R v Fantakis

1. [1]

   HER HONOUR: The accused faces trial charged with the murder of Elisha Karmas on 11 August 2011, at Punchbowl in this State. He was arraigned before this Court on 6 May 2017 and entered a plea of not guilty. A jury is to be empanelled on 26 February 2018 and it is expected that the trial will commence soon after.

2. [2]

   The Court heard evidence and submissions on the voir dire on 22 February 2018, directed to the admissibility of video and documentary evidence in which the accused is alleged to have made admissions to murdering Mr Karmas and disposing of his body. The accused objects to the evidence being placed before the jury, arguing that the purported admissions are unlikely to be reliable, and should be excluded pursuant to ss 90 or 137 of the Evidence Act 1900 (NSW).

3. [3]

   The background facts as alleged by the Crown have been earlier set out, in R v Fantakis; R v Woods [2017] NSWSC 1840, and R v Woods; R v Cheong [2018] NSWSC 123.

The Disputed Evidence

1. [4]

   Tendered to the Court on the voir dire is a copy of the Crown Case Statement, Ex. VD A.2, and the transcripts of two video recordings, Ex. VD B. The former sets out the detail of admissions made by the accused in handwritten and diary notes. The latter is the transcription of recordings of oral admissions made by the accused. The accused takes no issue with the Court determining the matter by reference to secondary sources. For present purposes, he does not dispute that he is the author of the notes, or that he recorded the videos.

2. [5]

   The notes and videos were seized by police during the course of searches of the accused’s residence and motor vehicle in 2013. The admissions contained therein are referred to in the Crown Case Statement, Ex. VD A.2, at [158] – [163] inclusive.

3. [6]

   The videos, which seem to contain a number of distinct sections, are in part styled as a crime scene analysis in which the accused refers to matters connected with the death of his brother Nicholas in May 2011. After moving about the purported “crime scene” and pointing out various aspects of it, the accused refers to “Sam” in connection with the death. He goes on to address remarks to a named Sydney barrister, telling the absent barrister that he and Andrew Woods have “held this battle together for the last fourteen months, fifteen months”. He appeals for assistance in studying should he “go in”, implicitly, to prison.

4. [7]

   Other sections contain remarks addressed to friends and family, and to the accused Woods. In one, addressed to a sister, the accused refers to his brother having been murdered by “Maria”. Another section of the recording is styled as the accused’s “last will and testament”. He refers to his brother having been murdered by Mr Karmas, assisted by others including police officers, the motive being to cause harm to the accused’s mother. Referring to the named Sydney counsel, the accused says,

5. [8]

   Soon after, he said,

6. [9]

   In another video recording the accused apologies that his absent co-accused had to endure the insertion into his head of wi-fi technology that makes people crazy. He continues,

7. [10]

   The accused’s diary contains a number of entries relating to these events, which are relied upon by the Crown as admissions. In one entry, the accused wrote:

8. [11]

   Another entry states:

9. [12]

   Another alleged admission was written to the judge presiding over litigation in which the accused was engaged, concerning his late brother’s estate. There is no evidence before me as to when the letter was written or received. It said,

10. [13]

    In a note made in a blue diary recovered from the accused’s motor vehicle, the accused had written (on a date undetermined in the evidence before me),

The Evidence for the Accused

1. [14]

   The accused relied upon Exhibits VD 1.1 – 1.4, together with evidence called (via telephone) from Dr Stuart Saker, the author of Ex. VD 1.3 (duplicated by Ex. VD 3), and Ex. VD 1.4.

2. [15]

   I have earlier set out the evidence of Drs. Elliott and Chan in summary form in R v Fantakis, judgment of 22 February 2018), and do not repeat it here.

3. [16]

   In his report of 30 January 2018 Dr Saker said that he had treated the accused in the community between 2 November 2011 and 19 July 2013, seeing him on some 15 occasions. Over time the doctor concluded that the accused suffered from “well systematised persecutory delusions as well as depression”. The delusions centred on the death of the accused’s brother, and the subsequent investigation into it, together with his belief that he was being bugged, followed, and had had a transmitter inserted into his brain by police. The doctor did not, however, think that there was any clear evidence of psychosis prior to 2013.

4. [17]

   The accused was non-compliant with the medication regime recommended by Dr Saker.

5. [18]

   Much later, at the request of legal representatives, Dr Saker viewed the video recordings made by the accused and concluded that,

6. [19]

   In his telephone evidence to the Court Dr Saker reviewed his consultations with the accused during 2011 – 2013. He described his earliest encounters with him, and gave an account of the history he was given. The accused told Dr Saker when he first saw him in November 2011 that he had been accused of murdering a man on 11 August 2011. He said that his van and tools had been confiscated by police, whom he regarded as corrupt, and he had been threatened. He was in financial difficulties, and he was anxious about his late brother’s death and the disposition of his estate, in accordance with a will that he regarded as fraudulent. He slept poorly, had no energy, was unmotivated, and lacked concentration and appetite.

7. [20]

   Dr Saker diagnosed depression and prescribed anti-depressants. A referral to a psychologist was made.

8. [21]

   In late November 2011 when Dr Saker next saw the accused he recorded that the accused was paranoid that police were conspiring against him, and tapping his telephone. The doctor referred to “overvalued paranoid ideas” (T33:26) but noted that they may have been true.

9. [22]

   In ensuing consultations the accused continued to express concern over his brother’s death, asserting that his brother did not kill himself, and to complain of police conduct. There was some good affect from medication and cognitive behaviour therapy, although the accused continued in a low mood.

10. [23]

    In May 2012 the accused gave Dr Saker a thumb drive containing material relevant to what he said was police harassment of him, relating to the investigation of him as a suspect for murder. The doctor noted him to be “hyped-up and hyper-vigilant” (T34:43). There was no formal thought disorder, and he was neither suicidal nor homicidal. His insight and judgment were noted to be “good”, although he had ceased to take medication.

11. [24]

    In July 2012 Dr Saker thought that the accused had paranoid overvalued ideas, without being “clearly psychotic” (T35:13). He accepted that “a lot of his fear accusations are plausible and he certainly has been threatened and victimised at some level” (T35:14).

12. [25]

    The accused’s presentation was similar at consultations in October and December 2012. He complained of difficulties with police, thought that he was being “bugged” at his girlfriend’s house (T35:28), and continued to express the view that his brother had been murdered. Dr Saker was concerned about paranoid ideation, but noted that the accused “made some of it sound plausible” (T35:19). There was no formal thought disorder, and the accused was assessed as having good judgment and insight. An anti-psychotic was prescribed in December, it seems, at least in part, to aid sleep.

13. [26]

    In January 2013 the accused continued to be preoccupied with police conduct. After seeing a CT scan that had been taken of his brain to investigate a head injury sustained in December 2012, the accused asserted that a device had been implanted into his head to allow others to listen to him. Although reassured that the spot visible on the scan was simply an area of calcification, the accused continued to believe that a transmitter had been inserted into his brain, with his neighbour holding the receiver.

14. [27]

    In February 2013 the accused reported being under investigation by the Crime Commission, and afflicted by the transmitter in his brain. He was non-compliant with anti-psychotic medication.

15. [28]

    Dr Saker last saw the accused in July 2013. Mr Fantakis continued to refuse to take anti-psychotic medication, the efficacy of which Dr Saker thought was uncertain in any event, since he concluded that there “had been some sort of sustained investigation / harassment from the police against” the accused (T36:45).

16. [29]

    With the benefit of the history of the consultations with the accused over time, Dr Saker concluded (at T37:05 – 25),

17. [30]

    On the accused’s presentation in July 2013, taken with the overall history, Dr Saker diagnosed the accused with schizophrenia paranoid sub type, and a likely major depressive disorder, with anxious distress.

18. [31]

    As to the video clips, Dr Saker thought that they demonstrated grandiose and persecutory delusions. He said,

19. [32]

    In cross-examination Dr Saker said that he had been asked to look at two video clips by the accused’s legal representatives, but had not been provided with any other material from the Crown brief of evidence against Mr Fantakis. His opinion was reliant upon the history he had obtained from the accused, together with the observations he had made of him in 2011 - 3013.

20. [33]

    The doctor had no independent information that would permit him to assess the validity of the accused’s expressed concerns, other than in relation to his claim about being under investigation from the Crime Commission. Because Dr Saker had himself been summoned to attend the Crime Commission relevant to the accused, he was aware that the accused’s claims about the Crime Commission were true, and not delusional. Had it not been for the doctor’s personal contact with the Commission, he would have assessed the accused’s claims about it as deluded.

21. [34]

    Dr Saker agreed that, in any event, a person subject to delusions can make truthful statements. He said,

The Submissions of the Parties

1. [35]

   Counsel for the accused relies upon the evidence of Dr Saker, an independent expert, to submit that, at the time when the accused made the impugned admissions, he was suffering from an emergent schizophrenic disorder, with paranoid delusions. His mental state was such as to make what he said and wrote at that time unreliable, with evidence supportive of that proposition found not just in the expert opinion, but in the nature of the statements themselves.

2. [36]

   The accused points to statements made by the accused in the context of the admissions which are plainly deluded, including referring to the involvement of police officers and a named Sydney barrister as involved in the murder of his brother, and the insertion of nano-technology into his head and that of his brother and Andrew Woods.

3. [37]

   Mr Todd argues that, once the question of the reliability of the admissions has been raised, it is a matter for the trial judge to determine pursuant to s 90, rather than a matter that should be left to the consideration of the jury. If left to a jury, it is submitted that the danger of the evidence being misused is a very real one, because of the inability of the jury to distinguish between fact and fantasy on any rational basis, and the likelihood that it would focus on the admissions without properly considering whether the Crown has proved the elements of the charge.

4. [38]

   It is contended that the Court should exclude the admissions pursuant to s 90 or s 137 of the Evidence Act 1900 (NSW) as to admit them would be unfair to the accused.

5. [39]

   The Crown submits that it is for the jury to assess the evidence and determine whether it is reliable or not, and there is no unfairness, or unfair prejudice, to the accused in admitting the evidence of the admissions.

6. [40]

   The Crown points to other evidence, not known to Dr Saker, but which will be before the jury, to submit that the evidence when taken as a whole will permit the tribunal of fact to make a rational assessment of the reliability of the admissions. This evidence includes:

   1. (1)

      Mr Karmas was last known to be in the accused’s company and was not seen again thereafter;

   2. (2)

      the accused’s lie as to the departure of Mr Karmas from the Warwick Street Punchbowl address, without reference to his subsequent attendance at Wilga Street;

   3. (3)

      evidence from which it can be inferred that the accused used his van to remove Mr Karmas’ body from Wilga Street, including the discovery in the van of DNA consistent with Mr Karmas’ blood;

   4. (4)

      toll gate evidence showing the accused and Mr Woods travelling west on the night of the alleged murder, and subsequently returning early the following morning;

   5. (5)

      evidence of mud and soil on the wheel arches of the accused’s van consistent with a place of origin near the George’s River, as referred to in a diary note: “through [sic] in the river (Georges river)”;

   6. (6)

      evidence of the discovery of a shoe missing its lace in the accused’s van, inferentially referred to in the same note, “tie with black ribbon (shoe lace)”; and

   7. (7)

      evidence that the alleged crime scene at Wilga Street had been cleaned, including by burning a door and sanding down walls.

7. [41]

   The Crown argues that the evidence is properly admitted, with appropriate directions to the jury.

Consideration

1. [42]

   The evidence of the admissions is clearly relevant, and the rule against hearsay does not apply pursuant to s 81 of the Evidence Act. There is no question here of any police impropriety, since the admissions did not arise in the context of any police interview, or during an encounter between a witness and the accused that was recorded pursuant to a warrant. Without more, the evidence is admissible.

2. [43]

   Section 90 provides:

3. [44]

   Whether evidence should be excluded pursuant to s 90 involves consideration of the particular factual circumstances that apply. The onus of demonstrating that it would be unfair to him to admit the evidence is on the accused.

4. [45]

   The focus of the Court’s inquiry must be on the “circumstances in which the admission was made”, and on whether the circumstances were such as to make the admission of the material “unfair” to the accused.

5. [46]

   Little is established by the evidence of the circumstances in which the various admissions were made. With the probable exception of the letter written to a judge, and in the absence of any technical evidence that may exist to establish when the video recordings were made, there is nothing before the Court on the voir dire that would establish exactly when the admissions were made, or in what context.

6. [47]

   There is no dispute as to the accused’s authorship of the words on paper and words recorded on tape and there is no suggestion that there has been any interference with the integrity of the recordings and notes.

7. [48]

   There is nothing then in the circumstances of the making of the admissions that necessarily points to their admission as unfair, other than the evidence relevant to the accused’s mental illness.

8. [49]

   It could be a useful exercise to consider each admission chronologically in the context of Dr Saker’s dated consultation notes, but that is not an exercise which can be undertaken on the evidence presently before the Court.

9. [50]

   The question is whether the circumstances of the accused’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 cannot be known, and it would be unfair to the accused to admit them.

10. [51]

    There is no dispute that in the period when the admissions were made (between August 2011 and the dates on which the evidence was seized by police) the accused was mentally ill. Indeed, the Crown relies upon that illness to a degree to establish motive.

11. [52]

    As counsel for the accused submits, parts of the documents and recordings containing the admissions themselves demonstrate the accused’s disconnectedness from reality. Assertions as to the insertion of technology into the accused’s brain and the like are clearly not factually correct. It is reasonable to conclude that the circumstances surrounding the making of the admissions by the accused include his mental illness.

12. [53]

    Does that make it unfair to the accused to admit the evidence?

13. [54]

    The purpose of the discretion to refuse to admit evidence for unfairness “is to protect the rights and privileges of the accused person” (R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159, at [52] per Toohey, Gaudron, and Gummow JJ).

14. [55]

    Unfairness has been described as an “amorphous” conception: Em v The Queen [2007] HCA 46; 232 CLR 67, at [74]. In Swaffield, it was referred to as a term lacking in precision and requiring “an evaluation of circumstances” (at [53]); its converse (fairness) was described as “a vague concept” (at [66]). In their judgment in Swaffield, Toohey, Gaudron and Gummow JJ referred to an earlier decision of the High Court, R v Lee (1950) 82 CLR 133, in which it was said, at 152,

15. [56]

    Unreliability is certainly material to consideration of fairness or unfairness but, whilst it may be a “touchstone” of unfairness, it is not the sole consideration: Swaffield, at [54].

16. [57]

    Much of the focus of the authorities has been on the question of whether confessional statements had been improperly obtained, and “bought at too high a price”, with a forensic disadvantage to the accused in permitting their admission. These are not relevant considerations here. The statements were voluntarily made; there was no trickery involved in their coming into being; no impropriety occurred in their discovery by police. Ordinarily, voluntarily made admissions against interest are regarded as likely to be true.

17. [58]

    Mr Todd contends that, unreliability having been raised, the trial judge must determine the matter. No authority is cited for that proposition, and I am not aware of any that makes that point. To the contrary, there is authority (in the context of s 137 of the Evidence Act) that such matters are ordinarily best left to a jury. In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, Spigelman CJ said at [60],

18. [59]

    Shamouil was later confirmed in R v XY [2013] NSWCCA 121, and both decisions were confirmed by the High Court in Imm v The Queen (2016) 257 CLR 300; [2016] HCA 14.

19. [60]

    Whilst Shamouil was concerned with questions of the balancing exercise to be undertaken when considering the application of s 137, the comment is not necessarily inapposite to s 90. Whether an admission is reliable or not is ordinarily a matter for a jury. What must be determined is whether the potential unreliability of the statements is such as to require the Court to exercise its discretion to exclude the admissions.

20. [61]

    The accused argues that it is simply not possible for a jury to make that assessment rationally, because the question turns on considerations obscure to the lay person. Even with the benefit of expert evidence, the jury will not be able to assess the reliability of the statements, and will be in danger of giving too great a weight to the admissions, obviating a balanced assessment of the whole of the evidence.

21. [62]

    I respectfully disagree with that proposition.

22. [63]

    The system of criminal justice in this State relies upon twelve members of the community considering all of the evidence placed before them, with the benefit of expert evidence where relevant, and making an informed assessment of the evidence in accordance with directions of law given by the trial judge. That tribunal must be assumed to be capable of carrying out its function.

23. [64]

    The jury will be asked to consider the whole of the evidence and, on the basis of the whole of the evidence, its members will in my view be able to validly conduct an assessment of the confessional statements, and appropriately apportion weight to that evidence.

24. [65]

    The jury will have the advantage of hearing from Dr Saker, whose consultations with the accused occurred in the general period in which the admissions were made. That evidence will or may be supplemented by evidence (in one form or another) from Doctors Elliott and Chan. The Crown proposes to call Professor Greenberg, and the jury will have the further advantage of his expertise on relevant matters.

25. [66]

    Although Dr Saker concluded that the accused’s comments in the videos, and any statements he made about these matters, were unreliable, the jury will have evidence before it not seen by Dr Saker. Whilst some aspects of the accused’s claims to Dr Saker were fantastic, others, which Dr Saker thought were likely delusional, were in fact true, something unknown to the doctor, but of which the jury will be aware. At the time of the accused’s consultations with the doctor he was under investigation, and listening devices had been deployed against him. As Dr Saker discovered, he was in fact being examined by the New South Wales Crime Commission.

26. [67]

    Arguably, it is open to conclude that the admissions contain the same mix of fantastic and truthful statements as did the accused’s claims to Dr Saker.

27. [68]

    The jury will also have before it the other evidence which will inform and enlighten the assessment made of the confessional material. The veracity of the admissions does not fall to be assessed in a vacuum; it is to be assessed in the context of the whole of the evidence, including the discovery of likely blood from Mr Karmas in the accused’s van; his spectacles in its glovebox; the accused’s conduct in cleaning the van with bleach after 11 August 2011; his lie about Mr Karmas leaving Warwick Street; the evidence of mud on his vehicle; and so on.

28. [69]

    It would be open to the jury to conclude that the weight of the evidence to be called by the Crown supports the veracity of the confessions. If that conclusion is one which is open, in my view it is a matter for the jury. I do not conclude that the admission of the evidence would involve unfairness to the accused, or that the jury will use the evidence, or be affected by it, in a way not permitted by law: Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 528 per McHugh J.

29. [70]

    I would not exclude the evidence as unfair to the accused in the exercise of the Court’s discretion pursuant to s 90 of the Evidence Act.

30. [71]

    I have not reached any different conclusion after considering the application of s 137 of the Act, which is in these terms:

31. [72]

    The section requires the Court to exclude evidence against an accused if its probative value is outweighed by the danger of unfair prejudice. No discretion is involved.

32. [73]

    The probative value of the confessional statements if accepted is, in my view, very high.

33. [74]

    Setting aside the admissions, the case against the accused is a circumstantial one. There is no direct evidence of death or of the manner and cause of death. There is no direct evidence that any voluntary act of the accused led to death or what his intention was at the relevant time. The Crown relies entirely on the force of a number of pieces of evidence taken together to establish the elements of the offence.

34. [75]

    The evidence of the accused’s admissions, even when the question of reliability is considered, is critical. Whilst it may be said, as the Crown Prosecutor submitted, that the Crown can prove the charge without the evidence of the admissions, in my opinion the task is a more difficult one.

35. [76]

    Evidence is not unfairly prejudicial because it is capable of establishing or strengthening the Crown case: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, at [91]; Poniris v R [2014] NSWCCA 100, at [67]. Prejudicial 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.

36. [77]

    Section 137 requires the Court to undertake a balancing task. It is necessary to identify the prejudicial effect to which admission of the evidence may lead, and consider whether the probative value of the evidence is or is not outweighed by a danger that there would be unfair prejudice: R v Ford [2009] NSWCCA 306; 201 A Crim R 451, at [64]. The capacity of directions to mitigate any potential prejudice must be considered: DAO v R [2011] NSWCCA 63; 81 NSWLR 568, at [104].

37. [78]

    The unfair prejudice the accused argues would be occasioned to him in the admission of the evidence is that the jury would place too much weight upon it, and fail to properly consider the whole of the case.

38. [79]

    I do not agree that there is a danger of that nature or that, if it exists, it is so significant as to outweigh the probative value of the evidence.

39. [80]

    It will be open to the accused to highlight the potential unreliability of the admissions. That can be done by pointing to the content of the admissions themselves, much of it bizarre in nature. It can also be done by calling evidence from Dr Saker, and Doctors Elliott and Chan. The admission of the evidence occasions no forensic difficulties for the accused.

40. [81]

    Having heard all of the evidence, the jury will be asked to assess the reliability of the confessional evidence and the weight, if any, to be given to it. That evidence will include expert evidence, but also other evidence which may inform the validity of the admissions made by the accused. The task will be undertaken in conformity with directions given to the jury.

41. [82]

    It is likely that a direction pursuant to s 165(2) of the Evidence Act as to the potential unreliability of the admissions will need to be given, since the reliability of the admissions may have been affected by ill health, as contemplated by s 165(1)(c).

42. [83]

    Directions as to the assessment of expert evidence will also be required.

43. [84]

    It could be argued that the chilling nature of some of the admissions, such as that including a reference to torture, could provoke an emotional or irrational response in the members of the jury, but that danger needs to be viewed in the overall context of the allegations, this being a murder trial, and in light of the directions which are ordinarily given to jurors to consider the evidence dispassionately and without allowing emotion to sway them.

44. [85]

    On all of the evidence before the Court, and balancing the probative value of the evidence against the danger of unfair prejudice to the accused, I do not regard the evidence as excluded by the operation of s 137.

45. [86]

    The application to exclude evidence of admissions is refused.