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Court of Criminal Appeal 10 May 2022

Commissioner of Police (NSW) v Fantakis

[2022] NSWCCA 94

Homicide
CRIMINAL PROCEDURE ORDER TO PRODUCE ONUS NOT DISCHARGED APPLICATION GRANTED ORDER SET ASIDE

Citation: Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94
Court: Court of Criminal Appeal (NSW)
Date: 10 May 2022
Judge(s): N Adams J

Background

The respondent, Mr Fantakis, was convicted of murder in May 2018 following a trial before Wilson J and a jury. He was sentenced to 24 years imprisonment with a non-parole period of 18 years. He filed a notice of appeal against his conviction, raising 18 grounds in total, with the first two grounds covered by legal aid and a further 16 grounds on which he appeared unrepresented.

In connection with his conviction appeal, Mr Fantakis applied to the Registrar of the Court of Criminal Appeal for an Order to Produce directed at the Commissioner of Police. The Order, made on 20 September 2021, called on the Commissioner to produce 16 categories of documents, all relating to police records from the murder investigation.

The Commissioner applied to have the Order set aside, contending that it was broad in scope, that much of the material had already been produced or was not in the Commissioner's possession, and that Mr Fantakis had not demonstrated a legitimate forensic purpose for seeking the documents. Adams J determined the application on the papers, given the volume of written material filed by both parties.

  • Whether Mr Fantakis had established a legitimate forensic purpose for each of the 16 categories of documents sought in the Order to Produce.
  • What approach governs the legitimate forensic purpose test following the decisions in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and Waters v Secretary of the Attorney General's Department (Cth) [2021] NSWCCA 193.
  • Whether the Order to Produce should be set aside in whole or in part, including for categories where the Commissioner had nothing to produce.

Decision

Adams J applied the legitimate forensic purpose test as developed in Blacktown and Waters, confirming that the onus rests on the party seeking production to establish that the documents sought are reasonably likely to assist in the conduct of the proceedings. That onus must be discharged in relation to each category of documents called on.

Across the 16 paragraphs of the Order, Adams J found that Mr Fantakis had not discharged that onus in most instances. For several categories, the Commissioner provided evidence, through affidavit from Detective Sergeant McGee, that the documents either did not exist, had already been produced to Mr Fantakis in earlier proceedings or in response to previous subpoenas, or were not in the Commissioner's possession.

In relation to a small number of paragraphs, including paragraphs 2(b), 7 and 11, Adams J declined to set the Order aside but recorded that there was nothing to produce in response to those paragraphs. Notably, his Honour observed that Mr Fantakis appeared to be relying on the absence of production as itself supporting allegations of police impropriety raised in his appeal. For those paragraphs, the Order was preserved in form while the evidentiary reality was noted.

The Order to Produce was set aside across the remaining paragraphs on the basis that the respondent had not established the necessary forensic purpose. The Crown case was summarised by Adams J to provide context for assessing whether there was a rational connection between the documents sought and the grounds of appeal.

Orders Made

  • The Order to Produce made on 20 September 2021 on application by Mr Fantakis is set aside, save for paragraphs 2(b), 7 and 11.
  • It is noted that there are no documents to produce in relation to paragraphs 2(b), 7 and 11.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the onus lies on the party seeking an Order to Produce to establish a legitimate forensic purpose, and that onus must be discharged in respect of each category of documents sought.
  • Applying Blacktown and Waters, the relevant question is whether each category of documents is reasonably likely to assist in the conduct of the appeal proceedings, not whether production might be generally useful to the party seeking it.
  • Where the Commissioner provides uncontested affidavit evidence that documents do not exist or have already been produced, an applicant cannot discharge the onus simply by asserting that the material should exist.
  • Refusing to set aside particular paragraphs of an Order to Produce does not guarantee that documents will be produced; where nothing exists to produce, that fact can be recorded on the face of the order.
  • A party's reliance on the non-production of documents as circumstantial evidence supporting a ground of appeal does not, of itself, establish the legitimate forensic purpose required to maintain an Order to Produce.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), ss 90, 137, 138

Cases:
- Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
- Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
- Commissioner for Railways v Small (1938) 38 SR (NSW)
- R v Fantakis [2018] NSWSC 1815
- R v Fantakis; R v Woods [2018] NSWSC 1700
- R v Saleam [1999] NSWCCA 86
- R v Tastan (1994) 75 A Crim R 498
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
- Waters v Secretary of the Attorney General's Department (Cth) [2021] NSWCCA 193