms and no receipt
issued to the occupant after it was executed (the applicant referring to cl 8 of
the LEPR Regulation,
which the applicant maintains required that he be furnished
with a receipt acknowledging exhibits seized) (see applicant’s
submissions
at [1698]-[[1699]). The applicant asserts that this evidence “would have
explained why senior detectives failed
to issue receipts to the applicant after
seven consecutive crime scene warrants had been executed on his premises and
vehicles”;
and that this illegal practice permitted leading detectives
with a flexible use of undocumented exhibits that had been illegally
used.
- The
applicant maintains that there was an unlawful denial of access to the seized
data; saying that he made numerous requests after
7 June 2013 to be provided
with a complete copy of the computer data prior to the commencement of his trial
in 2018; and that in
November 2020 “and only by compelling production by
way of subpoena in an unrelated matter” was the computer data ultimately
produced by the NSW Police.
- In
his written submissions, the applicant makes detailed complaints as to the
response from NSW Police with a subpoena filed on 12
October 2015 and another on
28 June 2017. As to the latter, the applicant places focus in particular on item
28 (seeking the production
of all computer data seized on 7 June 2013 in
relation to SW 1274/13 and SW 1275/13).
- The
applicant says that the police provided misleading answers in relation to this
item (namely, that certain items in item 28 had
been produced to the Burwood
Local Court on 6 May 2016 in response to a subpoena issued by Mr Woods and
that no copies of the “data”
were in existence). The applicant says
that his defence counsel was instructed that the response provided by the NSW
Police with
regard to item 28 (that the data had been produced to Burwood Local
Court) was false and misleading (this is raised in the context
of ground 18 as
well).
- The
applicant contends that the computer data sought by Mr Woods was in relation to
computer data seized from his (Mr Woods’)
home in Canberra on 25 June 2013
in relation to another search and seizure (that being the data that was produced
to Burwood Local
Court); and that this was not the computer data sought by the
applicant in his subpoena. Rather, the applicant says that he was clearly
seeking production of computer data seized by NSW Police on 7 June 2013 from an
address at Croydon Avenue, Croydon Park.
- Furthermore,
the applicant complains that it is obvious that neither his then solicitors
(Zahr Partners) nor his counsel (Mr Todd)
went to Burwood Local Court to obtain
the computer data that had been produced in response to the subpoena served by
Mr Woods in
2015. As adverted to above, the applicant complains that he was
never notified by Zahr Partners that the subpoena served on the Commissioner
of
Police on 28 June 2017 had been narrowed and negotiated; nor was the applicant
provided a copy of the video recording produced
by NSW Police in relation to
item 24 (which the applicant says confirmed that drugs seized from the
applicant’s home were attached
to Mr Woods’ drug matter).
- Complaint
is made that while the response to item 13 of the subpoena filed on 28 June 2017
was that there was nothing to produce,
there is now evidence that documents did
exist that would have been available to the defence if the computer data had
been produced.
- Complaint
is further made that, notwithstanding that the applicant sought bail during this
appeal to examine the computer data, bail
was denied and the Court refused to
make any orders that Corrective Services provide the necessary facilities so the
applicant could
view the data in aid of meeting his onus of demonstrating what
material would have assisted during the trial. The applicant contends
that his
counsel’s failure to address the production of this data is without any
justification and deprived the applicant of
due process. The applicant says
that, at the very least, counsel failed to follow due diligence. (This seems to
be a complaint relating
to ground 18.)
- The
applicant says that the documents produced by Zahr Partners indicate that the
production of the computer data (item 28) would
be stood over so the defence
could check what was produced at Burwood Local Court (referring to a letter sent
from the Crown Solicitor’s
Office to Zahr Partners on 15 December
2017, marked as Annexure 11 to the applicant’s affidavit deposed on 11 May
2022), noting
that the trial judge stood the subpoena over to the 19 December
2017, indicating that if there was any issue in relation to item
28, it had to
be raised on 19 December 2017 so the matter could be relisted.
- The
applicant says that no issue appears to have been raised with the trial judge on
19 December 2017 and asserts that neither Zahr
Partners or Mr Todd checked
the computer data that was produced at Burwood Local Court. The applicant
emphasises that he was never
contacted and informed how his subpoena was
narrowed and negotiated; and that Mr Todd makes no issue of addressing the
production
of the applicant’s computer data in his affidavit.
- The
applicant says that, ultimately, there was an adverse impact on the
administration of justice in these circumstances as he lost
a significant
possibility of acquittal. In this regard, the applicant says that the computer
data would have assisted his defence
in a number of ways, including the
following. First, to demonstrate that the investigation commenced with the
intention to obtain
an unlawful conviction, supported by the wilful neglect of
duty followed in all seven known crime scene warrants to enable a flexible
illegal use of exhibits seized. Second, that it could have been utilised
strongly to infer that the Georges River Note was planted
(in conjunction with
the alleged admission by another officer that a false and misleading statement
was generated as to the continuity
of the blue diary and other exhibits
allegedly located in the applicant’s vehicle). Third, that it could have
been utilised
to test the tender of the forensic evidence found inside the
applicant’s vehicle belonging to Mr Karmas (evidence said to have
been
discovered only after having obtained Mr Karmas’ DNA); a discovery made
“after detectives had unsupervised access
to the applicant’s
vehicles”. Fourth, it is said that this evidence “would have gone a
very long way towards”
the evidence (listening device recordings –
Exs CS and CX) tendered on the grounds of consciousness of guilt (ground 9), as
it would have conclusively explained why Mr Woods was so angry towards the
officer in charge on 26 November 2011 “as it was
obvious that [the
officer] had planted those drugs in his drug matter” (see his submissions
at [1725]). Fifth, that the computer
data could have reasonably influenced the
committal hearing if the allegations of systemic corruption followed by the said
officer
had been corroborated with this evidence. Finally, that the documents
would have permitted a strong argument for a stay of the proceeding
at the close
of the Crown’s case, if not before the trial commenced. In oral
submissions, the applicant emphasises his legislative
right to have access, and
says that pursuant to s 217 of the LEPRA he was entitled to that material (see T
104.49-105.19).
Crown’s submissions
- The
Crown notes that the applicant acknowledges that he has since been served with
the computer data seized from his home during the
execution of the search
warrant on 7 June 2013 and that the complaint is that it was not provided to him
until some time after his
trial.
- Insofar
as the applicant asserts that “documents included in this computer data
would have assisted the defence during the cross-examination
of all the leading
detectives ... with regards to the integrity and credibility of the
investigation” (applicant’s submissions
at [1695]), the Crown notes
that this assertion rests on the applicant’s contention that the computer
data contained “portions”
of Mr Woods’ drug matter (the
same documents that the applicant asserts demonstrate that Detective Sergeant
McGee planted drugs
seized from the Wilga Street Property in a vehicle driven by
Mr Woods on 7 September 2011) and that those documents were not otherwise
available to him at the time of his trial.
- The
Crown says that the applicant’s submissions fail for two reasons. First,
that the documents in question were served on the
applicant as part of the brief
of evidence in the murder trial. The Crown says that it follows that the
applicant’s access
to those documents was not contingent upon access to
the computer data seized from his home. Second, that the documents do not show
what the applicant contends they do.
- Further,
and in any event, the Crown says that various officers gave evidence in the
trial about the seizure of items during the search
warrant on 7 June 2013. It is
noted that Detective Senior Constable Brennan gave evidence that he oversaw the
review of all of the
computers and storage devices (including USBs) that were
seized during that search warrant; and that neither Detective Senior Constable
Brennan nor any other officer who gave evidence relevant to that search warrant
was asked any questions about the presence of the
material which the applicant
now asserts would have assisted his defence.
- Relevantly,
the Crown notes that the applicant’s submissions on this ground changed
during the course of the hearing. While
[1698]-[1725] of the applicant’s
written submissions are directed to the documents attached to
Mr Woods’ drug matter,
it is said that the applicant revised his
submissions during the hearing (once it was established that those documents had
been served
upon the applicant in the police brief of evidence) to the effect
that the relevant documents he was deprived access to were legal
literature and
the legal research he had done (see at T 126.36-49).
- The
Crown submits that, even if the Court were to accept that the applicant had not
been served with his computer data and was deprived
access to his legal research
(a submission that is denied by the Crown), the applicant has not discharged the
onus of establishing
miscarriage, as the applicant was represented in trial
proceedings by competent legal representatives who discharged their obligation
to act in his best interest quite comprehensively
(T 127.21-42).
Determination
- This
ground of appeal is not made good; not least because it is not established that
the documents were not in fact contained in the
prosecution brief (and as such
accessible and available for use by the applicant in the course of the trial).
In any event, it is
accepted that even if the legal research documents were not
provided to the applicant, this does not give rise to a miscarriage of
justice
in light of the fact that the applicant was represented by counsel at trial
(and, as discussed below in consideration of
ground 18, it must be concluded
that there was no incompetence by the applicant’s counsel or failure to
follow the applicant’s
instructions). This ground of appeal is not made
good.
Ground 16: Her Honour failed to give a fundamental
direction to the jury that they had to be satisfied of the truth of the
admissions
in the writing evidence beyond a reasonable doubt before being able
to find the accused guilty of the 5 o’clock theory
- The
complaint raised by the applicant in ground 16 is that, after the Crown sought
to rely on the truth and accuracy of the writing
evidence, her Honour failed to
give a specific warning to the jury that they should not act upon the admissions
unless satisfied
of their truth, because the applicant asserted in his evidence
that the admissions were untrue. This raises issues relevant to the
consideration of ground 6(4) (addressed by Dhanji J below).
- It
is said that, in circumstances where the applicant had conceded to authoring the
admissions but denied their truth, the jury had
to be given a direction that
they should not act upon this evidence unless they were satisfied of its truth
and accuracy beyond a
reasonable doubt; that is, that Mr Karmas did return
to the Wilga Street Property at or soon after 5.00pm and was then assaulted
by
the applicant.
- The
applicant contends that the trial judge failed to give the proper direction on
the use they could make of these admissions, allowing
the jury to apply a much
lower test. Reference is made to the way in which the trial judge addressed the
issue of corroboration with
regard to the writings:
I am asked to remind you of the fact that the only evidence for Mr Karmas
returning to Wilga St later that day at around 5 o’clock
or so comes from
the writings of Mr Fantakis.
You have heard what has been said about his state and how that might have
affected the reliability of those writings, I do not propose
to go back over
that, but I am asked to remind you that you should look for, to see when you are
considering the Crown’s circumstantial
case, whether there is any overall
support for the fact that Mr Karmas returned to Wilga St later in the afternoon.
- The
applicant complains that the trial judge failed to give the proper direction on
the use that could be made of the admissions,
allowing the jury to apply a much
lower test before establishing the facts of the 5 o’clock theory; and that
this failure meant
that the jury was mistaken or misled, causing the verdict to
be unsafe. The applicant says that although no direction was sought
by his
counsel, this was a direction that was fundamental in the whole context of the
whole trial and that it went to the root of
the proceedings. As it may well have
affected the jury verdict, the applicant says that it is not possible to apply
the proviso to
s 6(1) of the Criminal Appeal Act (again citing
Domican; and referring to Krakouer v The Queen (1998) 194 CLR 202;
[1998] HCA 43).
- The
applicant complains that the direction that was repeated on four separate
occasions was that the Crown only had to prove the elements
of the offence
beyond a reasonable doubt; and that everything else could be established on a
lower test (see submissions in relation
to ground 6(1)). The applicant says that
there is a real risk that the jury could have applied a much lower test in
accepting these
writings before drawing the ultimate inference.
- In
the absence of any evidence to corroborate the admissions, it is said that these
are matters which render it doubtful that any
confessional statement made by the
applicant was, in the words of Dixon J in Sinclair at 338,
“intrinsically likely to be true”. Reference is made to authorities
which have considered the need for a jury
to be directed that, before they can
rely on confessional statements, they must be satisfied as to the truth and
accuracy of these
statements beyond a reasonable doubt (the danger being that
the jury may not recognise that although these statements were made by
the
accused it does not follow that they must be truthful (referring by way of
example to cases such as Burns v The Queen (1975) 132 CLR 258; [1975] HCA
21 (Burns) at 261; R v Green (2002) 4 VR 471; [2002] VSCA 34
(Green); and Morris).
- The
applicant submits that the failure adequately to direct on such a relevant issue
means that the jury was mistaken or misled, causing
the verdict to be unsafe and
the applicant was deprived of a reasonable opportunity of persuading the jury
that he should be found
not guilty. It is thus submitted that the guilty verdict
was not grounded on a sound basis requiring the verdict to be set-aside.
- The
applicant says that, in any event, as the Crown had insufficient evidence to
prove that Mr Karmas did return to the Wilga Street
Property, this was always a
case theory that under scrutiny was foredoomed to fail; explaining why the
prosecution was compelled
to open and conduct the case that included
Mr Cheong.
- For
the above reasons (as indicated in ground 6(1) and 12), the applicant submits
that it cannot be accepted (cf the Crown’s
submission at [348]) that there
was other evidence to infer the applicant’s guilt apart from the
writings.
- The
applicant says that the return of Mr Karmas was an indispensable intermediate
fact that had to be proved to the criminal standard,
as the Crown was obliged to
prove opportunity. Reference is made to the trial judge’s findings at [26]
in the sentencing judgement,
as to the 5 o’clock theory:
The detail of what is recorded as having occurred, which sometimes varied, is
not evidence which can be accepted to the same high
standard of proof as
establishing precisely what happened to Mr Karmas.
- It
is submitted that leave should be granted to be heard on this ground as this
direction was essential to prevent misleading the
jury and causing a
miscarriage. The applicant relies upon ground 18 (see below) that counsel did
act with flagrant ineptitude before
and during the trial to deny the applicant
due process. It is submitted that an independent assessment of the evidence both
as to
its sufficiency and its quality, with regard to the 5 o’clock
theory, should favour the conclusion that the applicant should
have been
acquitted by a jury acting reasonably.
- The
applicant submits that the admissions were a critical issue in the present case
and thus that the misdirection by her Honour caused
a substantial miscarriage of
justice.
Crown’s submissions
- As
to this ground, the Crown notes that the applicant acknowledges that the
direction which he now contends ought to have been given
was not sought at trial
(as a result of which it follows that leave to rely on the ground is required
pursuant to rule 4.15).
- Insofar
as the applicant relies on Burns and Green, the Crown says that
those cases do not establish that a direction of the kind now sought is required
as a matter of law in every
case in which there is a dispute as to whether a
confession or admission was made or, if it was, whether it is truthful and
accurate.
Rather, it is said that the need for a direction in those cases arose
because of the particular facts and circumstances that existed.
- It
is noted that in Burns, the confession alleged to have been made by the
appellant to police (but which he denied having made) was the only evidence
implicating
him in the armed robbery; and that in Green, it was held that
a direction was required in circumstances where the prosecution case depended
“principally if not wholly”
upon the jury accepting that the
statements in the record of interview were truthful in circumstances where the
defence denied their
truth and that the jury should have been given a direction
“fashioned to meet the facts in issue” that the jury could
not use
the confessions in the record of interview “unless satisfied beyond
reasonable doubt that they contained a truthful
and accurate account of the
applicant’s involvement in the offence”. The Crown says that the
need to be satisfied “beyond
reasonable doubt” there arose because
of the importance of the evidence to proof of the offence and that the
conclusion of
the Victorian Court of Appeal that the trial judge erred in
failing to give a specific direction in relation to the admissions should
be
understood in the same context.
- The
Crown points out that the decisions of Burns and Green were
recently considered by this Court in (Restricted Judgment) [2021] NSWCCA
227 where Payne JA (with whom Garling and Wright JJ agreed) concluded at [76]
that those cases (together with others relied upon in that
case) do not
establish that a direction of the kind sought by the applicant is required as a
matter of law in every case in which
there is a dispute about whether a
confession or admission was truthful and accurate.
- As
to the present case, the Crown says that if the jury was satisfied that it was
reasonably possible that Mr Karmas left the Wilga
Street Property alive (i.e.,
was not murdered in the first window of opportunity), then the relevant portions
of the writings were
not the only evidence that the applicant murdered
Mr Karmas at that address later that afternoon. It is said that there was a
significant
body of other evidence, including but not limited to: the motive
evidence (that motive evidence including that the applicant had
threatened to
kill Mr Karmas in the period leading up to the murder); the evidence relied upon
to establish that Mr Karmas was deceased,
evidence relating to the disposal of
the body; evidence relied upon to establish consciousness of guilt and evidence
of admissions
made by the applicant that supported that conclusion (see the
Crown’s submissions at [216]). The Crown maintains that a direction
of the
kind contemplated in Burns and Green was not required in the
circumstances.
- The
Crown again emphasises the significance of the fact that such a direction was
not sought at trial by experienced counsel who appeared
on behalf of the
applicant. It is said that the absence of a request for the direction now sought
is an indication that no miscarriage
of justice was occasioned in the atmosphere
of the trial (citing The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA
36 at [37]- [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); ARS
v R [2011] NSWCCA 266 at [148] (Bathurst CJ, with whom James and Johnson JJ
agreed); Greenhalgh at [42] (Basten JA, with whom Button and N Adams JJ
agreed)).
- The
Crown thus maintains that the applicant has not established that the absence of
the direction for which he now contends constitutes
either legal error or a
miscarriage of justice; and submits that leave under r 4.15 of the Criminal
Appeal Rules should be refused, or alternatively, in the event that leave is
granted, this ground of appeal should be
dismissed.
Determination
- As
noted above, this ground raises similar issues to the complaint made in ground
6(4) as to there being no warning as to the danger
of convicting the applicant
on the writings and videos made by him. As Dhanji J points out (see below) the
Crown case did not rely
solely on the writings made by the applicant (and,
indeed, as the trial judge made clear, there was evidence of the
applicant’s
mental state at the time of the writings that was said to
affect the reliability of those writings and the jury was cautioned more
than
once as to the need to look for corroboration when considering the Crown’s
circumstantial case). This is not a case where
a direction of the kind here
sought was required as a matter of law. Error has not been established arising
out of the trial judge’s
directions in relation to the use that could be
made of the applicant’s writings.
- Moreover,
the fact that counsel did not raise any issue as to such a direction supports
the conclusion that it was not thought that
it was necessary for the
jury’s appreciation of its task that such a direction be given (and see
Selby v R [2017] NSWCCA 40 at [46] per Leeming JA, Schmidt and Wilson JJ;
Tekely v R [2007] NSWCCA 75 at [88] per Sully J and at [130] per Howie J
in this context). No miscarriage has been demonstrated in this regard. This
ground of appeal
is not made good.
Ground 17: The trial
miscarried because the trial judge failed to leave manslaughter to the jury on
the basis of self-defence and
provocation
- The
complaint under this ground is that the trial judge failed to leave manslaughter
to the jury, if the jury were to accept the “writing
evidence” as
being an accurate and truthful account of what occurred on 11 August 2011 after
Mr Cheong was taken home and assuming
that Mr Karmas returned to the Wilga
Street Property at or soon after 5pm. The applicant asserts that an assessment
of the evidence
with regard to 11 August 2011 favours the conclusion that the
applicant did not have any intention to murder Mr
Karmas.
Applicant’s submissions
- Insofar
as the Crown in its submissions (at [352]) asserts that it is for the applicant
to demonstrate that an alternative verdict
of manslaughter was open on the
evidence, the applicant says that the question whether manslaughter should be
left for the jury’s
consideration in a trial where the accused is charged
with murder will always depend on the facts as they unfold in in any particular
case.
- The
applicant contends that, as the trial judge left the writings to the jury (to be
assessed “as a story of truth”),
then the event disclosed in this
evidence identifies that Mr Karmas had returned to the applicant’s home
yielding a weapon,
whereupon the applicant had to disarm him (followed with
confessions made Mr Karmas to having killed the applicant’s twin brother)
(see the applicant’s submissions at [1792]). The applicant submits that
that factual scenario told in the writings thus reveals
facts, as a result of
the conduct of Mr Karmas, which demonstrate that the accused did act in
self-defence and provocation.
- Reliance
is placed on the statement by Gleeson CJ and Gummow J in Gilbert v The
Queen (2000) 201 CLR 414; [2000] HCA 15 (Gilbert) at [18], citing
Lord Tucker in Bullard v The Queen [1957] AC 635 at 644 as to the right
to have the issue of manslaughter left to the jury if there is any evidence upon
which such a verdict can
be given and that to deprive an accused of that right
must of necessity constitute a grave miscarriage of justice “and it is
idle to speculate what verdict the jury would have reached”.
- The
applicant contends that the trial judge was obliged to give a direction on
manslaughter on the basis of self-defence and provocation
because of the actions
of Mr Karmas. Irrespective of this, it is contended that the trial judge had a
duty to address the exculpatory
admissions that did form part of the tender; the
applicant saying that, essentially, the writings were mixed statements
comprising
of both inculpatory and exculpatory admissions that could not be
“cherry picked”.
- The
applicant emphasises that in every case where the prosecution case depends
solely on confessional statements that are uncorroborated
and challenged, a
judge must direct the jury that the jury cannot convict unless satisfied beyond
reasonable doubt that the confession
was made and that it was true; and that in
some cases, it may be necessary to distinguish between those parts of a
confessional statement
which are inculpatory (confession) and those parts which
are exculpatory (a justification or excuse) and give a direction that the
jury
must be satisfied beyond reasonable doubt that the exculpatory parts are untrue;
and that similar directions must be given when
the confession is part only of
the prosecution case (citing A Ligertwood, Australian Evidence Cases and
Materials (1995, Butterworths) at pp 258-259; and referring in this context
to Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 (Nguyen),
at [15]; [27]; Mahmood v The State of Western Australia (2008) 232 CLR
397; [2008] HCA 1 (Mahmood) at 408 [39], referring to Jack v Smail
(1905) 2 CLR 684; [1905] HCA 25 at 695).
- Complaint
is made that in the present case the trial judge failed to address the
exculpatory statements made in the writings and the
Crown failed to exclude
self-defence or provocation to the requisite test.
- The
applicant says that if the Crown wished to rely on the inculpatory material, it
was “bound to take the good with the bad”
(citing Nguyen at
[38], there referring to The Queen v Soma (2003) 212 CLR 299; [2003] HCA
13 at 309-310 [30]- [31]).
- The
applicant thus submits that the trial judge was obliged to direct the jury on
the exculpatory admissions and to direct the jury
that the applicant had no onus
to prove self-defence or provocation and that the Crown had the onus of
excluding such defences to
the criminal test. Complaint is made that the
exculpatory admissions were ignored by Her Honour and not excluded by the Crown;
and
that, by in effect splitting the Crown’s case, the trial judge denied
the Crown the opportunity to negate the exculpatory admissions.
- Reference
is made to authorities as to the requirement that the judge hold the balance
between the contending parties (see Robinson v R (2006) A Crim R 88;
[2006] NSWCCA 192 at [140] per Johnson J, with whom Spigelman CJ and Simpson J,
as her Honour then was, agreed) without taking a part in their disputations;
that the judge does not exercise an inquisitorial role in which he or she seeks
himself to remedy the deficiencies in the case of
either side, nor is it part of
the function of the trial judge to don the mantle of prosecution or defence
counsel (there citing
Whitehorn v The Queen (1983) 152 CLR 657; [1983]
HCA 42 at 682 per Dawson J). It is noted that the fundamental task of a trial
judge is to ensure a fair trial (citing R v Meher [2004] NSWCCA 355
(Meher) at [76] per Wood CJ at CL, with whom Buddin and Shaw JJ agreed)
and that the trial judge should normally refrain from advancing
an argument in
support of the Crown case that was not put by the Crown.
- The
applicant points out that there are two reasons for the unacceptability of a
judge using the summing up as a vehicle for strengthening
the Crown case: first,
it is inconsistent with judicial impartiality and, second, to do so denies the
prosecution and the defence
the opportunity either to disavow or meet the
argument (citing Meher at [87]-[93]; R v Esposito (1989) 45 NSWLR
442, at 455D-E per Wood CJ at CL).
- The
applicant contends that the trial judge failed in her duty to direct the jury on
the above issues and did not leave manslaughter
as an alternate verdict.
- Insofar
as the Crown says in its submissions at [358] that the applicant did not
challenge a significant body of evidence regarding
the character of
Mr Karmas, the applicant says that: he was never asked to defend the
5 o’clock proposition; no party put this
proposition to the applicant
during cross-examination; the Crown never relied on the evidence of good
character with regards to Mr
Karmas to exclude this proposition; the Crown
conducted its whole case in an attempt to negate the 5 o’clock proposition
and
at no time addressed the exculpatory admissions that formed part of the
tender.
- The
applicant emphasises that an accused does not have the onus of proving
self-defence or provocation; it is the Crown that bears
the onus of excluding
these defences which were open on the evidence. It is submitted that the Crown
did not address these defences
that were open on the evidence during the trial.
The applicant notes that if there is evidence to support an alternative verdict
of manslaughter, the judge must leave that issue to the jury, notwithstanding,
that it has not been raised by any party, and even
if a party objects (or all
parties object) to the issue being left to the jury.
- The
applicant points to authority for the proposition that the duty to ensure a fair
trial requires that a lesser offence be left
to the jury if justice to the
accused requires it (citing The Queen v Keenan (2009) 236 CLR 397; [2009]
HCA 1 at [138] per Kiefel J, as her Honour then was, Hayne J agreeing at [80],
Heydon J agreeing at [92], Crennan J agreeing at [93]) and that the
obligation
is borne of the judge’s duty to secure a fair trial of the accused and as
such, where the justice to the accused
requires such a direction on the
alternative verdicts, the forensic choices of counsel are not determinative (cf
James at [22]-[23]; R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA
385 at [75]; Mulvihill v R [2016] NSWCCA 259 at [116]). It is noted that
history and recognition of the gravity of a conviction for murder inform the
obligation to leave a case of manslaughter
where on the facts it is an available
verdict, albeit not one for which the defence contends (James at
[22]-[23]).
- The
applicant thus maintains that the writings left as a story of truth do reveal
facts whereby manslaughter was an available verdict.
- Reference
is made to the obligation of a trial judge (already considered in relation to
grounds 1 and 2 above) to leave to the jury
defences which appear to the judge
to be reasonably open, notwithstanding that they have not been canvassed by
defence counsel, this
forming part of the obligation of the trial judge to
ensure that the accused person has a fair trial according to law. The applicant
cites, among other authorities, various observations in Gillard v The Queen
(2003) 219 CLR 1; [2003] HCA 64; The Queen v Nguyen (2010) 242 CLR
491; [2010] HCA 38, Gilbert; and Lane v The Queen (2018) 265 CLR
196; [2018] HCA 28 (see reply submissions at [692]-[693]), arguing that it
cannot be said that there was no substantial miscarriage of justice (by the
failure to leave viable manslaughter alternatives to the jury).
- The
applicant addresses in particular the defences of self-defence and provocation
(see from [694] of his reply submissions) and says
that it was never the
Crown’s case to exclude self-defence or provocation, noting that for self-
defence to be left to the
jury there must be evidence capable of supporting a
reasonable doubt in the mind of the tribunal of fact as to whether the
prosecution
has excluded self-defence (Colosimo v Director of Public
Prosecutions [2006] NSWCA 293 at [19] per Hodgson JA with whom Handley and
Ipp JJA agreed) and, for provocation, the question is whether on the version of
the events most
favourable to the accused, a jury acting reasonably might fail
to be satisfied beyond reasonable doubt that the killing was unprovoked
(Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 (Lindsay)
at [26] per French CJ, Kiefel J as her Honour then was, Bell and Keane JJ).
- In
the present case, the applicant argues that, under the circumstances described
in the writings (and on the premise that the story
in the writings was to be
assessed as a story of truth) it was necessary for him to do what he did in
order to defend himself (see
at [701] in his reply submissions) and provocation
in the conduct of Mr Karmas was clearly evident (see [706]; [712] of the reply
submissions) but the Crown did not address (and exclude a reasonable doubt) as
to those defences. Further, as noted above, complaint
is made that the
Crown’s submission on the present application does not offer any
explanation as to why the trial judge failed
in her duty to address the
exculpatory admissions that did form part of the writings.
- The
applicant notes that a direction for self-defence in cases of murder must
contain the following essential components: the law
recognises the right of a
person to act in self-defence from an attack or threatened attack; it is for the
Crown to eliminate it
as an issue by proving beyond reasonable doubt that the
accused’s act was not done in self-defence; the Crown may do this by
proving beyond reasonable doubt either: the accused did not believe at the time
of the act that it was necessary to do what he or
she did in order to defend
himself or herself; or the accused’s act was not a reasonable response in
the circumstances as he
or she perceived them; that in determining the issue of
whether the accused personally believed that his or her conduct was necessary
for self-defence, the jury must consider the circumstances as the accused
perceived them to be at the time; and that if the jury
is not satisfied beyond
reasonable doubt that the accused did not personally believe that his or her
conduct was necessary for self-defence,
it must then decide whether the Crown
has proved beyond reasonable doubt that the conduct of the accused was not a
reasonable response
to the circumstances as perceived by him or her. If the
Crown fails to do so it will have failed to eliminate self-defence.
- The
applicant’s complaint is that the Crown did not address the first or
second of those matters and says that, under the circumstances
described in the
writings it was necessary for the accused to do what he did in order to defend
himself.
- Thus,
it is submitted that the failure by the trial judge to give a manslaughter
direction caused a substantial miscarriage of
justice.
Crown’s submissions
- The
Crown maintains (correctly) that it is for the applicant to demonstrate that an
alternative verdict based on the evidence is viable
(in the sense of being
fairly open); in other words, that there was evidence reasonably capable of
supporting the relevant defence;
and that, in determining whether an alternative
verdict of manslaughter was fairly open on the evidence on the basis of either
self-defence
or provocation, regard must be had to the legal requirements of
those defences (see as noted below).
- The
Crown says that the applicant does not identify with any precision the evidence
which he now contends enlivened an obligation
on the part of the trial judge to
leave an alternate verdict of manslaughter to the jury on the basis of
provocation and excessive
self-defence (his submissions simply referring to
“the writing evidence”). Insofar as the applicant is
referring to portions of Exs CF, CG and CJ (in which, the applicant describes Mr
Karmas having returned
to his home armed with a taser, that he (the applicant)
disarmed Mr Karmas of the taser and tasered Mr Karmas before torturing him
for a
number of hours), the Crown notes that Ex CF is silent as to what happened next,
whereas Ex CG reads, “I loaded him in
the van & drove. I left him tied
up & watched him.... & cry”; and that, in Ex CJ, the applicant
reports having
released Mr Karmas after torturing him for three hours.
- Insofar
as the partial defence of provocation is concerned, the Crown says that there
was no evidence that the act was the result
of a loss of self-control on the
applicant’s part. Pausing here, it is noted that an applicant’s
failure to give evidence
as to his actual loss of self-control is not fatal, as
loss of self-control may be proved expressly or by implication from the
applicant’s
actions and appearance at the time of killing (see Lee
Chun-Chuen v The Queen [1963] AC 220 at 229-232 per Lord Devlin, cited with
approval in Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51 at
213-214 by Owen J, with whom Kitto, Menzies and Windeyer JJ agreed; see also
R v Peisley (1990) 54 A Crim R 42 (Peisley) at 48 per Wood
J).
- In
respect of self-defence, the Crown says that there is no evidence that the
applicant believed that the conduct was necessary to
defend himself or another
person. It is noted that a common theme of the relevant parts of the writings is
that the applicant incapacitated
and disarmed Mr Karmas before torturing him
over an extended period. The Crown says that the evidence was not reasonably
capable
of supporting either defence.
- Further,
and in any event, the Crown points out that it was not suggested by any party
that the applicant’s claim (in those
portions of the writings) that
Mr Karmas returned to his home armed with a taser was reliable; and that it
was contrary to a significant
body of evidence regarding the character of
Mr Karmas, which was not challenged by the
applicant.
Determination
- Section
23 of the Crimes Act (as in force at the time of the alleged murder)
relevantly provided that:
1. Where, on the trial of a person for murder, it appears that
the act or omission causing death was an act done or omitted under
provocation
and, but for this subsection and the provocation, the jury would have found the
accused guilty of murder, the jury shall
acquit the accused of murder and find
the accused guilty of manslaughter.
2. For the purposes of subsection (1), an act or omission
causing death is an act done or omitted under provocation where:
a. the act or omission is the result of a loss of self-control
on the part of the accused that was induced by any conduct of the
deceased
(including grossly insulting words or gestures) towards or affecting the
accused, and
b. that conduct of the deceased was such as could have induced
an ordinary person in the position of the accused to have so far
lost
self-control as to have formed an intent to kill, or to inflict grievous bodily
harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or
omission causing death or at any previous time.
- Insofar
as an alternative verdict of manslaughter on the basis of excessive self-defence
is concerned, s 421 of the Crimes Act provided that:
(1) This section applies if:
a. the person uses force that involves the infliction of
death, and
b. the conduct is not a reasonable response in the
circumstances as he or she perceives them,
but the person believes the conduct is necessary:
c. to defend himself or herself or another person, or
d. to prevent or terminate the unlawful deprivation of his or
her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but,
on a trial for murder, the person is to be found guilty of manslaughter
if the
person is otherwise criminally responsible for manslaughter.
- As
to self defence, the evidence of the writings did not raise a reasonably viable
claim for an alternative verdict of manslaughter
on the basis of excessive
self-defence. There was nothing to corroborate the assertion that Mr Karmas had
with him at any time on
11 August 2011 a taser; and the writings (if true)
included a lengthy period of torture that could on no view have been seen as in
self defence.
- As
to provocation, again the writings do not leave reasonably open a defence of
provocation. It is a threshold question of law for
the judge whether there is
material in the evidence which sufficiently raises the issue of provocation for
the jury’s consideration
(Lindsay at [16] per French CJ, Kiefel J,
as her Honour then was, Bell and Keane JJ). The question is whether “on
the version of the
events most favourable to the accused which is suggested by
material in the evidence, a jury acting reasonably might fail to be satisfied
beyond reasonable doubt that the killing was unprovoked in the relevant
sense” (Lindsay at [26] per French CJ, Kiefel J, Bell and Keane JJ,
there citing Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 67-68 per
Brennan J as his Honour then was, Deane, Dawson and Gaudron JJ).
- While
it has been said that there is limited scope for the judge in deciding the
question of law and he or she needs to exercise caution
before declining to
leave provocation to the jury (Stingel v The Queen (1990) 171 CLR 312;
[1990] HCA 61 at 334 per Mason CJ, Brennan J as his Honour then was, Deane,
Dawson Toohey, Gaudron and McHugh JJ), cited with approval in Lindsay at
[27]), in the present case the evidence of the writings upon which the applicant
relies is incapable of satisfying the essential
elements of the partial defence.
As the applicant has noted, apparently innocuous words and conduct on the part
of the deceased are
capable, when considered in the light of the whole history
of their relationship (including matters not occurring in the presence
of the
accused) of amounting to provocation (citing R v R (1981) 28 SASR 321;
Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14 at 616 per Gibbs J as
his Honour then was; Peisley). Nevertheless, accepting the version of
facts most favourable to the applicant, there is no evidence that the applicant
acted in
an uncontrolled emotional state (particularly given that his conduct on
his own account lasted for several hours and included disarming,
punching,
tasering and torturing Mr Karmas) nor that the applicant’s forming of a
murderous intent was induced by the conduct
of Mr Karmas (even if it is accepted
that he was carrying a taser as the applicant contends). Further, no jury could
have been other
than satisfied that an ordinary person would not have formed an
intention to commit grievous bodily harm or murder, as the applicant
did, upon
the mere sight of Mr Karmas carrying a taser (being a non-lethal weapon).
- This
ground is not made good.
Ground 18: Ineptitude of Counsel –
Denial of Due Process
- Ground
18 was the subject of various submissions (see [1799]-[2382] of the document
headed Amended Submissions (3) filed on 10 March
2022; and the reply submissions
at [844]-[1041]). A number of complaints are made under this ground, a number of
which overlap with
other grounds of appeal:
- Ground 18A:
Counsel failed to utilise documents during the cross-examination of material
witnesses, depriving the applicant of the
fundamental right to a fair trial,
including:
(1) emails produced from a
subpoena issued to the Commissioner of Police on 3 August 2015;
(2) Supreme Court transcripts for a bail application heard
on 18 August 2016, including the submissions filed by the applicant
(including
Enhanced LD Recordings, Ex CS and Ex CX);
(3) emails/faxes sent to detectives during the homicide
investigation identifying the intent by the strike force (codenamed
“Flaggy”)
to withhold receipts of exhibits seized for an improper
purpose;
(4) documents attached to subpoenas served on the
Commissioner of Police on 12 October 2015 and 28 June 2017; including the
applicant’s
instructions.
- Ground 18B:
Counsel failed to comply with instructions to press for the production of
documents sought in the subpoena served on the
Commissioner of Police on 28 June
2017 or to make further enquiries;
- Ground 18C:
Counsel failed to seek relevant directions as instructed by the applicant,
including:
(1) Counsel failed to follow written
instructions and seek that her Honour directs the jury on the conflict in
evidence between
the two case theories as they are not alternate case
theories;
(2) Counsel failed to tender the statement made by Mz [sic]
Antonia Fantakis during the argument to exclude the 5 o’clock
theory from
the jury’s consideration;
(3) Counsel failed to follow written instruction in relation
to the jury ballot argument.
- Ground 18D:
Legal representatives failed to follow instructions to research information with
regards to Ex AA (Georges River Note)
to corroborate the applicant’s
defence that this note was part of an instruction attached to a spiritual
healing incantation.
Applicant’s submissions
- In
summary, the applicant contends that his defence counsel was inept in the
conduct of his defence at the trial and that this incompetence
went to the root
of his representation at trial and enabled the prosecution to obtain a
conviction on unacceptable evidence, having
regard to contemporary community
standards (citing Swaffield at [69]-[70] per Toohey, Gaudron and Gummow
JJ).
- The
applicant accepts that counsel is not subservient (either to the client or the
solicitor) and is entirely independent to act in
accordance with his own
judgment, his legal right to conduct the case without any regard to the wishes
of the client so long as his
mandate is unrecalled (citing R v Irwin
[1987] 1 WLR 902; Rondel v Worsley [1969] 1 AC 191); but nevertheless
emphasises that counsel has a duty to put the case to the jury in a way which is
favourable to
the client’s interest and that it is not in the public
interest that a citizen receive other than a fair trial according to
law (citing
R v Caine (1990) 48 A Crim R 464). The applicant maintains that there is
a “significant possibility” that counsel’s incompetence
affected the outcome
of the trial.
- The
applicant argues that in the event of a re-trial the Crown’s case would be
subject to a stay of proceedings due to the “calculated
pattern of
misconduct” followed by senior detectives and evidence that was withheld
during cross-examination by counsel during
the first trial.
- The
applicant further maintains that there is compelling evidence that raises
serious concerns as to “the integrity of the investigation
attached to a
strictly circumstantial case; a prosecution supported by a brief that was
non-contemporaneous in nature consistent
with systemic misconduct followed
throughout the investigation to obtain a conviction by way of fraud”
(referring to Lazarus Estates Ltd v Beasley [1956] 1 QB 702 as to the
proposition that an advantage obtained by fraud should not be retained).
- It
is said that the matter also raises a serious public interest concern as to the
execution of crime scene warrants and legislative
powers that prevent the
occupant from supervising any search and seizure. As previous noted, the
applicant contends that the seven
crime scene warrants executed during the
course of the investigation were executed unlawfully and with the intent to
injure the public
interest and the administration of justice, complaining that:
execution of the warrants was not filmed; there was no appointed independent
observer; property seizure/exhibit forms had not been utilised; no crime scene
logs were disclosed; and no receipts had been issued
to the occupant (as the
applicant maintains is mandated by legislation).
- Complaint
is further made that detectives executed a number of searches and seizures on
the applicant’s vehicles without any
warrant and without, it is said,
following any of the basic procedures required for transparency and
accountability purposes. The
applicant says that these searches and seizures
resulted in evidence tendered during the trial (without objection by defence
counsel),
including the soil removed from the wheel arches of the
applicant’s vehicle.
- The
applicant says that:
The intention to significantly depart from the standard of probity to be
expected from officers attached to a homicide investigation,
without excuse or
justification, asserts that the misconduct impugned was calculated to injure the
public interest and the administration
of justice.
and says that it would be inconsistent with the rule of law to turn a blind
eye to actions of police who have deliberately ignored
imperative requirements
of statute (citing Levinge v Director of Custodial Services (1987) 9
NSWLR 546; (1987) 27 A Crim R 163 at 565 per McHugh JA, as his Honour then was).
The applicant says that this is more so in the present case where the Crown
propounded
a strictly circumstantial case (where the integrity and credibility
of the investigation is of a paramount consideration).
- Before
turning to the particular sub-grounds under this ground of appeal, in reply
submissions the applicant places emphasis on the
issue identified as being of
public interest concern as to whether or not crime scene warrants are required
to comply with NSW Police
Force search warrant standard operating procedures. In
this regard, the applicant says that the NSW Police has taken the position
that
crime scene warrants are exempt from following those operating procedures (or
accountability and transparency); that the NSW
Ombudsman has taken the position
that the Law Enforcement Conduct Commission (LECC) has jurisdiction over the
procedures concerning
crime scene warrants and could not assist the applicant;
and that the LECC refused to conduct an investigation and had the matter
referred to NSW Police. Complaint is made that the applicant has been met with a
wall of silence, having requested from LECC a copy
of the codes of practice
attached to crime scene warrants; and that the NSW Police concluded that no
investigation was warranted.
- In
his submissions, the applicant makes much complaint of the manner in which crime
scene warrants were executed and the investigation
conducted (see his reply
submissions, for example, from [865]ff) and also appears to suggest that the
refusal of all three defence
teams to probe any of the multiple acts of
misconduct deserves its own Royal Commission (see at [874]).
- Complaint
is made that two warrants utilised by NSW Police to seize Mr Woods’
computer data and personal property in Canberra
do not bear a court file stamp
or a court file number. The applicant accuses the detectives attached to this
investigation of having
“made the calculated decision from the first day
of this investigation not to follow basic procedures of accountability and
transparency in order to be able to mould the evidence to suite a pending
prosecution” and says his team “new [sic; knew]
about this even
before the trial commenced, but refused to expose this nefarious behaviour
during the trial”. The applicant
complains that he was ridiculed by the
learned Crown during cross-examination (referring to T 2338-2339) and says that
this gave
the jury the impression that the applicant’s allegations of
police corruption must be a recent invention.
- Turning
then to the particular sub-grounds under this overall incompetence ground of
appeal, the applicant’s submissions may
be summarised as
follows.
Ground 18 A(1): Failure by counsel to utilise emails
produced from subpoena issued 3 August 2015
- This
complaint relates to the failure of counsel to cross-examine and tender a number
of emails produced in answer to a subpoena served
on the Commissioner of Police
on 3 August 2015, those emails relating to the seizure and subsequent search of
the applicant’s
blue Transit van on 13-14 August 2011.
- The
applicant says that these emails would have led to a positive finding that four
detectives, at the behest of the officer in charge
of the investigation,
generated false and misleading statements in relation to the continuity of
exhibits seized from the applicant’s
vehicle on 14 August 2011, including
the Georges River Note (Ex AA).
- In
particular, reference is made to an email sent by one of the police officers on
17 May 2013 (see Annexure 2 at p 5 of the applicant’s
affidavit sworn
11 February 2022), which is said to be an instruction to the three other
detectives of what needed to be included
in their amended statements and
attaching a copy of the sender’s amended statement (which the applicant
maintains was to ensure
that all amended statements were corroborative).
- The
applicant says that the amended statements were served to remedy earlier
conflicting statements made by the four detectives “and
to bridge the
shortfall of proof” to validate the ERISP documents on which the officer
in charge relied when compiling the
prosecution brief. The applicant accuses all
five detectives of perverting the course of justice as their amended statements
were
included in the prosecution brief and utilised during the trial.
- The
applicant says that one of the police officers (Detective Senior Constable
Henderson) conceded that his statement made on 17 May
2013 (see Annexure 10 to
the applicant’s affidavit sworn 11 February 2022) in relation to searching
and seizing exhibits on
the roadside was false and misleading (see T 961.7-13)
and the applicant says that this should be conclusive when assessing the email
sent by Detective Senior Constable Dodd to his three subordinates as to what
they needed to state in their amended statements (see
above).
- Complaint
is further made that defence counsel failed to elicit during cross-examination
at trial that the search and seizure executed
on the applicant’s vehicle
was carried out unlawfully (there being no warrant), without following standard
operating procedures
(as it was not filmed, there was no appointed independent
observer, no property seizure/exhibit forms were utilised and no receipt
was
issued to the applicant).
- The
applicant says that this was compounded by the conflicting evidence given by one
of the police officers (Detective Senior Constable
Lye) on 31 October 0211
as to the discovery of the Georges River Note (it originally being said that the
note was discovered within
a sleeve inside the applicant’s blue hard cover
diary and then that it was discovered in a small grey plastic note book that
had
been seized from the applicant’s vehicle on 14 August 2011). The
applicant says that Detective Senior Constable Lye conceded
that the discovery
process of this note was not conducted according to standard operating
procedures and no contemporaneous account
was made of the event.
- The
applicant repeats his contentions as to the significance of the Georges River
Note in the Crown case and refers to his evidence
at trial that the note had
been unlawfully seized during the execution of the crime scene warrant 278/11
from the Wilga Street Property
and “planted” in the
applicant’s diary (see the applicant’s submissions at [1904]ff). The
applicant maintains
that both of the operations leading to the discovery of the
Georges River Note involved a series of unjustified improprieties and
breaches
of law, warranting an application to exclude the note on a s 138 basis (as noted
above, there was indeed an application to exclude the note – which was
dealt with in the trial judge’s
Admissibility Judgment on 26 February
2018; but that was put pursuant to ss 90 and 137 of the Evidence Act, not
s 138 of the Evidence Act as is here contended). The applicant contends
that the pattern and gravity of the deliberate breaches of the law favoured the
exclusion
of the evidence on a public policy basis (citing DPP v
Marijanceivc at [68]; R v Grech; R v Kadir [2017] NSWCCA 288 –
though, as to the latter, see the High Court decision in Kadir v The Queen;
Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1).
- As
to the second of the search and seizure operations about which the applicant
complains, this was a search of the vehicle after
it was towed to the Bass Hill
holding yard (resulting in the seizure of the applicant’s diary and the
loose Georges River Note).
- The
applicant says that the cross-examination of the detectives was the subject of
much controversy because of the obvious conflict
between the original and
amended statements. Complaint is made that no question was raised by counsel to
Detective Senior Constable
Forman or Detective Senior Constable Henderson as to
the refreshing of their memory by reference to statements made by Detective
Senior Constable Dodd. It is submitted that had counsel cross-examined all four
detectives on the 17 May 2013 email the explanation
by those detectives that
conflict in the statements was due to an oversight or to confusion could easily
have been negated. The applicant
contends that the Crown’s submission (at
[29]) that the four officers did not pervert the course of justice by generating
false
and misleading statements cannot be accepted.
- The
applicant maintains that the evidence given by all four detectives at trial
confirms that later statements made by all four detectives
were false and
misleading with regard to the continuity of a main exhibit tendered during the
trial. Complaint is made that, during
cross-examination, emails between the
officer in charge and all four detectives were acknowledged but that counsel
only referred
to two of these emails (referring to evidence on 27 February 2018
at T 25.37-50; 19 March 2018 at T 964; and T 990; T 991). Further,
complaint is
made that even then only portions of these emails were utilised and were only
marked for identification (MFI 82). Complaint
is made that during the
cross-examination of Detective Senior Constable Dodd, his counsel only referred
to the first paragraph of
the email sent on 7 May 2013 (MFI 79); and the email
was only marked for identification and no request was made for it to be tendered
as an exhibit.
- In
submissions at [1920]-[1932], the applicant sets out further details as to the
emails and his arguments as to the conflicting statements,
concluding that there
was no rational excuse or justification for counsel not to have utilised the
email sent on 17 May 2013 by Detective
Senior Constable Dodd (and others) to
elicit that all four detectives “put their heads together, with the
knowledge of S/s
McGee, to generate false and misleading statements intent on
perverting the course of justice”.
- The
applicant says that the contested issue of who was present during the search of
his vehicle could have been resolved had the NSW
Police produced the log books
held by the Bass Hill holding yard (that being sought in the subpoenas issued on
15 October 2015 (item
8) and 28 June 2017 (item 18)). The applicant says that
this controversy was known by counsel before entering into negotiations with
the
prosecution as to the latter subpoena, yet the subpoena was narrowed by consent
to exclude documents held by the Bass Hill holding
yadr; that there is no
rational explanation why counsel did not press for the production of the
documents held by the Bass Hill holding
yard and the computer data seized from
the applicant’s premises; that there was a legitimate forensic purpose to
compel production
of those records; and that counsel’s decision to resolve
and narrow the subpoena “only served to oppress” him and
to provide
the NSW Police with an improper advantage. It is said that this significant
misbehaviour (of counsel) aligned with counsel’s
failure not to
cross-examine a single detective on the emails and other documents made
available by the applicant identifying the
calculated pattern of improprieties
and contraventions to imperative statutory requirements.
- As
already noted, the applicant complains that both searches of the
applicant’s vehicle were unlawful in that the detectives
failed to follow
standard operating procedure and to comply with legislative requirements (being
not filmed, unsupervised as there
was no appointed independent observer, with no
property seizure/exhibit forms utilised and no receipt issued). Complaint is
made
that the second search and seizure at the Bass Hill holding yard was
executed without a warrant (and not in his presence).
- The
applicant argues that it follows that this Court cannot accept the Crown’s
submission (at [32]), that the four officers
in question were permitted to
conduct the search and seizures pursuant to s 36 of the LEPRA. The applicant
says that these powers were only applicable at the vehicle stop and not after
the vehicle had been parked
in the holding yard. It is submitted that this
second search required a further warrant that had to be executed according to
search
warrant Standard Operating Procedures and in compliance with LEPRA.
- The
applicant says in this regard that the only item seized at the road stop was a
Stanley knife that was held by Mr Cheong; and that
all the remaining items had
been seized during a search that was conducted after the vehicle the vehicle had
been parked at Bass
Hill holding yard (including the applicant’s diary and
the Georges River Note).
- The
applicant says that it is for this reason that the detectives generated the
false and misleading statements on 17 May 2013, i.e.,
to justify the legality of
the seizure pursuant to s 36 of the LEPRA.
- The
applicant contends that once a vehicle is parked in a holding yard it is still
considered as a private premises, and any entry
to conduct a search, to seize or
conduct a procedure requires a warrant; as was done on 9 September 2011
(referring to [1982]-[2012]
of the applicant’s earlier submissions); and
that in any event, this was a controlled operation that had been planned earlier
in the day, the applicant saying that there was simply no excuse why detectives
refused to follow basic procedures to enable proof
of continuity.
- The
applicant contends that there were numerous search and seizures that were
conducted on the applicant’s vehicle leading up
to 9 September 2011 and
afterwards; all of which the applicant says were executed without any warrant.
It is noted that defence counsel
cross-examined Senior Constable Gibson on the
issue as to whether he needed authorisation to examine the applicant’s
vehicle
on 15 August 2011 (T 1323); and that Senior Constable Gibson said he
would have needed something. Complaint is made that Mr Todd
did not call on
those documents and it is said that he simply ignored all the other unauthorised
searches/seizure executed on the
applicant’s vehicles.
- The
applicant is adamant that a proper appraisal of the prosecution brief confirms
that, apart from CSW 3004/11 executed on 9 September
2011, all the remaining
search and seizures conducted on the applicant’s vehicles, including the
soil examined by Professor
Fitzpatrick, were conducted without a warrant and
ignoring Standard Operating Procedures and LEPRA (see below). It is noted that
the NSW Police confirmed in response to the applicant’s subpoena served on
the Commissioner of Police on 20 September 2021,
item 3, that all warrants had
been served in the prosecution brief. It is noted that apart from CSW 3004/11,
the prosecution brief
fails to identify any warrant for at least six further
search and seizures that had been conducted on the accused’s
vehicles.
- In
reply submissions, the applicant says that the Crown (and Mr Todd in his
affidavit) have failed to address the email sent by Detective
Senior Constable
Dodd on 17 May 2013 to his subordinates (with which it is said Detective Senior
Constable Dodd provided the three
other detectives with a copy of his statement
“in aid of corroborating a false account of events that occurred on 13-14
August
2011 to secure evidence of continuity”) and that Mr Todd has not
addressed why none of the emails he did use during cross-examination
was
tendered or “properly utilised”.
- The
applicant maintains that there was an abundance of evidence to warrant an
application to exclude the Georges River Note on a s 138 basis, when taking into
account how the vehicle was unlawfully searched, the alleged discovery of the
note made by Detective Senior
Constable Lye who it is said failed to follow
standard operating procedures and the unlawfulness said to have followed during
the
execution of CSW 278/11; and the evidence that Mr Todd had obtained
from the response provided by NSW Police in relation to the subpoena
served on
28 June 2017.
- Thus,
the applicant contends that Mr Todd’s assertion at [6] of his affidavit
affirmed on 11 April 2022 that there was no proper
basis to put any assertions
of corrupt or conscious wrongdoing by NSW Police cannot be
accepted.
Ground 18 A(2): Failure by counsel to utilise Supreme
Court Bail Transcripts & Submissions “Enhanced” LD Recordings,
Ex CS & CX
- This
ground relates to a bail application that was heard by Garling J on
18 August 2016 (see Annexure 4 of the affidavit sworn by
the applicant on
11 February 2022), during which application the applicant cross-examined
Detective Sergeant McGee as to various
matters including the listening device
material (Exs CS and CX), the issue as to the withholding of or refusal to
provide receipts;
and matters in relation to Mr Wood’s drug matter (the
applicant asserting that exhibits had been planted in relation to that
matter).
The applicant says that the submissions filed in relation to that hearing
clearly identified the defence that the applicant
sought to elicit at trial. The
applicant says that all his legal representatives had been briefed on the
cross-examination of Detective
Sergeant McGee and the documents filed in the
bail application.
- The
applicant’s complaint is that his defence counsel did not rely on the
cross-examination of Detective Sergeant McGee during
the bail hearing (as to the
authenticity of the “enhanced” listening device material that was
tendered at trial, Exs
CS & CX). The applicant’s complaint is that the
provenance of the enhanced recordings was not proved (for the reasons outline
in
his submissions at [2035]-[2039]).
- First,
as to the enhanced recordings, the applicant notes that, in her affidavit of 4
August 2016, Detective Sergeant McGee deposed
that the enhanced listening device
material originated from a single disc that had been provided by STIB on 29
November 2011; and
that this single master copy was conveyed to STIB by
Detective Senior Constable Lye on 12 March 2011 resulting in the enhanced
recordings.
- The
applicant says that statements made by two independent officers attached to the
STIB (Detective Senior Constable Van Dyke and
Senior Constable Maglicic) on 18
May 2016 confirmed that three discs had been returned to STIB by Detective
Senior Constable Lye
on 12 March 2012 to be “enhanced” and not the
single master copy provided by STIB on 29 November 2011. The applicant
relies on
this “conflict in evidence” as establishing a break in the chain of
custody of the master copy before the enhanced
recordings were generated.
- The
applicant cross-examined Detective Sergeant McGee on this issue; and says that
there was no mistake (as Detective Sergeant McGee
said she believed there was
somewhere); rather, he asserts that the master copy had been altered or amended
resulting in three separate
discs being created by an unknown party or parties,
and without knowing what amendments had been made.
- The
applicant notes that Detective Senior Constable Van Dyke and Senior Constable
Maglicic were examined in a voir dire hearing by counsel on
22 February 2018 (T 58-63) and his complaint is that even though it had
been brought to Mr Todd’s attention
that three discs had been enhanced
(not the single master copy) no objection was raised by counsel to exclude the
tender of the enhanced
recordings as instructed by the applicant. Reference is
made to the transcript at T 50.2-5 of the cross-examination of Senior Constable
Magligic. The applicant takes issue with the fact that Mr Todd “ignored
the response by [Senior Constable] Maglicic who informed
Mr Todd that it was
three (3) CD’s that had been brought in by [Detective Senior Constable]
Lye to be enhanced and not the
single Master copy disc”. (The relevant
segment of the transcript appears to be a reference to the answer that within an
envelope
that was provided to the witness there were “three DVD’s
with files located on each DVD”.)
- The
applicant’s complaint is that Mr Todd was clearly aware that STIB only
provided detectives with a single master recording
disc; and the applicant says
that it follows that Mr Todd was aware that the “enhanced
recordings” were not generated
from the original recording, warranting an
application to exclude the enhanced recordings.
- The
applicant complains that Mr Todd “chose to ignore” the breach in the
chain of custody of the master copy before the
enhanced recordings had been
generated and failed to follow instructions and use the bail examinations of
Detective Sergeant McGee
to elicit during cross-examination that there was a
serious breach in the continuity of the original recordings. Complaint is made
that Counsel failed to cross-examine Detective Senior Constable Lye on the issue
as instructed (see T 1607 at 3 April 2018); and
that Detective Sergeant McGee
was not cross-examined on her affidavit to elicit that the enhanced listening
device recordings were
not made from the single master copy disc.
- The
applicant says that there was no rational explanation or forensic advantage to
justify counsel’s conduct for refusing to
follow instructions to have
these enhanced recordings excluded; and that counsel failed to utilise evidence
provided by the applicant
during the voir dire hearing to test the
provenance of the enhanced recordings (that the applicant says were heavily
relied upon by the prosecution to
demonstrate consciousness of guilt).
- The
applicant says that the Crown’s submission (at [23]) that there was no
proper basis on which trial counsel could have sought
the exclusion of the
listening device recordings cannot be accepted (for the reasons set out in his
submissions at [2035]-[2039]);
and that the NSW Police failed to prove the
provenance of these enhanced recordings.
- As
to the refusal by the NSW Police to provide receipts (see [2040]-[2064] of the
applicant’s submissions) this complaint relates
to the fact that defence
counsel did not use certain documents during his cross-examination of Detective
Sergeant McGee on the issue
of the absence of receipts for items seized during
execution of search warrants during the course of the investigation.
- The
applicant says that Detective Sergeant McGee conceded during the bail hearing
that a calculated decision had been made by senior
co-ordinating detectives not
to provide exhibit lists (which the applicant refers to as receipts). Pausing
here, while it is true
that Detective Sergeant McGee gave evidence that “a
decision was made, because the investigation was still current, not to
provide
[the applicant] with the exhibit list”; it is relevant to note that
Detective Sergeant McGee also stated that she “would
have to check [her]
records to see whether there was a property seizure form”, and that if
there was such a form, the applicant
was provided with one (see T 48.1-8,
included as Annexure 4 of the applicant’s affidavit sworn 11 February
2022).
- The
applicant relies on cl 8(1) of the LEPR Regulation which provided as at 2011
that a person who seizes a thing while executing
a search warrant, or a crime
scene warrant issued under Pt 7 of the LEPRA, in any premises must provide the
occupier with a receipt
acknowledging seizure of the thing if the occupier is
then present and it is reasonably practicable to do so.
- The
complaint by the applicant is that the prosecution relied solely on EFIMS
details to identify exhibits seized but that EFIMS details
only document
exhibits and their movements after they have been booked at a police station and
do not provide a contemporaneous account
of exhibits found in situ and removed
from premises. The applicant contends that EFIMS documents “have nothing
to do with what
is occurring during a warrant, nor can they be relied upon to
negate a complaint that undocumented exhibits have been removed from
premises
for an improper purpose, including the planting of evidence at a later
stage”.
- The
applicant maintains that it must be inferred that the decision of senior
detectives not to follow basic standard operating procedures
during all crime
scene warrants, refusal to comply with LEPRA and refusal to issue receipts, was
with the intent to obtain an improper
advantage to pervert the course of
justice.
- The
applicant says that he instructed his legal representatives that his defence was
centered on persuading the jury that refusal
by detectives to comply with
standard operating procedures and statute (combined with the intention to
withhold receipts) could only
be explained for the improper advantage of
enabling a flexible use of undocumented or documented exhibits seized from his
premises
to suit a pending brief. The applicant complains that the wilful
neglect of duty by detectives went a long way to explain the non-contemporaneous
nature of the prosecution brief.
- The
applicant notes that Detective Sergeant McGee was cross-examined at the trial as
to whether exhibit lists had been issued after
the warrants were executed and
her evidence was that she had provided those exhibit lists to the applicant. The
applicant complains
that, notwithstanding that defence counsel had compelling
evidence to the contrary, defence counsel did not go further to elicit
that
senior detectives had unlawfully withheld receipts from him after execution of
the crime scene warrants and the series of search
and seizures executed on the
applicant’s vehicles (referring to emails and faxes from the
applicant’s legal representatives
to the effect that the police had been
refusing to provide receipts to him). The applicant complains that these
documents were not
put to Detective Sergeant McGee in cross-examination.
- The
applicant submits that there was no rational explanation or forensic advantage
to justify counsel’s conduct in not utilizing
the said documents during
cross-examination to expose “the calculated intention by senior detectives
to withhold receipts from
the first day the investigation commenced”.
- As
to the submission by the Crown (at [26]) that there was no useful purpose by
further cross-examination of Detective Sergeant McGee
in relation to whether the
applicant was provided with receipts in respect of items seized from the
premises and vehicles during
the course of crime scene warrants, the applicant
says that this cannot be accepted having regard to the legislation mandating
that
an occupant must be issued with a receipt in respect of things seized while
executing a search or crime scene warrant.
- The
applicant maintains that the deliberate intention by senior detectives to
withhold the issue of receipts on all seven crime scene
warrants and numerous
searches conducted on the applicant’s vehicle allows for the strong
inference that detectives sought
to have a flexible use of exhibits seized to
suit a possible pending prosecution (referring to Annexure 9 of the
applicant’s
affidavit sworn 11 May 2022).
- Combined
with the fact that all crime scene warrants were not filmed, and no
contemporaneous notes were made of exhibits leaving the
premises, the applicant
submits that it was a reasonable basis to accuse police that they had
“planted” evidence, including
the Georges River Note and drugs,
during the course of the investigation, to suit the prosecution case “and
the agenda of the
investigation”.
- The
applicant says that defence counsel was aware from the material included in (and
excluded from) the brief and what had been produced
from the subpoena served on
28 June 2017, with regard to the first crime scene warrant (CSW 278/11) executed
on the applicant’s
home and the proposed crime scene, that it was
executed: without being filmed, that there was no appointed Independent Observer
(noting
that the applicant was prevented from being present during the three
days police had exclusive possession of the applicant’s
home); that
property seizure/exhibit forms were not utilised to document what exhibits were
being seized during the three days; no
crime scene logs were produced in the
prosecution brief; and that NSW Police refused to provide the applicant with a
receipt of exhibits
seized from his home.
- Complaint
is made that Mr Todd failed to utilise this evidence when it was asserted by
Detective Sergeant McGee under oath during
the trial that exhibit lists were
provided to the applicant. It is said that this goes a long way to explain the
non-contemporaneous
nature of the prosecution brief and why it was possible for
all four detectives to generate false and misleading statements to secure
proof
of continuity of the Georges River Note.
- The
applicant says that Mr Todd was well aware of the legal correspondence sent to
Detective Sergeant McGee during the course of the
investigation confirming that
the applicant was not issued with a single receipt with regards to any crime
scene warrant or search
conducted on his vehicles. The applicant poses the
rhetorical question as to how the prosecution could discharge its onus of
proving
continuity with such misconduct (i.e. non-compliance with standard
operating procedures). It is said that there is no explanation
or justification
why detectives did not follow basic procedures to ensure proof of continuity of
exhibits seized; and that this wilful
neglect of duty was calculated to injure
the public interest and the administration of justice.
Alleged
planting of Exhibits
- As
part of this ground of appeal, the applicant raises again allegations as to the
unlawful destruction and planting of exhibits by
Detective Sergeant McGee during
the course of the investigation (referring to [43]-[50] in the applicant’s
submissions filed
in the bail application). The allegation is that Detective
Sergeant McGee destroyed drugs located in the applicant’s home (drug
Ex
X0000803 009) in the unrelated drug matter of Mr Woods.
- This
exhibit was seized from the Wilga Street Property on 14 August 2011 during the
execution of CSW 278/11. The applicant says that
counsel was informed that
Detective Sergeant McGee was able to utilise this exhibit in the matter of Mr
Woods as no receipt had
been issued to the applicant after CSW 278/11 had been
executed (see the applicant’s submissions at [2069] ) and that the first
time the applicant became aware of any exhibit seized during the execution of
that warrant was on 10 December 2012 (16 months later)
when the applicant was
charged for drugs discovered during the execution of that warrant. The applicant
says that the same drug exhibit
was utilised in the drug matter of Mr Woods (MFI
89). That drug exhibit was destroyed on 15 December 2011 (with the
assistance of
a police officer whose statement made on 10 January 2012 was
included in the prosecution murder brief and the drug brief in the matter
involving Mr Woods).
- The
applicant says that a statement made on 8 March 2013 by Detective Senior
Constable Blanch states that on 31 January 2012 this
exhibit was
“re-packaged” with the assistance of the same police officer who had
deposed to it being destroyed six weeks
earlier. The applicant says that the
police were unable to produce any authority from any senior police officer
authorising this
destruction (something sought in the subpoena served on
28 June 2017 at item 13). The applicant contends that this police officer
facilitated the manipulation of the exhibits “at the behest of”
Detective Sergeant McGee; that it may be inferred that
Detective Sergeant McGee
had “an exhibit officer in her pocket” and notes that the same
police offer was involved in
the booking out and in of the applicant’s
property on 31 October 2011 when it is said that Detective Senior Constable Lye
discovered
the loose Georges River Note.
- The
applicant says that the entire “re-packaging” on 31 January 2012 was
filmed by Detective Sergeant McGee and the video
recording (produced by NSW
Police in response to item 24 of the applicant’s 28 June 2017 subpoena)
confirms that all the drugs
being “re-packaged” are “attached
to the matter of Mr Woods, including exhibit X0000803 009” that had been
seized from the applicant’s premises during the execution of CSW
278/11.
- The
applicant says that his former solicitors were served with this video recording
but its production was not made known to him and
the first he was made aware of
it was in January 2022. The applicant says that had counsel utilised the video
recording and the documents
referred to above during his trial it would have
warranted a Prasad invitation (presumably a reference to a
‘Prasad direction’ pursuant to R v Prasad (1979) 23
SASR 161 at 163 per King CJ, which was recently held to be contrary to law by
the High Court in Re Director of Public Prosecutions Reference No 1 of 2017
(2019) 267 CLR 350; [2019] HCA 9) at the end of the prosecution case.
- The
applicant complains that Mr Todd has not addressed the documents that were
provided to legal representatives in relation to independent
drug matters
attached to Mr Woods and the applicant, in which Detective Sergeant McGee was
the officer in charge in both matters.
It is noted that the Crown has taken the
position (at [33]) that the material relied upon the applicant does not provided
a proper
basis upon which counsel could have put, or even explored, an
allegation that Detective Sergeant McGee unlawfully destroyed or planted
exhibits.
- In
reply submissions, the applicant notes that Detective Sergeant McGee charged the
applicant for drugs on a deemed supply charge
that had had been destroyed before
the charges were generated (a relevant fact that the applicant says was omitted
from the charge
sheet and prosecution brief). The applicant says that the
charges were an abuse of the court’s process and had been utilised
to
obtain a forensic procedure order against the applicant.
- The
video produced by NSW Police in response to item 24 of the applicant’s
subpoena served on 28 June 2017 was a video made
in the matter of Mr Woods
and identified drug that had been seized from the applicant’s home during
the execution of CSW 278/11.
- The
applicant says that the breakdown of Mr Woods matter and the drug charges served
on the applicant (referring to [2085]-[2173]
of the applicant’s
submissions), clearly identifies why Detective Sergeant McGee “needed to
plant these drug exhibits
in the matter of Mr Woods”. In his submissions
at [2085] the applicant goes into some detail as to the drugs matter involving
Mr Woods. In summary, Mr Woods’ vehicle was seized on 7 September
2011, three weeks after the execution of CSW 278/11 and the
seizure of
Ex X0000803 009 from the Wilga Street Property. Complaint is made as to the
lawfulness of the search procedure and it
is suggested that the destruction of
the drugs was to prevent any independent assessment of the net weight stipulated
on the DAL
certificate that had been issued.
- The
applicant says that the DAL certificate in the brief served in Mr Woods’
drug matter (eight days after the alleged discovery)
differed only by less than
1 gram with the gross weight on the charge sheet. The applicant says that the
conversation recorded on
a listening device on 25 November 2011 between him and
Mr Woods was Mr Woods ventilating his frustration because he had been charged
by
Detective Sergeant McGee for cannabis that simply was not located in his vehicle
on 7 September 2011; and the assertion of a falsified
DAL certificate. The
applicant says that in context this private conversation had no nexus to any
matter associated with the disappearance
of Mr Karmas or a consciousness of
guilt; but was a “rant of anger” directed at Detective Sergeant
McGee because she
had charged Mr Woods with drugs not present in his vehicle on
7 September 2011. The applicant attaches significance to the fact that
the
request for access to the drugs (for independent analysis) was followed by
advice from the police as to its intention to destroy
some of the items.
- The
applicant submits that:
If we are to believe the authenticity of this DAL certificate, this Court will
have to believe that it was possible to have the certificate
generated in 8 days
and that the net weight and gross weight only varied by 1 gram, notwithstanding,
that there were numerous plastic
bags attached to the gross weight.
Most interesting where [sic] the seed charges that were issued weeks after
Mr Woods van had been seized; seeds that had been allegedly
discovered by
[Detective Senior Constable] Blanch in a further search of Mr Woods’
vehicle at Bass Hill holding yard; seeds
that had been missed by forensic
examiners.
A search and seizure that was conducted without any warrant, was not filmed and
in the absence of any independent observer; it is
no wonder why the seed charges
were dismissed.
- The
applicant says that this was all made possible because the original search of Mr
Woods’ van on 7 September 2011, under the
supervision of Detective
Sergeant McGee, was: not filmed; executed in the absence of any independent
observer and only after Mr Woods
was not present; no property seizure/exhibit
forms utilised; and the drugs were not filmed/photographed once they were taken
back
to Bankstown LAC. The applicant says that Mr Woods was charged for a
strictly indictable quantity of cannabis and was made subject
to bail,
preventing him from leaving NSW; an improper advantage that suited the
investigation; and that this explains “why
NSW Police went as far as
extraditing Mr Woods when he relocated to Canberra and utilising fraudulent
warrants to seize his personal
computer data and documents” (see the more
extensive submissions at [2085]-[2173], which includes allegations of malicious
prosecution and charges brought with an intent to pervert the course of
justice).
Ground 18A(3): Failure to utilise emails/faxes sent to
detectives during the investigation
- This
ground of complaint relates to defence counsel not having used, in his
cross-examination of Detective Sergeant McGee, a series
of correspondence sent
by the applicant and his solicitors to senior officers during the course of the
investigation identifying
the intent by the strike force (Flaggy) to withhold
receipts of exhibits seized.
- The
applicant says that it was plainly obvious to counsel that the intent to
withhold receipts was a calculated decision for an improper
purpose but that
this was not elicited during cross-examination. Reference is again here made to
the cross-examination of Detective
Sergeant McGee during the bail hearing (see
above) that a decision had been made by senior co-ordinating detectives not to
provide
receipts (exhibit lists) to the applicant form the onset of the
investigation. It is said that Mr Todd was briefed on the fact that
the
applicant had not been issued receipts for seven crime scene warrants that had
been executed on his premises, including CSW 278/11;
and that counsel was made
aware that the prosecution brief was absent of any such receipt for all seven
crime scene warrants.
Ground 18(A)(4): Subpoenas served on NSWPF
on 12 October 2015 & 28 June 2017.
- This
complaint relates to the subpoenas served on the Commissioner on 12 October
2015 and 28 June 2017. The applicant says that the
subpoena and attached
submissions clearly indicate that the applicant was seeking access to his
computer data and the Bass Hill holding
yard records. The applicant notes that
the initial subpoena was contested in the local court; that an appeal was filed
in the Supreme
Court; and it is said that it was recommended that the subpoena
be re-filed in the Supreme Court.
- The
complaint here made is that defence counsel, when dealing with the subpoena
served 28 June 2017, kept the applicant “in
the dark” as to what had
been negotiated with the prosecution before the matter went before the trial
judge on 15 December
2017. The applicant complains that he never received any
correspondence as to the resolution of this subpoena and was not provided
a copy
of the video recording produced in relation to item 24.
- The
applicant says that it is clear from the documents produced by his then
solicitors that he did not consent to narrowing or not
pressing the production
of the Bass Hill holding yard documents or obtaining a copy of his computer data
that had been seized by
NSW Police (both of which had been sought in the
subpoena served on 12 October 2015).
- In
his submissions from [2180], the applicant deals with the subpoena complaint.
The applicant submits that the narrowing of the subpoena
only served to oppress
him and benefit the NSW Police.
- In
his submissions, the applicant raises issues as to various of the requests for
production, including items 1, 6, 10, 12, 13, 18,
24, 27 and 28. In reply
submissions, the applicant focuses on items 18 and 28.
- As
to item 1, the applicant notes that the response from the NSW Police confirms
that he was not issued with any contemporaneous receipt
of exhibits removed from
his premises.
- As
to item 6, seeking production of the current odometer reading for the
applicant’s vehicle that had been serviced hours before
the vehicle was
seized, the applicant complains that even though counsel was informed that the
police response to this was misleading
this item was not pressed by counsel and
nothing was done to seek access to the odometer reading.
- As
to item 10, the response confirmed that CSW 278/11 was not filmed. Complaint is
made that no further enquiries were made and there
was no cross-examination on
this issue at the trial.
- As
to item 12 (seeking documentation of drug exhibits being weighed before the
drugs had been sent to DAL), complaint is made that
the video produced was not
made available to the applicant or addressed by counsel. The applicant appears
to contend that the video
would have proved beyond reasonable doubt that
evidence had been planted in the course of investigation and would have
explained
why standard operating procedures were not followed and why receipts
were withheld, warranting a Prasad invitation (see above at [644]).
- As
to item 13, complaint is made that the police failed to respond to the
production of all documents authorising the destruction
of drugs discovered at
the Wilga Street Property during the execution of CSW 278/11. It is submitted
that failure to comply with
legislative requirements favoured the conclusion
that the destruction of drugs in the “Woods matter” was simply a
ruse
to prevent Mr Woods from being able to have his exhibits independently
examined for weight. The applicant complains that his defence
counsel was well
aware that the drug charges issued by Detective Sergeant McGee on
10 December 2012 were an abuse of process and
were issued for a series of
improper purposes.
- As
to item 18 (seeking Bass Hill holding yard documents), in respect of which the
NSW Police asserted that these documents had already
been served in the brief,
the applicant says that defence counsel was informed in writing and in person
that the brief did not include
a copy of any original documents held by Bass
Hill holding yard and that the response by NSW Police was misleading and intent
on
preventing disclosure of basic documents that must be in existence. The
applicant says that there is no excuse for Mr Todd not to
have pressed the
production of the Bass Hill holding yard records (as these records must exist);
and that paragraph was unjustifiably
narrowed by defence counsel.
- In
reply submissions, the applicant is adamant that the response by NSW Police that
these records were produced in the brief was false.
It is submitted that this is
evident as counsel did not use any such records during his cross-examination of
the four officers involved
during the seizure of exhibits at Bass Hill holding
yard.
- The
applicant says that he provided written instructions to counsel and his former
solicitors, well before the subpoena negotiation
concluded, informing legal
representatives that the prosecution brief was absent of any document produced
by Bass Hill holding yard;
and notes that none of the documents produced by his
former solicitors indicates that this paragraph was no longer being sought by
the applicant.
- The
applicant says that it is obvious that these records must exist and would have
been paramount in testing who was present during
the search of the
applicant’s vehicle and towards the credibility of all four officers; a
search and seizure that was conducted
without a warrant resulting in the
discovery of the Georges River Note. The applicant says that there is simply no
forensic purpose
why this paragraph was not pressed, taking into account the
controversy surrounding searches conducted on the applicant’s vehicles
and
noting that the item had been sought in a subpoena served on the Commissioner of
Police on 20 September 2021, item 12.
- Insofar
as the Crown relies on the affidavit of Detective Sergeant McGee, dated 13
October 2021, as to the relevant Bass Hill documents,
the applicant says that
Detective Sergeant McGee has misled the court by asserting that these documents
had been produced in the
prosecution brief.
- As
to item 24, which sought the production of DVD recording made by Detective
Sergeant McGee on 31 January 2012 documenting the repackaging
of exhibits, the
complaint made is that the applicant had no idea that it had been produced to
his legal representatives until January
2021; that it confirms that Ex
X0000803009 did form part of the drugs in the matter of Mr Woods; and that the
inescapable inference
is that no exhibit at trial could be trusted knowing that
Detective Sergeant McGee had the exhibit officer in her pocket. Complaint
is
made that the failure to elicit this evidence during the examination of
Detective Sergeant McGee and Detective Senior Constable
Blanch denied the
applicant due process and grounds to have stayed the murder proceedings.
- As
to item 27, which sought the production of the DAL report attached to an exhibit
seized on 7 June 2013 during the execution of
SW 1274/12 and 1275/3, in respect
of which the NSW Police response was that this had been produced in the brief,
complaint is made
that this is misleading (see at [1128]-[[2250]). Complaint is
made that counsel was made aware that the destruction of drugs on 15
December
2011 was a ruse to prevent Mr Woods from being able to test the weight of the
drugs and that there is no explanation or
justification for the defence
counsel’s failure to follow the applicant’s instructions and press
for the production of
item 27.
- As
to item 28 (which sought the computer data seized by NSW Police from the Wilga
Street Property on 7 June 2013 in relation to the
intimidate charges), the
applicant says that the response by the NSW Police was that this data had been
produced in 2016 in response
to a subpoena issued by Mr Woods.
- The
applicant says that Counsel was informed in writing that the applicant was
seeking production of data from his home and not that
seized from Mr Woods
when he was residing in Canberra; and that Counsel was instructed to press this
production. It is said that
at no time was the applicant notified that this data
would not be pursued.
- The
applicant says that he had scanned extensive legal literature on his computers
and other documents including court transcripts
inferring that Detective
Sergeant McGee had generated a false DAL certificate dated 16 September
2011 in Mr Woods’ matter.
The applicant says that according to the
documents produced by his former solicitors, emails sent between Mr Todd
and the Crown dated
13 and 14 December 2017, identify that access has yet to
occur as to the computer said to have been produced by the police at Burwood
Local Court.
- It
is noted that the letter dated 13 December 2017 (Annexure B of Mr Todd’s
affidavit affirmed 29 April 2022 at [26]) states
with regards to the computer
data that the material has purportedly been produced to Burwood Local Court; and
that Mr Todd sought
to have this paragraph reserved until that material has been
examined and identified; and that an email dated 15 December 2017 identifies
that item 28 is to be stood over so the defence can check what was produced to
Burwood Local Court. It is noted that her Honour
stood the subpoena over to 19
December 2017 and directed the parties that if there was any issue with item 28
they were to contact
her Honour’s associate so the matter could be
re-listed.
- The
applicant says that it is plainly obvious that the applicant’s
representatives failed to attend Burwood Local Court and
seek access and check
the computer data that NSW Police asserted had been previously produced; no such
data was provided to the applicant
and the matter was never raised again with
her Honour.
- The
applicant says that the data that had been produced to Burwood Local Court
belonged to Mr Woods and was not the data that the
applicant was seeking to be
produced. The applicant was seeking production of data seized from his residence
on 7 June 2013 pursuant
to SW 1274/13 &1275/13.
- Complaint
is made that the applicant was never contacted by his legal representatives and
informed as to what had occurred with this
paragraph or any paragraph; as
indicated by an absence of communication from his previous solicitors and him;
and that the applicant
was not called to be present when the matters went before
the Court (it is said that AVL facilities were available but not utilised.)
- It
is noted that NSW Police were compelled to produce the applicant’s
computer data in 2020 subsequent to a subpoena that had
been served on the
Commissioner of Police during the Intimidate Police matter that was heard before
LCM Rodgers. The applicant says
that if this data had been previously produced,
as asserted in the response to the subpoena 28 June 2017, the police would not
have
needed to comply with the subpoena in 2020.
- The
applicant complains that his legal representatives failed to exercise due
diligence to obtain the computer data that the applicant
had been seeking access
to since his first subpoena that was served on the Commissioner on 12 October
2015. It is said that it is
clear that a substantial portion of the prosecution
brief included portions of the data seized from the applicant’s home, but
there were copious amounts of literature that would have assisted the applicant
during his trial; documents that had been deliberately
withheld by the police.
It is noted that the applicant applied for bail during the course of the present
appeal, fundamentally, to
be permitted access to facilities to examine the
voluminous quantity of computer data produced but this was refused; after which
he sought orders that NSW Corrective Services provide the necessary facilities
but no such orders were made.
- The
applicant contends that this Court has in effect lent itself to an abuse of its
own process by denying the applicant a proper
opportunity to demonstrate what
material could have been relied upon towards an acquittal, in order to make
proper and sufficient
representations on ground 15.
- The
applicant says that there simply was no excuse or forensic benefit to deprive
the accused access to his computer data, the Bass
Hill holding yard records or
the COP Entries with regards to Mr George Karmas before his trial had commenced.
The applicant says
that he did not consent to “adverse negotiations’
with the Crown Solicitors Office to narrow the scope of the subpoena.
- Insofar
as the Crown states (at [38]) that the gravamen of the applicant’s
complaint is that the trial counsel engaged in negotiation
with the Crown
Solicitor’s Office in respect of the subpoena without his knowledge and
consent, the applicant accepts that
Mr Todd’s position as the
applicant’s counsel conferred on him the authority to engage in
negotiations. However, he
maintains that he was unaware of the negotiations.
- The
applicant insists that he never agreed to narrow the request in items 18 or 28
(and that this was not identified in any document
presented by Mr Todd or Zahr
Partners); that he did not agree to withdraw item 33 (as stated by
Mr Todd), and was not consulted before
entering an agreement to withdraw
item 4.
- It
is noted that Detective Senior Constable Scipione was cross-examined on the
issue of the urgency search warrants applied for on
14 August 2011. The
applicant says that he attended the Parramatta Local Registry on 5 June 2013 and
inspected the recorded applications
to these two urgency warrants; and that it
was obvious that Detective Senior Constable Scipione provided false and
misleading particulars
to the issuing officer.
- The
applicant says that, more importantly, none of the documents produced by Zahr
Partners or Mr Todd identifies that the applicant
had been informed as to the
resolution of this subpoena, or what had been negotiated. It is said that the
reason why the other items
were not included in the subpoena issued on 15
January 2018, is because the applicant had not been informed that the subpoena
served
on 28 June 2017 had been resolved.
- It
is submitted that Mr Todd’s assertion (at [15] of his affidavit),
rejecting any allegation that he failed to consider the
issues regarding
subpoenas or did so without instructions, should not be accepted. The applicant
says that the documents produced
from the applicant’s legal practitioners
confirm that the applicant was not notified how his subpoena was
negotiated/narrowed
and what documents had been produced.
- The
applicant maintains that Counsel’s decision not to press the production of
the applicant’s computer data and to have
this excluded from the subpoena
during the negotiations confirms that Mr Todd denied the applicant due process
even before the trial
commenced.
Ground 18 B: Failure by counsel
to comply with instructions with regards to subpoena served on 28 June
2017.
- This
ground raises much if not all of the same issues referred to in the previous
sub-ground (and see submissions at [2264]-[2297]).
Complaint is made that the
applicant was not informed of what had resulted after the subpoena had been
negotiated or what had been
produced; that he did not consent to such adverse
negotiations; that he was denied access to his computer data because defence
counsel
and his then solicitors failed to execute due diligence; and that the
NSW Police provided a misleading response that the applicant’s
data had
been produced at Burwood Local Court.
- Again,
it is said that Mr Todd was made well aware of a number of improprieties
committed by detectives during the execution of CSW
278, as a result of items 1,
10, 13, and 24, but made no further enquiries as to a further six crime scene
warrants that were conducted
with the same wilful neglect of duty.
- The
applicant accuses defence counsel of appalling conduct in excluding the
documents sought in relation to Mr George Kamas (see at
[2287]) which he
considered relevant as going to an alternate hypothesis for the events on
11 August 2011; and says that the negotiations
and narrowing of the
subpoena was a serious breach of professional duty by counsel that compromised
his defence; and says that this
is unethical misconduct without explanation or
justification (and that it goes a long way to explaining why the pattern of
grave
and calculated improprieties by senior detectives was not elicited in
cross-examination).
- In
reply submissions, the applicant reiterates that: he did not agree to withdraw
item 4, seeking production of documents utilised
by Detective Senior Constable
Scipione to obtain the initial urgency warrants that had been executed on the
applicants home, SW554/11
and SW555/11; Mr Todd has failed to explain why he did
not press the production of the applicant’s odometer reading, item 6,
or
organise access to the applicant’s vehicle; Mr Todd has failed to
address why he did not press the production of the Bass
Hill holding yard
records, item 18, after he was instructed that no such records are included in
the prosecution brief, as asserted
by NSW Police. As to this last matter, the
applicant says that his written instructions clearly identify that no documents
held by
Bass Hill holding yard, item 18, had been included in the prosecution
brief and that Zahr Partners and Mr Todd would have realised
this if they had
examined the prosecution brief. It is said that the trial transcript confirms
that no such document had been utilised
by Mr Todd during the examination of any
detective (in particular, the four detectives who had searched the
applicant’s vehicle
on 14 August 2011 and seized the applicant’s
diary that was said to contain the Georges River Note) and that this allows for
the inference that no original document from Bass Hill holding yard was included
in the prosecution brief and that this should have
been pressed had the matter
argued before her Honour.
- The
applicant complains that he was never provided a copy of the video produced by
NSW Police in relation to item 24; a video that
was made in the drug matter of
Mr Woods, identifying drugs seized from the applicant’s home during the
execution of CSW 278/11;
and that no explanation has been provided by Zahr
Partners or Mr Todd in relation to the production of computer data that had been
seized from the applicant’s home, item 28.
- Further,
the applicant says that he never agreed to withdraw item 33, seeking production
of a detailed index of all material held
in the police repository in aid of
identifying with precision what documents are in existence (referring to a
similar direction ordered
by Sidis DCJ in NSW Commissioner of Police v
Tuxford [2002] NSWCA 139 at [40] per Brownie AJA). The applicant says that
the production of such a list would have permitted the accused to precisely
identify documents
sought for production.
Ground 18C (1): Counsel
failed to follow written instructions and seek that her Honour directs the jury
on the conflict in evidence
between the two case theories as they are not
alternate case theories.
- The
applicant’s complaint here is that before Mr Todd had concluded his
closing address the applicant provided written instructions
by letter dated
9 May 2018 to the applicant’s then solicitors (see Annexure 17 to the
applicant’s 11 February 2022 affidavit).
The applicant says that the
letter sought that Mr Todd join in an application (by Mr Hughes, counsel for the
co-accused Mr Woods)
to have the 5 o’clock proposition removed from the
jury’s consideration (see T 2697.24-26), taking into account the matters
set out in his submissions at [2299] (see also the applicant’s submissions
at [2300]-[2314]).
- The
applicant points to the following in the note which was handed to counsel during
the trial:
Secondly, if her Honour gives oxygen to the second theory, ie that after 5pm Sam
Karmas returned; then Sam Karmas was the author
of the messages starting at
3:57pm.
She can’t accept the second theory without accepting that Sam Karmas sent
the messages to Maria Angeles starting at 3:57pm
on the 11/8/11.
To accept the writings is to accept that Sam Karmas did send the sms’s to
Maria Angeles, as the writings give a time after
5:00pm. To do otherwise is to
simply “Cherry Pick” by the Crown and Her Honour. This needs to be
pointed out to her Honour
if pressing the second theory.
- The
applicant says that this request was made on two further occasions, with notes
passed to the solicitor (Ms Sahar Orya).
- The
applicant says that an inspection of the notes clearly indicates Mr Todd’s
responses (asserting that he made that point
in his summing up and it was not
required in the summing up). The complaint here made is that Mr Todd failed to
follow instructions
“permitting her Honour to mislead the jury that both
conflicting theories could be assessed with the same evidence”.
- Reference
is made to the responsibility of counsel to assist the trial judge in this
regard (citing R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 at [57]
per Howie J, R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 at
[54]- [56] per McColl JA and R v Gulliford (2004) 148 A Crim R 558; [2004]
NSWCCA 338 at [182]- [184] per Wood CJ at CL). Reference is also made to what was
said in R v Micalizzi [2004] NSWCCA 406 at [60] per Howie J.
- The
applicant contends that Counsel was made aware of the distinction between these
two conflicting theories but failed to assist
her Honour to ensure a fair trial
for the accused. It is submitted that a substantial miscarriage must have been
occasioned as the
jury was permitted to assess both theories using the same
evidence, as alternate case theories; explaining why a general verdict
was
delivered against the applicant instead of two separate verdicts; and it is said
that this has left this Court here to speculate.
Ground 18C(2):
Counsel failed to tender the statement made by Antonia Fantakis during the
argument to exclude the 5 o’clock
theory from the jury’s
consideration.
- This
complaint stems from the failure of counsel to tender the statement of Antonia
Fantakis (Annexure P to the affidavit of the applicant
sworn 1 September
2021) during the argument to prevent the 5 o’clock theory being left for
the jury’s consideration.
The applicant notes that the statement was
provided to police on 8 September 2011, asserting that Antonia Fantakis was
present at
the Wilga Street Property up until 5.30pm. It is said that the
statement corroborated material issues raised in the applicant’s
ERISP and
the evidence at trial and that it was critical as Antonia Fantakis was present
within the time that Mr Karmas was said
to have returned according to the
writings admitted into evidence.
- The
applicant contends that this statement should have been tendered by Counsel
during oral argument as to whether the 5 o’clock
proposition should be
excluded from the jury. Reference is made to the submissions made by
Mr Hughes on that occasion (see T 2695.34-49).
The applicant says that in
response to her Honour’s observation at T 2696.1-5, the statement should
have been tendered or her
Honour should have been informed that Antonia Fantakis
asserted in her statement that she was present up until 5.30pm (to prevent
her
Honour from being mistaken in her judgment).
- It
is noted that the transcript records Mr Hughes seeking to have the statement
tendered and the Crown objecting thereto (T 2698)
but the applicant says that
this transcript is not correct (and the applicant has made numerous requests to
obtain the audio recording
between 9 and 11 May 2018 to establish this).
- The
applicant says that Mr Todd was well aware what was contained in Antonia
Fantakis’ statement and that her Honour was wrong
to assert that Antonia
Fantakis’ evidence was immaterial.
- While
it is acknowledged that Antonia Fantakis was not going to be called by the
defence, the applicant says that this was only on
the basis that the Crown was
only running the first case theory. It is said that if the Crown or any party
sought to rely on the
5 o’clock proposition, Antonia Fantakis would have
been called by the defence (in the event that the Crown did not call her).
- The
applicant says that Mr Todd is wrong in asserting in [17] of his affidavit that
Antonia Fantakis could not give the accused an
alibi for the entire period for
the afternoon on 11 August 2011, noting that Antonia Fantakis gave a statement
that she was present
at the Wilga Street Property just before 4pm up until
5.30pm. It is noted that according to the writings (the only evidence in support
of the 5 o’clock theory), Mr Karmas is said to return to the Wilga Street
Property at or soon after 5pm. The applicant says
that this was clearly a time
that he was present.
- The
applicant says that Antonia Fantakis was a crucial witness if the 5
o’clock proposition was to be argued by any party to
the proceedings. It
is said that she had relevant evidence and should have been called by the Crown
if it sought to rely on the alternate
case theory; and that the applicant was
deprived of his right to a fair trial as the Crown failed to call Antonia
Fantakis while
seeking that the jury take into consideration the 5 o’clock
theory.
- The
applicant points out that her Honour refused to accept the tender of Antonia
Fantakis’ statement on two separate occasions
sought by Mr Hughes and says
that this resulted in a wrong finding that deprived the defence of a valid basis
during the application
to exclude the 5 o’clock proposition from the
jury’s consideration.
- The
applicant submits that Counsel ineptly denied him of a chance of an acquittal as
the jury were mistaken or misled in the assessment
of the 5 o’clock
theory by failing to tender the statement or at the very least inform her Honour
of it and by failing to make
an application to re-open the defence case and call
Detective Sergeant McGee, Antonia Fantakis and the applicant to provide further
evidence and to demonstrate the implausibility and practical impossibility of
this conflicting theory.
Ground 18C (3): Counsel failed to follow
written instruction in relation to the jury ballot argument.
- This
sub-ground relates to the jury ballot argument (see ground 10 above).
- The
complaint here made is that Counsel did not follow the applicant’s
instructions and failed to make an application to have
the foreperson excluded
from the ballot pursuant to s 55G(2)(a) of the Jury Act. It was the
applicant’s instructions that the foreperson be excluded from the jury
ballot pursuant to the legislation.
- The
applicant refers to the debate that occurred in relation to this issue (see her
Honour’s summing up at SU 166-167) and says
that it is plain that her
Honour was made aware of the correct procedure by the Crown and was taken to a
relevant Law Report by Mr
Todd in support of the legislation but that her Honour
chose to ignore the relevant provision and decided to include the foreperson
in
the ballot.
- The
applicant says that, just prior to the initial argument with regard to the jury
ballot, he provided a note to Counsel on this
issue and that Counsel appeared to
agree with him on the note but appeared to be reluctant in wanting to follow
legislation and “sided”
with her Honour’s view that the
legislation was wrongly drafted. Complaint is made that Counsel refused to
follow the applicant’s
instructions.
- Insofar
as Mr Todd asserts in his affidavit (at [18]) that his submissions were on the
basis of what he considered the proper construction
of the relevant Act, the
applicant submits that the legislation is quite clear that the foreperson in the
present case was to be
excluded from the ballot. It is submitted that
Mr Todd had no valid reason to go against his client’s instructions
when they
were in alignment with legislation; and that there was no rational
explanation why counsel refused to follow his client’s
instructions.
Ground 18 D: Failure by legal representatives to
research information with regards to the Georges River Note.
- Finally,
as to this ground, the complaint is that, during the trial the applicant
instructed counsel and his former solicitors to
research the defence that the
single page (Georges River Note) was part of the instructions from a spiritual
healer. The applicant
says that he provided a single page of notes to his then
solicitors describing the circumstances surrounding the note (at p 13 of
Annexure 17 of the applicant’s affidavit sworn 11 February 2022) and that
it had originally been located at the Wilga Street
Property before the execution
of the CSW 278/11.
- The
applicant says that a basic internet search would have yielded copious
literature on the subject that could have been introduced
by some expert in this
field to provide some nexus to the applicant’s defence. Indeed, the
applicant says that he has recently
been provided with documents from his
present solicitors (Andrews Solicitors) (presumably before he again became self
represented)
from what are described as basic internet searches that it is said
demonstrate distinctly similar instructions with the use of candles
and throwing
wrapped packages into flowing water to cleanse (see Annexure 18 to his affidavit
sworn 11 February 2022).
- It
is submitted that the applicant’s legal representatives have failed to
exercise due diligence to discover evidence.
- Complaint
is made in reply submissions that Mr Todd has not explained why the applicant
was not asked in chief to give his account
of the provenance of the
“note”. It is noted that, according to the Crown (at [50]) it is
unclear how such research would
have assisted the applicant.
- The
applicant points to Mr Todd’s affidavit at [19]:
The last Ground “D” regards the lack of research about
“spiritual healing incantation(s)”. I accept I did
not conduct that
search. It was not a central aspect in the trial, in my opinion.
- As
to this, the applicant says that the Georges River Note was a central aspect of
the trial, as it gave life to the inference that
Mr Karmas’ body had been
disposed of in the Georges River; and that this was a plank in the prosecution
case. It is submitted
that this gave life to the substantial evidence received
by the Court, including from: Professor Fitzpatrick, the soil expert; the
police
divers that gave evidence with regards to searching the Georges River; and the
extensive ground examinations by police surrounding
the Georges River.
- The
applicant complains that both the applicant’s solicitors and Counsel were
instructed to research the issue and find some
expert that could evidence on
this issue and that those instructions were ignored.
- The
applicant says that the end result was that the applicant was left to deal with
this issue during cross-examination by the Crown
as Mr Todd failed to raise this
issue in chief. It is said that this had a serious impact on the
applicant’s credibility as
a witness, as his explanation appeared to be a
recent invention during his cross-examination.
- Referring
to her Honour’s sentencing judgement at [34], it is noted that the trial
judge was satisfied to the requisite standard
that the “note” Ex AG
was found in the blue van owned by Mr Fantakis and was undoubtedly written by
him, and is a reference
to the concealment of Mr Karmas’ body. Thus, the
applicant says that the note was obviously of fundamental importance to the
Crown’s case against the applicant. Reference is also made to [35]
(extracted earlier) in this context.
- The
applicant says that the failure by counsel to address this issue, as he
requested, clearly had a serious impact on his credibility
(again referring to
her Honour’s view of his evidence as set out in the sentencing judgment).
Thus, the applicant submits that
the response provided by Mr Todd and the Crown
on this ground cannot be accepted.
Crown’s
submissions
- The
Crown filed affidavits from each of Mr Todd (defence counsel appearing for the
applicant at trial) and his instructing solicitor
(Mr Wasim Jabakhangi), noting
that as a matter of fairness the allegations of impropriety made against them
should not be left uncontradicted.
- As
to the particular grounds, the Crown says the following.
Ground
18A
- As
to the complaint that trial counsel failed to follow instructions the applicant
had given to cross-examine “central witnesses”
on specified
documents for the purpose of eliciting the calculated pattern of serious
improprieties and conduct in contravention
of Australian law, committed by
detectives to enliven the discretion to exclude a number of key exhibits on a
public policy basis
under s 138” (referring to applicant’s
submissions at [1829]), the Crown notes that the applicant suggests that he
instructed
defence Counsel to seek the exclusion of the Georges River Note,
evidence of Mr Karmas’ DNA in the applicant’s blue Transit
van and
the evidence of the soil expert, Professor Fitzpatrick (see applicant’s
submissions at [1830], [1903], [1906], [1983].
[1976] and [1980]).
- The
Crown notes that the reference to a “pattern of serious
improprieties” is a reference to the following allegations:
that four
officers generated false and misleading statements with intent to pervert the
course of justice ([1828]) and that the Georges
River Note was
“planted” in the diary recovered from the applicant’s van
([1851]); that there was wilful neglect
of duty and non-compliance with
legislative requirements and standard operating procedures during the execution
of the seven crime
scene warrants ([1821]); that there was wilful neglect of
duty by senior officers during a series of examinations, searches and seizures
on the applicant’s vehicles ([1832]); that a drug exhibit which was seized
from the Wilga Street Property was planted in connection
with drug charges laid
against Mr Woods ([1832]); that three ancillary charges were generated for an
improper purpose ([1832]) (i.e.,
that the applicant was charged in relation to
the intimidation of the officer in charge on 7 June 2013 so that police could
obtain
a warrant for the seizure of his computer and legal documents – and
see similar allegation in relation to drug offences with
which he was charged in
late 2012 – [2164], [2221]); and the “non-contemporaneous”
nature of the prosecution brief,
the result of the said improprieties
([1832]).
- The
Crown points to the wide discretion of counsel as to the conduct of proceedings,
including what witnesses to call and the manner
and content of questioning;
noting in this regard that counsel is obliged to do so in conformity with the
Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers
Rules). Reference is made to r 65 in that regard, which provides that a
barrister must not allege any matter of fact amounting to criminality,
fraud or
other misconduct against any person unless the barrister believes on reasonable
grounds that there is a proper basis for
it. The Crown says that the allegations
of serious misconduct (and criminality) against various prosecution witnesses
were unsupported
by the material on which they are said to be based.
- As
to the complaint in relation to failure to cross-examine as to whether standard
operating features were followed during execution
of the seven crime scene
warrants, the Crown points to the cross-examination of police officers as to the
procedures that were adopted
in the searches at T 1500.47-1501.15 and T
1796.12-24; T 1798.11-24; and says that further cross-examination would have
been inutile
in circumstances where it was not established that, at the time of
the investigation, the standard operating procedures that applied
in respect to
search warrants also applied to crime scene warrants.
- As
to the DNA evidence, it is noted that DNA with the same profile as that of Mr
Karmas was located on the inner door trim of the
driver’s door of the
applicant’s blue Transit van following an examination conducted on
9 September 2011. The Crown says
that the applicant’s complaint is
limited to a complaint that counsel failed to seek to have the DNA evidence
excluded because
of what are alleged to have been unauthorised searches on 15
and 16 August 2011 and 25 August 2011 (because of failure to follow
standard
operating procedures). The Crown does not accept that those searches were
unauthorised or that the standard operating procedures
applied to them but says
that, in any event, there is no basis for the suggestion that the integrity of
the lawful examination conducted
on 9 September 2011 (which it is said
relevantly concerned a remote part of the vehicle) was in any way affected by
those searches.
The Crown refers to Hunt CJ’s observation in Ignjatic v
R (1993) 68 A Crim R 333 at 338 to the effect that loss of a chance to raise
an issue is not sufficient, what must be established is that there has been a
miscarriage of justice. The Crown says that the applicant must show that there
was at least a substantial chance that he would have
succeeded on the
application to exclude the evidence and that he lost a chance of acquittal that
was fairly open (and that he has
not discharged that onus).
- As
to the complaint about the soil evidence, the Crown points out that the soil was
recovered during a lawful examination conducted
on 12 June 2012 and documented
(Ex AW pp 19-32) and that the applicant has not discharged the onus of
demonstrating that there is
a substantial chance that that evidence would have
been excluded.
- As
to the listening device recordings (Exs CS and CX), the Crown says that there
was no proper basis on which trial counsel could
have sought the exclusion of
those recordings. It is noted that the applicant did not suggest at the time
(and does not now suggest)
that the recordings did not accurately reflect the
conversation (whether or not the recordings were enhanced using the original
single
disc master copy). The Crown refers to the observation by Garling J in
this respect in A1 v R; A2 v R [2016] NSWSC 1288 at [96] (in his
Honour’s judgment on the bail application).
- As
to the allegation that NSW Police improperly charged the applicant with offences
relating to the intimidation of the officer in
charge on 7 June 2013 for an
ulterior purpose, the Crown says that there is no evidentiary foundation for
this; and it is said that
the applicant has failed to demonstrate that any
useful purpose would have been served by the cross-examination of any officer as
to the asserted failure of the NSW Police to provide him with a copy of that
data.
- As
to the complaint about failure to cross-examine the officer in charge about the
non-contemporaneous nature of the prosecution brief,
the Crown says that it is
not unusual for witness statements to be prepared some time after the relevant
event, particularly in the
context of a lengthy and complex investigation
(noting that in the present case the applicant was charged with the murder of Mr
Karmas
on 3 October 2013, some 16 months after the event).
- As
to the issue of the receipts in respect of items seized from the
applicant’s premises and vehicles during the course of the
crime scene
warrants, the Crown says that no useful purpose would have been served by
further cross-examination of Detective Sergeant
McGee, noting that she agreed in
cross-examination that she had received correspondence from the applicant
requesting exhibit and
seizure lists and that she said she had provided them to
him. It is noted that the applicant in his submissions at [2044] accepts
that he
was provided with EFIMS exhibit lists but his complaint is that he was not given
“a contemporaneous account of exhibits
found in situ and removed from a
premise”. The Crown points out that Detective Senior Constable Scipione
gave evidence and
was cross-examined about correspondence in 2012 in relation to
the requests for copies of search warrants and property seizure forms
(the Crown
referring to T 1716.14-26; T 1750.31-1753.39; and to Ex 16F).
- As
to the complaint (see applicant’s submissions at [1890]-[1941]) concerning
the alleged failure of counsel to use emails produced
under subpoena to
cross-examine the four police officers as to the circumstances in which various
police statements were made in
relation to the seizure and search of the
applicant’s blue Transit van on 13 August 2011, the Crown emphasises that
the applicant
did not dispute that he was the author of the Georges River Note;
and did not give a direct response when asked if he was suggesting
that the
Georges River Note was planted (see T 2337.39-2339.26).
- The
Crown says that at the trial, defence counsel for the applicant did
cross-examine the four officers in question as to the circumstances
in which
they made their police statements (including with respect to the emails
exchanged with Detective Sergeant McGee (referring
to T 22.35 (on the voir
dire) and before the jury at T 1006-1022; T 929-944; T 977-997 and T
949-967). The Crown says that the applicant’s real complaint
is that
counsel only referred to two of the emails exchanged between the officers and
did not refer to the email sent by Detective
Sergeant McGee on 17 May 2013; that
trial counsel did not tender the emails (they being marked for identification)
and did not cross-examine
the officers on paragraphs 3-5 of the 7 May 2013 email
of Detective Sergeant McGee (see applicant’s submissions at
[1920]-[1932]).
- The
Crown says that the differences in the accounts given by the officers in their
statements and at trial indicates that the statements
were not the product of
collusion; and it is said that there was no attempt to hide the fact that later
statements were made after
email communication with the officer in charge.
- It
is noted that the officers accepted in cross-examination that some of their
statements were incomplete and contained errors (the
Crown referring to
T 940.34-44; T 959.44-960.2; T 963.18-24; T 964.12-23; T 984.25-34;
T 987.7-18; T 1016.26-35; T 1017.26-28; T
1020.4-41). The Crown points out
that this cross-examination together with that of Detective Senior Constable
Lye, and evidence given
by the applicant formed the basis of submissions made by
trial counsel in relation to the Georges River Note in closing address (T
2647.31-2648.41) in which the jury was urged to accept the applicant’s
evidence. The Crown submits that it was well open to
trial counsel to pursue a
forensic approach that sought to draw out the inconsistencies given by these
officers rather than alleging
deliberate collusion with the intention of
perverting the course of justice. It is submitted that the evidence relied upon
by the
applicant does not give rise to a proper basis for putting such an
allegation of serious (or criminal) misconduct.
- The
Crown says that the real issue in relation to the Georges River Note was whether
it set out what the applicant planned to do to
Mr Karmas (as the Crown alleged)
or whether (as the applicant contended) it was a part of three pages of notes
prepared after consulting
a spiritual healer.
- The
Crown says that the further complaint by the applicant that trial counsel
refused to follow instructions and cross-examine the
four police officers on
failure to follow standard operating procedures during the search (see the
applicant’s submissions
at [1942]) should not be accepted. The Crown says
that the vehicle stop was not a “controlled operation” (cf the
applicant’s
submissions at [1943]). Reference is made to s 36 of
LEPRA, which confers power on a police officer to search a vehicle and
seize things in certain circumstances without a warrant. The Crown
says that it
would have been well open to counsel to form the view that the requirements of
that section were met, the Crown noting
that police were investigating the
applicant’s involvement in the disappearance of Mr Karmas and that a small
black Stanley
knife had been found on Mr Cheong (who had been sitting on a small
axe on the front passenger seat) and that an extendable baton
and large sum of
cash were found in the vehicle which smelt strongly of bleach.
- The
Crown says that the material relied upon by the applicant does not provide a
proper basis on which trial counsel could have put,
or even explore, an
allegation that Detective Sergeant McGee planted a drug exhibit that was found
at the Wilga Street Property (Ex
X0000803009) in connection with charges laid
against Mr Woods (nor that she had an exhibit officer in her pocket – see
applicant’s
submissions at [2076]). Moreover, the Crown says that this
ignores the deliberate forensic approach adopted by his counsel and counsel
for
Mr Woods that sought to take advantage of Mr Woods’ involvement in the
possession and supply of cannabis in support of
the suggestion that their
actions on the evening of 11 August 2011 and following morning involved the
disposal of cannabis related
items and not Mr Karmas’ body. It is noted
that the applicant gave evidence that he knew Mr Woods was involved in the
supply
and cultivation of cannabis and that the applicant did not (though
questioned about the listening device conversations) suggest that
Mr
Woods’ animus towards the officer in charge was motivated by a belief that
the officer had planted drugs on him.
- The
Crown says that the applicant’s submissions under this ground contain a
lengthy complaint as to alleged failure to follow
instructions in relation to
contested paragraphs of the June 2017 subpoena issued to the Commissioner of
Police (dealt with in the
context of ground 18B).
- As
to ground 18A, the Crown says that the approach taken by trial counsel in
respect of the matters complained of was well within
the wide discretion reposed
in him as to the manner in which to conduct the proceedings and involved due
recognition of his obligations
as to the conduct of the trial in conformity with
the Barristers Rules. In his affidavit, Mr Todd has deposed that the applicant
made no complaint about his approach either during the trial or after it had
concluded. The Crown says that the applicant has not
established that the
conduct of trial counsel resulted in a miscarriage of
justice.
Ground 18B
- As
to this ground, the Crown says that the gravamen of the complaint is that trial
counsel engaged in negotiations with the Crown
Solicitor’s Office in
respect of the subpoena without his knowledge and consent. The Crown points out
that Mr Todd’s
position as the applicant’s counsel conferred on him
authority to engage in those negotiations. The Crown says that the complaint
that the applicant was unaware of the negotiations should not be accepted
(pointing to Annexure B to Mr Todd’s affidavit which
relates to the
discussion with the applicant in a conference on 12 December 2017 as to the
topic of narrowing aspects of the subpoena).
Reference is also made to a
discussion in the applicant’s presence as to a further subpoena issued on
15 January 2018. The
Crown says that the fact that various items were not
included on that subpoena (the Bass Hill Police holding yard documents –
18(i); material relating to Mr George Karmas – 17(v); and
applicant’s computer data – item 28) suggests that those
items were
no longer being pursued.
- In
any event, the Crown says that the applicant has not established that a
miscarriage of justice was occasioned as a result of trial
counsel’s
failure to press for production of those documents. It is said that two further
subpoenas in respect of the material
relating to Mr George Karmas were issued
during the trial and material was produced (see the Crown’s submissions as
to ground
8 at [244]-[251]).
- As
to the complaint that documents concerning the police investigation into
Mr George Karmas were not tendered (see applicant’s
submissions at
[2283]-[2284]) the Crown says that this is without foundation (noting that the
documents were MFI 193 and 194; voir dire Ex U). The Crown says that the
content of those documents was hearsay and prima facie inadmissible.
- As
to the decision not to call Mr Lafiatis to give evidence, the Crown says that
this was well within trial counsel’s discretion;
that the issue whether
Mr George Karmas had been involved in an unrelated fraud was collateral to
the murder trial and that it is
unclear that either of the two Lafiatis
potential witnesses was in a position to give evidence as to the allegation (Mr
Lafiatis
Snr being described in a July 2011 COPS report as an elderly male with
health issues and signs of dementia; and his son having had
limited contact with
his father and no personal knowledge of the alleged fraud (see the Crown’s
submissions at fn 15).
- As
to the complaint about the Bass Hill Police holding yard documents, the Crown
says that the relevant documentary evidence was served
on the applicant in the
police brief (referring to Detective Sergeant McGee’s affidavit of
13 October 2021) and that the applicant’s
complaint rests on his
belief as to what documents would have established had they been produced.
- As
to the failure of the NSW Police to produce a copy of the applicant’s
computer data prior to trial, the Crown relies on its
submissions at [340]-343]
in relation to ground 15. The Crown says that the applicant does not explain why
the absence of “legal
documents and legal literature” occasioned a
miscarriage of justice but in any event a large volume of documents meeting that
description was served in the police brief of evidence (referring to Annexure A
to Detective Sergeant McGee’s 13 October 2021
affidavit).
Ground 18C
- As
to the complaint that trial counsel failed to follow written instructions to
seek a direction by the trial judge to the jury on
the conflict in evidence
between the two case theories, the Crown notes that the applicant’s trial
counsel joined in an application
made on behalf of Mr Woods (by Mr Hughes) that
their consideration of whether Mr Karmas was murdered at the Wilga Street
Property
should be confined to a 67 minute window between the three men arriving
and the applicant driving Mr Cheong home (see T 2693.26-29)
(as acknowledged by
the applicant) and that the complaint of the applicant is that his trial counsel
failed “to elicit the
conflict of the two theories” (see
applicant’s submissions at [2305]). The Crown says that the relevance of
that asserted
failure is unclear and that the real issue is that raised by
grounds 4 and 5 as to the change in the Crown case (and noting that
the related
complaint as to failure to seek a direction is dealt with in ground 12).
- As
to the complaint that trial counsel failed to tender a statement made by the
applicant’s mother during the argument to exclude
the 5 o’clock
theory from the jury’s consideration, the Crown says that this rests on an
assertion that a portion of
the transcript at T 2698 incorrectly records that
the trial judge was provided with a copy of the statement during that legal
argument
(see applicant’s submissions at [2332]). The Crown says that the
fact that the document was not marked for identification or
as a voir
dire exhibit is not determinative of the issue (cf the applicant’s
submissions at [2333]). The Crown says that, whether or not the
statement was
provided, it is clear from her Honour’s judgment that she properly
understood its contents insofar as it was
relevant to the application (referring
to R v Fantakis, Woods and Cheong [2018] NSWSC 749 at [83]- [86]). In any
event, the Crown again argues that the real question is whether there was a
miscarriage of justice occasioned by the change
in the Crown case.
- As
to the third complaint (that trial counsel failed to follow written instructions
in relation to the jury ballot argument), the
Crown points to Mr Todd’s
evidence that the position he took on the issue was based upon his view as to
the proper construction
of the legislation. The Crown says that in those
circumstances trial counsel was not bound by the applicant’s instructions
on that issue and that (for the reasons given in relation to ground 10 –
see Crown’s submissions at [274]-[296]), there
was no error in the manner
in which the jury ballot was conducted and, in any event, no substantial
miscarriage of justice.
Ground 18D
- The
final sub-ground relates to the complaint that trial counsel failed to research
information in relation to spiritual healing and
to engage some expert in the
field in respect of the applicant’s account that the Georges River Note
was a document written
after consulting a spiritual healer. The Crown says that
the material relied on by the applicant in support of this ground (referring
to
water in the context of spiritual healing) does not establish that the absence
of such material occasioned a miscarriage of
justice.
Determination
- Where
incompetence of trial counsel is alleged, the question is whether what did or
did not occur at trial occasioned a miscarriage
of justice (Nudd v The Queen
(2006) 162 A Crim R 301; [2006] HCA 9 (Nudd v The Queen) at [12] per
Gleeson CJ; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 149-150
[79] per McHugh J; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
at 665 [18] per Hayne J). In R v Birks (1990) 19 NSWLR 677
(Birks), Gleeson CJ noted (at 683) that, as a general rule, a party is
bound by the conduct of his or her counsel and that counsel have
a wide
discretion as to the manner in which proceedings are conducted but went on to
say (at 684) that:
It sometimes happens that a person who has been convicted of a crime seeks to
have the conviction set aside on the ground that counsel
at the trial has acted
incompetently, or contrary to instructions. It is well settled that neither of
these circumstances will, of
itself, attract appellate intervention. At the same
time, the courts acknowledge the existence of a power and duty to quash a
conviction
in some cases. The difficulty is to find, in the authorities, a
formula which adequately and accurately defines the class of case
in which a
Court of Criminal Appeal will intervene. A common them running through the
cases, however, is that such intervention is
a matter about which the courts are
extremely cautious.
- At
p 685, in Birks, his Honour summarised the relevant principles, the third
of which was:
However, there may arise cases where something has occurred in the running of a
trial, perhaps as the result of “flagrant incompetence”
of counsel,
or perhaps from some other cause, which will be recognised as involving, or
causing, a miscarriage of justice. It is
impossible, and undesirable, to attempt
to define such cases with precision. When they arise, they will attract
appellate intervention.
- In
Birks, the two features which his Honour considered took it out of the
ordinary run (see at 686) were first, that the matter about which
Counsel had
virtually failed to cross-examine at all went to the whole issue in relation to
a serious charge and second, that there
were various ways in which the problem
could have been dealt with once the problem had become apparent during the
cross-examination
of the appellant (relevantly, in that case there was available
evidence to support the appellant and to rebut the inference that
the jury was
invited to draw from counsel’s conduct). His Honour said that:
The failure to deal with the matter was not the result of a deliberate, even if
perhaps unwise, tactical decision to make as little
fuss as possible about
subjects on which it was thought that the less that was said the better. This
was not a matter of taking a
calculated risk. The barrister simply did not know
what to do, and so, until it was too late, he did nothing.
- Those
principles were applied by Adamson J (with whom Bellew and Cavanagh JJ agreed)
in La Rocca v R [2021] NSWCCA 116 (at [136]-[138]).
- Counsel’s
conduct is to be examined objectively, from the record of the trial (see Nudd
v The Queen per Gleeson CJ (at [9])), and the relevant standard is whether
the conduct was “incapable of rational explanation on forensic
grounds” (Xie at [415]).
- As
made clear in Birks, it is insufficient for an applicant “simply to
point to some failing, even a gross failing, of the legal representative who
appeared”; rather, what must be demonstrated is that what did or did not
occur affected the outcome of the trial (see Roach v R [2019]
NSWCCA 160 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson
J; Davis v R [2017] NSWCCA 257 (at [59] per Price J).
- Having
regard to the above principles, it cannot be concluded that any of the matters
referred to by the applicant (even if established)
amounted to ineptitude or
incompetence of the kind that would give rise to a miscarriage of justice and
warrant the quashing of the
convictions and a retrial. In essence, the
complaints under ground 18A go no further than a complaint as to forensic
decisions taken
by the trial counsel as to cross-examination and the like (and,
insofar as the complaint is as to a failure to put to prosecution
witnesses
serious allegations of misconduct or criminal conduct, there is not established
to have been an evidentiary foundation
to make such questioning proper in any
event). As to the complaints under ground 18B relating to negotiation to narrow
the subpoena,
this again falls largely within counsel’s discretion (and,
in the aspects noted by the Crown, without foundation). As to the
complaints
under ground 18C, the first and third are dealt with in other grounds; and the
second (as to Antonia Fantakis’ statement)
goes nowhere as it is clear
that her Honour had that material before her at the time. Finally, as to ground
18D, where the argument
in essence is that had there been evidence of a
spiritual healer the applicant’s credibility would not have been adversely
affected by the admission of Ex AA, it is difficult to see how some unidentified
spiritual healer would have assisted the applicant
(it might have been different
had the applicant identified the actual spiritual healer to give evidence as to
the content of the
advice he says was given). In any event, as explained in
relation to ground 3, there was ample evidence even excluding Ex AA to make
it
reasonably open to the jury to find the applicant guilty of murder and to
exclude any rational explanation consistent with the
hypothesis of his
innocence.
- Ground
18 is not made good.
Complaints as to transcript
- It
is relevant here to note that both before the hearing of the appeal and in the
period since judgment was reserved the applicant
has been in communication with
the Court on a number of occasions, seeking among other things access to audio
recordings from the
trial, relevantly, the audio recordings for 9, 10 and 11 May
2018 (a three day period that encompassed the summing up, though his
request was
not confined to the summing up – as per his emails dated 16 March
2022 and 11 August 2022 to the Registrar in the
Court of Criminal Appeal and his
email dated 25 August 2022 to the associate to Dhanji J). In that
correspondence, the applicant
noted that his first application to obtain the
audio recordings was made in November 2021. The applicant then sent further
correspondence
identifying problems with the audio recordings (see his
handwritten note dated 12 October 2022 attaching correspondence to the Reporting
Services Branch).
- The
applicant has identified portions of the transcript for those days that he
maintains are in conflict with what was actually said
at the time; and
attributes the relevance of this issue to grounds 4, 5 and 6(3) of this appeal.
The applicant was concerned to draw
to this Court’s attention that he was
disputing portions of the typed transcript attached to the court book (see his
email
dated 25 August 2022).
- The
amendments that the applicant maintains are required are as follows.
- First,
the applicant complains that the transcript of 9 May 2018 (at T 2698) has been
shortened and he says that what the Crown said
should be included “word
for word”. It is clear on the face of that portion of transcript with
which the applicant takes
issue that the reporting services branch transcriber
has not transcribed the whole of the passages there being quoted to her Honour;
but has indicated with an ellipsis in the relevant places (i.e.,
“...”) the commencement and end of the quoted passages.
That is a
not uncommon practice where counsel (in this case the Crown Prosecutor) is
reading from a document (be it transcript or
text). No possible prejudice can
here be said to arise by reference to the fact that the whole of the quote has
not been reproduced
– it is readily able to be discerned by reference to
the passages of transcript there quoted (namely, at T 2431 and T 2459,
respectively).
- As
to the submission that reference to the omitted parts of what was quoted from T
2459.34-37, properly assessed, would lead this
Court to conclude that the Crown
did in fact “shift the case” that it opened and conducted before the
close of evidence,
that has been addressed in the context of the relevant appeal
grounds above. It is not necessary here to repeat that, save to note
that it is
apparent, read in context, that the trial judge’s comment “Yes, so
there’s no shift” is a statement
of her Honour’s understanding
of the Crown’s position as there being stated by the Crown Prosecutor (in
the course of
submissions made in the absence of the jury as to the tender of
the statement of Ms Antonia Fantakis); and (contrary to the applicant’s
contention in his email of 25 August 2022, footnote 3) this does not support the
contention by the applicant of bias.
- Second,
the applicant contends that the transcript of the summing up at SU 26 should be
amended on the basis that, in its current
form, it appears that the statement
“The Crown and I have, at no stage, embraced the submission or the second
theory that Mr
Karmas left and came back” was part of what was said to the
jury (i.e., part of the quote) rather than part of the submissions
then being
made to the trial judge (in the absence of the jury) as to the summing up.
- The
applicant’s contention is well made. The sentence he has identified formed
part of the submissions made to her Honour on
9 May 2018, not the closing
address to the jury (see T 2459.34-37). It seems likely that this is merely a
typographical error on
the part of the transcription service. If that be agreed
by the Crown then it would surely not be necessary for there to be a formal
amendment to the transcript. In any event, it is sufficient to note that this
Court will proceed on the basis that the closing address
to the jury did not
include that sentence.
- Third,
the applicant has requested an amendment to the transcript of the submissions
made (in the absence of the jury) on 11 May 2018
(T 164) at the point at which
Mr Hughes, Counsel for one of the co-accused (Mr Woods) responded to a question
by the trial judge
as to whether he was there making a submission as to
“the second window for the murder or the disposal of the body”.
The
applicant says that the transcript there fails to record two words (Murder,
murder) that he says were said by Mr Hughes at the
start of his response to her
Honour’s question (Mr Hughes there being recorded as saying “[n]o,
I’m content with
the other direction in relation to the boarded window
[sic; perhaps “broadened window”])” but went on to reiterate
that his submission to the jury was that if the jury were minded or attracted to
the proposition that Mr Karmas left and came back
and was murdered in the
“second window” then that must be something based only on the
writings of Mr Fantakis and not
admissible against Mr Woods and that the jury
would have to pay close regard to the fact that those writings were not
corroborated
by any independent evidence that Mr Karmas returned.
- The
applicant fails to indicate the significance he attributes to the omission of
those two words and it is not necessary here to
make any determination of the
accuracy of the recording in those circumstances.
- Nothing
therefore turns on the complaints made by the applicant as to the accuracy of
the transcript by reference to the audio recordings
from 9-11 May 2018.
- Most
recently, a communication was sent to the associates of the judges who heard
this appeal requesting that Mr Fantakis be kept
privy to all information the
court has received in relation to “this aspect” (what is referred to
as “the altered
transcripts”) “if any news becomes
available” and indicating an intention on the part of Mr Fantakis to file
a
notice of motion seeking orders from the court “to resolve the
discrepancy in the written transcript and to order the production
of the audio
recordings attached to the summing up of the trial”. As already noted,
nothing here turns on the complaints that
Mr Fantakis has agitated as to the
transcript.
“New developments”
- In
the email sent to the judges’ associates on 13 December 2022 on behalf of
Mr Fantakis, in which the issue of the accuracy
of the transcript was again
raised (see above), the Court’s attention was drawn to “new
developments in regard to many
key officers involved in the Fantakis
matter” and, in particular to a decision in relation to another matter
(Spedding v State of New South Wales [2022] NSWSC 1627
(Spedding)). Mr Fantakis requested that this “new
information” be taken into consideration “as the credibility of the
officers
involved was crucial to his case”. The email asserts that what
was found in the Spedding decision would affect Grounds 7( Parts 2-4), 9,
14, 15 and 18 (on the basis that those grounds identify police conduct).
- It
is not apparent that the Crown was copied into that communication with the
court. Nor is it appropriate for Mr Fantakis, after
judgment has been reserved,
to continue to make what are in effect submissions as to appeal grounds already
the subject of submission
at the hearing. The relevance to the present case of
police conduct in other cases is by no means apparent and it is not appropriate
here to entertain this submission (see Eastman v Director of Public
Prosecutions of the Australian Capital Territory [2003] HCA 28; (2003) 214 CLR 318 per
McHugh J at [27]-[31]; Notaras v Waverley City Council [2007] NSWCA 333;
(2007) 161 LGERA 230 at [147]; Nguyen v R [2008] NSWCCA 322 at
[27][-[32].
Non-publication order
- On
24 April 2018, the trial judge made an order pursuant to s 7 of the Court
Suppression and Non-publication Orders Act 2010 (NSW) that any publication
or other disclosure of evidence given in these proceedings which touches on the
New South Wales Crime
Commission, its operation, methodology, role in this
matter before the Court, and witnesses examined by it is prohibited beyond that
which is necessary for the proper administration of the trial presently before
the Court. The Crown submits that it is in the interests
of justice that the
above order continue.
- The
order that the trial judge made remains in force so it is not necessary to make
any further order in that regard.
Conclusion
- Although
in my opinion, leave to appeal would not be warranted for many of the grounds in
isolation, in the circumstances (and noting
the overlapping nature of many of
the grounds) to the extent necessary leave should be granted on all grounds. For
the above reasons,
together with those given by Dhanji J on grounds 4-9 below,
the appeal on all grounds should be dismissed.
- ROTHMAN
J: The following reasons relate only to Grounds 1 and 2, upon which I find
it necessary to make further comment. As to all the grounds
of appeal, I agree
with the reasons otherwise expressed and the conclusions in relation
thereto.
- As
is clear from the manner in which counsel were only reluctantly permitted to
agitate Grounds 1 and 2, by the applicant, on appeal,
the failure of counsel at
trial to raise the issue of mental illness and/or substantial impairment was not
only a forensic decision,
but most obviously also the result of instructions
from the applicant. As has been already expressed by the presiding judge,
whether
or not counsel pursues a case based upon mental illness or substantial
impairment of the mind, the Court may nevertheless be under
a duty to direct the
jury in relation to those issues.
- First,
it is necessary to deal with the criminal responsibility of the applicant. The
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
(“the 2020 Act”) provides that a person is not criminally
responsible for conduct constituting an offence if, at
the time of the conduct,
the person had a mental health impairment or a cognitive impairment (or both)
which had the effect that
the person did not know the nature and quality of the
act or did not know that the conduct was wrong.
- As
has been stated, the test under the provisions of s 28 of the 2020 Act has been
described, including in the Second Reading Speech,
as closely mirroring the
M’Naghten test for the common law defence of
“insanity”. Under this test, a person is presumed sane and, in order
to be found not
criminally responsible by reason of mental illness, the accused
is required to prove that, at the time of the conduct, he or she
was labouring
under such a defect of reason caused by a disease of the mind as not to know the
nature and quality of the act or that
it was
wrong.[1] A disease of the mind is any
disease capable of affecting the mind and includes traumatic injury as well as
psychiatric injury.[2] It must be more
than transitory.
- The
fact-finder must, thus, be satisfied that the person cannot know the nature and
quality of the act or know that the act was wrong.
The onus of satisfying that
test rests on the accused which, if proved, operates as a “full
defence” and a special verdict
of act proven but not criminally
responsible must ensue.[3]
- I
agree with the analysis earlier provided that there is no evidence, direct or
indirect, from which it is possible to conclude —
other than by the
existence of a theoretical possibility — that the applicant, at the time
of the conduct that caused the death
of the deceased, did not know the nature
and quality of his act, or that what he was doing was wrong. Consequently, I
agree that
Ground 1 fails.
- The
more difficult issue relates to the defence of substantial impairment of the
mind, which gives rise to a partial defence and,
in relation to a charge of
murder, would, if proved, result in a verdict of
manslaughter.[4] Substantial
impairment of the mind is a “true defence”, in that the accused
bears the onus of proof, on the balance of
probabilities.[5] In contrast to the
complete defence, for substantial impairment to arise, the understanding of
events, of right and wrong, or of
the ability to control oneself need only be
“substantially impaired”.
- By
operation of s 23A(1) of the Crimes Act, the jury must be satisfied that
the impairment was so substantial as to warrant liability for murder being
reduced to manslaughter
on the basis that the accused suffered such an
impairment and, at the time of the conduct giving rise to alleged criminal
responsibility,
the accused’s capacity to understand events, or to judge
whether the conduct was right or wrong, or to control himself or herself,
was
“substantially impaired” by a mental health impairment, or,
irrelevantly for present purposes, a cognitive impairment.
- In
this context the term “substantially” is used to mean more than
ephemeral or more than significant. In other words,
the impairment must be not
insignificant; it must be, at least in part, efficacious or causative. The term
“substantially”
and/or “substantial” has two quite
distinct meanings:
“The word ‘substantial’ is not only susceptible of ambiguity;
it is a word calculated to conceal a lack of precision
... [I]t can, in an
appropriate context, mean real or of substance as distinct from ephemeral or
nominal. It can also mean large,
weighty or big. It can be used in the relative
sense or can indicate an absolute significance, quantity or
size.”[6]
- Otherwise
stated, the term substantial or substantially can either qualify the totality of
that which is described or qualify its
insignificance. In other words, the term
can be used to qualify existence at all and is used, in that sense, in
contradistinction
to the term “nominal” or
“ephemeral”.[7]
- The
second meaning, which, in the circumstances of this legislation is not the
preferred use of the term, is that the word “substantial”
or
“substantially” means “in substance” and is used to
qualify the totality of a class or quantity. In that
sense, it is used to mean
“essentially” or “essential”, for example
“substantial compliance”
or “substantially
all”.[8]
- Given
the context of the term “substantial impairment” and/or
“substantially impaired”, the term is not being
used in the sense of
meaning essentially totally impaired, otherwise the test would be so similar to
the test for insanity that it
would have little or no work to do. Thus, the term
“substantially impaired” means impaired in a manner which is real
and not ephemeral; where the impairment is a cause, or one of the causes, of the
state of mind or conduct.
- However,
the fact-finder must also be satisfied that the impairment was “so
substantial as to warrant liability” being
reduced. In that sense, the
term is used to mean “significant” such as to justify an acquittal
for murder (that, presumably,
would otherwise be proved), and a conviction for
manslaughter substituted instead. Of course, manslaughter is still a most
serious
offence and involves the felonious or unlawful taking of human life. It
carries a maximum sentence of 25 years imprisonment.
- The
circumstance that the accused bears the onus of proof, on the balance of
probabilities, as to the existence of the substantial
impairment and its effect,
does not relieve the trial judge of the requirement of directing the jury on the
question of substantial
impairment when the occasion arises, even though the
accused may not have raised the defence nor sought from the trial judge a
direction
of that kind. The principles which bind a trial judge have already
been expressed by Ward ACJ.
- In
terms of the material that was before the Court, for the defence of substantial
impairment to arise, it is unnecessary to have
expert psychiatric or
psychological evidence. Indeed, expert evidence to the effect of the ultimate
conclusion, namely that the impairment
was so substantial as to warrant
liability for murder being reduced to manslaughter, is not admissible in the
trial.[9] The fact-finder can be
satisfied of the substantial impairment and the requirements of the provision
from the conduct of the accused
and the surrounding circumstances. Thus, a
fact-finder is capable of drawing inferences from all of the evidence otherwise
before
the Court.
- The
evidence has been summarised accurately and appropriately in these reasons by my
learned colleagues, and it is unnecessary to
repeat that summary or that
evidence. For present purposes it is sufficient to deal with, by way of
emphasis, some short aspects
of that summary, in the context of the whole of the
evidence.
- First,
there is the evidence of Ms P Mantas as to the applicant’s conduct and
behaviour at the birthday party of Ms A Mantas,
her daughter. That birthday
party was 7 August 2011, shortly before the date, 11 August 2011, that the Crown
was alleging was the
date of the murder. Ms P Mantas noticed that the applicant
was “down” and depressed, following her observation of a number
of
times after the death of his brother when the applicant was “quite
down”.
- The
evidence of Ms A Mantas (then 16 or 17 years of age) is that she did not
particularly notice a change in the applicant’s
mental state towards the
end of 2011 and into 2012.
- Dr
Saker first saw the applicant on 4 November 2011, approximately three months
after the death of Mr Karmas. His opinion of the mental
state and condition of
the applicant varied, and he considered the applicant’s mental state as
becoming more serious over the
years.
- It
is fair to say, summarising further the evidence previously outlined, that at
least from 4 November 2011, the applicant had a major
depressive episode and
probably a differential diagnosis of an adjustment disorder with depressed mood.
That depression continued
throughout.
- By
January 2012, the applicant was described as having “paranoid over-valued
ideas about a police conspiracy”. While at
one stage Dr Saker contemplated
that the applicant might be suffering from schizophrenia, on 19 July 2013,
he expressed the view
that the applicant did not have schizophrenia but has
suffered short periods of psychosis when under intense pressure, and short
periods of depression, anxiety and despair.
- The
oral evidence of Dr Saker was that the extent to which the applicant was
displaying psychosis was transient. Of course, the transient
nature of the
psychosis does not mean that, at the time of the conduct giving rise to the
death of Mr Karmas, the applicant was not
suffering some form of psychosis.
- That
which is most disturbing is that the applicant plainly had delusional beliefs,
which may have been psychotic. The Crown relied
upon the delusional beliefs as
motivating the applicant to murder Mr Karmas.
- Professor
Greenberg, who did not examine the applicant, could not diagnose the applicant
but said that he most likely met the criteria
for having a paranoid delusional
disorder, culminating in a psychosis in late 2012 or early 2013. This, of
course, was well after
the death of Mr Karmas.
- As
earlier stated, the Crown relied upon the delusional beliefs of the applicant as
motivating him to kill Mr Karmas. Further, a trial
judge is bound, as the
extracted principles and citations make clear, to put to a jury, in a criminal
trial, every lawfully available
defence open to the accused on the
evidence.
- The
earlier comments relying upon observations of the Full Court of the Supreme
Court of Victoria, in Shields, supra, ought not to be used as elevating
the failure, or acquiescence, of counsel for an accused to an independent basis
upon which
it could be said that the trial judge need not have put the defence
of mental impairment or substantial impairment to a jury. Either
the evidence
that is before a court is sufficient to require the direction to be given
— or raises the possibility in a way
that it is appropriate, even if not
required, that a judge provide direction as to the availability of substantial
impairment —
or it does not.
- If
it does not — in other words, if there is no evidence upon which mental
impairment would arise or no evidence upon which
substantial impairment could
arise — it is unnecessary and inappropriate for a trial judge to provide
directions of that kind.
On the other hand, if there is sufficient evidence,
such that a jury is capable of drawing the inference, on the balance of
probabilities,
that the applicant was substantially impaired, a trial judge is
required to direct the jury on the availability of substantial impairment
and a
verdict of manslaughter on that basis.
- There
will be circumstances where the evidence will be such that it is insufficient to
“require” a direction on substantial
impairment, but may be enough
to permit an appropriate direction on substantial impairment, even though the
trial judge may take
the view that the evidence is insufficient to give rise to
the defence. It is then for the jury to draw inferences. In other words,
even
though the evidence may not amount to sufficient to require a direction, there
may be enough evidence to permit an appropriate
direction on substantial
impairment, as a matter of evaluation by the judge.
- In
her summing up, the trial judge in the applicant’s trial referred to the
Crown case and the mental state of the applicant
as being one that was
“out of touch with reality” and that the conduct of the applicant in
causing the death of Mr Karmas
was “under sway of that
delusion”.
- Thus,
to summarise the effect of the evidence, there was no direct evidence that, at
the time of the applicant’s conduct, the
applicant was suffering a mental
condition or psychosis that substantially impaired his capacity to understand
right from wrong;
substantially impaired his capacity to control his conduct
(which factor does not seem to be directly relevant); nor substantially
impaired
the applicant’s capacity to understand the events. Ordinarily, the
circumstance that a person believes (rightly or
wrongly) another killed a close
relative is not, in the absence of an impairment as to that which is right or
wrong, a justification
for taking a life.
- In
this case, the conduct and attitude of the applicant was rendered more obvious
by the fact that the applicant reported his beliefs
to police. In other words,
the belief, delusional or otherwise, that a person has killed a close relative
or friend is not, without
an impairment of that which is right or wrong, such
that it would warrant, ordinarily, the reduction of criminality from murder to
manslaughter. Nevertheless, where there is a psychosis, or an inference may be
drawn that there was a psychosis or a developing psychosis,
such a reduction in
criminality may be warranted.
- As
has already been explained, in and of itself, a delusional belief is not an
impairment of the mind. Many persons have delusional
beliefs. Many, for example,
suspect and believe, incorrectly, that a partner is or has been unfaithful. Such
a delusional belief
does not justify a reduction in criminality.
- However,
delusional beliefs range in seriousness from the trivial to the most serious,
which, in the latter category, may give rise
to a rational view that the
delusion is so marked and serious as to evidence, or from which to infer, an
impairment of the mind.
- Because
the foregoing refers to inferences that may be drawn by the fact-finder, it is
appropriate to expand on how and in what circumstances
inferences may be drawn
in a criminal trial. The drawing of inferences has been described as
“plain
commonsense”.[10]
- In
Fabre v Arenales, Mahoney JA, (with whom, relevantly, Priestley and
Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel
(at 312) and, at length, of Windeyer J in Jones v Dunkel (at
320-321), said, in relation to the drawing of inferences:
“There is in this nothing esoteric or peculiar to legal reasoning. It is,
as Windeyer J said, ‘plain commonsense’.
A factual inference (if A,
B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J,
‘human experience would
be contradicted if’ Z did not exist: see the
cases referred to in Jones v Southerland Shire Council (at 222 et seq).
It follows that the inference will or may be drawn if general human experience
(plain common sense) will not be
contradicted if the inference be
drawn.”[11]
- The
drawing of inferences in civil and criminal proceedings was explained more fully
by Sir Frederick Jordan CJ, in Carr v Baker (1936) SR (NSW) 301, where
his Honour said:
“In a Court of justice, the question whether a particular fact has been
proved must be determined by considering evidence and
seeing whether the
existence of the fact is probable in the light of that evidence. In a civil
matter, it is necessary, in order
that a fact may be regarded as established,
that the evidence should be such that it is more probable that it exists than
that it
does not. The position is the same whether the evidence is direct or
circumstantial. In a criminal matter, it is necessary, if the
fact is to be
proved by the prosecution, that the evidence should be such that not only is it
more probable than not that the fact
exists, but that there is no reasonable
probability that it does not: it must be proved that it is so probable that no
reasonable
doubt exists that it is the fact.... It has been clearly and
emphatically laid down ... that in no case can a fact be
regarded
as established unless its existence is at least a reasonable inference
from some matter proved in evidence. It is not sufficient
that there should be
some ground for conjecturing that the fact exists. There must be evidence
affording ground for treating it as
existing as a matter of inference and not of
conjecture. The existence of a fact may be inferred from other facts when those
facts
make it reasonably probable that it exists; if they go no further than to
show that it is possible that it may exist, then its existence
does not go
beyond mere conjecture. Conjecture may range from the barely possible to the
quite possible. Inferences of probability
may range from a faint probability
– a mere scintilla of probability such as would not warrant a finding in a
civil action
– to such practical certainty as would justify a conviction
in a criminal prosecution.... It is well established that if there
is no piece
of evidence which, taken at its highest, is more than equally consistent with
the existence and with the non-existence
of a fact, it cannot be treated as
established. This situation may arise in two different ways. First, there may be
no piece of evidence
which suggests that the existence of the fact is more than
possible. In such a case, since there is nothing to show whether the
existence of the fact is probable or not, it is just as likely
that it does not exist as that it does. There is no probability
either way; and
nothing equals nothing. ... There may, however, be a case in which the evidence
is such that in some aspects it raises
a probability that the fact exists, and
in other aspects it raises a probability that it does not. If, in such cases,
the two countervailing
probabilities are in perfect equipoise, the fact cannot
be treated as established.”
[12] (Citations omitted).
- Drawing
an inference is different to conjecturing, even on the balance of probabilities.
Inferences must be based upon
evidence.[13] Yet the trial judge is
required to ensure that the Court directs the jury in a manner that is
“astute to secure for the accused
a fair trial”, by directing on
“both ... the law and the possible use of the relevant facts upon any
matter the jury
... could base a verdict in whole or in part”.
[14] But that direction relates to
assistance as to available findings “on the
evidence”.[15]
- The
material before the Court in this trial includes proved delusional beliefs
possessed by the applicant and a later diagnosed psychosis.
It would not be
irrational to conjecture that the psychosis existed earlier and was
causative of the delusions. However, it would also not be irrational to
infer, on the material, that the psychosis developed much later, if it
did develop, and there was no substantial or causative impairment
of the mind
affecting the applicant’s conduct.
- To
return to the analysis of Jordan CJ, the notion of “equipoised”
conclusions is particularly difficult and a fine judgment.
It involves a Boolean
or binary, mathematical approach to the evaluation of probabilities. From the
applicant’s perspective,
the “inference” of substantial
impairment and no substantial impairment would be “equipoised”. A
better analysis
may be to recognise that, since each of the existence and
non-existence of a psychosis at the relevant time is available, neither
inference can be drawn in a manner that satisfies the applicant’s burden
of proof at the trial.
- Ordinarily,
that assessment or inference is for the jury to decide; not the trial judge.
Where the conflicting inferences are equipoised,
no inference can be drawn, and
it cannot be said that a trial judge is “required” to give a
direction as to the existence
of a substantial impairment defence, even if the
judge chooses to do so. Where a reasonable possibility exists from which a jury
might, in applying its community standards, infer a result that there was
substantial impairment of the mind, it would be advisable
in most circumstances
to direct on the subject matter, including, of course, on the onus of proof and
its burdens.
- It
will be a rare circumstance for a judge to determine, as a matter of law, that
an inference cannot arise because the competing
possible inferences are
“equipoised”, or that one of them cannot be drawn. This is, in part,
because the drawing of the
inference is “common sense” and is, in
ordinary circumstances a matter that should be left to the jury. This trial is
one of those rare instances, assuming the trial judge considered the issue
despite the absence of any submission or request, where
her Honour was not in
error in the result and, as stated, did not deprive the applicant of the
possibility of the lesser alternative
verdict of manslaughter.
- Trials
for serious criminal offences are generally conducted before a jury because the
jury brings its common experience, common sense
and sense of justice to the
determination of the facts necessary for criminal guilt. A jury is entitled,
notwithstanding the law,
to bring a sense of communal justice to its
fact-finding and the determination of a verdict.
- To
emphasise this point, it may be helpful to consider the following scenario. Even
if, on the evidence before the Court of the delusional
beliefs of the applicant,
there may have been insufficient material to draw an inference that it was more
probable than not that
the applicant suffered substantial impairment of the mind
(as a matter of law), the jury may have formed the view that it was appropriate
to return a verdict of the alternative crime of manslaughter — as a matter
of mercy, justice, and/or community standards —
rather than the more
serious crime of murder. In all circumstances that outcome is theoretically
possible, rendering it desirable,
even though not a requirement, for the judge
in a trial such as this to direct the jury on substantial impairment.
- Frankly,
I am somewhat disquieted that, in this case, the direction was not given. Were I
to have turned my mind to the issue at a
trial, on this evidence, and
particularly having regard to what I have said in the paragraph immediately
above, I would have directed
on the availability of substantial impairment. But
on an appeal the test is not what I would have done at trial. Rather, it is
whether
the trial judge was required to leave the defence.
- In
this case, there was no requirement on the trial judge to direct on the
availability of manslaughter by reason of substantial impairment.
Given the
foregoing conclusions, and the onus on the applicant at trial, it cannot then be
said that the trial judge erred in failing
to give the direction. The failure
did not, on the evidence, deprive the applicant of an opportunity for an
acquittal and did not
involve a miscarriage of justice. Nevertheless, it may
have been desirable and appropriate to provide such a direction. It is not
for
the Court, on appeal, to insist upon the exercise of a discretion, available to
a trial judge, to provide such a direction in
circumstances where the law does
not require such a direction.
- As
to whether the impairment was “so substantial” to warrant a
reduction in the seriousness of the offence — if
such an impairment were
to have existed and were, in whole or in part, causative — that evaluation
is quintessentially for
the jury, based upon its understanding of community
standards.
- As
a consequence, Ground 2 of the appeal must fail and I agree with the reasons and
conclusion of Ward ACJ that Grounds 1 and 2 should
be dismissed and otherwise.
Since the drafting of these reasons, I have had the opportunity to read the
reasons and conclusions of
Dhanji J and I agree with them.
- DHANJI
J:
Grounds 1 and 2
I have had the considerable advantage of reading the reasons of Ward ACJ and
Rothman J in draft. Ward ACJ has comprehensively set
out the evidence and
submissions relevant to this ground. Having regard to what has been said by both
Ward ACJ and Rothman J, my
reasons can be brief.
- The
trial proceedings were adversarial. Thus, it was for the parties to decide the
evidence to be led, and for the applicant to determine
what aspects of the Crown
case with which to take issue. There are limits, however to the adversarial
quality of a criminal trial.
In the present case it was not suggested that the
trial judge was obliged to interfere with the general principle of adversarial
justice that it is for the parties to determine the evidence to be called: cf
Apostolides v The Queen (1984) 154 CLR 563; [1984] HCA 38; R v
Damic [1982] 2 NSWLR 750. The adversarial nature of a trial does not
generally, and did not here, absolve the trial judge of the responsibility to
leave a
defence that is, on the evidence, viable, even if contrary to the
express position of an accused.
- The
result of the above is that, after a trial at which the applicant denied any
responsibility for killing the deceased, and at which
the jury found that the
applicant was guilty of the murder, he now seeks a new trial on the basis that
the trial miscarried because
the trial judge failed to leave to the jury the
defence of mental illness (ground 1), or the partial defence of substantial
impairment
(ground 2). Both those defences are predicated on the
applicant’s responsibility for the killing. In the event that he is
successful
on either of these grounds the result will be a new trial. Based on
his conduct of the trial and this appeal, it is clear that at
any new
trial he will contest responsibility for the killing. No doubt he will
additionally, seek to actively contest evidence supporting
the existence of a
mental illness or abnormality at the time of the alleged killing on the sound
forensic basis that a jury might
reason that he was more likely to have killed
the deceased if his mental health was impaired at the time.
- Despite
it being unattractive, the prospect of returning a matter for trial on a basis
it is anticipated the applicant will then actively
contest is not a relevant
consideration in determining the appeal. The applicant was entitled to a fair
trial. If there was a viable
case for a defence of mental illness or substantial
impairment, a fair trial required that the jury decide those issues. The
principles
in this regard have been set out by Ward ACJ and are not in issue.
The failure to leave either defence in circumstances where there
was evidence
capable of supporting it would amount to a miscarriage of justice.
- The
line as to whether a particular defence has been raised on the evidence can be
difficult to draw. As a result, at first instance,
it is natural for trial
judges to err on the side of caution in determining whether a defence should be
left: see Masciantonio v The Queen [1995] HCA 67; (1994-1995) 183 CLR 58 at 67-68;
[1995] HCA 67. On appeal, however it is necessary to determine not whether the
defence could have been left but whether it was required to be left.
In this
regard the appellate court “must apply the test with as much exactitude as
the circumstances permit”: Lee Chun-Chuen v The Queen [1963] AC 220
at 230, quoted in Masciantonio v The Queen at 68.
- In
the present context it is significant to observe, as Rothman J points out, that
the defence of mental illness and the partial defence
of substantial impairment
are true defences in that, in each case, the onus is on the accused to establish
the defence and to do
so on the balance of probabilities. Thus, it is not enough
that the evidence does not exclude the possibility that the applicant
had a
defence of mental illness or a defence of substantial impairment available to
him. Evidence which leaves open the reasonable
possibility of a fact, is very
different from evidence from which the positive inference can be drawn as to the
existence of a fact.
- An
inference must be logically based, that is, it must bear some logical
relationship to the evidence from which it proceeds: see
Holloway v
McFeeters (1956) 94 CLR 470; [1956] HCA 25; Peacock v The King [1911] HCA 66; (1911)
13 CLR 619 at 661; [1911] HCA 66. It must be based on more than mere conjecture:
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]. In
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, Bathurst CJ
(at [109]-[110]) referred to the “very real” distinction between
inference and speculation and said:
“109 In Seltsam Pty Ltd v McGuiness; James
Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262,
Spigelman CJ considered this very question. He acknowledged that it is often
difficult to distinguish between permissible
inference and conjecture. Quoting
from Jones v Great Western Railway Co (1930) 144 LT 194, his
Honour adopted a definition of inference as “a deduction from the
evidence” which, if reasonable, may have the validity
of legal proof.
110 He referred also to Caswell v Powell Duffryn
Associated Collieries Ltd [1940] AC 152, quoting as follows:
“Inference must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
facts from which to infer
the other facts which it is sought to establish. In some cases the other facts
can be inferred with as
much practical certainty as if they had been actually
observed. In other cases the inference does not go beyond reasonable
probability.
But if there are no positive proved facts from which the inference
can be made, the method of inference fails and what is left is
mere speculation
or conjecture.”
Spigelman CJ stated the test as:
“... whether, on the basis of the primary facts, it is reasonable to draw
the inference.”
To similar effect were observations of Gibbs, Stephen and Mason JJ
in Barca v The Queen [1975] HCA 42; 133 CLR 82 at
104-105.”
- Returning
to the present case, the applicant’s approach at trial, in denying all
responsibility for the killing, had an obvious
impact on the evidence led at
trial, and consequently the evidence available to this Court to determine the
question of whether there
was a basis on which a positive inference could be
drawn as to the matters required to establish a defence of mental illness or
substantial
impairment on the balance of probabilities.
- The
potential defences of mental illness and substantial impairment raise similar
issues. With respect to the defence of mental illness,
the applicant accepted
that, on the (contested) assumption that he killed Mr Karmas, he would likely
have known the nature and quality
of his act. The issue in relation to mental
illness therefore was whether he knew his act was wrong. Knowledge of whether an
act
was right or wrong is also relevant to the test for substantial impairment.
The bar is, however, lower for the applicant with respect
to substantial
impairment and it is therefore convenient to consider this question first.
- The
defence is provided by s 23A of the Crimes Act 1900 (NSW). Section
23A(1), which has been set out above but reproduced here for convenience,
provides:
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to
be convicted of murder if:
(a) at the time of the acts or omissions causing the death
concerned, the person’s capacity to understand events, or to
judge whether
the person’s actions were right or wrong, or to control himself or
herself, was substantially impaired by an
abnormality of mind arising from an
underlying condition, and
(b) the impairment was so substantial as to warrant liability
for murder being reduced to manslaughter.
- As
Rothman J points out, the test in s 23A(1)(b) is “quintessentially a jury
question” (an expression discussed by me in Reyne (a pseudonym) v R
[2022] NSWCCA 201). In the event that there was evidence to satisfy s 23A(1)(a),
it may be that a trial judge will choose to direct a jury as to the defence of
substantial impairment.
- The
applicant did not here contend that the evidence was capable of establishing his
capacity to understand events was impaired (AWS
[28]). Thus, for the purposes of
this appeal the question that arises is whether there was evidence capable of
satisfying a jury
on the balance of probabilities that, as at 11 August 2011,
the applicant suffered from an abnormality of mind arising from an underlying
condition which substantially impaired his capacity:
- (1) to judge
whether his actions were right or wrong; or
- (2) to control
himself.
- An
“underlying condition” is defined in s 23(8) to mean “a
pre-existing mental or physiological condition, other than a condition of a
transitory kind”.
- It
is clear that sometime after 11 August 2011, the applicant was suffering from a
mental illness that would constitute an abnormality
of mind as a result of a
“pre-existing mental or physiological condition, other than a condition of
a transitory kind”.
There was, however, a question as to when this
abnormality of mind first manifested itself, and in particular whether it was
present
as at 11 August 2011.
- It
is also clear that, while the medical evidence left matters in an uncertain
state with respect to the applicant’s mental
status as at 11 August 2011,
the Crown case was that the applicant was suffering a delusional belief at that
time. The trial judge
put the Crown case to the jury as follows:
“the Crown says that Mr Fantakis had, in the period between late May and
early August 2011, become convinced that Maria Angeles
and Sam Karmas had
murdered Nicholas Fantakis, and possibly posed a threat to Mr Fantakis and his
mother, and under the sway of that
delusion, he threatened to kill
Mr Karmas and then did so.”
- And
further:
“The Crown’s case [is] that [the applicant was] in a state of mind
which left him out of touch with reality. Mr Fantakis
came to hold the belief
that Mr Karmas acting in concert with Maria Angeles, had murdered his
brother, in May 2011.”
- I
accept that the fact that a person has a delusional belief does not mean that
they are suffering an abnormality of mind within s 23A of the Crimes Act.
Delusional beliefs as to, for example, a person’s own abilities, or the
prospects of their favoured sporting team are not
uncommon. Less prosaic
delusions, such as conspiracy theories, inhabit the minds of persons not
affected by an abnormality of mind
within the provision. However, when I have
regard to the particular nature of the delusions in this case, the timing and
impact of
the deaths of the applicant’s father and brother, the evidence
of Dr Saker together with the fact that the applicant was, after
11 August 2011,
suffering from serious mental illness, in my view it is a rational inference
that the delusions he suffered as at
11 August 2011 were the product of, at
least, an emerging mental illness. While I accept that this is not the only
inference necessarily
available, I, like Rothman J am conscious of the role of
the jury and, in addition am mindful of the advantage of the jury in not
only
seeing and hearing witnesses, but seeing and hearing the evidence unfold over
the length of the trial: Fox v Percy (2003) 214 CLR 118; [2003] HCA
22.
- The
question that then arises is whether there is evidence to sustain an inference
that the applicant’s capacity to judge whether
his actions were right or
wrong or to control himself were substantially impaired.
- I
would not regard evidence that the applicant sought to avoid liability as
probative of a capacity to understand right or wrong.
An awareness that the act
will be seen as wrong by others, including those tasked with enforcement of the
law, does not answer the
question of the applicant’s own capacity to judge
right from wrong: Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 368; [1952]
HCA 56. But it is also clear that the simple fact of an abnormality of mind
cannot satisfy section 23A(1).
- In
the context of mental illness, the concept of knowledge of wrongness requires
that the illness “so governed the faculties
at the time of the commission
of the act that the accused was incapable of reasoning with some moderate degree
of calmness as to
the wrongness of the act or of comprehending the nature or
significance of the act of killing”: Stapleton v The Queen at 367.
The test is necessarily less stringent in the context of substantial impairment
(or the section, or at least this aspect of
it, would have no work to do). It
remains the case, however, that while an inference of mental abnormity is
available, the nature
and impact of the illness as at 11 August 2011, apart
from the existence of delusional belief, is, as a result of the manner in which
the case was run, quite uncertain. Further events, such as the police
investigation, and on the basis on which the ground is premised,
the applicant
having killed Mr Karmas, were additional stressors after 11 August
impacting on his mental state.
- Not
only was there no exploration of the impact of any mental abnormality extant as
at 11 August 2011 generally, there was no exploration
of its impact on the
applicant’s capacity to understand right or wrong. It does not follow from
a delusional belief that Mr
Karmas killed the applicant’s brother, that
the applicant did not understand that it was wrong to kill Mr Karmas or that his
understanding of this was impacted by any abnormality of mind. It was not
submitted that the fact (or, for the purposes of this ground,
assumption) that
the applicant killed Mr Karmas was probative of a lack of understanding of right
and wrong. It would be an odd result
if the fact of killing, in and of itself,
could be evidence of a lack of responsibility for killing (or even a lack of
responsibility
so as to reduce murder to manslaughter).
- I
accept the summing up put the Crown case to the jury on a basis that included a
delusion that Mr Karmas posed an ongoing threat.
The basis for any belief held
by the applicant that Mr Karmas “possibly posed a threat to [him] and his
mother” is not
altogether clear, at least as to its existence as at 11
August 2011. It does not appear to have been relied on by the Crown in closing.
But even if it be the case that the applicant “possibly” perceived a
threat, it is still not possible to know the impact
that belief may have had.
While I accept the imprecision inherent in a test such as
“substantial”, it requires, at least,
the presence of evidence from
which the impact of the mental abnormality can be judged. That was absent in
this case.
- The
same analysis applies with respect to whether the evidence was capable of
sustaining an inference on the balance of probabilities
that the
applicant’s capacity to control himself was substantially impaired.
- Having
regard to what I have said above, I am of the view that the evidence was not
such as to oblige the trial judge to leave the
partial defence of substantial
impairment, or the defence of mental illness, to the jury. It follows there was
no miscarriage of
justice in her Honour not doing so and grounds 1 and 2 must
fail. I would grant leave to rely on these grounds but would dismiss
them.
- Before
leaving these grounds, I note that on the analysis above, I accept the
possibility remains that the applicant is not criminally
responsible for the
killing, or potentially, not guilty of murder but guilty of manslaughter. There
is necessarily some disquiet
that arises as a result. A new trial would not,
however, remedy this. As discussed above, it is overwhelmingly likely that at
any
new trial the issue would remain the applicant’s responsibility for
the killing and, accordingly, the applicant is likely to
eschew any suggestion
he was suffering a mental illness or abnormality as at 11 August 2011. It is
therefore unlikely that any evidence
as to the applicant’s mental state at
that time will be of any greater assistance with respect to the question of a
defence
based on the applicant’s mental illness or abnormality. If
evidence does become available which would allow consideration of
the questions
posed by a mental illness defence or a defence of diminished responsibility, the
applicant has other avenues that remain
available to him.
Grounds
4 and 5
- Grounds
4 and 5 of this appeal are as follows:
“Ground 4: The Crown did split/shift its case depriving the applicant of a
fair trial, causing the trial to miscarry.
Ground 5: Miscarriage of justice did occur by her Honour leaving to the jury a
possible basis of conviction which had not been relied
upon by the Crown and Mr
Price.”
- The
applicant contends pursuant to ground 4 that he was deprived of a fair trial as
a result of the prosecutor advancing “a
conceptually different case theory
for the first time in its closing submission”. He submits that the case
until that point
had been run on the basis that the applicant murdered
Mr Karmas between 1:50pm and 3:07pm while in the presence of Mr Cheong. He
complains that the prosecutor in closing advanced, in the alternative, the
proposition that Mr Karmas left the Wilga Street Property
earlier in the
afternoon and returned around 5pm and was then killed by the applicant. This
proposition was referred to as “the
5 o’clock theory”. Ground
5 relates to the same issue but is directed to the trial judge leaving the 5
o’clock
theory to the jury as a possible basis for conviction, or at
least, not directing the jury that the Crown must prove that Mr Karmas
was
killed between 1:50pm and 3:07pm. Given the close relationship between these
grounds it is convenient to deal with them together.
- To
understand the applicant’s complaint, it is necessary to set out the
manner in which the Crown case was formulated. The indictment
was in the
following terms:
“On 26 February 2018, the Director of Public Prosecutions on behalf of Her
Majesty charges that
Elefterios FANTAKIS
1. On 11 August 2011 at Punchbowl in the State of New South Wales did murder
Elisha KARMAS.”
- While
the indictment did not particularise the Crown case beyond the date and the
suburb, it does not follow that the case, at least
by the time it reached the
jury, was so unconfined. To determine the question of miscarriage, it is
necessary to understand something
more as to the case the applicant understood
he was required to meet. The Crown case statement, served on the applicant and
filed
with the Court stated as follows:
“The Crown case is that [the applicant] murdered Sam Karmas at [the Wilga
Street Property], on 11 August 2011, sometime between
1:50pm and 3:45pm.”
- On
the Crown case, Mr Cheong was present at that time. Mr Cheong’s presence
and consequent (inferred) knowledge of the murder,
coupled with actions
allegedly taken by him to assist the applicant with respect to removing the body
and eliminating evidence, were
the foundation for the Crown case against Mr
Cheong as an accessory after the fact to the murder by the applicant.
- The
Crown’s opening to the jury was consistent with the Crown Case Statement,
and made it clear that it was the Crown case that,
after Mr Karmas arrived at
the Wilga Street Property on 11 August (for the first and only time) “Mr
Karmas never left the property
alive” (T123.7-20).
- Ultimately,
by the close of the Crown case, the period during which it was alleged Mr Karmas
was killed had been refined to 67 minutes.
This was based on images captured by
a security camera showing the applicant’s blue van entering and leaving
Wilga Street (on
the Crown case, entering with the applicant, Mr Cheong and Mr
Karmas, and leaving with the applicant, Mr Cheong and possibly, Mr
Karmas’ body).
- The
applicant’s understanding of the case by the time he came to give evidence
(and that of his counsel) was plain. When his
counsel asked him, referring to
the 67 minute window, “You understand that the Crown case is that the
murder happens in this
period of time ...”, the applicant acknowledged
this to be the case (T 2311.28-30).
- In
the course of the trial, the Crown tendered various documents (written and audio
recordings) which contained admissions made by
the applicant. In some of those
documents the applicant, while admitting to doing violence to Mr Karmas, said
that Mr Karmas had
left the Wilga Street Property that afternoon, prior to
returning around 5pm, which was inconsistent with the case that Mr Karmas
was
killed in the period during which Mr Cheong was at the premises. There was
evidence Mr Karmas had made arrangements to meet his
brother Mr George Karmas
between 2pm and 4pm. Mr George Karmas gave evidence of the arrangement but said
he did not keep the appointment
or notify his brother. There was also evidence
he had arranged to meet his friend, Khaled Charawani, for a walk, although the
time
of that arrangement was less clear. It is possible that Mr Karmas left the
Wilga Street Property to meet his brother and returned
after his brother failed
to turn up. However, the absence of any evidence from Mr George Karmas that his
brother called him to enquire
of his whereabouts might be thought to cast doubt
on this possibility.
- The
Crown, in closing said (T 2430.45-2431.24):
“Ladies and gentlemen can I take you to the next topic which is Mr
Fantakis’ admissions? Can I refer you to exhibit CF,
which is the document
entitled, “On this particular day,” para Z, “Sam’s
message told me that he was watching
the house.” Now this, and I
won’t read what comes before then but in this particular document on this
particular day
Mr Fantakis has said that Sam Karmas has left. Now you’ll
recall his evidence and also what he told the police, and also Mr
Cheong told
the police also that when the three of them arrived at Wilga Street for the
purposes of unloading the blue van of those
two items of furniture, they get
inside the house or at the front door or whichever version you accept and then
Sam says, “Look
I’ve forgotten something, I’ve got to go,
I’ll see you later.”
In this particular document which is headed, “On this particular
day,” exhibit CF, Mr Fantakis says that after Sam leaves,
and it’d
be my submission to you that Sam Karmas never left [the Wilga Street Property]
after they arrived there, that is after
he, Mr Cheong and Mr Fantakis arrived Mr
Sam Karmas never left there, never walked away from there, however Mr Fantakis
says in these
writings, para Z,
“Sam was coming. Down the side to gain entry via the back door as the
front was closed.
I left the back door open and he had no choice but to enter. I observed he was
holding something in his hand.
As he passed me I kicked him off his feet. II punched him in the throat to
prevent him from breathing & screaming. And then grabbed
a tazer that he was
carrying.
I used his own weapon to incapacitate him and had him strapped.
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.
I had torchered him until he spilled his guts on all that are involved in this
machine of killing[s].”
Ladies and gentlemen I’ll come to Mr Fantakis’ evidence later and
the evidence of the psychiatrist. My submission to
you is well you might say
well did Sam Karmas confess to Mr Fantakis or is that just a product of his
delusion? Did Mr Sam Karmas
leave as Mr Fantakis has said in these writings or
is that what really happened? Ladies and gentlemen, my submission to you about
that is that Mr Fantakis has told this version, that is the version that Sam
left and had to leave on a number of occasions, and
my submission to you is that
that was a lie, that didn’t happen. In these writings that he told you in
evidence were for therapy,
I’d suggest to you that you can accept some of
what he said there is what happened and some of what he said there is a product
of his delusion, and you might think well Mr Crown, you can’t have it both
ways.”
- The
address continued (at T 2458.30-45):
“... When you take into account the time that the blue van enters Wilga
Street and then leaves Wilga Street. The blue van was
at Wilga Street for 67
minutes.
Exhibit CO, the JUS Tiles stills. 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. Mr Cheong said the van
couldn’t
be unloaded because Sam was not there. Well you might think well
how long would it take to unload that van?”
- Subsequently,
the prosecutor referred to the possibility that Mr Karmas left and returned, or
as it came to be described, “the
5 o’clock theory” (T
2459.4-37):
“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
[the Wilga Street Property] 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.”
(emphasis added)
- As
noted above, the Crown case, to this point, had been that the murder occurred in
the 67 minute window between 2pm and 3:07pm. The
alternative, that Mr Karmas
left and came back in the afternoon was, as the prosecutor acknowledged above,
fatal to proof of knowledge
of the murder on the part of Mr Cheong.
- The
applicant’s counsel, in his closing address, responded to this part of the
closing address as follows (T 2643.7-2644.2):
“Again, there’s alternate theory which is that on some of the
writings of Mr Fantakis Mr Karmas comes in, goes out, Mr
Fantakis takes Mr
Cheong home, comes back, at some point Mr Karmas returns, but if you look
carefully at that material Mr Karmas
is said to have returned with a taser,
which is just fanciful, frankly. There’s no reason - if you’re
thinking of all
of the evidence you’ve heard about Mr Karmas,
there’s no way, ladies and gentlemen, in my submission to you you would
think that he would return with a taser. That’s the process of a
delusional mind that you see in those writings. That’s
what I say about
those writings and recordings.
Also, the Crown left it to you and say, “Well”, you know,
“possibly that’s the case that this is what occurred”,
but
again, as I say there’s that part of the writings, at CG, is the part
that’s in evidence before you of the taser,
disabling, torturing Mr Karmas
and can I say that when you read this, which is quite - I appreciate it’s
a bit difficult to
read, but if you read that material it includes that Sam is
supposed to have revealed that Anna, Maria and Detectives Blanch and
McGee were
involved somehow and the chip was put in Nick’s head to make him mad.
It’s delusional material and it’s
obviously the case that no police
officer was involved in any criminal activity. There’s no chips in
people’s heads.
There’s no organs being bought and sold by the
coroner or any of that material. This is, as you’ve heard from the
psychiatrists,
there was a point in time at which Mr Fantakis developed a mental
disorder and I say that when you look at the writings and the recordings,
that’s what you’ll see in there, that’s it playing out.
But even in that series of delusional recordings and CG is one of the classic
versions of that, there’s no writings there that
Mr Fantakis says,
“Oh and I killed him”. He says, “I tied him up”. You
heard from Detective Brennan who went
through all the material saying there was
never a suggestion of a killing. There was nothing either about where the body
was taken
and disposed and how and the like. So, these delusional rantings, if I
could put it that way, even had a sort of cul-de-sac around
them where it stops
at a certain point and doesn’t lead onto actually having harmed Mr Karmas
to the point where he died.
Going back to this version about Mr Karmas coming back, my learned friend, the
Crown Prosecutor, didn’t put that to Mr Fantakis
because his case had
always been that, look, Mr Karmas never left of his own accord between 2 and 3,
that was the Crown case. He
left it to you as an alternative theory, but can I
just address that in this way? By saying for the same reasons that I said about
Mr Hughes’ argument about this timeframe, when you’re looking at the
timeframe and you’re looking at exhibit [CJ],
you can see that on 11
August, on that afternoon, there is all of those calls being made, there is the
version that he gives about
what he did, where he went and to whom he spoke.
Again, that’s one of those fanciful writings of Mr Fantakis that you would
take as something that was the product of a delusional disorder.”
- Exhibit
CJ, referred to above, contained a further version in which the applicant said
that Mr Karmas returned around 5pm, but in
which the applicant said that after
torturing him for three hours he released him, after which Mr Karmas
“staged” his
disappearance to “save face”.
- After
addresses and prior to the summing up, an issue was raised by counsel for Mr
Woods and the applicant with respect to an asserted
“shift” in the
Crown case. Application was made for a direction to be given to the jury that
their consideration of whether
Mr Karmas was murdered at the Wilga Street
Property be confined to the “67 minute window”. The application was
opposed
by the Crown. It was also opposed by counsel for Mr Cheong.
Mr Cheong’s opposition was based on the fact the Crown case against
him was dependent on his presence in the 67 minute window. Given this, if there
was a reasonable possibility the murder occurred
later, he was necessarily
entitled to an acquittal. Mr Cheong submitted that such a direction would
prejudice his defence, in circumstances
where the application was made after
addresses and he would have no opportunity to tailor his address accordingly.
The Crown supported
his concerns in this regard. The concerns expressed by
counsel for Mr Cheong and supported by the Crown were, in my view, unfounded.
If
the Crown case was limited as sought by the applicant, then a failure to prove
the murder occurred in the window would have resulted
in the acquittal of the
applicant, Mr Woods, and Mr Cheong. Conversely, if the Crown case was not so
limited, a failure to prove
the murder occurred in the 67 minute window was
fatal to the case against Mr Cheong, but not as against the applicant and Mr
Woods.
- Subsequently
in her summing up, her Honour told the jury, by reference to the
indictment:
“So the Crown must prove beyond reasonable doubt that Mr Karmas was killed
in New South Wales at Punchbowl. Punchbowl is the
relevant place, members of the
jury, not specifically the second bedroom at [the Wilga Street Property]. The
Crown case is that Mr
Karmas went to [the Wilga Street Property] to help Mr
Fantakis move furniture on that afternoon, and he did not leave the house alive.
Wilga Street is in Punchbowl, and that is where you get Punchbowl from. The
Crown has pointed to two possibilities as to when and
where this crime occurred
on 11 August 2011. You will recall that in his closing address the Crown said
that there was evidence that
Mr Karmas was murdered in the early afternoon in
the second bedroom at Wilga Street, and that is the Crown’s case to you.
That
is the case the Crown asks you to find beyond reasonable doubt.
But the Crown also points to evidence which says that Mr Karmas may have been
murdered, still at Wilga Street, but later in the afternoon,
at or after 5
o’clock in the afternoon. And specifically the Crown referred you to the
writings of Mr Fantakis, some of which
refer to Mr Karmas leaving the premises
at about 2 o’clock or so, later coming back to the premises and violence
being applied
to him at that point in time. Whilst the Crown submits to you that
you would accept Mr Karmas was killed at the earlier time between
2 and 3 when
Mr Cheong was still present somewhere on the property working, the Crown says
you would accept that earlier timeframe,
it has pointed you to that evidence,
and you should bear that other evidence in mind.”
- It
is apparent from the above, that while the Crown’s primary position was
that the murder occurred in the 67 minute window,
the case ultimately went to
the jury on the basis that it could also have occurred when Mr Karmas returned
at around 5pm.
Principles
- In
some circumstances a change in the Crown case in the course of a trial will
result in a miscarriage of justice. The issue ultimately
falls to be determined
by reference to the fairness of the applicant’s trial. This was the basis
upon which her Honour determined
the issue, and found against the applicant,
leading to her refusal to limit the Crown case as sought: R v Fantakis, Woods
and Cheong [2018] NSWSC 749 at [71]. An assessment of whether her Honour
erred in her determination requires an examination of the applicable
principles.
- In
King v The Queen (1986) 161 CLR 423; [1986] HCA 59, the appellant was
convicted of murder after a trial held jointly with an alleged co-offender,
Matthews. It was the Crown case that
Matthews carried out the murder at the
instigation of the appellant. The trial judge initially directed the jury that,
given the
way in which the case was framed, the acquittal of Matthews would also
result in the acquittal of the appellant. However, at the
invitation of the
Crown, the trial judge directed the jury that the appellant could be convicted
if they were satisfied that the
appellant was party to an agreement with some
other person, and that agreement resulted in the murder of the deceased, whether
at
the hands of Matthews or otherwise. This Court quashed the appellant’s
conviction as a result of the unfairness resulting from
the change in the case
and ordered a new trial. The appellant applied for special leave to appeal to
the High Court, the only issue
in that Court being whether this Court was wrong
to order a retrial rather than enter an acquittal. Dawson J, who gave the
reasons
for the majority, said (at 432):
“The jury brought in a verdict of guilty against King but acquitted
Matthews. King appealed to the New South Wales Court of
Criminal Appeal, which
allowed his appeal upon the basis that the trial had miscarried when, at the
instance of the Crown, the trial
judge had introduced for the first time in his
summing up the possibility that some person other than Matthews had killed the
deceased.
The element of surprise involved in this course was held to have
resulted in possible prejudice to King’s case, his counsel
having
cross-examined Siemsen and addressed the jury in reliance upon the presentation
of a case by the Crown that the person who
killed the deceased was Matthews. Had
King’s counsel known that alternatively Siemsen or some other person
unknown to the Crown
was alleged to be the actual murderer, he may well have
cross-examined or addressed in a different way.
No exception was taken before us to the finding of an irregularity or the
quashing of the 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: see Reg v Laird; R. v. Thompson and Gamble;
McManamy v Fleming; Gregory; Falconer-Atlee;
Cross and Channon.” [footnotes omitted]
- While
Murphy J was in the minority, given the limited issue, his Honour’s
observations are also of relevance. Murphy J said
(at 425):
“Particulars in a Criminal Trial.
It is the right of every accused person to know, with particularity, the case
which the prosecution wishes to prove at trial. As
a direct consequence of this
right, a prosecutor “clearly should be required to identify the
transaction on which he relies
and he should be so required as soon as it
appears that his complaint, in spite of its apparent particularity, is equally
capable
of referring to a number of occurrences each of which constitutes the
offence the legal nature of which is described in the complaint.
For a defendant
is entitled to be apprised not only of the legal nature of the offence with
which he is charged but also of the particular
act, matter or thing alleged as
the foundation of the charge”: Johnson v Miller per Dixon
J.” [footnotes omitted]
- In
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, McHugh J said at [15],
that the provision creating the offence with which the appellant was there
charged:
“... operates in the context of an adversary system of criminal justice
where an accused person is entitled to be given as
high a degree of
particularity concerning a criminal charge as the subject matter will bear. An
accused person “is entitled
to be apprised not only of the legal nature of
the offence with which he is charged but also of the particular act,
matter or thing alleged as the foundation of the charge”. These
particulars are needed to ensure that the accused person
has a fair opportunity
to defend the charge.” ([footnote omitted]
- Later,
in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010]
HCA 1, the High Court said (at [26]):
“The common law requires that a defendant is entitled to be told not only
of the legal nature of the offence with which he
or she is charged, but also of
the particular act, matter or thing alleged as the foundation of the
charge.”
- While
an accused is entitled to particulars, clearly particulars are not elements.
Proof of guilt of a criminal charge relies on proof
of the elements of the
offence, not of the particulars. There are circumstances in which proof of a
particular will become essential
to proof of the charge. An issue commonly
arises in sexual assault trials with respect to whether the date on which the
offence is
alleged to have occurred has, in the circumstances of the case,
become a material particular. In R v Kennedy (2000) 118 A Crim R 34;
[2000] NSWCCA 487, Studdert J (with whom Heydon JA and Greg James J agreed)
said, at [33]:
“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
per cent 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 in the sense referred to by Gleeson CJ in VHP (unreported, Court
of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997) where the Chief Justice
said (at 15):
“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.”
- A
consequence of time being rendered “of the essence” by the
complainant’s evidence was that a miscarriage of justice
occurred when the
Crown prosecutor sought to accommodate evidence that suggested the events could
have occurred on a different day
to that alleged by the complainant by
successfully applying to amend the indictment and submitting in closing that the
complainant
could have been watching a replay of the royal wedding, with the
result that the offence occurred on a different day. See also WGC v The Queen
(2007) 233 CLR 66; [2007] HCA 58 at [43], [67] per Kirby J (there in
dissent, with whom Gummow J agreed).
- The
“time is of the essence” cases are examples of a broader principle.
Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 was a case in
which the change to the bases on which the applicant could be convicted was
introduced by the trial judge in the summing
up. This situation introduces
additional difficulties, including that the parties have necessarily concluded
their addresses. However,
equally relevant to the present situation are the
observations of Johnson J at [141]-[142]:
“141 Thirdly, 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, but to indicate, in conceptual terms, the
nature of the Crown case to assist the trial
judge, counsel for the accused and
the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although
there are no formal pleadings as such in criminal trials, the Crown is required
to formulate the basis upon which
it puts its case against the accused and
essentially to adhere to that case: Tran v The Queen [2000] FCA 1888; (2000) 105
FCR 182 at [133].
142 If there is to be any change in the nature of the Crown
case after 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: Tangye at 556. Where the prosecutor has nailed the
Crown’s colours to one version of events in opening, and has been
permitted to depart
from that position during the course of the case, the
prejudice may, depending on the particular circumstances of the case, be so
great as to warrant the conviction being quashed: Tran at
[148].”
- A
particularly egregious example of the Crown changing its case in the course of
its closing address to the prejudice of the accused
is the well known case of
R v Anderson (1991) 53 A Crim R 421, which is discussed in some detail in
Tran v R, referred to by Johnson J above.
- As
can be seen, the issue requires analysis of the nature of any prejudice suffered
by the applicant, such that it might be said there
was a miscarriage as a result
of the widening of the Crown case, or “wrong decision” on a question
of law on the basis
of the refusal to limit the Crown
case.
Application to the present case
- The
applicant contended the “two cases” were mutually exclusive and it
was not permissible for the Crown to pursue both.
This, the applicant asserted,
is what occurred as a result of the trial judge’s refusal to limit the
Crown case. In one sense
the two possibilities were mutually exclusive –
if Mr Karmas was murdered before 3:07pm then he was not murdered later. But
that
does not mean there was necessarily unfairness in the presentation of the case
on the basis that it could have been either.
It is commonplace that the Crown
does not know the precise circumstances in which a crime occurred. A relatively
common occurrence
is the case where multiple accused acting together are alleged
to be responsible for a death. The Crown is entitled to bring a case
against an
accused on the basis that he or she inflicted the blow causing death, or aided
and abetted another accused who did so.
Here, had the Crown case, from the
outset, been that the murder occurred at some time in the afternoon of 11
August, there would
have been no unfairness (although that obviously would have
undermined the case against Mr Cheong). The issue is to be resolved on
the basis
of the asserted change to the Crown case.
- The
nature of the change was to expand the timeframe in which the killing could have
occurred. The trial judge, as noted above, considered
the question on the basis
of the possible prejudice to the applicant (see at [71] of R v Fantakis,
Woods and Cheong). Her Honour said (at [74]-[77]):
“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:
[her Honour then set out numerous transcript
references in support of her
proposition].
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.”
- In
support of his complaint, the applicant points to the evidence his mother could
have given, and its significance in the context
of what he complains was an
alternative case theory advanced by the Crown. The applicant’s mother, if
called, may have supported
the applicant’s evidence with respect to her
presence for part of the relevant afternoon. While the Crown did not challenge
the applicant’s evidence that his mother was there for part of the time,
it is necessary to have closer regard to the evidence
of the applicant, and the
evidence he says his mother could have given.
- The
applicant’s evidence was that Mr Karmas contacted him on 11 August and
offered to help him. The applicant said Mr Karmas
came to the Warwick Street
property and assisted him there for about an hour. The applicant, Mr Cheong
and Mr Karmas loaded some
items into the blue van and drove to the Wilga Street
Property. The applicant said Mr Karmas entered the house but only went as far
as
the hallway. He said that as soon as he arrived, he realised he had forgotten
something and he left. He said he did not see him
again after that. He said he
received a text message from Mr Karmas telling him that he (Mr Karmas) would not
be able to return.
His evidence was that he worked at Wilga Street with Mr
Cheong until leaving to take Mr Cheong home. He then returned to Wilga Street.
He said his mother arrived about 15 to 20 minutes before he received the text
message from Mr Karmas and she remained at Wilga Street
until about 5 or 5:30pm.
The applicant said he remained at Wilga Street until about 6:30pm when he left
in the blue van to meet Mr
Woods.
- The
applicant tendered the statement of his mother, Antonia Fantakis given to the
police on 8 September 2011 in support of this ground
(Annex P of the
applicant’s affidavit of 1 September 2021). In her statement, Antonia
Fantakis said she arrived at Warwick
Street at about 1pm on 11 August 2011. The
applicant was there, as was another man fitting the description of Mr Cheong.
She said
Mr Karmas arrived about 5 minutes later, said hello, and then went
upstairs to fix a lock on the bedroom door. She said that just
before she left
to go to a nearby shopping centre, Mr Karmas came halfway down the stairs and
said he would see her later that afternoon.
She had planned to provide food for
the applicant and Mr Karmas as she had earlier been told that Mr Karmas would be
helping the
applicant at the Wilga Street property.
- Antonia
Fantakis’ statement indicated she returned to the Wilga Street house. She
said it “must have been after 3:00pm
when school finishes” as she
recalled seeing school kids on the way back. She said that at this time the
applicant was on his
own at the house and was working on the walls in the second
bedroom. She said, further, that shortly after she arrived the applicant’s
mobile phone sounded and the applicant told her not to prepare food as Mr Karmas
had told him that he had to go somewhere. She told
police that she then stayed
outside gardening in the front yard until about 5:30pm when it started to get
dark.
- Antonia
Fantakis’ statement that the applicant was alone at the premises when she
returned from the shops and the evidence of
the applicant to the same effect
meant that she arrived after Mr Cheong had been taken home and her evidence was,
consequently, of
limited relevance to a case based solely on the 67 minute
window. This might explain a decision not to call her as a witness if the
Crown
case was limited to the narrower timeframe. However, her assertion that she was
at Wilga Street until 5:30pm does not fit easily
with Mr Karmas having returned
to the premises sometime around 5pm and being killed after that time. The
question arises, therefore,
as to whether the Crown’s reliance on a wider
timeframe caused unfairness or prejudice to the applicant by impacting the
decision
not to call Antonia Fantakis. A number of considerations operate
together to support the conclusion that there was not such unfairness.
- Firstly,
there was clearly a reluctance on the part of the applicant to call his mother.
Antonia Fantakis’ statement to the
police, as discussed above, said that
when she returned, the applicant was working on his own on the walls in the
second bedroom.
That Antonia Fantakis did not suggest that she observed anything
untoward on her return might have been considered helpful to the
applicant in
rebutting the Crown case that the murder had occurred in the 67 minute window.
While this statement had been served
on the applicant, the applicant was on
notice prior to the start of the trial that the Crown did not propose to call
Antonia Fantakis,
having regard to the fact that she was the mother of the
applicant and had, herself, been charged with accessory after the fact to
murder. Having been so advised, the applicant made no request that she be called
by the Crown and the applicant did not call her
himself. Of course, that is not
to say the same forensic decision would necessarily have been made if the
applicant understood the
case would go to the jury on the basis that he may have
killed Mr Karmas after 5pm. It does, however, suggest a reluctance to call
Antonia Fantakis.
- Significantly,
the version given by Antonia Fantakis in the statement referred to above was not
the only version given by her to police.
The Crown tendered, in response to this
ground, the transcript of an electronically recorded interview between Antonia
Fantakis and
the police conducted on 13 August 2011; that is, two days
after Mr Karmas disappeared and approximately one month prior to the statement
referred to above. In that interview, she gave the following answers in relation
to 11 August:
[Annexure W to McGee affidavit 13 Oct 2021]
“Q123 So when was the next time you spoke to your son,
Terry?
A When I come back to the other house.
Q124 Which one?
A The 34 Warwick, 37 - - -
Q125 Oh, to Wilga.
A Yeah.
Q126 37 Wilga.
A Yes, Terry said to me, “Sam is going to give me a hand
to put some in the van” and I took it they going to go to the other
house, because they painted the other house also too.
Q127 O.K.
A And ah I went there and I said, “Terry, what are you
going to do, where you are going to eat for dinner?” He say,
“Mum,
don’t worry, Sam just mention to me he’s not ah he’s .....
because he has to go somewhere” and
left.
Q128 O.K. So what time do you reckon you got to 37 Wilga?
A 3.30 or something like that.
Q129 Yeah.
A 3.00, 3.30 something like that.
Q130 O.K. And you said you asked Terry about dinner.
A Yeah, Terry said to me. “Don’t worry mum because
just now, Sam give me, send me a message and say he’s not
going to come,
because he has to go somewhere.”
Q131 Oh, O.K., yeah.
A And I left, since that I didn’t know nothing.”
- The
answer “[a]nd I left, since that I didn’t know nothing” on its
face appears to be inconsistent with the later
assertion that she remained at
Wilga Street gardening until about 5:30pm. This inconsistency would further
militate in favour of
a forensic decision not to call Mrs Fantakis. An
additional matter militating against calling Mrs Fantakis was an answer given in
the interview in response to a question as to the relationship between the
applicant and Mr Karmas. While throughout the interview,
Antonia Fantakis
said the relationship between the families including that between the applicant
and Mr Karmas was good, there was
one answer which did not sit squarely
with this. At one point, Antonia Fantakis was asked whether the
applicant’s relationship
with Mr Karmas was still good to which she
responded “[y]eah, until ... three weeks ago” (see McGee Annexure W,
p7).
While this was not explored in the interview, clearly it was a matter
likely to be explored in evidence. Again, however, despite
the obvious potential
risk in calling Mrs Fantakis, it is not known as to whether that forensic
decision may have been affected had
counsel understood it would be open to the
jury to convict the applicant on the basis that he killed Mr Karmas outside the
67 minute
window.
- The
Crown on the appeal read an affidavit of the applicant’s trial counsel. In
it he said, relevant to this ground:
“As I understood the evidence, Mrs Fantakis could not give the accused an
alibi for the entire period of that afternoon as
she came and went at various
times. Further, instructions had been received at the start of the trial that
Mrs Fantakis not be called.
This was on the basis of her age, lack of
sophistication in English, emotional distress likely to be experienced by her
giving evidence
about the death of one son in the murder trial of her other son,
and about matters that would not, on balance, advance the applicant’s
case
in a material respect. It was also clear that the Crown would press her,
properly, on her own actions and motivations that had
previously seen her
charged with accessory after the fact to murder. The applicant understood these
facts and did not wish for his
mother to be subjected to the trial
process.”
- Mr
Todd was cross-examined by the applicant on his affidavit. He agreed that the 5
o’clock proposition was “somewhat of
a surprise when it
arose”. Counsel went on to say, with respect to the applicant’s
writings, which were the genesis of
the 5 o’clock theory:
“... my strategy was to try and have the jury consider those matters and
things that were recorded to be non-sensical and as
I say the product of a
disordered mind, therefore I did not wish to focus upon those writings in any
way shape or form, and I, as
I understood it from you, and this note [a
reference to a file note taken by the solicitor] reinforces the belief that I
had, considered
that this splitting of the case in that way, if the Crown was to
adopt that, would weaken their primary case.”
- This
answer neatly encapsulates the forensic considerations at play. Any attempt to
deal directly with the 5 o’clock theory
ran the risk of giving weight to
the applicant’s statement in the writings that Mr Karmas returned around
5 o’clock.
This in turn necessarily gave weight to the aspect of the
writings in which the applicant said he harmed Mr Karmas (and explained
his
motives for doing so). It was a legitimate forensic decision to use the
Crown’s reference to the 5 o’clock theory
as a sign of weakness with
respect to the primary case. Any potential gain from calling Antonia Fantakis
was very limited, especially
given that the primary Crown case remained that the
killing occurred in the 67 minute window.
- Ultimately,
while there was clearly a forensic advantage in seeking to have the Crown case
limited, when this application was refused
there was no further application made
by the applicant. While the defence case had closed and the Crown had addressed,
the applicant
was not precluded from an application to reopen his case in order
to call Antonia Fantakis or to otherwise deal with the 5 o’clock
theory.
In Mahmood, the plurality (Gleeson CJ, Gummow, Kirby and Kiefel JJ)
observed at [15], that courts are “usually inclined to allow a re-opening
to call evidence considered to be of sufficient importance, even after
addresses”. No such application was made.
- The
applicant also suggested in submissions that he was prejudiced in that he was
denied the opportunity to test the 5 o’clock
theory during
cross-examination of “a number of prosecution witnesses” or to call
further evidence. The applicant did
not, however identify the nature of any such
cross-examination, or, with the exception of his mother, what witnesses might
have been
called. Nor are these matters apparent. In these circumstances, this
submission did not advance the applicant’s appeal.
- The
applicant also submitted that the 5 o’clock theory was inconsistent with
the sending of the text messages from Mr Karmas’
phone commencing at
3:57pm. It will be recalled that it was the Crown case that those messages were
sent by Mr Woods, using Mr Karmas’
telephone. Mr Woods’ phone was in
the vicinity of Granville at 5:09pm. The messages sent from Mr Karmas’
phone asserted
that he was, at 4:54pm and 5:09pm, near Westmead Hospital, which
the Crown alleged the applicant believed was Ms Angeles’ former
workplace.
This aspect of the Crown case does not fit well with the alternative theory that
Mr Karmas was killed after 5pm (although
it is not necessarily inconsistent). If
the jury (or some jurors) were of the view that Mr Karmas was killed after
5pm (or that this
was reasonably possible), the Crown case lost some of its
force insofar as it relied on these text messages. However, that is simply
a
matter that made the alternative theory weaker and does not assist the
applicant’s appeal.
- Ultimately,
the primary basis on which the Crown case was put was that the murder occurred
between 2pm and 3:07pm. This was the strongest
basis for the Crown case and was
very likely the basis on which the jury accepted the applicant’s guilt.
This was consistent
with the Crown theory with respect to the text messages
referred to above.
- While
the evidence established Mr Cheong was present at Wilga Street between 2pm and
3:07pm, his acquittal is not necessarily inconsistent
with the jury convicting
the applicant on the basis that the murder occurred during that 67 minute
window. The jury may have found
the murder occurred during that timeframe but
was not satisfied beyond reasonable doubt that Mr Cheong was aware of it. Mr
Cheong
may have been working in a different part of the house. In his interview
he told police that he was listening to music through his
earbuds. Consequently,
he may not have heard anything which may have otherwise concerned him. As Mr
Cheong’s counsel pointed
out, it was not in the applicant’s
interests to make Mr Cheong aware of the murder. Given the limited relationship
between
the two men there was no basis to assume that Mr Cheong would assist the
applicant rather than alert the authorities. While Mr Cheong’s
assertion
in his interview with police that Mr Karmas left shortly after arriving was more
consistent with the 5 o’clock theory,
even if this was a lie (which, if
the murder occurred in the 67 minute window it likely was), this was not enough
to demonstrate
his knowledge of the murder and to accordingly require the
conviction of Mr Cheong.
Conclusion on grounds 4 and 5
- It
is apparent from the applicant’s trial counsel’s evidence on the
appeal that he was taken by surprise when the 5 o’clock
theory was raised
in the Crown address. However, having regard to the above, it cannot be said
that there was a miscarriage of justice
as a result of the reference to the 5
o’clock theory in the Crown’s closing address. The primary basis on
which the applicant
claims to be prejudiced was in the decision not to call his
mother to give evidence. There were clearly sound forensic reasons militating
against calling the applicant’s mother. More significantly, while the
applicant’s trial counsel on his evidence on the
appeal agreed he had been
taken by surprise, once the problem had arisen, he regarded it to be
advantageous to the applicant to rely
on it as an indication of weakness in the
Crown case, while keeping focus away from the veracity of the writings.
Ultimately, those
matters provide the forensic context in which to view the
absence of any application to reopen the defence case. It also follows
from the
above that there was no miscarriage of justice as a result of any shift in the
Crown case or the manner in which the case
was left to the jury by the trial
judge. I would, to the extent that leave is required, grant leave but would
otherwise reject grounds
4 and 5.
Ground 6
- Ground
6 contains five sub-grounds, each of which complained about a failure to give a
direction, or in the case of ground 6(5), the
balance of the summing up
generally. No complaint was made at trial by the applicant in relation to any of
the matters that are now
raised under this ground. Accordingly, the applicant
requires leave to rely on each of these grounds pursuant to r 4.15 of the
Criminal Appeal Rules.
Ground 6(1) - the failure to give a
Shepherd direction
- This
sub-ground is based on the High Court’s decision in Shepherd v The
Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd). The trial judge
directed the jury that while individual facts did not have to be proved beyond
reasonable doubt, the jury was required
to consider whether the established
facts proved each element of the offence beyond reasonable doubt. Her Honour
further directed
the jury that, assuming they were so satisfied, they would
still need to consider whether “there is any other reasonable conclusion
arising from the facts which is inconsistent with the guilt of the
accused”. This was entirely orthodox.
- Particular
directions in relation to proof of a circumstantial case, such as a direction
that the inference of guilt should not only
be a rational inference, but
rather, the only rational inference that can be drawn, are no more than
“an amplification of the rule that the prosecution must prove its case
beyond reasonable doubt”: Shepherd at 578 per Dawson J. His Honour
went on to observe that there is “no invariable rule of practice, let
alone rule of law”
that a circumstantial evidence direction should be
given in every case involving circumstantial evidence. As noted above, her
Honour
in the present case gave a circumstantial evidence direction. The
applicant contends, however, that more was required.
- The
applicant submits that the case against him involved a series of intermediate
facts, each of which constituted an indispensable
step in the reasoning process
towards guilt. The applicant submitted that that chain “included”
the following steps:
- (1) The
applicant was present at the Wilga Street Property;
- (2) Mr Karmas
attended the Wilga Street Property;
- (3) Mr Karmas
was attacked and killed by the applicant at the Wilga Street Property; and
- (4) The body of
Mr Karmas was disposed of by the applicant with the assistance of Mr
Woods.
- I
note that Mr Woods did not accept the fourth of the above propositions. Nothing,
however, turns on this for present purposes. It
can be accepted that the above
statements reflect the manner in which the Crown put its case. It does not
follow that the jury was
required to be directed that each was an indispensable
step required to be proved beyond reasonable doubt. In Shepherd, Dawson J
said (at 579):
“The inference which the jury may actually be asked to make in a case
turning upon circumstantial evidence may simply be that
of the guilt of the
accused. However, in most, if not all, cases, that ultimate inference must be
drawn from some intermediate factual
conclusion, whether identified expressly or
not. Proof of an intermediate fact will depend upon the evidence, usually a body
of individual
items of evidence, and it may itself be a matter of inference.
More than one intermediate fact may be identifiable; indeed the number
will
depend to some extent upon how minutely the elements of the crime in question
are dissected, bearing in mind that the ultimate
burden which lies upon the
prosecution is the proof of those elements. For example, with most crimes it is
a necessary fact that
the accused was present when the crime was committed. But
it may be possible for a jury to conclude that the accused was guilty as
a
matter of inference beyond reasonable doubt from evidence of opportunity,
capacity and motive without expressly identifying the
intermediate fact that the
accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those
intermediate facts which constitute indispensable
links in a chain of reasoning
towards an inference of guilt. Not every possible intermediate conclusion of
fact will be of that character.
If it is appropriate to identify an intermediate
fact as indispensable it may well be appropriate to tell the jury that that fact
must be found beyond reasonable doubt before the ultimate inference can be
drawn. But where – to use the metaphor referred
to by Wigmore on
Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the
evidence consists of strands in a cable rather than links in a chain,
it will
not be appropriate to give such a warning. It should not be given in any event
where it would be unnecessary or confusing
to do so. It will generally be
sufficient to tell the jury that the guilt of the accused must be established
beyond reasonable doubt
and, where it is helpful to do so, to tell them that
they must entertain such a doubt where any other inference consistent with
innocence
is reasonably open on the evidence.”
- Thus,
that a matter can be identified as an “indispensable fact” does not
warrant a conclusion that it was incumbent on
the trial judge to direct the jury
as to this. In the present case, the jury was properly directed as to the onus
and standard of
proof. The practical reality was that satisfaction of the
elements beyond reasonable doubt necessarily implied satisfaction of the
steps
referred to above (at [901]), and vice versa. Each step relied on a body of
circumstantial evidence which was to be considered
together and not in a
piecemeal fashion: Hillier. There is no basis on which to conclude that
the application of the standard of proof was undermined in any way by the
absence of
an “indispensable fact” direction.
- The
applicant also complains that proof that Mr Karmas returned to Wilga Street
around 5pm on 11 August was an indispensable intermediate
fact. For the reasons
given with respect to grounds 4 and 5, it was open to the jury to conclude that
the murder occurred earlier,
in the 67 minute window. There is no merit in this
complaint.
- Finally,
in relation to this sub-ground, the applicant complains that the jury was
directed that the facts making up the Crown’s
circumstantial case did not
need to be proved beyond reasonable doubt. It was further submitted that this
error was compounded by
directing the jury that it would be wrong to consider a
particular fact in isolation. There is no substance in either complaint.
Gleeson
CJ in HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 said at
[29]:
“It is the elements of the offence charged that, as a matter of law, must
be proved beyond reasonable doubt. (I leave aside
presently irrelevant
cases where insanity or some other defence is raised.) If evidence of a
fact relevant to a fact in issue is
the only evidence of the fact
in issue, or is an indispensable link in a chain of evidence
necessary to prove guilt, then it will
be necessary for a trial judge to direct
a jury that the prosecution must establish the fact beyond reasonable doubt;
generally,
however, the law as to standard of proof applies to the elements of
the offence, not particular facts. ... Trial judges commonly,
and appropriately,
direct juries in terms of their possible satisfaction of particular
matters relied upon by the prosecution, without
referring to a standard of
proof in relation to each such matter. To do otherwise would risk
error.”
- I
pause to note that none of the four stages of proof set out above as
indispensable “facts” were reliant on a single
item of
evidence. It follows that there was no single item of evidence which
required a direction that it was necessary that the Crown prove that
evidence
beyond reasonable doubt. Further, it would have been wrong to direct the jury to
consider various items of circumstantial
evidence in isolation: Hillier.
This sub-ground is not made out. I would grant leave but dismiss this
ground.
Ground 6(2) - breaches of the Browne v Dunn rule
- This
sub-ground is a complaint about the breach of the rule in Browne v Dunn
(1894) 6 R 67. The applicant under this sub-ground complains that at no time
during the trial was any witness, including the applicant,
cross-examined on the
proposition that Mr Karmas may have returned to the Wilga Street Property after
Mr Cheong was taken home by
the applicant. In other words, the applicant
complains that the 5 o’clock theory was not advanced through
cross-examination.
- In
MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74, Gleeson CJ and Heydon
J said (at [18]):
“The principle of fair conduct on the part of an advocate, stated in
Browne v Dunn, is an important aspect of the adversarial system of
justice. It has been held in England, New South Wales, South Australia,
Queensland,
and New Zealand, to apply in the administration of criminal justice,
which, as well as being accusatorial, is adversarial. Murphy
J, in this Court,
even applied it to the conduct of an unrepresented accused. However, for reasons
explained, for example, in R v Birks, and R v Manunta, it is a
principle that may need to be applied with some care when considering the
conduct of the defence at criminal trial. Fairness
ordinarily requires that if a
challenge is to be made to the evidence of a witness, the ground of the
challenge be put to the witness
in cross-examination. This requirement is
accepted, and applied day by day, in criminal trials. However, the consequences
of a failure
to cross-examine on a certain issue may need to be considered in
the light of the nature and course of the proceedings.” [footnotes
omitted]
- The
above observations are most commonly considered in the context of complaints by
appellants convicted after the prosecution makes
submissions on, or the trial
judge gives a direction as to, a failure of defence counsel to cross-examine
prosecution witnesses on
a matter inconsistent with the subsequently revealed
defence position: see, for example, Hofer v The Queen [2021] HCA 36;
(2021) 95 ALJR 937. This, of course, arises in a context where defence witnesses
generally give evidence after prosecution witnesses and the prosecution
bears
the onus of proof. The particular context here is the applicant’s
complaint that he was taken by surprise by the prosecution
address.
- What
must be established by the applicant is a miscarriage of justice. In the present
case, there was no unfairness to the applicant
with respect to the evidence he
gave, in not putting to him that Mr Karmas returned after 5pm. Irrespective of
when the 5 o’clock
theory first arose, it was plain on the
applicant’s evidence that his version was that Mr Karmas left shortly
after arriving
at Wilga Street and never returned. In these circumstances, there
is no unfairness caused by the suggested denial of the opportunity
of dealing
with the 5 o’clock theory in his evidence.
- The
applicant, however, submits that the unfairness was not simply in the absence of
an opportunity for the applicant to deal with
the 5 o’clock theory, but
rather, had the proposition been put to him or to any of the witnesses, it would
have alerted the
applicant to the prosecution’s reliance on the
alternative theory. This is another manifestation of the argument that a
miscarriage
was occasioned as a result of the point at which the Crown raised
the alternative theory. This has been dealt with in the context
of grounds 4 and
5 above.
- I
would grant leave but reject ground 6(2).
Ground 6(3) –
Jones v Dunkel
- The
applicant complains of a failure to give a “Jones v Dunkel
direction” in relation to an asserted failure by the Crown to call the
applicant’s mother, Antonia Fantakis (referring
to Jones v Dunkel
(1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel)). The High Court in
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 held that the
considerations that apply in a criminal trial make the application of the
Jones v Dunkel direction inapposite. The situation is governed by what
has come to be known as a “Mahmood direction”, a reference to
Mahmood where Gleeson CJ, Gummow, Kirby and Kiefel JJ said (at
[27]):
“It was neither necessary nor appropriate for the trial judge to direct
the jury that an inference adverse to the case for
the prosecution could be
drawn because the presence of blood in the appellant’s trouser pocket had
not been the subject of
evidence by the prosecution’s witnesses. In the
joint reasons in RPS v The Queen it was pointed out that where a witness,
who might have been expected to be called and to give evidence on a matter, is
not called
by the prosecution, the question is not whether the jury may properly
reach conclusions about issues of fact but whether, in the
circumstances, they
should entertain a reasonable doubt about the guilt of the accused. Similar
views were expressed by Gaudron and
Hayne JJ and by Callinan J in Dyers v
The Queen.” [footnotes omitted]
- The
appropriateness of such a direction is predicated on an expectation that the
witness would be called. Here, it is not in issue
that the Crown prosecutor
advised the applicant’s counsel that he did not intend to call Mrs
Fantakis. No issue was raised
by the applicant’s counsel as to the
prosecutor’s decision. This was presumably based on an acceptance that the
prosecutor
had fulfilled his obligations in assessing the prospective
witnesses’ credit, at least partially on the basis of a consideration
of
the matters including those referred to above at [889]-[892] in the context of
grounds 4 and 5: cf R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279.
Additionally, as noted above at [866], the evidence of the applicant’s
counsel read on the appeal was that the applicant did
not want his mother to be
called. It is not open to the applicant to now complain that the prosecution was
obliged to call her.
- It
can be accepted that the decision of the prosecutor not to call the
applicant’s mother and the absence of any issue being
raised as to this,
occurred prior to the 5 o’clock theory being raised in the Crown address.
However, as discussed above, it
was still open for her to be called following
the addresses. There was no application in this regard.
- Accordingly,
the applicant has not established a miscarriage of justice on the basis of a
failure to give a Jones v Dunkel direction or a Mahmood direction.
I would grant leave but reject ground 6(3).
Ground 6(4) –
warning of danger to convict on “writing” evidence
- Under
this sub-ground, the applicant complains that the trial judge failed to
adequately warn the jury of the “danger of convicting
the applicant solely
on the writings and videos made by the applicant, taking into account that the
evidence was not corroborated
by any other evidence led by the Crown, and were
made by the applicant who at the time was suffering from psychosis”. The
short
answer to this argument is that the Crown case did not rely
“solely” on admissions of the applicant in the
“writings”.
Indeed, the prosecution case accepted that parts of
those materials were unreliable. The present case was not one akin to a
prosecution
case reliant on a single witness, where a warning may be required
(or may have, at one time, been required) as to the need to be
satisfied of the
evidence of that witness beyond reasonable doubt, and the consequent need to
scrutinise that witness’ evidence
with care: cf R v Murray (1987)
11 NSWLR 12. I would grant leave but reject ground 6(4).
Ground
6(5) – the summing up was unbalanced
- It
is not in dispute that a miscarriage of justice may be occasioned by a lack of
balance in the trial judge’s summing up to
the jury: see McKell v The
Queen (2019) 264 CLR 307; [2019] HCA 5 at [4]; Castle v The Queen
(2016) 259 CLR 449; [2016] HCA 46 at [61].
- There
was no request for any redirection in relation to any matters that the applicant
now relies upon. This suggests counsel did
not perceive there to be any
imbalance in the summing up on any of the bases now relied on. This is, of
course, not conclusive: see,
for example, Decision restricted [2022]
NSWCCA 95.
- In
the present case the applicant relied upon eight submissions in support of his
contention that the summing up was lacking in balance
such that a miscarriage
was occasioned. While an analysis of these submissions requires that they be
dealt with sequentially, the
summing up must be considered as a whole. A
corollary of this fundamental proposition is that any cumulative effect
resulting from
individual complaints must be considered.
Ground
6(5)(i)
- The
applicant submits that the failure to raise the directions the subject of
grounds 6(1) to 6(4) give rise to imbalance in the summing
up. Given the
conclusions set out above, those matters do not raise any issue of imbalance in
the summing up, whether considered
individually or cumulatively. I would grant
leave but reject ground 6(5)(i).
Ground 6(5)(ii)
- The
applicant complains that the trial judge “reinforced the existence of the
writing evidence, whilst failing to raise the
obvious contradiction made by the
Crown on the first day of its closing that the only evidence going to the second
case theory was
not reliable and lacked credibility”. Her Honour, in her
summing up of the case for the jury, referred to the “writing
evidence”. A discussion of that evidence was not, however,
“extensive” in the sense that any undue weight was given
to it.
Further, while her Honour referred to the writing evidence at a number of
points, her Honour also referred to the applicant’s
response to that
evidence.
- With
respect to the reliability of the evidence her Honour told the jury the Crown
submission was that “whilst some references
in the material are clearly
fanciful, others, including the admissions to harming Mr Karmas, are grounded in
reality and should be
accepted by you as reliable”. A short time later,
her Honour made further brief reference to the writing evidence, prefacing
the
discussion by saying “[t]he Crown says that some of what is in the
recording certainly is clearly deluded, such as the
reference to police
involvement with Mr Karmas in the murder of Nicholas Fantakis, and the nanochips
in his head and so forth. But
other references, the Crown says, are clearly to
real events.” Her Honour then referred to Ex CF, without, in my view,
either
undue emphasis or detail.
- Prior
to the jury retiring to consider its verdict, in response to a request from
counsel, her Honour reminded the jury that they
had heard evidence and
submissions about the applicant’s mental state and its potential impact on
the reliability of the writings.
Her Honour reminded the jury that the only
evidence of Mr Karmas returning at around 5 o’clock came from those
writings and
this was a matter to be considered in determining whether there was
support for the contention that Mr Karmas returned to Wilga Street
later in the
afternoon. In my view, her Honour properly characterised the manner in which the
Crown sought to rely on the writing
evidence and identified the potential issues
as to its reliability. There was no unfairness in any failure to direct the jury
with
respect to the unreliability of the evidence suggesting Mr Karmas had
returned to Wilga Street at around 5pm. I would grant leave
but reject ground
6(5)(ii).
Ground 6(5)(iii)
- The
applicant submits that her Honour failed to “emphasise the obvious
misconduct by detectives who made false and misleading
statements including
Delaney Forman Dodd, Henderson and Lye, in relation to Ex AA, statements
obviously generated to [suit] the case
being pursued by police”. It might
be recalled that there was no issue that the applicant was the author of this
note, which
on the Crown case related to a plan to dispose of the body. There
was, however, an issue in relation to where it was found. The applicant’s
counsel’s address to the jury pointed to inconsistencies in the evidence
of the police in this regard. In relation to Detective
Lye, counsel specifically
referred to the variation in her evidence and stated explicitly that it did not
mean that she was lying,
but simply that she was wrong. Deliberate misconduct of
these officers in relation to this piece of evidence was not part of the
applicant’s case. In summing up, her Honour instructed the jury that
Mr Fantakis pointed out “the uncertainty of some
of the police
evidence about precisely where that note had been found, and he disputes that it
was ever in the blue van”. Having
regard to the way in which the
applicant’s case was conducted, there was no unfairness in the manner in
which her Honour dealt
with this issue. I would grant leave but reject ground
6(5)(iii).
Ground 6(5)(iv)
- The
applicant complains that “[n]o remarks [were] made on the obviously flawed
investigation” whereas her Honour “[gave]
an opinion about how
circumstantial cases such as this can be very strong”. What her Honour
said in this regard was that “[a]
circumstantial case is not necessarily
weaker than a case based on direct evidence”. Her Honour then gave an
example of a case
of direct evidence where that evidence might be regarded as
seriously flawed. Having done so, her Honour reiterated that a case based
on
direct evidence is “not necessarily a strong case, and the inverse, I
suppose here, is that a circumstantial case, even
though it lacks direct
evidence, is not necessarily a weak case”. Her Honour then commented that
it can be a “very strong
case” and that it really depends upon the
number of circumstances to be taken together in proving the case. Her Honour, in
so directing the jury, did not express any view as to the strength of the case.
Her Honour did no more than to point out, in orthodox
fashion, that the strength
of the case is not determined by classifying it as based on either direct
evidence or circumstantial evidence.
The words “I suppose here”
refer to the present case being a circumstantial case, and that it did not
follow from this
fact alone that it was a weak case. As her Honour made plain,
the case was to be assessed on its merits. There is no substance in
this
complaint. I would grant leave but reject ground 6(5)(iv).
Ground
6(5)(v)
- The
applicant further complains that her Honour failed to “raise the second
part of Mr Charawani’[s] evidence and the
conduct by police, that sought
only to obtain evidence in support of ... convicting the applicant”. The
“first part”
of Mr Charawani’s evidence was in relation to the
applicant threatening Mr Karmas. The “second part” related to
evidence elicited in cross-examination that Mr Charawani thought Mr George
Karmas was a dangerous man and that he had been told by
Mr Karmas that Mr George
Karmas had collected large amounts of money from “an old Greek guy”.
He said some of this money
was used by Mr George Karmas to repay Mr Karmas money
he owed him. Mr Karmas’ receipt of these monies was relevant to the
possibility
of other persons having a motive to murder Mr Karmas. The evidence
of Mr Charawani in this respect was not a major part of the
applicant’s
case. The trial judge did direct the jury in relation to the
defence theory with respect to possible “bad actors” around
Mr
Karmas. The absence of reference to the particular evidence of Mr Charawani in
this regard was not such as to render the summing
up unbalanced.
- The
second aspect of the submission is that the evidence revealed a bias in the
investigation which should have been dealt with by
her Honour. As noted above,
the evidence in relation to the suggestion that Mr Karmas may have been impacted
as a result of the activities
of Mr George Karmas was elicited in
cross-examination. The focus of the prosecution with respect to
Mr Charawani’s evidence
was his evidence with respect to the threats
made to kill Mr Karmas. That did not, however, necessitate any direction as to
bias
in the investigation. Indeed, there was no submission by the
applicant’s counsel with respect to Mr Charawani’s evidence
in this
regard. It was not necessary for the trial judge to refer to this. I would grant
leave but reject ground 6(5)(v).
Ground 6(5)(vi)
- The
applicant complains that the trial judge referred on multiple occasions to
evidence that Mr Karmas’ DNA was located in the
applicant’s van,
“emphasising the presumptive test being of blood, omitting that the
defence were not able to test this as the sample was destroyed” (emphasis
in original). The short answer
to this is her Honour made plain to the jury that
the testing was no more than a presumptive test. Her Honour reminded the jury
that
“there are many, many substances which can give false positives for
human blood, including things like rust, I think even broccoli
was one of the
possible false positives”. This was sufficient to ensure undue weight was
not given to this evidence. I would
grant leave but reject ground
6(5)(vi).
Ground 6(5)(vii)
- The
applicant complains that her Honour failed to tell the jury that Mr
Karmas’ DNA may have been deposited as a result of transference.
Contrary
to the applicant’s submission, her Honour not only referred to the
multiple opportunities for Mr Karmas’ DNA
to be deposited in the van prior
to 11 August, but also told the jury that “DNA could have been
deposited by what was referred
to as transference” such as by being
deposited by the applicant after he had been in contact with Mr Karmas. There is
no merit
in this complaint. I would grant leave but reject ground
6(5)(vii).
Ground 6(5)(viii)
- Finally,
under this sub-ground, the applicant asserts that the “emphasis and detail
of the summing [up] was centred on the Crown’s
[case], while protecting
the Crown’s case from criticism, notwithstanding, the unfairness caused by
the Crown in advancing
the second case theory after the evidence closed”.
Insofar as this complaint relies on the “second case” or “5
o’clock” theory”, this has been dealt with above. As already
observed, no issue was raised by counsel as to the
balance of the summing up
generally, and no further detail has been provided by the applicant in relation
to this ground (noting
the more specific complaints that have been made above).
The summing up as a whole traversed the evidence and the respective cases
of the
Crown and the applicant in a fair and balanced manner. This sub-ground is not
made out. I would grant leave but reject ground
6(5)(viii).
Conclusion with respect to ground 6
- For
the reasons set out above, none of the individual sub-grounds have been made
out. Nor am I of the view that the cumulative effect
of the sub-grounds was such
that the summing up lacked appropriate balance. As noted above, while I would
grant leave, I would reject
each part of ground 6.
Ground 7
– Non-disclosure of documents resulting in a miscarriage of
justice
- Under
this ground the applicant complains that “NSW Police and the prosecution
failed to disclose documents in existence causing
a miscarriage of
justice”. It is not in dispute that a failure by the prosecution to comply
with its duty of disclosure may
lead to a miscarriage of justice: Edwards v
The Queen (2021) 95 ALJR 808; [2021] HCA 28; Grey v The Queen [2001]
HCA 65; (2001) 75 ALJR 1708.
- It
is convenient to consider in turn the various documents or classes of documents
with respect to which the applicant asserts there
was a relevant non-disclosure
of documents.
Ground 7(1) – The phone records used to
compile Exhibit J
- Exhibit
J was a spreadsheet which compiled telecommunications data from a number of
different telephones in the period between 10
and 15 August 2011 into a single
document. The applicant complains that the exhibit was not included in the brief
of evidence and
the late tender of the document was conditioned on the
production of the original records on which the spreadsheet was based. The
applicant complains that those records, and in particular Vodafone documents
related to Mr Karmas’ telephone, have not been
produced. The applicant
additionally notes the absence of cell tower information with respect to the
entries relating to Mr Karmas’
telephone. Any such information was clearly
of significance, particularly with respect to the text messages from that
telephone to
the telephone of Ms Angeles on the afternoon of 11 August.
- Contrary
to the applicant’s claim, records obtained from the various service
providers were annexed to a statement of Sergeant
Dennett dated 15 August 2015,
including Vodafone records for Mr Karmas’ phone. The affidavit of
Detective Sergeant McGee read
on the appeal confirms the statements of Sergeant
Dennett of 12 November 2014 (which provided a compilation of data with respect
to a number of relevant phones) and that of 15 August 2015 were served on the
applicant as part of the brief of evidence. Those statements
were subsequently
tendered on a Basha inquiry as Exhibit O. Sergeant Dennett gave evidence on the
Basha inquiry and explained how
Exhibit J was compiled.
- Sergeant
Dennett also gave evidence in the trial on 19 and 20 March 2018. In his evidence
before the jury, he explained Exhibit J
was produced from the call charge
records relating to about 40 different telephone services. His evidence was that
not all of the
records included the same information. For that reason some of
the cells in Exhibit J were marked “@@@@” and some of
the cells were
blank. Sergeant Dennett gave evidence that Vodafone appeared to use the notation
“@@@@” in place of the
cell tower code to signify where a cell tower
is not identified. In such cases, the corresponding cell tower location was left
blank,
consistent with the absence of any information from the provider. This
was the case with respect to the cell tower locations in relation
to the SMS
messages from Mr Karmas’ phone to Ms Angeles on the afternoon of 11
August. He said that no further information
was available beyond that which had
been supplied by the telecommunications companies (and what was provided was
included).
- Having
regard to the above, it is clear that the information that was available was
disclosed. It has not been established that there
was any relevant
non-disclosure with respect to the telephone records.
Ground
7(2) – Documents sought in item 13 of the applicant’s subpoena of
28 June 2017
- On
28 June 2017, a subpoena was issued by the Supreme Court in these proceedings
and directed to the New South Wales Police. Item
13 sought production
of:
“... all documents authorising the destruction of drugs allegedly
discovered during the execution of SW 554/11 & CSW 278/11
at 37 Wilga
Street, Punchbowl between the 14-18 August 2011 attached to DAL 2011
003804.”
- A
central aspect of the applicant’s complaint is that he was not provided
with the relevant records in relation to the custody
of drugs seized from the
Wilga Street premises in the course of the execution of the search warrant. He
complains that he only became
aware of the document relating to the destruction
of the drugs as a result of it being served in a brief with respect to drug
charges
against Mr Woods. It is true, as the applicant pointed out, that in
correspondence relating to the subpoena, lawyers for the Commissioner
of the NSW
Police provided a response to each of the items in the subpoena with the
exception of item 13. It is not known why there
was no response in relation to
item 13 in circumstances where each of the other items was specifically
addressed. Ultimately, this
is of no moment. The short answer to the
applicant’s complaint is that the affidavit of Detective Sergeant McGee
read on the
appeal establishes the document was served on the applicant prior to
trial, as were the various police statements referred to by
the applicant in his
submissions in support of this ground. It follows that the applicant’s
complaint as to the non-disclosure
of this document is not made out. Further,
the applicant’s submission that the asserted non-disclosure provides a
basis for
an inference of police misconduct loses its foundation.
- The
applicant under this heading additionally complains in relation to the execution
of crime scene warrants, and in particular a
failure to film the execution of
the warrant, the failure to appoint an independent observer and a failure to use
property seizure
forms and provide receipts to the occupant. Legislative
provisions in relation to crime scenes and crime scene warrants are contained
in
Part 7 of the Law Enforcement (Powers and Responsibilities) Act
2002 (NSW) (LEPRA). While the applicant relies on the NSW Police’s
standard operating procedures for the execution of search warrants,
together
with statements made in the second reading speech introducing the Act, Part 7 of
LEPRA imposes no such requirements. To
the extent that the applicant relies on
these asserted failures as misconduct, the legislation does not support him. In
any event,
any asserted failings in this regard were available to the applicant
to exploit at trial if it was considered forensically advantageous
to do
so.
Ground 7(3) – Documents held by Bass Hill Police
holding yard
- The
applicant complains that there was a failure to produce documents related to the
storage of, access to, and examination of the
blue van at the Bass Hill Police
holding yard. The affidavit of Detective Sergeant McGee states that the relevant
documentary material
was served on the applicant as part of the police brief.
Accepting this, the applicant’s complaint appears to relate to the
adequacy of that documentation, and consequently police record-keeping with
respect to the van. To the extent there was any inadequacy,
this was a matter
available to the applicant to exploit at trial to the extent that it was likely
to assist him. No miscarriage of
justice is established on the basis of any
failure to produce documents included in this sub-ground.
Ground
7(4) – The odometer reading of the seized blue van
- The
applicant complains that having subpoenaed the odometer reading of the blue van,
this was not produced. The applicant points to
evidence that established the van
had been serviced on the day on which it was seized and the odometer reading was
recorded. He submits
that access to the odometer reading after the vehicle was
seized would reveal how far the vehicle had travelled and would, in turn,
potentially cast doubt over whether the mud scrapings taken from the vehicle
were deposited before the vehicle was seized (or, having
regard to the distance
travelled according to the odometer, whether the scrapings were likely to have
been, or at least possibly
accumulated later). The Crown submits that all
documentary records held by police regarding the odometer reading were served on
the
applicant, as deposed by Detective Sergeant McGee in her affidavit sworn on
13 October 2021. In that affidavit, Detective Sergeant
McGee refers to the
statement of the mechanic in relation to the servicing of the vehicle and states
that it was served as an annexure
to a police statement. She then states
“[t]o my knowledge, there are no further records maintained in relation to
the odometer
reading” ([7] of affidavit 13 Oct 2021). The Crown submits
that “[t]he Police were not obliged to produce, in answer
to the subpoena,
documents which did not exist and were not in their possession”.
- It
is true that the subpoena could not oblige the police to produce a document with
a record of the odometer reading. That said, in
circumstances where it was clear
that all the applicant sought was a current odometer reading, it is regrettable
that such readily
ascertainable information was not provided. This is
particularly so given the circumstance that the applicant was charged with the
most serious of criminal offences. That said, there was no non-compliance or
other misconduct on the part of the police in this regard.
In any case, lack of
cooperation by the police, or obfuscation with respect to later odometer
readings, was, again, available to
the applicant to exploit if it was considered
expedient. As it was, it does not appear that any cross-examination took place
with
a view to establishing whether the van was still in the possession of
police and, if so, whether the odometer could be checked and,
if necessary, a
photograph taken.
Conclusion with respect to Ground 7
- It
follows from the above that the applicant has not established a miscarriage of
justice as a result of the non-disclosure with respect
to any of the matters
raised under this ground. To the extent that leave is required under s 5(1) of
the Criminal Appeal Act, I would grant leave to rely on each part of
ground 7 but would otherwise dismiss the ground.
Ground 8 - Her
Honour [erred] in law by denying production of documents in relation to a
subpoena filed by the defence on 16 March
2018
- On
16 March 2018, at the request of the applicant a subpoena was issued to the
Commissioner of the NSW Police seeking production of
the documents relating to
an investigation of fraud based on a complaint against George Karmas. While the
parties to the appeal are
not the same as the parties to the subpoena, there
may, nonetheless, be a wrong decision or other miscarriage of justice affecting
the trial within s 6 of the Criminal Appeal Act in making orders in
relation to a subpoena: see, for example Gardiner v R (2006) 162 A Crim R
233; [2006] NSWCCA 190 at [81]- [96].
- Details
of the fraud complaint against George Karmas, and the subsequent investigation,
were set out in a police event record (E 46810282)
and a case report (C
45042572) (the police reports), which were together Exhibit U on the voir
dire. The subpoena sought the following documents:
“(a) All statements made by Sergeant Anthony Asquini and
any other police officers involved in making any inquiries.
(b) All police notebooks, investigator reports and any relevant
documents made by Sergeant Anthony Asquini and any other police
officers
involved in the matter.
(c) All statements from Steven Lafiatis and George Lafiatis.
(d) All statements made by any other civilians in the matter
including Minh Tran, Frances Tran, Bland Pharmacy Haymarket, Igal
Makler, real
estate agent, David Leaney, solicitor and Na Yi, tenant.
(e) Any banking records, bank statements or bank documents
obtained in relation to the matters including from the Commonwealth
Bank and the
ANZ Bank relating to any person involved in this matter including banking
records for Australian Greek Investments and
Lafiatis Investments Pty
Limited.
(f) ASIC reports, notes and reports from the City Fraud
Unit.”
- The
Commissioner of the NSW Police sought to have the subpoena set aside on the
basis that it was a “fishing expedition”
and it was not “on
the cards” that anything produced would be of assistance to the accused in
the trial. In ex-tempore
reasons given on 22 March 2018, the trial judge set
aside paragraphs (a), (b), (d), (e) and (f). Her Honour ruled that, having
regard
to the material in the police reports, it could not be said that it was
“on the cards” that the material sought in those
paragraphs could
assist the applicant.
- The
material in the police reports established that on 12 July 2011, Stephen (or
Steven) Lafiatis (both spellings are used in the
reports) attended Waverley
Police Station to report what he appears to have believed was a fraud
perpetrated on his father, George
Lafiatis (Mr Lafiatis), by George Karmas.
George Karmas was known to Mr Lafiatis, as the former managed a number of
properties owned
by Mr Lafiatis. It was alleged that a power of attorney
purported to have been executed by Mr Lafiatis in favour of George Karmas
in
2009 was the result of either forgery or deception. It was alleged that George
Karmas consequently obtained from Mr Lafiatis a
number of properties with a
value in excess of $3 million. Additionally, it was suggested that rent was not
received from a tenant
occupying one of the properties (the implication being
these monies were misappropriated).
- The
police reports indicate the investigation was ultimately suspended on
19 March 2012. The reports indicate that after interviewing
the purported
witnesses to the execution of the power of attorney, the police were unable to
find any support for an allegation of
fraud. Records further indicate that the
only witness to Mr Lafiatis’ state of mind at the time of signing the
power of attorney,
a solicitor, told police that Mr Lafiatis was “in his
right state of mind” at the time of signing. In relation to non-receipt
of
rent, the police reports indicated that the rent was in fact deposited into Mr
Lafiatis’ account.
- Her
Honour, at the time of her judgment, did not have the benefit of the decision of
the Court of Appeal in Secretary of the Department of Planning, Industry and
Environment v Blacktown City Council [2021] NSWCA 145. There, Bell P (as the
Chief Justice then was) said (at [60]-[61]):
“60 There is a danger in using the language of
“tests” for the setting aside of subpoenas and such terminology
should, in my opinion, be eschewed. It is sufficient to observe that subpoenas
will and should be set aside when they can be seen
to involve or amount to an
abuse of process as part of the Court’s general power to regulate and
protect its own processes.
Such a power is not to be restricted to defined and
closed categories: see CSR Limited v Cigna Insurance Australia Limited
(1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a
subpoena may be set aside is illustrated by the list of examples supplied by
Powell J in [Botany Bay Instrumentation and Control Pty Limited v Stewart
[1984] 3 NSWLR 98] at 100 (see [45] above).
61 As Brereton J said in A v Z at [3], a “subpoena
will self-evidently be an abuse of process if it is not issued for a legitimate
forensic purpose, of which
it is an instance if it has not been issued bona fide
for the purpose of obtaining relevant evidence.” Evidence in that sense
need not be admissible evidence and, as Samuels JA observed in Maddison v
Goldrick at 663, documents subpoenaed for the purposes of cross-examining a
witness have been treated as documents required for the purposes
of evidence.
This extends to cross-examination on issues of credit: see, eg, Brand at
[36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v
Gadelrabb [2009] NSWSC 441 at [5] (Liristis).”
- His
Honour later said (at [65]):
“It is sufficient, in my view, to justify a subpoena as having been issued
for a legitimate forensic purpose if the documents
sought are “apparently
relevant” or, to use the words of Nicholas J in ICAP at first
instance, it can be seen that the documents sought to be produced by way of
subpoena will materially assist on an identified issue or there is
a reasonable basis beyond speculation that it is likely the documents subpoenaed
will so assist.” (emphasis in
original)
- His
Honour, at [68]-[69] said:
“68 There is a plain difference between “apparent
relevance” and “fishing”, the latter being the
metaphor that
is frequently deployed in this area of discourse: see, for example, The
Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575; [1938] NSWStRp 29; (1938) 55
WN (NSW) 215. The word “apparent” admits of the possibility that the
documents sought by way of subpoena may not ultimately turn out
to be relevant.
Their apparent relevance, however, should be able to be ascertained by an
examination of the description or identification
of the document or documents
sought in the schedule to the subpoena in light of the issues in the case, as
they present themselves
on the pleadings, in particulars and/or in affidavits or
witness statements if they have been filed or served at the time of the
issue of
the subpoena.
69 If the documents are apparently relevant and, provided that
the terms of the subpoena are not unduly vague or the ambit of the
subpoena is
not such that it would be oppressive to comply with it, the subpoena should not
be set aside. ...”
- While
it can be accepted that her Honour, based on the (then) current authority,
determined the issue on the basis that “there
[was] nothing to suggest it
is on the cards that this material could assist the [applicant]” rather
than on the basis of a
test of “apparent relevance”, nothing turns
on this in the circumstances of this case. The enquiries made by police did
not,
according to the police reports, produce evidence of any fraud. There was no
basis on which to conclude that any police statements,
notebooks or investigator
reports were capable of materially assisting with respect to any identified
issue. This was similarly the
case with respect to item (f), which sought
similar material but from ASIC and the City Fraud Unit. Item (d) sought
statements made
by civilians, including a real estate agent, those connected
with witnessing the power of attorney, and the tenant in relation to
whom there
was a suggestion rent was misappropriated. Firstly, there was no suggestion in
the police reports that any of these people
had in fact made statements. Minh
Tran, in fact, expressly refused to do so. Further, and as noted above, the
witnesses to, or persons
potentially relevant to the witnessing of, the power of
attorney (Minh Tran, Frances Tran, Bland Pharmacy Haymarket, and David Leaney)
did not support any allegation of fraud. In relation to the tenant, Na Yi, the
police reports indicate rent was paid into Mr Lafiatis’
bank account and
there is no reason to think this person could provide any further relevant
information. The final person in relation
to whom a statement was sought in this
paragraph is a real estate agent, Igal Makler, who according to the police
reports apparently
indicated a concern for Mr Lafiatis and provided documents to
police on 1 August 2011. There is, however, nothing to indicate that
this person
had any knowledge of George Karmas or that he was able to provide any
information to materially further the investigation.
- It
is to be noted that her Honour did not set aside paragraph (b). Ultimately, if
there was to be any material of relevance, it was
to be found in reports to
police by Stephen Lafiatis and Mr Lafiatis. Of course, if such material led to
further lines of enquiry,
it was open to the applicant to pursue them, using the
documents obtained to establish the potential relevance of the documents sought.
The potential relevance of the reports to police by Stephen Lafiatis and Mr
Lafiatis sought by paragraph (b) of the subpoena, to
the disappearance of Mr
Karmas was, as the trial judge acknowledged, somewhat tangential. However, from
the applicant’s perspective,
any support for the contention that there
were other persons with an animus against Mr Karmas who may have been involved
in his disappearance
could only come through the material the trial judge
allowed. There was nothing to suggest that any of the other material could
provide
any further support.
- I
am not of the view that the trial judge erred in denying production of the
documents referred to in this ground. This ground must
fail. To the extent that
leave is required under s 5(1) of the Criminal Appeal Act, I would grant
leave but reject ground 8.
Ground 9 - Her Honour wrongly admitted
listening device evidence, Exhibits CS and CX on the grounds of consciousness of
guilt
- As
a result of warrants granted to police, numerous conversations including
conversations between the applicant and Mr Woods were
recorded. Objection was
taken to a part of the recordings taken on 25 and 26 November 2011. The Crown
submitted the evidence was
available to go to the jury as evidence of
consciousness of the applicant’s guilt. The applicant submitted the
evidence was
inadmissible because it was not relevant (as required by s 55
of the Evidence Act 1995 (NSW)), or, failing this, because it was
inadmissible pursuant to ss 135 or 137 of the Evidence Act.
- Her
Honour ruled substantial portions of the recordings to be inadmissible pursuant
to s 137 of the Evidence Act. Two recordings, the first between 18:21 and
18:44 on 25 November and the second between 18:46 and 18:55 on the same date
were found
to be admissible: R v Fantakis; R v Woods [2018] NSWSC 1814.
Those recordings formed part of what became Exhibit CS. (Other parts of Exhibit
CS were recordings which were not relied on as consciousness
of guilt, and not
the subject of objection.) While determinations of relevance, and of
inadmissibility pursuant to ss 135 and 137 generally involve questions of
degree, they do not involve the exercise of discretion. As is ordinarily the
case for determinations
in the nature of evaluative judgements, review in this
Court is on the basis of whether the decision at first instance was correct
(and
not whether the decision was open): see Rogerson v R; McNamara v R (2021)
290 A Crim R 239; [2021] NSWCCA 160 (Rogerson v R; McNamara v R) at
[542]-[548].
- On
the Crown case, the relevant recordings were of a discussion between the
applicant and Mr Woods in relation to killing the officer-in-charge
of the
investigation, Detective Senior Constable McGee (Sergeant McGee by the time of
her evidence in this trial), although on any
view, the discussion was led by Mr
Woods. It is convenient to consider this ground in the context of the manner in
which the evidence
was used in the trial.
- In
addressing the jury, the Crown referred to evidence that on 21 December 2011, Mr
Woods was seen with a person fitting the description
of the applicant at a
café adjacent to the Bankstown Police Station, where Strike Force Flaggy
was headquartered. Reference
was made to the evidence of Inspector Doueihi that
he became aware in November 2011 of possible threats towards Detective Sergeant
McGee and advised the applicant and Mr Woods that there was a current
investigation in place in this regard with the purpose of discouraging
them from
acting on any alleged threats. The Crown Prosecutor noted that both the
applicant and Mr Woods denied the allegation when
it was put to them. The Crown
Prosecutor then addressed the two tracks in Exhibit CS, as follows:
“ ... track 2, 25 November 2011 at 6.21pm, ... Well you might think
there’s no doubt about who [Mr Woods is] referring
to and not a mistake as
to what was said, “Officer-in-charge Flaggy dead.” “That
won’t be a problem man,
haha.”
Track 3 on 25 November 2011 at 6.46pm, ... Woods says: “Gun, fuck
this,” and as it’s been explained, ladies and
gentlemen, and you
might recall these recordings aren’t the best quality, so it’s a
matter for you what you hear whether
it’s “gun” or “get
it done.” “We’ve got to get a gun,” or “get it
done.”
Fantakis says, “It’s the only fuckin’ way.”
Woods: “What do you mean it’s the only fuckin’
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.” And then at p 10,
Mr Woods says,
“I want to influence the fuckin’ hunter,”
obviously referring to Detective Senior Constable McGee.
Now the Crown relies upon this evidence as showing a consciousness of guilt by
each of the accused in relation to their involvement
of the murder of Sam
Karmas. The Crown says that this evidence supports an inference that each
accused planned to kill the officer-in-charge,
Detective Senior Constable McGee,
or wanted to see her dead because she was investigating the crime that they knew
that they each
had committed, and that this is another piece of circumstantial
evidence that the Crown relies upon in relation to Mr Fantakis and
Mr Woods,
that they wanted to disrupt the investigation of which she was the
officer-in-charge.”
- In
her summing up, the trial judge instructed the jury as follows:
“The Crown also relies on what has been referred to, on occasion, as the
evidence of intimidation. That is, some telephone
conversations and listening
device product, intercepted conversations in evidence before you, which, if you
agree with what the Crown
says is on those recordings, you might think
demonstrates some level of antipathy or hostility to police, to Strike Force
Flaggy,
and in particular, to Detective Sergeant McGee, who was in charge of the
operation investigating Mr Karmas’ disappearance.
The Crown points you to track 2 of exhibit CS. That is a recording of a
conversation between Mr Woods and Mr Fantakis on 25 November
2011 in the evening
of that day, where there was a discussion which - it is up to you, but it seems
to have been about finding out
where Detective Sergeant McGee lived, wanting to
blind her, “officer in charge of Flaggy dead” and so on.
Mr Woods was
the person who said those things; Mr Fantakis was engaged in
that conversation with him.
Track 3 of exhibit CS, there is a reference which, depending on your conclusion,
may be a reference to getting a gun, but you will
recall there is a dispute
between the parties as to whether it is “getting a gun”, or
“getting it done”.
It may be with the headphones you have, you will
be able to work it out rather better than we could do so here in the courtroom.
But if you conclude that that is a reference to getting a gun, then you may
consider that that is evidence going to what the Crown
says is contemplation of
doing harm to Detective Sergeant McGee. You know from evidence from Detective
Inspector [Doueihi] that he
spoke to both Mr Fantakis and Mr Woods on the
telephone, as it happened, about this suggestion that they wanted to harm
Detective
Sergeant McGee. He talked to them in July 2012. Each of them denied
any such intent.”
- Her
Honour later gave directions in relation to the use of this evidence as evidence
of a consciousness of guilt in terms that are
not the subject of complaint
(although it was submitted her Honour’s directions were not able to cure
the prejudice resulting
from the admission and use of the evidence).
- Returning
to the ruling on the admissibility of the evidence, her Honour, having referred
to various authorities,[16] said,
with respect, correctly:
“In summary, for evidence of conduct to be admissible as evidence of
consciousness of guilt,
(1) The conduct must be deliberate;
(2) It must relate to a material issue; and
(3) It must be open to infer that the motivation for the
conduct was comprehension of guilt of the charged offence.”
- The
conduct in this case satisfied those three criteria. The applicant had
deliberately engaged in a discussion which related to causing
harm to Detective
Sergeant McGee. That conduct went to a material issue; it was relevant to
establish that the applicant had a level
of antipathy towards the lead
investigator and an interest in doing her harm, and in doing so, to disrupt the
investigation. Finally,
it was open to infer that the applicant was motivated by
an awareness that the investigation may uncover evidence of his guilt of
the
crime charged. The evidence was therefore, as the trial judge found, relevant
within the terms of s 55 of the Evidence Act.
- Section
135 at the relevant time provided:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially
outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
- Section
137 provided:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the
prosecutor if its probative value is outweighed
by the danger of unfair
prejudice to the defendant.
- The
trial judge (at [67]) noted, correctly in my view, that ss 135(b) and 135(c) had
no application. The evidence was not, in the context of the trial, unduly
lengthy. The evidence was relatively straightforward,
albeit the Crown submitted
some words could be made out while the applicant contended that other words were
said, or at least that
the Crown interpretation was not correct. While there was
a dispute about the content, this did not make it misleading or confusing.
- The
real issue was whether the probative value of the evidence was substantially
outweighed by “the danger that the evidence
might be unfairly
prejudicial” under s 135(a) or whether, pursuant to s 137, the
“probative value [of the evidence was] outweighed by the danger of unfair
prejudice to the defendant”. It might
be noted that the terms of s 135 are
permissive (“may refuse to admit”) while s 137 mandates exclusion
(“must refuse to admit”) and is limited to evidence adduced by the
prosecutor in criminal proceedings.
Thus, where objection is taken to evidence
led by a co-accused, it is only s 135 that has application: Rogerson v
R; McNamara v R. More significantly, s 137 does not require, as s 135
does, that the probative value be “substantially” outweighed.
- Unfair
prejudice arises where there is a danger the jury will use the evidence in a
manner adverse to the accused and logically unconnected
with the purpose of its
tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. The
probative value of the evidence lies in the purpose for which it was tendered.
That probative value is to be assessed on the
basis of the definition of the
term in the Dictionary of the Evidence Act: “the extent to which
the evidence could rationally affect the assessment of the probability of the
existence of a fact in
issue”. Having regard to the word
“could”, this is to be done without seeking to evaluate the
reliability or credibility
of the evidence: IMM v The Queen (2016) 257
CLR 300; [2016] HCA 14.
- Before
the trial judge, the applicant, joined by Mr Woods, submitted that the evidence
was unfairly prejudicial on the following bases
(as set out by the trial judge
at [70]):
“The prejudice which the accused argue will be unfairly occasioned to them
is:
(1) in the evidence being unduly focused upon by the jury in
circumstances where the mental illness of the accused men provides
an innocent
explanation for the conduct but which, if revealed, could of itself lead to
prejudice;
(2) in a jury’s distaste for the idea of two men
discussing the violent death of a woman;
(3) in the unpleasant nature of some of the language; and
(4) in the evidence being used as tendency evidence, suggesting
that the accused have a disposition to violence.”
- With
respect to the first matter, the existence of a possible explanation consistent
with innocence does not render the evidence inadmissible.
The evidence in this
matter was not “intractably neutral”: see R v Ciantar (2006)
16 VR 26; [2006] VSCA 263; Edwards v R (2022) 107 NSWLR 301; [2022]
NSWCCA 22. It was open to the jury to find the discussion was motivated by a
concern that the participants’ involvement in the crimes
charged would be
revealed. To the extent the evidence suggested, or could be explained by, the
mental illness of the applicant and
Mr Woods, her Honour had regard to this
consideration. I find no error in her Honour’s view (at [72]) that while
“the
jury could be prejudiced against the accused because of the
suggestion (or reality) of their mental illnesses, [her Honour does]
not regard
the risk of that as a significant one”. In the context of the trial as a
whole, it is to be observed that the applicant
himself relied on the existence
of mental illness to explain his writings relied upon by the Crown as
admissions.
- As
to matters (2), (3) and (4), they were all theoretical possibilities. Evidence
of other criminal or discreditable conduct is regularly
put, or sought to be
put, before a jury. While at times the nature of such evidence will be such that
its prejudicial quality outweighs
its probative value, the nature of the
evidence in this case was not such that any prejudice on this basis could not be
addressed
with appropriate directions to the jury. The probative value of the
evidence was, in my view, not outweighed by the danger of the
unfair prejudice
relied on before the trial judge.
- Before
this Court the applicant added to the above bases on which unfair prejudice was
said to exist. In his most recent written submissions,
he relied on the
following factors:
“1. Had no connection to the elements of the offence;
2. Did not go towards negating any proposed defence;
3. Did not go to any material issue at trial;
4. Was evidence attached to a post offence that had yet to be
adjudicated, charges that were eventually dismissed in 2021;
5. Obviously, evidence that could be misused as tendency
evidence;
6. Insurmountable prejudice that could not be remedied by
directions;
7. The evidence was misleading due to the poor quality of the
recordings and that the conversation had been taken out of context
([s]
135(b)).
8. The makers of these conversation could not be compelled to
be cross-examined to put the conversations into context (s135(b));
9. Went against the presumption of innocence;
10. Destroyed the character of the applicant who was the main
witness in his own case; a person who was deemed a person of good
character by
the Court.”
- Matters
1, 3, 5 and 6 have been dealt with above. As to matter 2, it is enough that the
evidence went to proof of the Crown case.
As to matter 4, it is not to the point
that the evidence was the foundation of other charges or that those charges were
dismissed.
Quite apart from the need, in the context of proving a criminal
offence, to prove a number of elements, the evidence was led here
as part of a
circumstantial case and did not have to be proved beyond reasonable doubt.
Matter 7 has also been dealt with above.
Alternative interpretations did not
make it “misleading”, at least to the extent that its probative
value was substantially
outweighed by this danger. Similarly, as to any
potential alternative context. While it is true that the makers of the
conversations
(or more relevantly, Mr Woods, given the applicant could, and did,
choose to give evidence) could not be compelled, in the context
of the onus of
proof, and the directions to be given with respect to the drawing of inferences,
this was not such as to cause the
probative value to be substantially outweighed
by the danger that the evidence might be misleading. As to matter 9, the
evidence
led against an accused in a criminal prosecution is, with limited
exceptions, led to displace the presumption of innocence. As to
matter 10, this
effectively replicates the complaint made at first instance with respect to the
use of the evidence as tendency evidence,
or otherwise evidence of engaging in
discreditable conduct and has been dealt with above.
- While
the ground refers to Exhibits CS and CX, only the portion of Exhibit CS referred
to above was the subject of objection over
its admission as evidence of a
consciousness of guilt. It is also noted that the timing of the recordings in
Exhibit CX do not fit
within the timeframe of the recordings identified in
submissions in support of the ground (see at Applicant’s Written
Submissions,
3 May 2021 at [1319]).
- Finally,
before leaving this ground, the applicant raises an issue with respect to the
authenticity of the recordings. The applicant,
according to his submissions, was
charged with an offence of intimidation of Detective Sergeant McGee, based on
the recordings made
between 24 and 29 November 2011. That charge was heard
between 27 and 31 July 2020 at the Central Local Court. The applicant asserts
that there is evidence, arising out of this hearing, that establishes that the
discs received by the relevant section of the police
for the purposes of being
enhanced, were not, contrary to the assertion of Detective Sergeant McGee, the
master copy. He seeks to
rely on the evidence tendered in the Local Court
together with the relevant transcript.
- While
the applicant seeks to raise this as fresh evidence, the issue was known to him
prior to his trial. It was raised by him on
the bail application in 2016. In his
judgment, published as A1 v R; A2 v R [2016] NSWSC 1288, (A1 being a
pseudonym for the applicant), Garling J said (at [95]-96]):
“[95] ... A1, in his cross-examination of Sergeant
McGee, established a discrepancy between statements of various police
officers
with respect to a DVD containing the product of a listening device which
lawfully recorded conversations in which A1 was
involved. It is readily apparent
that there is inconsistency between the statements as to whether there was one
or three discs containing
the relevant recording.
[96] However, this challenge did not address itself to a more
fundamental question, namely whether the recording contained the
voices that the
police contended for and whether it contained the contents asserted by the
police. There was no challenge to these
central facts. There is no reason, from
this cross-examination, to doubt the integrity of the recordings.”
- Having
regard to the applicant’s awareness of the issue prior to trial, the
evidence is not relevantly “fresh” evidence:
see R v Abou-Chabake
(2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. There was no challenge
at trial as to the identity of the participants or the veracity of the
recording, a matter as to which the
applicant, given he was a participant, was
in a position to give instructions. The applicant gave evidence and did not
suggest he
had not participated in the conversations attributed to him. In these
circumstances admission of the evidence is not capable of establishing
a
miscarriage of justice in the relevant sense: Mickelberg v The Queen
(1989) 167 CLR 259; [1989] HCA 35. The evidence sought to now be relied upon
is not admissible on the appeal.
- For
the reasons set out above, ground 9 is not made out. To the extent that leave is
required under s 5(1) of the Criminal Appeal Act, I would grant leave but
reject ground 9.
Remaining Grounds
- With
respect to the remaining grounds, I agree with Ward
ACJ.
**********
[1] Re M’Naghten’s Case
(1843) 8 ER 718 at 722.
[2] R v
Kemp [1957] 1 QB 399.
[3] Mental
Health and Cognitive Impairment Forensic Provisions Act, s
30.
[4] Crimes Act 1900 (NSW), s
23A.
[5] Ibid, s
23A(4).
[6] Tillmanns Butcheries v
Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 (Deane J)
(as a member of a Full Court of the Federal Court of
Australia).
[7] See Tillmans
Butcheries, supra; O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd
t/a Wagga Windscreen Service [1983] FCA 191; (1983) 77 FLR
441.
[8] Bonnard v London General
Omnibus (1921) 38 RPC 1; Re Bonny [1986] 2 Qd.R 80; Re Migliorini; ex parte Silk
Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977)
28 FLR 160; Palser v Grinling [1948] A.C. 291; Chatsworth Investments Ltd v
Amoco (UK) Ltd [1968] 1 Ch 665; Re Burford; Burford v Clifford [1932] 2 Ch 122;
A.E.Terry’s Motors Ltd v Rinder [1948] SAStRp 19; [1948] SASR 167; Commissioner for
Superannuation v Scott [1987] FCA 79; (1987) 13 FCR
404.
[9] Crimes Act 1900, s
23A(2).
[10] Jones v Dunkel
(1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2
NSWLR 206; Fabre v Arenales (1992) 27 NSWLR
437.
[11] Fabre v Arenales,
supra, at 455.
[12] Carr v Baker
[1936] SR (NSW) 301 at
306-307.
[13] The Queen v
Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] and [62] (French CJ,
Kiefel, Bell, Keane and Gordon
JJ).
[14] Ibid, at [62], citing
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at
117.
[15]
Ibid.
[16] Her Honour referred to
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Sutton (1986) 5 NSWLR
697; R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep); R v MMJ
(2006) 166 A Crim R 501; [2006] VSCA 226; R v Nguyen (2001) 118 A Crim R 479;
[2001] VSCA 1; DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252; R v Smit & Ors
[2004] NSWCCA 409; Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA
270.
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