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Court of Criminal Appeal 15 February 2023

Fantakis v R (No 2)

[2023] NSWCCA 22

Homicide

Citation: Fantakis v R (No 2) [2023] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 15 February 2023
Judges: Ward ACJ; Rothman J; Dhanji J

Background

The appellant had been convicted by a jury of the murder of a man in August 2011. On 3 February 2023, the Court of Criminal Appeal published reasons dismissing the conviction appeal: Fantakis v R [2023] NSWCCA 3. That principal judgment addressed eighteen grounds of appeal.

The present application arose because the Court, by oversight, failed to expressly address a nineteenth ground that the appellant had raised in written submissions filed shortly before the hearing and then advanced orally. The appellant applied under Regulation 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the earlier orders to correct that omission.

The nineteenth ground concerned the trial judge's failure to give a unanimity direction to the jury. At trial, the Crown had advanced two factual case theories about when the fatal act occurred: a primary theory and an alternative "5 o'clock theory" introduced after the close of evidence.

  • Whether the Court of Criminal Appeal's earlier orders should be varied or set aside to address the omitted ground
  • Whether the trial judge erred by failing to direct the jury that it had to deliver separate verdicts on each of the two Crown case theories
  • Whether the two case theories were mutually exclusive events requiring separate counts and a unanimity direction, such that their absence constituted a substantial miscarriage of justice
  • Whether, even if there was misdirection, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could nonetheless be applied

Decision

The Court acknowledged the oversight in the principal judgment. Ground 19 had not been expressly identified or resolved, even though the earlier reasons had addressed the related contention about the mutual exclusivity of the two case theories in the context of other grounds. The Court confirmed the present application was a proper vehicle to supply the missing reasons, not an opportunity to re-argue the appeal.

Turning to the substance of ground 19, the Court considered the scope of the unanimity direction principle as explained by the High Court in Lane v The Queen (2018) 265 CLR 196. That principle requires a unanimity direction where the Crown relies on a number of discrete acts, proof of any one of which would entitle the jury to convict, and where a risk exists that jurors may reach a verdict without unanimity as to which act is established.

The Court held that this case did not fall within that principle. The Crown had alleged one offence: that the appellant caused the victim's death with an act intending at least grievous bodily harm, at some point during the afternoon of 11 August 2011. The "5 o'clock theory" extended the timeframe in which that single act might have occurred rather than alleging a distinct alternative act raising separate issues of causation or intent. There was accordingly no requirement for the jury to be unanimous as to the precise time within that afternoon when the offence was committed.

The Court also noted that defence counsel at trial had objected to the Crown relying on the 5 o'clock theory but had not sought a unanimity direction, lending further support to the conclusion that none was required. Ground 19 was not made out, and the application to set aside or vary the earlier orders was dismissed.

Orders Made

  • The application to set aside or vary the orders made by the Court on 3 February 2023 is dismissed.

Key Takeaways

  • A unanimity direction is required where the Crown relies on discrete alternative acts any one of which would establish the offence, and there is a risk jurors may not be unanimous as to which act is proved. It is not automatically required merely because the Crown advances two factual scenarios.
  • Where a Crown case theory expands the timeframe within which a single alleged act might have occurred, rather than alleging a distinct alternative act raising separate issues, no unanimity direction is needed.
  • The Court of Criminal Appeal confirmed that an application under Regulation 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 is the appropriate mechanism to address a ground omitted by oversight from a principal judgment, but its scope is confined to supplying the missing reasons rather than reopening argued grounds.
  • In dismissing ground 19, the Court applied reasoning already expressed in the principal judgment regarding the mutual exclusivity argument, confirming that the additional ground added nothing that altered those conclusions.
  • Submissions that go beyond addressing the omitted ground and seek to re-argue matters already resolved fall outside the permissible scope of a variation application and will not be entertained.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Supreme Court (Criminal Appeal) Rules 2021, Reg 5.4

Cases
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
- Fantakis v R [2023] NSWCCA 3
- Gould v R; R v Gould [2021] NSWCCA 92
- Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195
- R v Koko [2022] QCA 216
- R v Lapa (No 2) (1995) 80 A Crim R 398
- R v Zaiter [2004] NSWCCA 35
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2