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11
Court of Criminal Appeal 3 February 2023

Fantakis v R

[2023] NSWCCA 3

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION FRESH EVIDENCE INCOMPETENCE OF COUNSEL MISCARRIAGE OF JUSTICE

Citation: Fantakis v R [2023] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 3 February 2023
Judges: Ward ACJ; Rothman J; Dhanji J

Background

The appellant was convicted by jury on 25 May 2018 of the murder of a man who was last seen travelling with the appellant and a co-accused in the appellant's van to a residential property in Punchbowl on 11 August 2011. The victim's body was never found. A second co-accused was convicted of being an accessory after the fact to murder; a third was acquitted of the same charge. The appellant was sentenced to 24 years' imprisonment with a non-parole period of 18 years.

The appellant sought leave to appeal his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), raising eighteen grounds of appeal, several of which contained multiple sub-grounds. Because the grounds were not confined to questions of law, and because several directions now complained of were never sought by defence counsel at trial, leave was required under both the Act and the applicable court rules.

The Court of Criminal Appeal granted leave on all grounds but dismissed the appeal in its entirety.

  • Whether the trial judge erred by failing to leave the defence of mental illness to the jury
  • Whether the trial judge erred by failing to leave manslaughter to the jury on the basis of substantial impairment by reason of mental illness
  • Whether the jury's verdict was unreasonable, unsafe, or unsatisfactory
  • Whether trial counsel was incompetent, including by failing to follow the appellant's instructions and failing to cross-examine on certain documents
  • Whether the trial judge erred in admitting certain evidence
  • Whether the trial judge erred by failing to leave manslaughter based on self-defence and/or provocation
  • Whether various jury directions were omitted or given incorrectly
  • Whether a "shift" or "split" in the Crown case caused the trial to miscarry
  • Whether the trial judge erred in including a particular juror in the ballot to select the verdict jury
  • Whether fresh evidence was available and, if so, what consequences followed

Decision

Mental illness and substantial impairment (Grounds 1 and 2)

All three judges agreed the evidence was insufficient to obligate the trial judge to leave either the defence of mental illness or the partial defence of substantial impairment to the jury. Ward ACJ found that the first indication of any mental illness emerged only after the victim's disappearance, when the appellant's then-partner observed what she considered to be depression in late 2011. Writings and audio recordings reflecting delusional thinking only came into existence in 2012, well after the date of the alleged offence. The appellant's conduct in concealing evidence, including cleaning his van and renovating the property, indicated an appreciation that killing was wrong, which is fatal to a mental illness defence.

Rothman J noted that while the appellant's later-diagnosed psychosis and proven delusional beliefs were part of the record, there was no basis to draw the inference that psychosis existed at the time of the killing rather than developing later. The inference of substantial impairment at the relevant time was, at best, equally available as its opposite, and that equipoise meant the appellant's own burden of proof on the partial defence could not be satisfied. Dhanji J agreed, adding that even accepting a delusional belief that the victim had caused the death of the appellant's brother, it did not follow that the appellant lacked the capacity to understand that killing was wrong or that any mental abnormality substantially impaired that capacity.

Incompetence of counsel

The Court considered and rejected the argument that trial counsel's conduct amounted to incompetence causing a miscarriage of justice. Decisions about cross-examination and the manner in which a defence is run involve tactical judgment; the Court did not find that any failure to follow instructions or to cross-examine on particular documents produced the kind of serious departure from proper representation that would warrant overturning the verdict.

Remaining grounds

The remaining grounds, including the unreasonable verdict ground, alleged evidentiary errors, alleged misdirections, the Crown case "shift" argument, fresh evidence, and the juror ballot issue, were all addressed and dismissed. The Court held that no miscarriage of justice was established on any of these grounds. Where fresh evidence was raised, the Court found it was not admissible on appeal in the relevant circumstances.

Orders Made

  • Leave to appeal granted on all grounds.
  • Appeal dismissed on all grounds.
  • The trial judge's existing order (relating to suppression or non-publication) was noted as remaining in force; no further order was required in that regard.

Key Takeaways

  • A trial judge's duty to leave the defence of mental illness or the partial defence of substantial impairment to the jury is enlivened only where there is a sufficient evidentiary foundation; the mere existence of later-diagnosed psychosis or delusional beliefs does not, without more, satisfy that threshold.
  • Where evidence of mental impairment is consistent with two equally available inferences, one supporting and one negating the defence, the inference favouring the defence cannot be drawn in a manner that satisfies the defendant's burden of proof at trial.
  • A delusional belief about another person's conduct, such as a belief that the victim caused the death of a family member, does not, without further evidence of its impact on capacity, establish that a defendant lacked the ability to understand that killing was wrong.
  • Conduct taken after an alleged offence, including steps to conceal evidence, is relevant to whether a defendant appreciated the wrongfulness of the act and may inform the availability of a mental illness defence.
  • In dismissing all eighteen grounds, the Court confirmed that the failure of trial counsel to seek certain jury directions does not, without evidence of a resulting miscarriage of justice, provide a basis for overturning a conviction on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Crimes Act 1900 (NSW), ss 23, 23A, 421
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 28, 30, 38
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Evidence Act 1995 (NSW), ss 55, 90, 137, 138, 165
- Jury Act 1977 (NSW), ss 19, 55F, 55G
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Legal Profession Uniform Conduct (Barristers Rules) 2015, r 65

Key Cases
- Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Carr v Baker [1936] SR (NSW) 301
- Fabre v Arenales (1992) 27 NSWLR 437
- R v Damic [1982] 2 NSWLR 750
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42