Fantakis v Director of Public Prosecutions (No 2)

THE COURT: On 17 November 2021, this Court dismissed Mr Fantakis’ application for bail pending appeal (Fantakis v Director of Public Prosecutions [2021] NSWCCA 271; the “primary judgment”). By an email to the Court dated 24 November 2021, Mr Fantakis sought a “review” of the bail judgment on the basis that the orders dismissing his application had not been entered. A copy of his email was sent to the Director of Public Prosecutions.

Rule 5.4(1) of the Supreme Court (Criminal Appeal) Rules 2021 enables this Court to set aside or vary an order if an application for the setting aside or variation is made before entry of the order. Rule 5.4.(4) provides that, if the application to set aside or vary the order is made within 14 days after the order is entered, the Court may determine the matter, and, if appropriate, set aside or vary the order under subrule 5.4(1), as if the order had not been entered.

However both of these rules only applies to appeals or applications for leave to appeal (Rule 5.2) and Mr Fantakis’ application was neither. Instead he made a “release application” under the Bail Act 2013.

In the absence of an express power to re-open, the limited circumstances in which an appellate court can reopen its decisions were identified by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 as being when the Court has “apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”. His Honour noted that the “the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases” (id).

One of the bases for the application to reopen by Mr Fantakis is that the “Court has not adequately addressed the legitimate expectation that [the applicant] obtain access to my computer data that was produced by NSW police to facilitate ground 15 of the appeal”. In his application, Mr Fantakis states that this was the “primary ground why bail is sought” and otherwise contends that the principal judgment does not adequately address how he is to obtain access to the material.

This issue was addressed in the primary judgment at [47] to [54]. It suffices to note two matters. First, regardless of whether Mr Fantakis regarded this aspect of his application as the “primary” basis upon which he sought bail or a secondary basis, the obligation on this Court in considering his application for bail pending his appeal against his conviction for murder was to address whether “special or exceptional circumstances” were demonstrated (Bail Act, s 22(1)). For the reasons explained in the primary judgment, this required a consideration of the relative strength of his appeal in the context of the relatively short delay before his appeal is heard and the lengthy period of his sentence still to be served (at [9] to [17]).

Second, in addressing the applicant’s complaint about his lack of access to this electronic material in the primary judgment, the Court found (at [53]):

It follows from this finding that his difficulties in seeking access to the electronic material are of little significance, if any, to his appeal (and consequently his application for bail).

Otherwise, his application to reopen seeks to reagitate matters that were resolved against him in the primary judgment, such as the risk he poses to the community and the risk of him interfering with witnesses if he is released.

No basis for granting him leave to apply to reopen the judgment in accordance with Autodesk Inc v Dyason (No 2) is made out. To the extent that Mr Fantakis’ email might be taken as a further release application none of the grounds for making such an application in s 74(3) of the Bail Act have been made out.

The order of the Court is: