Citation: Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
Court: Court of Criminal Appeal, New South Wales
Date: 17 November 2021
Judge(s): Beech-Jones CJ at CL; R A Hulme J; Campbell J
Background
The applicant was convicted of murder following a trial before Wilson J and a jury between February and May 2018. The Crown alleged he killed the victim at his Punchbowl home in August 2011, motivated at least in part by an irrational belief that the victim was responsible for his brother's death. The victim's body was never found, and the Crown case rested largely on circumstantial evidence, including documents written by the applicant, alleged admissions captured on listening devices, and conduct said to demonstrate a consciousness of guilt.
The applicant was sentenced to 24 years' imprisonment with an 18-year non-parole period, commencing from the date of his arrest in October 2013. His non-parole period would not expire until October 2031. He sought leave to appeal against his conviction, and in advance of that appeal being heard, he applied to the Court of Criminal Appeal for bail pending the appeal.
The appeal had originally been listed to commence on the same date as the bail application. On the applicant's own request, the appeal was adjourned to May 2022, meaning approximately six months would elapse between the bail application and the appeal hearing.
Legal Issues
- Whether the applicant had demonstrated "special or exceptional circumstances" justifying bail pending appeal, as required by s 22(1) of the Bail Act 2013 (NSW)
- How the relative strength of proposed grounds of appeal interacts with the utility of the appeal (including the length of sentence remaining) when assessing special or exceptional circumstances
- Whether, if special or exceptional circumstances were established, the unacceptable risk test under s 18 of the Bail Act would nonetheless warrant refusal of bail
Decision
Beech-Jones CJ at CL (with Hulme and Campbell JJ agreeing) refused bail. The judgment turned on the two-stage framework under s 22 of the Bail Act: the applicant first had to demonstrate special or exceptional circumstances, and the court then had to apply the unacceptable risk test. The court confirmed, drawing on El Khouli v R [2019] NSWCCA 146, that the strength of proposed appeal grounds cannot be assessed in isolation. It must be considered alongside the utility of the appeal, particularly whether the applicant would serve a substantial portion of his sentence before the appeal is heard.
The applicant put forward multiple proposed grounds of appeal, including challenges to jury directions, the admission of evidence, and the trial judge's handling of certain testimony. The court assessed these in some detail and accepted that some grounds were reasonably arguable. However, given that over a decade of the non-parole period remained to be served and the appeal was only six months away, the court found the appeal would not be rendered futile or substantially diminished in utility by the refusal of bail. The delay was brief, and the sentence remaining was lengthy, meaning the combination of factors did not reach the threshold of special or exceptional circumstances.
The court also addressed bail concerns independently. The applicant had a poor record of compliance with bail conditions, having breached a condition within hours of release prior to his murder arrest. The evidence at trial of threats against the investigating police officer, together with the background dispute involving the applicant's co-accused and associated witnesses, led the court to conclude that any grant of bail, even on strict conditions, would carry an unacceptable risk of interference with witnesses and the commission of further offences.
Taking all of these matters together, the court held that special or exceptional circumstances were not established, and bail was refused.
Orders Made
- Bail refused.
Key Takeaways
- Under s 22(1) of the Bail Act 2013 (NSW), a person convicted of murder who seeks bail pending appeal must establish "special or exceptional circumstances," a threshold that is distinct from and higher than the general bail test.
- Where proposed grounds of appeal are advanced as a basis for special or exceptional circumstances, the strength of those grounds cannot be assessed in isolation. The court confirmed they must be weighed alongside the utility of the appeal, including how much of the sentence will remain by the time the appeal is heard.
- Reasonably arguable grounds of appeal alone will not suffice to make out special or exceptional circumstances where the appeal hearing is imminent and a substantial portion of the non-parole period remains to be served.
- The Court of Criminal Appeal confirmed the two-stage structure identified in El Khouli: even where special or exceptional circumstances are found, the unacceptable risk test under s 18 must still be independently applied, though the same facts may operate at both stages.
- A demonstrated history of non-compliance with bail conditions, combined with evidence of threats against witnesses and investigators, can independently support a finding of unacceptable risk even where the applicant proposes strict bail conditions.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18, 22
- Criminal Appeal Act 1912 (NSW)
- Jury Act 1977 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)
Cases:
- Edwards v The Queen [2021] HCA 28
- El Hilli & Melville v R [2015] NSWCCA 146
- El Khouli v R [2019] NSWCCA 146
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Murray (1987) 11 NSWLR 12
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60