R v Fantakis; R v Woods

1. [1]

   HER HONOUR: On 6 May 2017 the accused men were arraigned before this Court upon an indictment charging Mr Fantakis as principal in the murder, on 11 August 2011, of Elisha Karmas, and Mr Woods thereafter as an accessory to that crime. Each accused entered pleas of not guilty.

2. [2]

   Their trial, jointly with Derek Cheong, commenced on 19 February 2018 hearing, initially, pre-trial issues. It is anticipated that a jury will be empanelled on 26 February 2018.

3. [3]

   At the trial proper, the Crown proposes to adduce evidence of a number of conversations between the accused men, evidence which has been described broadly as “the intimidation evidence”. In it, the accused appear to discuss doing harm to the officer in charge of the murder inquiry, Detective Sergeant Roxanne McGee.

4. [4]

   The Crown intends to rely upon this evidence to go to the consciousness of each man of his guilt of the charged offence. In a very much subsidiary sense, it is also said to go to the true nature of the relationship between the accused at around the time of the alleged offences. The accused have each taken objection to the admissibility of this evidence, contending that it is not relevant, cannot amount to evidence of consciousness of guilt and, in any event, is so prejudicial that any probative value is outweighed by the potential prejudice caused to the accused.

5. [5]

   On 21 February 2018 the Court heard evidence and submissions directed to the admissibility of the evidence.

The Surrounding Facts Alleged by the Crown

1. [6]

   The facts alleged against the accused may be found in R v Fantakis; R v Woods [2017] NSWSC 1840; and R v Woods; R v Cheong [2018] NSWSC 123. It is not proposed to reproduce that material here.

2. [7]

   In short, Mr Karmas vanished without trace on 11 August 2011. He is presumed to have been murdered. On the day of his disappearance, he was last known to be in the company of the accused Fantakis at an address at Warwick Street Punchbowl. Other electronic evidence places the two men together at an address in Wilga Street, Punchbowl, with the accused Woods at or near the premises at about the time of the murder.

3. [8]

   A police inquiry into Mr Karmas’ disappearance commenced the following day, 12 August 2011. The accused Fantakis quickly became the focus of the investigation, with a vehicle stop relating to him conducted as early as 13 August 2011. The involvement of the accused Woods was, similarly, an early focus of the police inquiry.

4. [9]

   Warrants were granted to police to electronically intercept conversations had by the accused, and such interception commenced no later than 1 September 2011.

The Disputed Evidence

1. [10]

   Where evidence is relied upon as capable of demonstrating an accused’s consciousness of guilt, it is important that it be precisely identified. The disputed evidence was obtained by investigating police pursuant to the various warrants that authorised electronic surveillance of the accused. The evidence is before the Court in transcript form, but no issue has been taken with that, or with the voice identification noted on the transcripts.

2. [11]

   In places, there are discrepancies between the transcripts, Exs. VD A.6, and VD A.7, and the account of the conversations in the statement of D/S McGee, Ex. VD A.5. Extracts taken from the transcripts are rendered in standard font; extracts taken from the statement of D/S McGee are rendered in italics.

3. [12]

   From warrant 11/0597 (Ex. VD A.6), between 18:21 – 18:44 on 25 November 2011,

4. [13]

   From warrant 11/0597, between 18:46 – 18:55 on 25 November 2011:

5. [14]

   From warrant 11/0597, between 19:04 – 19:19 on 25 November 2011:

6. [15]

   From warrant 11/0597, between 13:16 – 13:31 on 26 November 2011:

7. [16]

   From warrant 11/0597, between 15:39– 15:48 on 26 November 2011:

8. [17]

   On 7 July 2012 Detective Inspector Doueihi spoke with both accused, and advised them that an investigation was underway into the possible commission by them of conspiring to murder D/S McGee.

9. [18]

   From warrant 12/0311 (Ex. VD A.7), between 16:38 and 16:51, 25 July 2012:

10. [19]

    From warrant 12/0311, between 17:42 and 17:55, on 25 July 2012, and only sought to be led against Woods:

11. [20]

    From warrant 12/0311, between 18:20 and 18:26, on 25 July 2012:

12. [21]

    There are other scattered references in the transcript of conversations caught by warrant 12/0311, including the accused Woods saying “Go and get McGee”.

13. [22]

    In August 2012, an officer attached to Strike Force Flaggy saw the vehicle driven by the accused Woods, registered number ALL61P, parked at George’s Hall. The words “Toad Finder” had been written in dust adhering to the back windscreen.

14. [23]

    D/S McGee says in her statement (Ex. VD A.5) that other relevant conversations were recorded pursuant to warrant 13/136, the transcript of which is not part of the evidence on the voir dire. In one conversation, that the officer listened to on 5 April 2013, the accused Fantakis is recorded saying

15. [24]

    The context is not referred to in the statement.

16. [25]

    Telephone interception technology was also deployed, capturing the following text message from the accused Fantakis to the accused Woods at 16:46 on 22 January 2013.

17. [26]

    Although no transcript is in evidence, D/S McGee also refers to intercepted telephone conversations in which the accused discuss having access to “RP data”, that being said to be a reference to a real estate database.

18. [27]

    Further, the Crown relies upon the aggressive demeanour of the accused Fantakis to D/S McGee in the context of failed action taken by him in this Court in February 2013, together with a text message sent by Fantakis to Woods after judgment was handed down.

19. [28]

    Relevant only to the accused Fantakis, pursuant to warrant E07243-00-00 the accused was recorded saying to a friend,

Other Relevant Evidence

1. [29]

   The accused Fantakis tendered a number of psychiatric and related documents on the voir dire.

2. [30]

   Dr Gordon Elliott (Ex. VD 1.1) examined the accused last year and provided a report to the Court on 4 May 2017. Dr Elliott had earlier seen the accused as a treating doctor through Justice Health, and had access to departmental notes. He formed the view that the accused was “consumed” by his legal matters, and “deluded” in his beliefs as to police involvement in the death of his twin brother. The doctor noted an earlier diagnosis of a delusional disorder, made soon after the accused entered custody on remand.

3. [31]

   Dr Elliott concluded that the accused presented with elaborate persecutory and grandiose delusional beliefs concerning the death of his brother, those he believes responsible for it, and the role of police.

4. [32]

   Dr Charles Chan saw the accused soon after his admission to custody (Ex. VD 1.2). He formed the view that the accused had a delusional disorder.

5. [33]

   Dr Stuart Saker (Ex. VD 1.3) was the accused’s treating psychiatrist in the community, seeing him on numerous occasions in 2011, 2012, and 2013. Over those consultations, he concluded that the accused suffered from persecutory beliefs and depression. He regarded him as affected by persecutory delusions. Dr Saker referred to the accused’s belief that a transmitter had been inserted into his brain by police.

6. [34]

   Dr Saker had access to some recorded material (relied on by the Crown as admissions).

7. [35]

   The doctor opined that there was no clear evidence of psychosis prior to 2013. He cautioned that “any information” derived from the accused “is highly unreliable” due to the accused’s delusions and “extremely skewed view of reality”. Treatment notes (Ex. VD 1.4) record contemporaneous observations.

The Submissions of the Parties

1. [36]

   Counsel for the accused Fantakis submits that the material relied on by the Crown as evidence of attempts to intimidate the officer in charge are:

   1. (1)

      Not capable of meeting the test of relevance; and

   2. (2)

      Unfairly prejudicial.

2. [37]

   It is submitted that nothing in the impugned material is relevant to any fact in issue in the trial, the facts in issue being whether the accused killed Mr Karmas on 11 August 2011, and later moved his body and cleaned the crime scene. The accused argues that the material contains no admissions, and nothing of direct relevance to the issues at trial.

3. [38]

   Thus, the test at s 55 of the Evidence Act 1999 (NSW) is not satisfied.

4. [39]

   Even were the evidence to be admissible the accused argues that the nature of the evidence is such that it would inevitably inflame a jury, and prejudice its members against him, notwithstanding any direction that might be given. Counsel for the accused refers to the obscene nature of some of the material, the unsavoury language on occasion used, and the threats to a female officer, as having the potential to particularly horrify or anger a jury.

5. [40]

   Its probative value in establishing the “nefarious” nature of the relationship between Fantakis and Woods is contended to be so slight as to be readily outweighed by the potential prejudice. The accused submits that the Crown would invite the jury to reason that the relationship between the accused at the time of the alleged offences, as evidenced by the relationship shown in the later intercepted conversations, was a nefarious one. This is, it is argued, to impute a state of mind held by them in late 2011 – 2013, to the same individuals at an earlier time.

6. [41]

   The accused further submits that some of the evidence is in reality tendency evidence, in that a jury might conclude that he is a person with a tendency to use violence. Tendency evidence of this nature could not be admissible, particularly in circumstances where no notice has been given and the Crown does not rely on the material as falling within s 97 of the Evidence Act.

7. [42]

   Counsel for the accused refers to the material generally as “ranting”, or the expression of bitter complaints against the police, by an individual who was seeking psychiatric treatment at the time.

8. [43]

   He submits it would be unfairly prejudicial to permit the Crown to use the recordings in its case, and the evidence should be excluded pursuant to s 137 of the Evidence Act.

9. [44]

   The accused Woods similarly contends that the material is neither relevant, nor sufficiently probative to permit the admission of plainly prejudicial evidence. He too relies upon the oddness of some of the statements by the accused men (such as Mr Fantakis’ claim that police had put a transmitter in his head) as pointing to the unreliability and even madness of the material, and the unfair prejudice to the accused in permitting its use. Referring to the Victorian authority of R v Ciantar (2006) 16 VR 26, or 167 A Crim R 504, counsel for the accused submits that, if an innocent explanation of post‑offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or, if the post-offence conduct is intractably neutral, the evidence should not be admitted as evidence capable of demonstrating consciousness of guilt.

10. [45]

    It is argued here that the evidence falls into the latter category, being “intractably neutral”.

11. [46]

    Further, the “poisonous” nature of the evidence is submitted to be such that the prejudice to the accused in admitting the evidence will be both overwhelming and incurable. Counsel submitted that evidence of “a vile murder” and the deeds done by the accused afterwards, particularly if coupled with evidence that the accused Woods suffered from paranoid schizophrenia, would be such as to prejudice the jury irremediably.

12. [47]

    The accused argues that the evidence does not meet the test at s 55 and, if it does, it should be excluded pursuant to s 137.

13. [48]

    The Crown submits that, for the accused to discuss or plan harming the officer in charge of the investigation into the murder of Mr Karmas is directly relevant to proof of the guilt of the accused men, in that it demonstrates their wish to disrupt the investigation, and thus their consciousness of their guilt of the charged offences.

14. [49]

    The evidence is not and cannot be tendency evidence, and it is not relied upon as such. It is contended that the motive for the plans of the accused to kill D/S McGee or to interfere with her investigation, must bespeak a consciousness of guilt.

15. [50]

    Although the evidence is principally relied upon for that purpose, further, the evidence demonstrates the close nature of the relationship between the accused, and the preparedness of each to take significant action on behalf of the other.

16. [51]

    The relevance test is satisfied.

17. [52]

    The Crown contends that the probative value of the evidence is high, and any prejudice occasioned to the accused can be dealt with by direction, and is not unfair prejudice.

Consideration

1. [53]

   To be admissible, evidence must be relevant within the meaning of s 55 of the Evidence Act. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at (653 [6]):

2. [54]

   Section 55 is in these terms:

3. [55]

   Evidence which may establish that an accused person has a consciousness of guilt of a charged offence has long been recognised as relevant and admissible in support of the case called by the prosecution. It is circumstantial evidence of a collateral event capable of supporting the Crown case.

4. [56]

   Such evidence is frequently seen as evidence of lies told by an accused (Edwards v The Queen (1993) 178 CLR 193), but there are other examples. An accused’s flight or resisting arrest can be evidence of consciousness of guilt (R v Sutton (1986) 5 NSWLR 697; R v Egan, unreported decision of the NSWCCA of 7 July 1997), as can the failure of an accused to deny an allegation (R v MMJ [2006] VSCA 226), the destruction of evidence (R v Nguyen [2001] VSCA 1; DN v R [2016] NSWCCA 252), interference with a witness (R v Smit & Ors [2004] NSWCCA 409), or the disguising or altering of an accused’s appearance.

5. [57]

   Guilt may be inferred from an accused person’s post-offence conduct by demonstrating the accused’s awareness of his or her guilt. In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Latham J observed (at [6]):

6. [58]

   In considering the admissibility of the impugned evidence, it is necessary to conclude that it is capable of rationally supporting an inference of guilt of the charged offences, and be capable of constituting an implied admission to those offences. The test was discussed in Edwards, at 209:

7. [59]

   In summary, for evidence of conduct to be admissible as evidence of consciousness of guilt,

   1. (1)

      The conduct must be deliberate;

   2. (2)

      It must relate to a material issue; and

   3. (3)

      It must be open to infer that the motivation for the conduct was comprehension of guilt of the charged offence.

8. [60]

   The fact that there may be some explanation for the relevant conduct other than consciousness of guilt does not render the evidence inadmissible; it would ordinarily be a matter for a jury properly instructed to consider any hypotheses consistent with innocence in assessing the weight to be given to the evidence, if any: R v Power (1996) 87 A Crim R 407. That there is or may be some other explanation may be relevant to the application of ss 135 or 137 of the Evidence Act.

9. [61]

   Those provisions may suggest or require the exclusion of the evidence, even though it meets the criteria for admission as going to consciousness of guilt. Section 135 provides a discretion upon which to exclude evidence:

10. [62]

    Section 137 requires the exclusion of evidence if the circumstances referred to in the provision are present:

11. [63]

    Of the evidence that the Crown seeks to tender only that evidence set out at [12] – [14] above meets the criteria for admissibility as evidence of consciousness of guilt.

12. [64]

    The extracted conversation is one voluntarily engaged in by the accused men. It relates to a material issue, that being the conduct of the police investigation into the presumed murder of Mr Karmas, and the importance to the investigation of its officer in charge, suggested by the expressed desire to kill her or see her dead. The evidence is clearly capable of supporting an inference that the accused planned to kill, or wanted to see D/S McGee dead, because she was investigating the crime each was conscious of having committed.

13. [65]

    The Edwards test (necessarily modified since no lie is involved) is satisfied. The requirement of relevance is met.

14. [66]

    The Court must next consider whether the exclusionary provisions relied upon by the accused are properly engaged.

15. [67]

    Section 135(b) and (c) have no application. There is no question of the evidence being confusing, or a waste of time. The only real consideration is whether there is unfair prejudice (s 135(a)), or whether prejudice of that nature outweighs the probative value of the evidence (s 137).

16. [68]

    All evidence that tends to inculpate an accused person is prejudicial; to be unfair prejudice, the evidence must give rise to prejudice which is unfair.

17. [69]

    Unfair prejudice will arise where there is a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, per McHugh J at 325 [91]; Colby v The Queen [1999] NSWCCA 261 at [97] per Mason P.

18. [70]

    The prejudice which the accused argue will be unfairly occasioned to them is:

    1. (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. (2)

       in a jury’s distaste for the idea of two men discussing the violent death of a woman;

    3. (3)

       in the unpleasant nature of some of the language; and

    4. (4)

       in the evidence being used as tendency evidence, suggesting that the accused have a disposition to violence.

19. [71]

    The first and last of these are the only matters that could potentially give rise to unfair prejudice in my view. In circumstances where the jury will be hearing evidence of the alleged commission of a violent crime, and will be directed to consider the evidence dispassionately and without emotion, I do not think that the idea of the accused discussing the death of a woman (presumably as opposed to a man), or that they may do so using bad language, could lead to prejudice.

20. [72]

    The fact that there may be a reason for the discussion consistent with innocence – that the conversations are no more than the deranged rantings of two mentally ill men – does not in my view dictate the exclusion of the evidence. Whilst I accept that the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, I do not regard the risk of that as a significant one, particularly in an age when mental illness is increasingly recognised as a common experience in the community. A properly crafted direction can readily address such prejudice as may be occasioned.

21. [73]

    Further, the Crown relies to an extent on the fact that the accused men were unbalanced to go to prove motive, and the bizarre nature of much that was said and done will be exposed to the scrutiny of the jury for that other purpose. The Crown’s case is that the accused had come to a deluded view as to the responsibility of Mr Karmas for the death of Nicholas Fantakis, and killed him because of that delusion.

22. [74]

    As to the potential for the jury to use the evidence as establishing a tendency in the accused men to act violently, I do not think that the danger of that occurring is in fact present. Evidence of a similar course of conduct is regularly placed before tribunals of fact to go to establish the context in which a charged offence occurs, and potential prejudice is as regularly addressed by directions to the jury. See generally R v Quach (2002) 137 A Crim R 345; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; JMW v R (2014) 245 A Crim R 538.

23. [75]

    I would not exclude the evidence pursuant to s 135.

24. [76]

    Section 137 requires the Court to consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice.

25. [77]

    “Probative value” is defined in the Dictionary to the Evidence Act as:

26. [78]

    That is to be assessed without seeking to evaluate the reliability or credibility of the evidence, the High Court having recently confirmed that such is the correct approach. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the High Court held that such matters should be left to the jury, as determined in R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121.

27. [79]

    There is a relatively high degree of probative value to this evidence. The Crown relies upon it, and it is capable of being accepted as, a significant circumstance in proof of the charges, in what is a wholly circumstantial case.

28. [80]

    I have already considered the issue of prejudice and unfair prejudice, and concluded that there is no real danger of unfair prejudice in the admission of the evidence, particularly bearing in mind the warnings required to be given to the jury.

29. [81]

    Section 137 does not require the exclusion of the evidence extracted above at [12] – [13] inclusive.

30. [82]

    The balance of the material does not bear the same character or have the same probative force.

31. [83]

    The material extracted in [14] above could be understood as the accused discussing a campaign of harassment against the officer in charge, but it is not expressed with the same apparent determination as that in [12] – [13], and there is no element of planning in the discussion. Whilst the accused Woods is recorded as saying “I’ll take a gun”, the reference is not grounded in any plan. I do not regard this evidence as meeting the requirements of evidence which could legitimately support an inference of consciousness of guilt.

32. [84]

    The conversation extracted at [15] is a general discussion in hostile terms concerning the police investigation, disparaging it as a waste of time and so on, but it also lacks the character of a plan to disrupt the inquiry discussed with genuine intent. The references to a “guy” and $10,000 are capable of many meanings, not necessarily anchored in the context of this matter.

33. [85]

    There are similar issues relevant to the conversation set out at [16].

34. [86]

    The material referred to in [18], [19] and [20] above contains the references by the accused Woods to D/S McGee as a “toad”, and himself and his vehicle as the “toad finder”. This sort of foolish abuse seems more childish than real and is without the sort of determined expression of intent to take action to disrupt the murder inquiry. I do not consider it to be capable of supporting an inference of guilt.

35. [87]

    The evidence extracted at [21] is vague, and not sufficiently connected to a material issue to be admissible.

36. [88]

    The conversation referred to at [23] is not before the Court in transcript or recording form and, without anything to establish its context and purport, I do not conclude that it has sufficient relevance to make it admissible. The same observation applies to the evidence noted at [26] above.

37. [89]

    The evidence set out at [25] seems to relate to Supreme Court action the accused Fantakis took in relation to the police investigation, and that at [27] certainly does. His disgruntlement with the process and the outcome receives clear expression in the text message sent following the judgment handed down by Button J. Since the action related to the murder inquiry, it could perhaps be regarded as sufficiently relevant for admissibility, but the connection is somewhat tenuous, and the probative force is limited. The language employed in the text message is so gross as to give rise to a danger of unfair prejudice. In the exercise of the Court’s discretion I would exclude that evidence pursuant to s 135 of the Evidence Act.

38. [90]

    The accused’s conversation extracted at [28] is suggestive of an intent to commit some crime, but what and why is unclear. A generalised intention to commit an unspecified criminal offence, not necessarily related to an intention to disrupt the investigation of Mr Karmas’ murder, may be relevant but, if so, it’s probative force is readily outweighed by the danger of unfair prejudice. I would exercise the Court’s discretion to exclude the evidence pursuant to s 135; s 137 mandates its exclusion in any event.

Directions

1. [91]

   91 As earlier observed, there is a need for careful directions to the jury with respect to the evidence that is to be admitted. It will be necessary to ensure that the jury understands that the accused acted deliberately, that they acted in a way relevant to the issues at the trial, and that the motive in so acting was a realisation of guilt. Warnings as to the possibility of other, innocent, explanations for the conduct will be required: Edwards v The Queen; DN v R [2016] NSWCCA 252; R v Cook [2004] NSWCCA 52 revised 18/3/2004; McKey v R [2012] NSWCCA 1.

   1. (1)

      The evidence extracted at [12] – [13] of these reasons (and evidence of such surrounding conversation as is agreed between the parties to be necessary to put the evidence into context) is admitted.

   2. (2)

      The balance of the evidence sought to be led by the Crown is excluded.