Commissioner of Police (NSW) v Fantakis

By application filed on 17 December 2021, the Commissioner of Police for NSW seeks an order that the Order to Produce (“the Order”) made by the Registrar of the Court of Criminal Appeal on 20 September 2021, on application of Mr Elefterios Fantakis, be set aside. The Order was sought by Mr Fantakis in connection with his pending appeal to the Court of Criminal Appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his conviction for murder.

In this matter, the Commissioner is the applicant and Mr Fantakis is the respondent, although he is the appellant in the substantive appeal and the Crown is the respondent. For clarity, in these reasons, I will refer to the parties as the Commissioner and Mr Fantakis.

In early 2018, Mr Fantakis was tried for the murder of Sam Karmas before Wilson J and a jury of twelve. The murder was alleged to have taken place on 11 August 2011 in Punchbowl. On 25 May 2018, he was found guilty and on 8 November 2018 he was sentenced to 24 years imprisonment with a non-parole period of 18 years.

Mr Fantakis filed a Notice of Appeal against his conviction on 3 May 2018. He is legally aided on grounds 1 and 2 which contend:

In addition to these two grounds, Mr Fantakis is self-represented in respect to a further 16 grounds of appeal (grounds 3 to 18). The Order was sought by Mr Fantakis in order to obtain material in support of some of those grounds. In particular, it seems that the Order is relevant to the following grounds of appeal:

Although Mr Fantakis initially relied on only 17 grounds of appeal, he subsequently added ground 18 in which he alleges that his counsel at trial were incompetent. On 31 March 2022, Mr Fantakis made an application to the Court for a further Order to Produce in respect of ground 18. The intended recipient is a solicitor at Zahr Partners, and Mr Fantakis calls on the production of all documents pertaining to a subpoena served on the Commissioner on 28 June 2017. That application is being considered by the Registrar.

With respect to his conviction appeal, Mr Fantakis filed submissions on 30 April 2021, consisting of 176 pages, and amended submissions on 10 August and 7 September 2021 and 10 March 2022 consisting collectively of 85 pages. In total there are 261 pages of submissions. In addition, he has filed two affidavits (with annexures) sworn by him on 1 September 2021 and 11 February 2022. They comprise 957 pages in total.

I have also been provided with the Crown submissions filed in relation to the conviction appeal on 8 March 2022 together with the particulars and summary of trial. The appeal is listed for hearing over three days on 18, 19 and 20 May 2022.

Attached to the Order is a schedule setting out the material sought by Mr Fantakis in 16 different paragraphs. All documents can be described as police records of the investigation of the murder of Mr Karmas. There are also four annexures to the schedule to the Order said by Mr Fantakis to be evidence supporting the existence of the material sought.

In support of the application (filed 17 December 2021) to have the Order set aside, the Commissioner attached Short Minutes of Order and an affidavit of Isabella Lea Houston affirmed 17 December 2021 annexing two documents. Ms Houston is a solicitor employed at the Crown Solicitor’s office.

Annexure A to Ms Houston’s affidavit is an email enclosing a letter from the Commissioner to Mr Fantakis dated 11 October 2021. In the letter, Ms Houston requested that Mr Fantakis identify his legitimate forensic purpose for calling on the documents set out in the schedule to the Order. It was contended that that order was “broad in scope” and the material called on largely had already been provided either in the brief of evidence during the original trial or in response to previous subpoenas issued to the Commissioner at Mr Fantakis’ request (these subpoenas were attached).

Annexure B to Ms Houston’s affidavit is an email dated 22 October 2021 enclosing a letter from Mr Fantakis to Ms Houston dated 18 October 2021. In this letter, Mr Fantakis identified his legitimate forensic purpose for calling on each of the 16 paragraphs of material set out in the schedule to the Order. I will consider those matters further below.

Since this time, the following additional material has been filed with the Court in relation to the application to have the Order set aside.

Given the large amount of documentation provided I formed the view that an oral hearing of the application was not required and determined that there was more than enough material to consider the application on the papers.

Although I am only determining whether the Order ought be set aside (and not the merits of the appeal), I propose to set out briefly the nature of the Crown case which the jury must have to some extent accepted to convict Mr Fantakis of murder on 25 May 2018. It is necessary to do so in order to determine whether Mr Fantakis has a legitimate forensic purpose for seeking the documents.

I have drawn the following summary largely from the judgment of Wilson J on sentence of Mr Fantakis: R v Fantakis; R v Woods [2018] NSWSC 1700.

The Crown case against Mr Fantakis was circumstantial. There is no direct evidence as to how Sam Karmas died. His body has never been found. He was last seen on 11 August 2011.

As at May 2011, Mr Fantakis was living in a property in Wilga Street in Punchbowl. Mr Karmas was living in Warwick Street also in Punchbowl where Mr Fantakis and his late twin owned a property across the street.

On 27 May 2011, Mr Fantakis’ twin brother, Nicholas Fantakis, committed suicide. It would appear that this tragic event precipitated a period of extreme stress for Mr Fantakis, centring on a dispute with his late brother’s de facto partner, Maria Angeles, over the funeral and estate. By August 2011, Mr Fantakis’ partner, Patricia Mantas, observed that he had developed mental health issues, characterised by depression, irrationality and delusions.

The deceased, Mr Karmas, became involved as an intermediary in the conflict between Mr Fantakis and Ms Angeles whom he knew as “neighbours”. Mr Fantakis went on to develop a strong animosity towards Mr Karmas and made threats of harm to him.

Mr Karmas was last seen by his daughter Sarah in the kitchen of his house at around 1.00pm on 11 August 2011. Precisely what happened that day is unknown. It appears that at some stage after 1.00pm, probably at 1.50pm, Mr Karmas went to the premises of Mr Fantakis at Wilga Street in Punchbowl. He travelled there from Warwick Street in a blue transit van owned and used by Mr Fantakis, with Mr Fantakis and his labourer. The Crown case was that either Mr Fantakis “lured” Mr Karmas to his Wilga Street property to murder him, or Mr Karmas offered to assist Mr Fantakis with his renovation works and the killing was opportunistic.

The Crown case was that later that afternoon, Mr Fantakis murdered Mr Karmas by the violent application of force to his person, out of sight and hearing from the labourer. The exact circumstances of the killing are not clear. After the violence, Mr Karmas’ body was loaded into the blue van leaving a DNA trace.

At that time, Mr Andrew Woods was an associate of Mr Fantakis who helped him to cover up the murder. He was convicted of being an accessory after the fact to the murder. The Crown case was that at around 1.00am on 12 August 2011, after travelling west in separate vans, the two men travelled together in the blue van to an area within the Georges River catchment where, between this time and 4.46am, Mr Karmas’ body was disposed of. His body has never been found.

Mr Fantakis gave evidence at his trial. He admitted that he had travelled with Mr Woods that night as alleged but stated that the purpose of the journey was to dispose of detritus from his late brother’s cultivation of cannabis. This account cannot have been accepted by the jury and was rejected by Wilson J on sentence.

A note was found by police in the blue van which became exhibit AG at trial. At [34] of the sentencing judgment, her Honour continued:

It is the admission of this handwritten note into evidence during the trial which Mr Fantakis now challenges in appeal ground 13(1).

In the period after 12 August 2011, both Mr Fantakis and Mr Woods took steps to conceal their involvement. This included lying to others and to police. In addition, Mr Fantakis attempted to hide the blue van and to clean it with bleach to eliminate forensic evidence. On this issue, her Honour observed the following at [41]-[42]:

Detective Sergeant McGee deposed that she is an officer of the NSW Police Force. In August 2011, she led the investigation into the disappearance of Mr Karmas known as “Strike Force Flaggy”. From this time, she was, and she remains, the officer in charge of this investigation. In this role, DS McGee was responsible for compiling the brief of evidence and responding to any subpoenas for production issued to the Commissioner in the prosecution of Mr Fantakis arising from Strike Force Flaggy.

Annexure B of DS McGee’s affidavit is a schedule outlining the Commissioner’s position in respect of each paragraph of the Order and specifying where documents caught by the Order have already been provided to Mr Fantakis in the brief of evidence or in response to subpoenas for production issued in the prosecution. In the relevant column the officer has expressly stated the basis of her evidence that the material has already been provided; for example, by pinpointing where it appears in the index to the brief served on Mr Fantakis.

In her second affidavit, DS McGee annexed an amended version of the schedule which was Annexure B in her first affidavit (“the Amended Schedule”). She also outlined why the Commissioner’s position in respect of certain paragraphs of the Order had changed since her first affidavit.

I have summarised the Amended Schedule in my consideration below of the parties’ positions in respect of each of the 16 paragraphs of material set out in the schedule to the Order.

Given that both the Commissioner and Mr Fantakis provided schedules and submissions addressing each of the sixteen categories of documents sought, in turn I propose to consider the application using the same format.

As Simpson J (as her Honour then was) observed in R v Saleam [1999] NSWCCA 86 at [11] (with whom Spigelman CJ and Studdert J agreed):

Earlier, in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 Jordan CJ observed:

As Barr AJ stated in R v Tastan (1994) 75 A Crim R 498 at 505-506:

In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beazley JA (with whom James and Kirby JJ agreed) observed at [5], citing both Tastan and Saleam, the issuing party bears the onus of establishing that he or she has a legitimate forensic purpose for production.

It has been held that the test is to be applied more liberally in criminal cases than in civil cases: Alister v The Queen (1984) 154 CLR 404 at 456; [1984] HCA 85 (Brennan J).

The Court of Appeal has recently considered the circumstances in which a subpoena can be set aside, albeit in the civil context, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown”). The question was whether the issuing party needs to establish that the documents sought are “likely to assist” that party’s case. After conducting a detailed analysis of the relevant decisions and the tests advanced therein, Bell P (as his Honour then was) observed the following at [60]:

His Honour noted the different approach taken to subpoenas issued in civil proceedings to those issued in criminal proceedings and then went on to observe the following at [65]:

His Honour went on to consider the concepts of “apparent relevance” and “fishing” and observed the following at [68]-[69]:

His Honour concluded at [80]:

Brereton and McCallum JJA agreed with his Honour’s formulation. Brereton JA observed the following at [91] in the context of the distinction between civil and criminal cases (footnote omitted):

Following Blacktown, the principles to be applied when a party seeks to set aside a subpoena/order to produce in the civil context is settled: so long as the material sought has “an apparent relevance” to the issues in the case and/or bears upon the cross examination of witnesses expected to be called in the proceedings it will have a legitimate forensic purpose.

The question of whether that approach is to be applied in the criminal context was considered by Davies J in Waters v Secretary of the Attorney General’s Department (Cth) [2021] NSWCCA 193 (“Waters”), but his Honour did not need to resolve that question in order to determine that appeal. Davies J observed the following at [26]:

Davies J went on to observe the following at [27]:

His Honour took the view that on the facts in that case, whatever approach was taken, no error was established.

I have considered these authorities and propose to adopt the same approach as the Court in Waters: that is, I am prepared to follow the approach in Blacktown for the purposes of determining this matter without making any finding either way as to whether it is the applicable approach in the criminal context. I note that this approach is more favourable to Mr Fantakis.

In Mr Fantakis’ letter to Ms Houston of 18 October 2021 he sought to specify the grounds of appeal to which the material sought in the 16 paragraphs of the schedule to the Order was said to be relevant. This was summarised in one column of the Commissioner’s Amended Schedule annexed to the second affidavit of DS McGee. In written submissions, Mr Fantakis also identified relevant grounds of appeal largely consistent with his letter.

Mr Fantakis seeks to obtain material relevant to appeal grounds 3, 7, 13(1) and 14 (extracted above at [5]). I propose to summarise the scope of these grounds. Occasionally, other grounds of appeal are cited in support of the Order and these are addressed as necessary in my consideration below.

One aspect of Mr Fantakis’ contention that the jury’s verdict is unreasonable is an overarching allegation of police impropriety in respect of the investigation into Mr Karmas’ death. Some of the material sought is relied on to support that aspect of this ground (and also ground 14 below). Given that this ground relies on the specific complaints under grounds 7, 13(1) and 14 it is not necessary to summarise Mr Fantakis’ submissions further.

Mr Fantakis asserts that a miscarriage of justice was occasioned by the failure of police to produce four categories of documents, as follows:

In relation to the phone records, exhibit J was the marking given to a spreadsheet prepared by police which compiled the raw data from over 40 separate telephone records, by using the original call charge records. Mr Fantakis’ complaint is threefold: first, that exhibit J was not included in the brief of evidence and that it was tendered late; secondly, that the original call charge records used to compile exhibit J have not been served on him and may include data not reflected in exhibit J; and thirdly, some data is missing from these records.

In relation to the documents sought by item 13 of the 28 June 2017 subpoena, Mr Fantakis submits that police did not properly comply with a requirement to produce “[a]ll documents authorising the destruction of drugs allegedly discovered during the execution of SW 554/11 and CSW 278/11 and 37 Wilga Street Punchbowl, attached to DAL ref: 2011 03804”. The underlying allegation is that in September 2011 Detective Sergeant McGee planted drugs seized from Wilga Street in a vehicle driven by Mr Woods.

In relation to the documents held at Bass Hill holding yard, Mr Fantakis submits that their production would have assisted the defence to test the continuity of exhibits relied upon by the Crown at trial, in particular the DNA of the deceased located on the trim of the driver’s door of Mr Fantakis’ blue transit van.

Finally, in relation to the odometer reading, Mr Fantakis contends that police failed to produce documents pertaining to proof of the odometer reading of the blue van (BE32CB) and certain other documents were improperly withheld from him by police.

In this sub-ground of appeal Mr Fantakis submits that exhibit AA, which came to be referred to as the “Georges River note”, should not have been admitted as evidence in his trial. Objection was taken at trial to a body of evidence (including ex AA) on the basis of ss 90 and 137 of the Evidence Act 1995 (NSW), but the application was refused: R v Fantakis [2018] NSWSC 1815. Mr Fantakis now argues for the exclusion of the Georges River note on grounds not advanced at trial.

Mr Fantakis submits (for the first time) that the note was wrongly admitted because it has no probative value, and any such value was outweighed by the prejudice of raising a case theory without foundation and which wasted court time. Further, he submits that the note was planted by police.

Under this ground, Mr Fantakis makes wide-ranging and serious allegations of impropriety in respect of the police investigation into Mr Karmas’ death (some of which overlap with the grounds above) and generally relies on his submissions in respect of ground 3.

The allegations of impropriety may be briefly summarised as follows:

I consider the parties’ submissions further below when determining whether Mr Fantakis has shown a legitimate forensic purpose for seeking each of the 16 categories of documents. However, for completeness, I note that the parties traded submissions in reply and further reply to which I have had regard. Some relevant submissions made at a general level are as follows.

These submissions addressed the relevant legal principles relating to the Court’s power to set aside an Order to Produce in an appeal and the standard to be met by Mr Fantakis to avoid this. From [41] the Commissioner set out how the principles apply in the present case as follows:

And further at [44]:

Mr Fantakis’ submissions provided extensive background to the murder charge and conviction as well as the conduct of the trial. At [164]-[207] Mr Fantakis addressed the legal principles applicable to setting aside subpoenas. The balance of the submissions comprise an “Examination of Itemised Subpoena Schedule” and are summarised below. There are also 15 annexures to these submissions, being documents said to evidence the existence of the documents sought.

Mr Fantakis also articulated his general purpose behind the Order to be as follows (footnotes omitted):

In these submissions Mr Fantakis largely reiterates his position in respect of the material called on in paragraphs 1 to 16 of the schedule to the Order. It is made clear that in respect of many of these paragraphs Mr Fantakis is seeking “confirmation” or a “concession” from the Commissioner that certain documents do not exist or that certain procedures were not complied with.

The Commissioner set out five different bases for objecting to the production of the material. These are (noting that “legitimate forensic purpose” is abbreviated to “LFP”):

In the event, only four of these bases were relied on by the Commissioner in the Amended Schedule to DS McGee’s second affidavit. The second basis above was not relied on; and the fourth and fifth bases were relied on only in combination with the first basis.

Therefore, I propose to consider the Commissioner’s application under the first and third bases and address additional objections as they arise.

This first basis was advanced by the Commissioner in respect of the following paragraphs of the schedule to the Order: 1, 2(a), 3, 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16. Each of the subheadings below sets out the material called on in these paragraphs of the Order verbatim.

The fourth basis was relied on in combination with the first basis, as something of a “safety net”, in the following way: “In respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a LFP and will contest the paragraph.” This additional objection was made in respect of paragraphs: 6, 8, 13, 15.

Finally, the fifth basis was relied on in combination with the first basis in respect of paragraph 16 only.

In his letter dated 18 October 2021, Mr Fantakis narrowed the call in this paragraph to “all telco records” for George Karmas, mobile number 0433 781 303.

It is the Commissioner’s position that any material caught by this paragraph (including the specific material called on in the Mr Fantakis’ subsequent letter) has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Alternatively, the Commissioner submitted that there is nothing to produce in response to call for call charge records of George Karmas.

Mr Fantakis contends that George Karmas’ “telco records” were not included in any brief of evidence, nor have they subsequently been provided in response to a subpoena. He submitted, “if these documents were produced to the court, by way of subpoena by another party to these criminal proceedings, the appellant has no knowledge of such a disclosure.” – and that in any event the Commissioner would not be prejudiced by simply reproducing these records.

Mr Fantakis contends that these telephone records are relevant to the credibility of George Karmas, who was a central witness for the Crown in the Mr Fantakis’ prosecution and could have formed the basis of “significant cross-examination”. The production of such records were said to be relevant to grounds 3 and 7 of his appeal.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. She also deposed that there is “nothing to produce” in respect of call charge records of George Karmas.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced or are not in the Commissioner’s possession.

I would set aside paragraph 1 of the Order on the basis that the material has already been produced, and thus any legitimate forensic purpose it had has already been answered, or is not in the Commissioner’s possession.

In relation to paragraph 2(a), it is the Commissioner’ position that any material caught by this subparagraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered.

Mr Fantakis contends that while some of Sam Karmas’ call records have been produced, other records have not. The production of these records was said to be relevant to grounds 3 and 7 of Mr Fantakis’ appeal against conviction. Mr Fantakis further submits that the information provided by Vodafone to police would form part of the Crown’s “general duty of disclosure”.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

The Commissioner’s evidence is that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena, or has been produced to Mr Fantakis otherwise (eg occupiers notices are provided to the occupier on execution of the warrant). Hence, any legitimate forensic purpose has been answered.

Mr Fantakis contends that he was never served with an occupiers notice around the time of execution for any of the warrants executed during the Strike Force Flaggy investigation (although “many of these notices” were made available subsequently). Further, he disputes the Commissioner’s position that the crime scene warrants were properly identified in the brief of evidence. Out of a total of seven crime scene warrants identified by Mr Fantakis, he submits that only one has ever been produced to him by police.

In summary, Mr Fantakis seeks production of “any further crime scene warrants not disclosed or confirmation that the only crime scene warrants are those identified in the prosecution brief.” The relevance of these documents to Mr Fantakis’ substantive appeal is articulated by him as follows:

Mr Fantakis submits that doubts exist as to the provenance of specific items of evidence adduced at trial and on the legal principles relevant to the exclusion of evidence under s 138 of the Evidence Act.

The grounds of appeal said to be relevant to this class of documents were grounds 4-7. While ground 7 is set out above at [5] and [51]-[55], grounds 4, 5 and 6 are not. They are as follows:

The Commissioner maintains that all crime scene warrants were served in the brief of evidence and that Mr Fantakis appears to be conflating “the requirements of police protocols and LEPRA requirements for search warrants on the one hand and crime scene warrants on the other”. The same submission is made in respect of paragraph 4 of the Order considered below.

In the Crown’s written submissions on the substantive appeal, it is noted that Mr Fantakis has himself produced documents which show that the standard operating procedures he relies on did not, at the time of the investigation, apply to the execution of crime scene warrants.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. In any event, appeal grounds 4 to 6 are legal arguments which do not rely upon the production of new material.

The Commissioner relies on the evidence of DS McGee that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered.

Mr Fantakis disputes this. He contends that “no documents produce [sic] by NSWPF or included in any brief of service includes any property seizure/exhibit forms that had been filled out by an exhibit officer during the execution of any crime scene warrant” (as opposed to records of exhibits being logged at a police station). It appears that Mr Fantakis is calling on these documents to confirm that “no property seizure/exhibit forms had been utilised by any exhibit officer(s) during the execution of all crime scene warrants.”

These documents are said to go to grounds 3, 7 and 14 of Mr Fantakis’ appeal and demonstrate that police conducted an investigation “with such dereliction of duty”.

As outlined above, DS McGee has deposed the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

The Commissioner contends that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. In light of this, any legitimate forensic purpose has been answered.

Mr Fantakis maintains that he has never been served with any “receipt” around the time crime scene warrants were executed by police in connection with Strike Force Flaggy, and again places this category of documents (“contemporaneous accounts of exhibits seized during the execution of a warrant”) in contrast with records kept after the evidence is held at a police station.

As with previous paragraphs of the schedule to the Order above, Mr Fantakis is calling on these documents in order to confirm that they do not exist and thereby support an allegation of police misconduct.

The production of these documents is said to be relevant to grounds of appeal 3, 7 and 14.

As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

The Commissioner contends that material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, with respect to the call on any “Form 20s” not already provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph.

Mr Fantakis maintains that “no brief of service includes any Form 20 with regards to any crime scene warrant, with an attached seizure list or confirmation that the occupant was served with an occupiers notice as mandated by legislation.” – and that the police should have no objection to producing all Form 20 records.

These documents are sought as being relevant to appeal grounds 3, 7 and 14.

In reply, the Commissioner submitted that documents were produced to Mr Fantakis on 16 October 2017 in response to paragraphs 2 and 3 of the subpoena issued on 28 June 2017. The submission relating to conflation of crime scene warrants and search warrants outlined at [89] above is also relied upon by the Commissioner for this paragraph.

As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

The Commissioner also relies on a second argument in relation to this paragraph: not only is it contended that the documents have been produced, it is further contended that there is no legitimate forensic purpose in any event.

In DS McGee’s first affidavit she deposed that all documents falling within the various paragraphs have been produced. She established this by reference to the brief index and other documentation kept by the Commissioner. In her second affidavit she qualified that evidence by adding an “even if” disclaimer in relation to some of the paragraphs. The effect of that qualification is that in relation to some of the documents that have already been produced by the Commissioner, an additional argument is brought: in the event that it could not be proven categorically that every single document sought has been provided, then the Commissioner contends that Mr Fantakis has failed to identify a legitimate forensic purpose in any event.

It seems to me that this additional argument relied upon by the Commissioner requires the Court to hypothesise whether some documents which might not have already been provided, and which Mr Fantakis is unable to identify, have “apparent relevance” to the appeal grounds.

Mr Fantakis does not concede that any of the documents have been provided to him, even in the face of documented evidence that they have. That position does not assist his case in circumstances where he bears the onus of establishing precisely what it is he is looking for. Having regard to what Bell P observed in Blacktown at [39]-[40], his Honour may have qualified what it is to mount a “fishing expedition” in relation to documents sought for cross-examination of a witness at a trial, but the principle otherwise remains that the party seeking access to documents cannot simply seek everything in the hope that some document may establish an argument he has already made without any evidence to support it.

Despite the complaints raised by Mr Fantakis in respect of the police evidence, I am not satisfied that he has discharged his onus of establishing that he has not been served with the documents that he now seeks.

Furthermore, I accept the Commissioner’s argument that Mr Fantakis has conflated the requirements for the execution of crime scene warrants with that of search warrants. He has not established apparent relevance of these documents.

I am satisfied that Mr Fantakis is embarking on no more than a “fishing expedition”. I consider this paragraph should be set aside on the basis that the documents have already been produced and no legitimate forensic purpose has been established in any event.

It is the Commissioner’s position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph.

It is Mr Fantakis’ position that no brief of service includes any statement, or any other document, matching the description in paragraph 8 from any of the four kinds of police officer listed.

Again, Mr Fantakis is calling on these documents to confirm that the Commissioner has “nothing to produce” in response. The phraseology used by Mr Fantakis in submissions in respect of this paragraph is that this would show that the Strike Force Flaggy investigation “was conducted for improper collateral purpose to pervert the course of justice”. The relevant appeal grounds are 3, 7 and 14.

As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

As for the Commissioner’s additional argument I am satisfied that Mr Fantakis is unable to identify the “apparent relevance” of this material to his appeal grounds. I also accept the Commissioner’s argument as to Mr Fantakis’ conflation of the requirements for the execution of crime scene warrants with that of search warrants. Thus, I consider this paragraph should be set aside on the basis that the documents have already been produced and no legitimate forensic purpose has been established in any event.

It is the Commissioner’s position that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered.

It is Mr Fantakis’ position that he was never issued with any “receipt” acknowledging that his vehicles had been seized by police. He “is simply seeking confirmation from NSWPF that they did not issue receipts once [his] vehicles had been seized as required in law”. The relevant appeal grounds are 3, 7 and 14.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

The parties’ position under this paragraph is the same as for paragraph 9 immediately above. This is unsurprising given the closely related nature of the documents called on in each.

In respect of this paragraph, Mr Fantakis also cites appeal ground 13(1) as being relevant.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

It is the Commissioner’s position that any material caught by this paragraph has already been produced in the brief of evidence. Hence, any legitimate forensic purpose has been answered. Further, in response to a subpoena served on 28 June 2017 which included a similar call on this material, the Commissioner did not produce any material on the basis that it had already been served in the brief of evidence.

It is Mr Fantakis’ position that the brief of evidence does not include “any copy of any original documents held by Bass Hill holding yard in relation to the storage and access to these vehicles”. As such the Commissioner’s position is “misleading”. (Emphasis added.)

Again, Mr Fantakis submits that this material would assist in challenging the propriety of the police investigation and is relevant to appeal grounds 3 and 14.

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

It is the Commissioner’s position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph.

In written submissions Mr Fantakis clarified that paragraph 13(a), (e) and (g) are no longer pressed. In respect of paragraph 13(b), (c), (d) and (f) the Mr Fantakis submitted that these documents have never been produced to him by the Commissioner and such “these documents are being sought … if they exist”.

Mr Fantakis calls on these documents to demonstrate that charges brought against him on 10 December 2012 for possession of an indictable quantity of cannabis had been initiated for an “improper collateral purpose”. He submitted that the exhibit in question had been “unlawfully destroyed” during the prosecution of his associate Mr Woods in December 2011. Further, Mr Fantakis submitted:

He nominates grounds of appeal 3, 13(1) and 14 as relevant to the Order.

In the Crown’s written submissions on the substantive appeal, it is submitted that the documents sought do not demonstrate what Mr Fantakis asserts that they do – that is, that in September 2011 Detective Sergeant McGee planted drugs seized from the Wilga Street property in a vehicle used by Mr Woods.

Further, as outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

As for the Commissioner’s additional argument I am satisfied that Mr Fantakis is unable to identify the “apparent relevance” of this material to his appeal grounds. He cannot even identify whether the documents exist. How they could establish that he was prosecuted for drug possession for a collateral purpose is not clear. Accordingly, I would set this paragraph aside on the further basis that Mr Fantakis has not established the legitimate forensic purpose of the documents.

It is the Commissioner’s position that any material caught by this paragraph has already been produced in the brief of evidence. Hence, any legitimate forensic purpose has been answered. Specifically, the Commissioner submitted that material caught be this paragraph was also produced on 16 October 2017 in response to paragraph 24 of the 28 June 2017 subpoena.

It is Mr Fantakis’ position that an undertaking was given on 7 September 2017 by the Crown Solicitors Office that the video called on by paragraph 14 would be produced in response to the 28 June 2017 subpoena. This was confirmed on 3 November 2017. However, Mr Fantakis submitted that he has never been provided with any such video recording.

Mr Fantakis also submitted that “[t]he material has high evidential value and is relevant to material issues raised in Grounds 3, 14 & 9 (LD recordings tendered as exhibit CX) of the appeal.” Ground 9 of the appeal puts forward that, “Her Honour wrongly admitted Listening Device evidence, exhibit CS and CX, on the grounds of Consciousness of Guilt.”

As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

It is the Commissioner’s position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph.

It is Mr Fantakis’ position that the material provided by the Commissioner relates only to paragraph 15(a), (e) and (g) and that this material is no longer being sought by Mr Fantakis. Therefore, Mr Fantakis seeks that “[i]f no such document exists in relation to items 15(b), 15(c), 15(d) and 15(f) it should be confirmed by the Commissioner”.

This material is said to relate to the propriety or lawfulness of police conduct in respect of exhibit X0000 801 677 and be relevant to grounds 3, 13(1) and 14.

As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

As for the Commissioner’s additional argument I am satisfied that Mr Fantakis is unable to identify the “apparent relevance” of this material to his appeal grounds in any event.

Mr Fantakis advances a case theory along the following lines (relevant also to grounds 13 and 14 above): cannabis was originally seized by police in August 2011 during a search of the Wilga Street property (exhibit X0000803 009). This exhibit was used by police to bring possession charges against Mr Woods in December 2011 and then against him in December 2012. He also alleges that this exhibit was planted in Mr Woods’ vehicle by police to justify its search in September 2011. His argument appears to be that if he can prove that the drugs were not destroyed, this would support his case theory that they were available to be planted by police as alleged and then used in the prosecutions in 2011 and 2012.

However, Mr Fantakis has not established the apparent relevance of these documents to the grounds of appeal identified by him. I am satisfied that what he seeks is no more than a “fishing expedition” to substantiate a case theory that does not go beyond speculation.

I would set this paragraph aside on the further basis that Mr Fantakis has not established the legitimate forensic purpose of the documents sought to be produced.

In respect of this paragraph, the Commissioner has multiple responses:

It is Mr Fantakis’ position that the Commissioner has not produced material which properly matches the description called on by this paragraph; the documents which have been produced were “generated by NSW police, excluding any copy of any original document produced by the ANZ Bank”. Further, ground 8 of Mr Fantakis’ current appeal challenges the decision of the Court on 22 March 2018 to set aside of the 16 March 2018 subpoena.

Mr Fantakis also maintained that the Commissioner’s response that similar calls were made in prior subpoenas (12 October 2015 and 15 January 2018) does not properly satisfy the current call in paragraph 16. He submitted that he “is seeking all documents held by NSW Police that were obtained/produced by the ANZ bank in relation to accounts held by Ms Maria Angeles”, a central witness at trial, and the relevant appeal grounds are said to be 3, 7 and 14.

As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion.

In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced.

I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered.

As for the Commissioner’s additional argument that some of the material was caught by paragraph (e) of the subpoena issued on 16 March 2018 which was set aside by Wilson J, Mr Fantakis seeks this material in order to establish that George Karmas had committed a fraud. However, I am not satisfied that that information could have assisted Mr Fantakis’ case. Not only is there no basis to infer that these documents have anything to do with the disappearance of Sam Karmas, the evidence before Wilson J established that the police investigation ended early on, when it became clear that there was no evidence to establish the commission of any criminal offence by George Karmas.

Mr Fantakis has not established that these documents have any apparent relevance, and I would set this paragraph of the Order aside as well on the basis of lack of legitimate forensic purpose.

This objection was raised on its own by the Commissioner in respect of the following paragraphs of the schedule to the Order: 2(b), 7 and 11.

Mr Fantakis submitted that the Commissioner’s position that there is nothing to produce in respect of paragraph 2(b) is “misleading”. He appears to be seeking production of the “original document” forwarded by Vodafone to police in response to police’s request and submitted that the information provided by Vodafone to police would form part of the Crown’s “general duty of disclosure”.

Despite these submissions, I accept evidence of DS McGee that there is nothing to produce. Mr Fantakis has not discharged the onus of establishing there is. I would not set this paragraph of the Order aside but note that there is nothing to produce.

In response to the Commissioner’s objection, Mr Fantakis submits that it demonstrates the improper manner in which police conducted their investigation (relevant to appeal grounds 3, 7 and 14) and that the Court of Criminal Appeal will be “moved” to make a finding of this nature in the substantive appeal.

Again, I accept evidence of DS McGee that there is nothing to produce. Mr Fantakis has not discharged the onus of establishing there is. I would not set this paragraph of the Order aside but will note that there is nothing to produce. In fact, Mr Fantakis relies on the fact that nothing is produced to support an allegation of police impropriety.

The Commissioner submitted that she “is not in possession of any material recording the current odometer reading”.

It is Mr Fantakis’ position that the material called on by this paragraph has been the subject of previous subpoenas issued to the Commissioner on his behalf. He contends that the Commissioner did not object to produce proof of the odometer reading of vehicle BE32CB in response to a subpoena served on 21 August 2013 and provided a misleading response to a similar call in a subpoena served on 28 June 2017. What he seeks is for a record to be made of the “current” odometer reading of vehicle BE32CB and gives authority for this to be done. This evidence is said to be relevant to the admissibility of the expert evidence given by Dr Fitzpatrick at trial (regarding analysis of soil taken from the wheel arches of his vehicle BE32CB). The relevant grounds of appeal put forward as being the basis for the Order are 3, 7, 13(1) and 14.

In reply, the Commissioner submitted that Mr Fantakis appears to acknowledge that the material he seeks is not in existence.

I accept the Commissioner’s evidence that there is nothing to produce in relation to the previous odometer reading. Mr Fantakis has not discharged the onus of establishing any basis for police to undertake an examination of the vehicle in order to obtain an updated reading. I would not set this paragraph of the Order aside but note that there is nothing to produce.

Accordingly, I make the following order: