Citation: Fantakis v R (No 3) [2023] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 27 February 2023
Judges: Ward ACJ; Rothman J; Dhanji J
Background
The applicant had been convicted of murder and his conviction appeal was dismissed by the Court of Criminal Appeal on 3 February 2023 (Fantakis v R [2023] NSWCCA 3). He then made a first application under r 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to set aside or vary that judgment, arguing the Court had failed to address one of his grounds of appeal (ground 19). That application was dismissed on 15 February 2023 (Fantakis v R (No 2) [2023] NSWCCA 22), though the Court did address ground 19 in its reasons.
The applicant then filed a third application, this time seeking to set aside or vary the second judgment (No 2). His complaint was that the second judgment had failed to consider what he called the "second limb" of ground 19, namely whether the trial judge erred in law during sentencing. No sentence appeal had been filed.
In support of this further application, the applicant's co-offender emailed the Court an additional authority on the day of decision, asking the Court to reconsider its reasoning on a unanimity direction ground that had already been dealt with in both prior judgments.
Legal Issues
- Whether a further application under r 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the second judgment was available where the applicant's real complaint was with the conclusion and reasoning of that judgment.
- Whether an alleged error in sentencing could be raised through a variation application in the absence of any sentence appeal.
- Whether a variation application could be used to introduce new authorities and re-agitate previously decided appeal grounds.
Decision
The Court refused leave to bring the application. It characterised the applicant's complaints as challenges to the conclusion and reasoning in Fantakis v R (No 2), not as the type of oversight or omission that would justify a variation under r 5.4. The Court had already addressed the conflicting hypotheses argument in both prior judgments, and the applicant was in effect seeking to re-argue that ground.
On the sentencing error argument, the Court noted there had been no application for leave to appeal against sentence. Without such an application, there was no occasion to determine whether the trial judge erred in sentencing, regardless of whether the applicant considered it relevant to ground 19.
The Court also rejected the suggestion that the first variation judgment was somehow deficient because it did not contain separate reasons from Rothman J and Dhanji J. The Court noted that the judgment was, on its face, a judgment of the Court as a whole, and the applicant's assumption that it belonged solely to Ward ACJ was mistaken.
Finally, the Court observed that the late submission of a further authority by the applicant's co-offender illustrated precisely the problem: the applicant was attempting to have the unanimity ground revisited, which is not a permissible purpose for a r 5.4 application.
Orders Made
- Leave to bring the application to set aside or vary Fantakis v R (No 2) [2023] NSWCCA 22 was refused.
- The Court noted that, had leave been granted, the application would have been dismissed in any event.
Key Takeaways
- A r 5.4 application to set aside or vary a judgment is not available as a mechanism to challenge the conclusion reached, or the adequacy of reasoning given, in a prior determination of such an application.
- Where no sentence appeal has been filed, there is no basis for a court to determine whether a sentencing error occurred, even if the applicant asserts that question is relevant to a conviction appeal ground.
- Introducing new authorities through a variation application in order to re-agitate previously decided grounds falls outside the permissible scope of r 5.4.
- A judgment delivered in the name of the Court as a whole does not require separate written reasons from each member of the bench to be valid.
- In refusing leave, the Court also confirmed the alternative position: even on the merits, the application would have been dismissed for want of any proper basis.
Legislation and Cases Referenced
Legislation
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.4
Cases
- Fantakis v R [2023] NSWCCA 3 (principal conviction appeal judgment)
- Fantakis v R (No 2) [2023] NSWCCA 22 (first variation application)
- R v Spathis; R v Patsalis [2001] NSWCCA 476