AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 December 2021

Fantakis v Director of Public Prosecutions (No 2)

[2021] NSWCCA 317

Homicide
BAIL APPLICATION FOR BAIL PENDING APPEAL ATTEMPT TO RE OPEN COURT’S DISMISSAL OF APPLICATION NO QUESTION OF PRINCIPLE

Citation: Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 17 December 2021
Judge(s): Beech-Jones CJ at CL, R A Hulme J, Campbell J

Background

The applicant had been convicted of murder and was serving a lengthy sentence. On 17 November 2021, the Court of Criminal Appeal dismissed his application for bail pending his appeal against that conviction (reported as Fantakis v Director of Public Prosecutions [2021] NSWCCA 271, referred to as the "primary judgment"). The applicant had sought bail primarily on the basis that he needed access to electronic material seized by NSW Police, which he argued was relevant to one of his grounds of appeal.

Following the dismissal, the applicant sent an email to the Court on 24 November 2021 seeking a "review" of the bail decision. He argued that the orders had not yet been formally entered and that the primary judgment had not adequately addressed his access to the seized electronic material.

  • Whether the Supreme Court (Criminal Appeal) Rules 2021 provided a mechanism to set aside or vary the dismissed bail order before its formal entry.
  • Whether the limited common law power to reopen an appellate decision (as described in Autodesk Inc v Dyason (No 2)) was available and satisfied on the facts.
  • Whether the email could alternatively be treated as a fresh release application under s 74(3) of the Bail Act 2013.

Decision

The Court first considered whether the relevant procedural rules applied. Rules 5.4(1) and 5.4(4) of the Supreme Court (Criminal Appeal) Rules 2021 allow orders to be set aside or varied before or shortly after entry, but only in respect of appeals or applications for leave to appeal. Because the applicant had made a "release application" under the Bail Act 2013, those rules did not apply to his situation.

The Court then turned to the common law power to reopen, as identified by Mason CJ in Autodesk Inc v Dyason (No 2). That power is available only where the court has apparently proceeded on a misapprehension of fact or law not attributable solely to the party's own neglect or default. The Court found that no such basis existed here. The primary ground raised by the applicant, namely the adequacy of the treatment of his access to electronic material, had already been addressed in the primary judgment at paragraphs 47 to 54.

The Court noted that the primary judgment had found little basis to conclude that any failure to provide the electronic material prior to trial had occasioned a miscarriage of justice. As a result, that material was of little, if any, significance to the appeal and therefore to the bail application. The remaining matters raised in the email simply sought to re-argue issues already resolved against the applicant, including the risk he posed to the community and the risk of witness interference if released.

Finally, to the extent the email could be read as a fresh release application under s 74(3) of the Bail Act 2013, the Court found that none of the grounds required by that provision had been established.

Orders Made

  • Leave to apply to set aside the Court's order dismissing the application for bail is refused.

Key Takeaways

  • The power under Supreme Court (Criminal Appeal) Rules 2021, rr 5.4(1) and 5.4(4), to set aside or vary orders before or shortly after entry applies only to appeals or leave-to-appeal applications, not to release applications made under the Bail Act 2013.
  • Under Autodesk Inc v Dyason (No 2), an appellate court may reopen a decision only where it apparently proceeded on a misapprehension of fact or law not caused solely by the applicant's own neglect. This is a narrow jurisdiction, not a vehicle for re-arguing an unsuccessful case.
  • Refusing to reopen the primary judgment, the Court confirmed that the applicant's access to seized electronic material had already been considered and found to be of little significance to the underlying appeal grounds.
  • A bail application dismissed by the Court of Criminal Appeal cannot be revived simply because the formal order has not yet been entered, where no applicable procedural rule or common law ground for reopening is satisfied.
  • Where a fresh release application is advanced under s 74(3) of the Bail Act 2013, the applicant must satisfy the grounds prescribed by that provision; a mere disagreement with the earlier decision is insufficient.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 22(1), 74(3)
- Supreme Court (Criminal Appeal) Rules 2021, rr 5.2, 5.4(1), 5.4(4)

Cases
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
- Edwards v The Queen [2021] HCA 28