Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94 Hearing dates: On the papers Date of orders: 10 May 2022 Decision date: 10 May 2022 Before: N Adams J Decision: (1) The Order to Produce made on 20 September 2021 on application by Elefterios (Terry) Fantakis is set aside, save as for paragraphs 2(b), 7 and 11. It is noted that there are no documents to produce in relation to these paragraphs. Catchwords: CRIMINAL PROCEDURE – order to produce – application to set aside by Commissioner – documents sought by respondent in relation to appeal against murder conviction – documents pertaining to the police investigation – onus on respondent to show legitimate forensic purpose – applicable approach after Blacktown and Waters – where many of the documents already produced or not in the Commissioner's possession – onus not discharged – application granted – order set aside Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1) Evidence Act 1995 (NSW), ss 90, 137, 138 Cases Cited: 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 Category: Procedural rulings Parties: The Commissioner of Police (NSW) (Applicant) Elefterios Fantakis (Respondent) Representation: Counsel: Mr D Jordan (Applicant) Self-represented (Respondent) Solicitors: Crown Solicitor's Office (Applicant) Self-represented (Respondent) File Number(s): 2013/00297834 Publication restriction: Nil. Judgment Background 1. By application filed on 17 December 2021, the Commissioner of Police for NSW seeks an order that the Order to Produce ("the Order") made by the Registrar of the Court of Criminal Appeal on 20 September 2021, on application of Mr Elefterios Fantakis, be set aside. The Order was sought by Mr Fantakis in connection with his pending appeal to the Court of Criminal Appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his conviction for murder. 2. In this matter, the Commissioner is the applicant and Mr Fantakis is the respondent, although he is the appellant in the substantive appeal and the Crown is the respondent. For clarity, in these reasons, I will refer to the parties as the Commissioner and Mr Fantakis. 3. In early 2018, Mr Fantakis was tried for the murder of Sam Karmas before Wilson J and a jury of twelve. The murder was alleged to have taken place on 11 August 2011 in Punchbowl. On 25 May 2018, he was found guilty and on 8 November 2018 he was sentenced to 24 years imprisonment with a non-parole period of 18 years. 4. Mr Fantakis filed a Notice of Appeal against his conviction on 3 May 2018. He is legally aided on grounds 1 and 2 which contend: 1. The trial miscarried because the trial judge failed to leave the defence of mental illness to the jury. 2. The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of the defence of substantial impairment. 1. In addition to these two grounds, Mr Fantakis is self-represented in respect to a further 16 grounds of appeal (grounds 3 to 18). The Order was sought by Mr Fantakis in order to obtain material in support of some of those grounds. In particular, it seems that the Order is relevant to the following grounds of appeal: Ground 3: The verdict of the jury was unreasonable and cannot be supported having regard to the evidence and therefore was unsafe and unsatisfactory. Ground 7: Non-disclosure of documents resulting in a miscarriage of justice. Ground 13: The trial miscarried as her Honour wrongly admitted a number of documents including: (1) A document seized from the applicant's vehicle, namely, Ex AA: "Georges River Note"; and (2) The writing and video evidence seized from Mr Fantakis' home. Ground 14: There has been a miscarriage of justice in the trial of Mr Fantakis on account of the conduct by NSW Police during the course of the investigation. 1. Although Mr Fantakis initially relied on only 17 grounds of appeal, he subsequently added ground 18 in which he alleges that his counsel at trial were incompetent. On 31 March 2022, Mr Fantakis made an application to the Court for a further Order to Produce in respect of ground 18. The intended recipient is a solicitor at Zahr Partners, and Mr Fantakis calls on the production of all documents pertaining to a subpoena served on the Commissioner on 28 June 2017. That application is being considered by the Registrar. 2. With respect to his conviction appeal, Mr Fantakis filed submissions on 30 April 2021, consisting of 176 pages, and amended submissions on 10 August and 7 September 2021 and 10 March 2022 consisting collectively of 85 pages. In total there are 261 pages of submissions. In addition, he has filed two affidavits (with annexures) sworn by him on 1 September 2021 and 11 February 2022. They comprise 957 pages in total. 3. I have also been provided with the Crown submissions filed in relation to the conviction appeal on 8 March 2022 together with the particulars and summary of trial. The appeal is listed for hearing over three days on 18, 19 and 20 May 2022. The application to set aside the Order 1. Attached to the Order is a schedule setting out the material sought by Mr Fantakis in 16 different paragraphs. All documents can be described as police records of the investigation of the murder of Mr Karmas. There are also four annexures to the schedule to the Order said by Mr Fantakis to be evidence supporting the existence of the material sought. 2. In support of the application (filed 17 December 2021) to have the Order set aside, the Commissioner attached Short Minutes of Order and an affidavit of Isabella Lea Houston affirmed 17 December 2021 annexing two documents. Ms Houston is a solicitor employed at the Crown Solicitor's office. 3. Annexure A to Ms Houston's affidavit is an email enclosing a letter from the Commissioner to Mr Fantakis dated 11 October 2021. In the letter, Ms Houston requested that Mr Fantakis identify his legitimate forensic purpose for calling on the documents set out in the schedule to the Order. It was contended that that order was "broad in scope" and the material called on largely had already been provided either in the brief of evidence during the original trial or in response to previous subpoenas issued to the Commissioner at Mr Fantakis' request (these subpoenas were attached). 4. Annexure B to Ms Houston's affidavit is an email dated 22 October 2021 enclosing a letter from Mr Fantakis to Ms Houston dated 18 October 2021. In this letter, Mr Fantakis identified his legitimate forensic purpose for calling on each of the 16 paragraphs of material set out in the schedule to the Order. I will consider those matters further below. 5. Since this time, the following additional material has been filed with the Court in relation to the application to have the Order set aside. 1. Affidavit of Roxane McGee sworn 17 December 2021, with annexures, filed by the Commissioner; 2. Submissions of the Commissioner to set aside the Order dated 21 December 2021; 3. Submissions of Mr Fantakis dated 1 February 2022, with annexures; 4. Affidavit of Roxane McGee sworn 24 March 2022, with annexures; 5. Submissions in reply of the Commissioner dated 30 March 2022; 6. Submissions in reply of Mr Fantakis dated 6 April 2022; and 7. Submissions in further reply of the Commissioner dated 27 April 2022 (objected to by Mr Fantakis on the basis that they are out to time). 1. Given the large amount of documentation provided I formed the view that an oral hearing of the application was not required and determined that there was more than enough material to consider the application on the papers. The Crown case on the murder conviction 1. Although I am only determining whether the Order ought be set aside (and not the merits of the appeal), I propose to set out briefly the nature of the Crown case which the jury must have to some extent accepted to convict Mr Fantakis of murder on 25 May 2018. It is necessary to do so in order to determine whether Mr Fantakis has a legitimate forensic purpose for seeking the documents. 2. I have drawn the following summary largely from the judgment of Wilson J on sentence of Mr Fantakis: R v Fantakis; R v Woods [2018] NSWSC 1700. 3. The Crown case against Mr Fantakis was circumstantial. There is no direct evidence as to how Sam Karmas died. His body has never been found. He was last seen on 11 August 2011. 4. As at May 2011, Mr Fantakis was living in a property in Wilga Street in Punchbowl. Mr Karmas was living in Warwick Street also in Punchbowl where Mr Fantakis and his late twin owned a property across the street. 5. On 27 May 2011, Mr Fantakis' twin brother, Nicholas Fantakis, committed suicide. It would appear that this tragic event precipitated a period of extreme stress for Mr Fantakis, centring on a dispute with his late brother's de facto partner, Maria Angeles, over the funeral and estate. By August 2011, Mr Fantakis' partner, Patricia Mantas, observed that he had developed mental health issues, characterised by depression, irrationality and delusions. 6. The deceased, Mr Karmas, became involved as an intermediary in the conflict between Mr Fantakis and Ms Angeles whom he knew as "neighbours". Mr Fantakis went on to develop a strong animosity towards Mr Karmas and made threats of harm to him. 7. Mr Karmas was last seen by his daughter Sarah in the kitchen of his house at around 1.00pm on 11 August 2011. Precisely what happened that day is unknown. It appears that at some stage after 1.00pm, probably at 1.50pm, Mr Karmas went to the premises of Mr Fantakis at Wilga Street in Punchbowl. He travelled there from Warwick Street in a blue transit van owned and used by Mr Fantakis, with Mr Fantakis and his labourer. The Crown case was that either Mr Fantakis "lured" Mr Karmas to his Wilga Street property to murder him, or Mr Karmas offered to assist Mr Fantakis with his renovation works and the killing was opportunistic. 8. The Crown case was that later that afternoon, Mr Fantakis murdered Mr Karmas by the violent application of force to his person, out of sight and hearing from the labourer. The exact circumstances of the killing are not clear. After the violence, Mr Karmas' body was loaded into the blue van leaving a DNA trace. 9. At that time, Mr Andrew Woods was an associate of Mr Fantakis who helped him to cover up the murder. He was convicted of being an accessory after the fact to the murder. The Crown case was that at around 1.00am on 12 August 2011, after travelling west in separate vans, the two men travelled together in the blue van to an area within the Georges River catchment where, between this time and 4.46am, Mr Karmas' body was disposed of. His body has never been found. 10. Mr Fantakis gave evidence at his trial. He admitted that he had travelled with Mr Woods that night as alleged but stated that the purpose of the journey was to dispose of detritus from his late brother's cultivation of cannabis. This account cannot have been accepted by the jury and was rejected by Wilson J on sentence. 11. A note was found by police in the blue van which became exhibit AG at trial. At [34] of the sentencing judgment, her Honour continued: "I am satisfied to the requisite standard that the note, Ex. AG, which was found in the blue van owned by the offender Fantakis and that was undoubtedly written by him, is a reference to the concealment of Mr Karmas' body. It says, 'Wrap in black cotton sheet and tie with black ribbon (shoe lace) tight and through [sic] in the river (Georges river)'." 1. It is the admission of this handwritten note into evidence during the trial which Mr Fantakis now challenges in appeal ground 13(1). 2. In the period after 12 August 2011, both Mr Fantakis and Mr Woods took steps to conceal their involvement. This included lying to others and to police. In addition, Mr Fantakis attempted to hide the blue van and to clean it with bleach to eliminate forensic evidence. On this issue, her Honour observed the following at [41]-[42]: "As the police investigation progressed, with its obvious focus on the offenders, both came to feel an aggressive hatred to those officers most involved in the investigation, a hatred that became so vitriolic as to result in them discussing plans to discover the home address of, and harm, the officer in charge, Detective Senior Constable Roxanne McGee. Commendably, she diligently persisted in her investigation regardless of the threat to her personal safety. The steps taken by the offenders to cover their respective crimes, or which evidence their consciousness of them, do not make those crimes worse; they provide evidence of them which, like the jury, I accept to the requisite standard." Evidence Affidavit of Roxane McGee sworn 17 December 2021 1. Detective Sergeant McGee deposed that she is an officer of the NSW Police Force. In August 2011, she led the investigation into the disappearance of Mr Karmas known as "Strike Force Flaggy". From this time, she was, and she remains, the officer in charge of this investigation. In this role, DS McGee was responsible for compiling the brief of evidence and responding to any subpoenas for production issued to the Commissioner in the prosecution of Mr Fantakis arising from Strike Force Flaggy. 2. Annexure B of DS McGee's affidavit is a schedule outlining the Commissioner's position in respect of each paragraph of the Order and specifying where documents caught by the Order have already been provided to Mr Fantakis in the brief of evidence or in response to subpoenas for production issued in the prosecution. In the relevant column the officer has expressly stated the basis of her evidence that the material has already been provided; for example, by pinpointing where it appears in the index to the brief served on Mr Fantakis. Affidavit of Roxane McGee sworn 24 March 2022 1. In her second affidavit, DS McGee annexed an amended version of the schedule which was Annexure B in her first affidavit ("the Amended Schedule"). She also outlined why the Commissioner's position in respect of certain paragraphs of the Order had changed since her first affidavit. 2. I have summarised the Amended Schedule in my consideration below of the parties' positions in respect of each of the 16 paragraphs of material set out in the schedule to the Order. 3. Given that both the Commissioner and Mr Fantakis provided schedules and submissions addressing each of the sixteen categories of documents sought, in turn I propose to consider the application using the same format. Applicable legal principles 1. As Simpson J (as her Honour then was) observed in R v Saleam [1999] NSWCCA 86 at [11] (with whom Spigelman CJ and Studdert J agreed): "The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was." 1. Earlier, in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 Jordan CJ observed: "… a party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …" 1. As Barr AJ stated in R v Tastan (1994) 75 A Crim R 498 at 505-506: "there will be no legitimate forensic purpose of all the parties doing is trying to get hold of documents to see whether they may assist at all in his case". 1. In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beazley JA (with whom James and Kirby JJ agreed) observed at [5], citing both Tastan and Saleam, the issuing party bears the onus of establishing that he or she has a legitimate forensic purpose for production. 2. It has been held that the test is to be applied more liberally in criminal cases than in civil cases: Alister v The Queen (1984) 154 CLR 404 at 456; [1984] HCA 85 (Brennan J). 3. The Court of Appeal has recently considered the circumstances in which a subpoena can be set aside, albeit in the civil context, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown"). The question was whether the issuing party needs to establish that the documents sought are "likely to assist" that party's case. After conducting a detailed analysis of the relevant decisions and the tests advanced therein, Bell P (as his Honour then was) observed the following at [60]: "There is a danger in using the language of 'tests' for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay at 100." 1. His Honour noted the different approach taken to subpoenas issued in civil proceedings to those issued in criminal proceedings and then went on to observe the following at [65]: "It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent." 1. His Honour went on to consider the concepts of "apparent relevance" and "fishing" and observed the following at [68]-[69]: "If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is 'not sufficient', and a similar statement in Carroll at 182 that 'mere relevance is not enough' may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: 'must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.' There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a 'bearing on the issues in the case and may well have evidentiary value', a subpoena seeking such a document or documents will not amount to fishing." 1. His Honour concluded at [80]: "My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J … in Saleam at [11], it can: '(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case' at least in civil matters, an inability to demonstrate that it is 'on the cards' that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings." 1. Brereton and McCallum JJA agreed with his Honour's formulation. Brereton JA observed the following at [91] in the context of the distinction between civil and criminal cases (footnote omitted): "It is unnecessary to resolve whether the same rule applies in criminal cases. While the argument that if anything a more generous approach should apply in criminal cases at first sight has much attraction, the observation on which it is founded was made in the context of a claim for public interest immunity, and does not establish a general rule concerning subpoenas. The approach which has been adopted in the criminal context has been much influenced by that applicable to public interest immunity claims, and, as the President explains, in times when a much narrower view was taken of an accused person's entitlement to disclosure than now prevails. The changes which have taken place in that respect may support the extension to criminal cases of the test applicable to subpoenas in civil cases. On the other hand, as I have mentioned, police and prosecutors in criminal cases have extra-curial investigatory powers not available to parties in civil cases, which may explain a distinction." 1. Following Blacktown, the principles to be applied when a party seeks to set aside a subpoena/order to produce in the civil context is settled: so long as the material sought has "an apparent relevance" to the issues in the case and/or bears upon the cross examination of witnesses expected to be called in the proceedings it will have a legitimate forensic purpose. 2. The question of whether that approach is to be applied in the criminal context was considered by Davies J in Waters v Secretary of the Attorney General's Department (Cth) [2021] NSWCCA 193 ("Waters"), but his Honour did not need to resolve that question in order to determine that appeal. Davies J observed the following at [26]: "Both Bell P at [72] and Brereton JA at [91] identified the difference between civil and criminal proceedings, in terms of what must be shown for a legitimate forensic purpose to be established, but both noted the significant developments in disclosure obligations in criminal cases in recent times, which might support a similar approach to the issue in criminal cases to that which is to apply in civil cases." 1. Davies J went on to observe the following at [27]: "The approach now proposed by Bell P in civil cases, (his Honour said at [60] that the language of 'tests' is to be eschewed, because the issue was whether the subpoena involved an abuse of process) had been put forward at an earlier time by Brereton J (as his Honour then was) in A v Z [2007] NSWSC 899; (2007) 212 FLR 255, and adopted by Macfarlan JA (Button and Ierace JJ agreeing) in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [29]. Macfarlan JA also noted in Tropic Asphalts that the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 concluded that, whilst it is necessary that it be shown that 'it is likely [that] the documentation [subpoena] will materially assist on an identified issue', the word 'likely' was not used in that formulation in the sense of 'more likely than not'." 1. His Honour took the view that on the facts in that case, whatever approach was taken, no error was established. 2. I have considered these authorities and propose to adopt the same approach as the Court in Waters: that is, I am prepared to follow the approach in Blacktown for the purposes of determining this matter without making any finding either way as to whether it is the applicable approach in the criminal context. I note that this approach is more favourable to Mr Fantakis. Relevant grounds of appeal 1. In Mr Fantakis' letter to Ms Houston of 18 October 2021 he sought to specify the grounds of appeal to which the material sought in the 16 paragraphs of the schedule to the Order was said to be relevant. This was summarised in one column of the Commissioner's Amended Schedule annexed to the second affidavit of DS McGee. In written submissions, Mr Fantakis also identified relevant grounds of appeal largely consistent with his letter. 2. Mr Fantakis seeks to obtain material relevant to appeal grounds 3, 7, 13(1) and 14 (extracted above at [5]). I propose to summarise the scope of these grounds. Occasionally, other grounds of appeal are cited in support of the Order and these are addressed as necessary in my consideration below. Ground 3: unreasonable verdict 1. One aspect of Mr Fantakis' contention that the jury's verdict is unreasonable is an overarching allegation of police impropriety in respect of the investigation into Mr Karmas' death. Some of the material sought is relied on to support that aspect of this ground (and also ground 14 below). Given that this ground relies on the specific complaints under grounds 7, 13(1) and 14 it is not necessary to summarise Mr Fantakis' submissions further. Ground 7: Non-disclosure 1. Mr Fantakis asserts that a miscarriage of justice was occasioned by the failure of police to produce four categories of documents, as follows: 1. The phone records used to compile exhibit J; 2. Documents sought by item 13 of a subpoena for production served on the Commissioner on 28 June 2017, being documents authorising the destruction of drugs found at the Wilga Street property; 3. Documents said to be held by Bass Hill holding yard; and 4. The odometer reading of Mr Fantakis' blue transit van. 1. In relation to the phone records, exhibit J was the marking given to a spreadsheet prepared by police which compiled the raw data from over 40 separate telephone records, by using the original call charge records. Mr Fantakis' complaint is threefold: first, that exhibit J was not included in the brief of evidence and that it was tendered late; secondly, that the original call charge records used to compile exhibit J have not been served on him and may include data not reflected in exhibit J; and thirdly, some data is missing from these records. 2. In relation to the documents sought by item 13 of the 28 June 2017 subpoena, Mr Fantakis submits that police did not properly comply with a requirement to produce "[a]ll documents authorising the destruction of drugs allegedly discovered during the execution of SW 554/11 and CSW 278/11 and 37 Wilga Street Punchbowl, attached to DAL ref: 2011 03804". The underlying allegation is that in September 2011 Detective Sergeant McGee planted drugs seized from Wilga Street in a vehicle driven by Mr Woods. 3. In relation to the documents held at Bass Hill holding yard, Mr Fantakis submits that their production would have assisted the defence to test the continuity of exhibits relied upon by the Crown at trial, in particular the DNA of the deceased located on the trim of the driver's door of Mr Fantakis' blue transit van. 4. Finally, in relation to the odometer reading, Mr Fantakis contends that police failed to produce documents pertaining to proof of the odometer reading of the blue van (BE32CB) and certain other documents were improperly withheld from him by police. Ground 13(1): "Georges River note" 1. In this sub-ground of appeal Mr Fantakis submits that exhibit AA, which came to be referred to as the "Georges River note", should not have been admitted as evidence in his trial. Objection was taken at trial to a body of evidence (including ex AA) on the basis of ss 90 and 137 of the Evidence Act 1995 (NSW), but the application was refused: R v Fantakis [2018] NSWSC 1815. Mr Fantakis now argues for the exclusion of the Georges River note on grounds not advanced at trial. 2. Mr Fantakis submits (for the first time) that the note was wrongly admitted because it has no probative value, and any such value was outweighed by the prejudice of raising a case theory without foundation and which wasted court time. Further, he submits that the note was planted by police. Ground 14: Police impropriety 1. Under this ground, Mr Fantakis makes wide-ranging and serious allegations of impropriety in respect of the police investigation into Mr Karmas' death (some of which overlap with the grounds above) and generally relies on his submissions in respect of ground 3. 2. The allegations of impropriety may be briefly summarised as follows: 1. Police wilfully neglected their duty by failing to comply with standard operating procedures for search warrants in the course of executing crime scene warrants, in furtherance of "the collateral purpose to have a flexible use of exhibits seized". An extension of this complaint is that Detective Sergeant McGee lied on oath in an affidavit sworn 15 February 2013. 2. Police unlawfully planted and destroyed drugs seized from the Wilga Street property (discussed under ground 7 above). 3. Deficiencies in the police investigation, that is, largely failures of the police to follow up certain leads or interview certain witnesses. 4. The Georges River note was planted by police (the subject of ground 13(1)). Submissions 1. I consider the parties' submissions further below when determining whether Mr Fantakis has shown a legitimate forensic purpose for seeking each of the 16 categories of documents. However, for completeness, I note that the parties traded submissions in reply and further reply to which I have had regard. Some relevant submissions made at a general level are as follows. Commissioner's Submissions dated 21 December 2021 1. These submissions addressed the relevant legal principles relating to the Court's power to set aside an Order to Produce in an appeal and the standard to be met by Mr Fantakis to avoid this. From [41] the Commissioner set out how the principles apply in the present case as follows: "…many of the categories of documents sought in the order have already been produced in the brief, or pursuant to subpoena in the court below. Nominated as the 'Commissioner's Position 1', the position applies to many paragraphs of the schedule of the OTP. These are documents that are known to be in the possession of the Appellant through formal court or court-related processes. A reason why, at trial, documents already in the position of an accused might be legitimately the subject of a subpoena might be to prove the provenance of those documents. It is submitted that the provenance of documents sought in the OTP is not, and cannot be, in dispute for the purposes of any argument in a trial, far less in the appeal (if they are germane to an appeal at all). Accordingly, the Applicant submits that it cannot be 'on the cards' that the documents would be of any assistance to the Appellant in his appeal." 1. And further at [44]: "In relation to the 'Commissioner's Position 4' category, the Commissioner presses the application to set the OTP [sic] (or those parts of the schedule to the OTP) on the basis that there is no demonstrable legitimate forensic purpose in relation to the OTP (or that part of it). This category applies to paragraphs 6 (in relation to Forms 20s, which were, at the time of the commission of the offence for which the Appellant was convicted, reports to an authorised officer about the execution of warrant (see Sch 1 of Law Enforcement (Powers and Responsibilities) Regulation 2005)) and 8. In relation to paragraph 8 (of the OTP), the grounds of appeal asserted by the Appellant to be of relevance to the documents sought are grounds 3, 7 and 14." Mr Fantakis' submissions dated 1 February 2022 1. Mr Fantakis' submissions provided extensive background to the murder charge and conviction as well as the conduct of the trial. At [164]-[207] Mr Fantakis addressed the legal principles applicable to setting aside subpoenas. The balance of the submissions comprise an "Examination of Itemised Subpoena Schedule" and are summarised below. There are also 15 annexures to these submissions, being documents said to evidence the existence of the documents sought. 2. Mr Fantakis also articulated his general purpose behind the Order to be as follows (footnotes omitted): "The scope of the subpoena is to elicit misconduct on the part of senior police officers attached to the homicide investigation by comparing their actual conduct with some objective standard of behaviour expected in similar circumstances. It submitted [sic] that the documents sought will assist the appellant's appeal in identifying: 1. Legality of the investigation: Grounds 14 & 3 identifies an existing case that the conviction emanated from the wilful neglect of duty followed by senior officers during the homicide investigation. Ultimately, any documents/responses produced as a result of the subpoena, combined with other evidence received during the trial, will support an argument that crucial evidence tendered during the trial by the Crown should have been excluded by reason of illegal conduct; grave and calculated misconduct that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence, challenge mounted pursuant to s138 EA. As there is no justification for this wilful neglect of duty followed by senior officers, critical exhibits tendered by the Crown are tainted in such a way as to lead the Court of Criminal Appeal set aside [sic] a verdict based upon that evidence. 2. Non-disclosure of documents: documents that formed part of the prosecution's general duty of disclosure; a basis for quashing the conviction; ground 7, and 3. Misleading the Supreme Court (Contempt): Providing misleading responses to the Supreme Court in relation to documents sought by the defence; intentionally depriving the accused of documents (or appropriate responses) to test the integrity & credibility of an investigation attached to a strictly circumstantial case. … It was argued that the investigation was unfair and unsatisfactory; this is reflected by the non-contemporaneous nature of the prosecution brief, coupled with false & misleading statements generated by detectives in relation to the continuity of exhibits tendered; conduct that was intent on perverting the course of justice. The appellant claims that it is 'on the cards' that there would emerge from these documents, or from an accurate response by NSW Police, that falls within the category of fresh evidence admissible on appeal (if leave is granted) of such a nature that there is a significant possibility that he would have been acquitted of the charge had the evidence been available at trial, or would have been successful in an application to stay proceedings." Mr Fantakis' submissions in reply dated 6 April 2022 1. In these submissions Mr Fantakis largely reiterates his position in respect of the material called on in paragraphs 1 to 16 of the schedule to the Order. It is made clear that in respect of many of these paragraphs Mr Fantakis is seeking "confirmation" or a "concession" from the Commissioner that certain documents do not exist or that certain procedures were not complied with. Consideration 1. The Commissioner set out five different bases for objecting to the production of the material. These are (noting that "legitimate forensic purpose" is abbreviated to "LFP"): 1. "All or part of the material caught by the paragraph has already been produced in the brief of evidence or in response to a subpoena; if there was a LFP to the Order to Produce, it has previously been answered and therefore there is now no LFP." 2. "The Commissioner accepted that there was a LFP for calling on the material caught by the paragraph and would produce, or simply agreed to produce without accepting that there was a LFP." 3. "There was nothing to produce in response to the call." 4. "The Commissioner cannot discern a LFP and will contest the paragraph." 5. "Material caught by this paragraph the subject of previous call on subpoena, which was set aside in whole or in part by the Court below. The Commissioner cannot discern a LFP and will contest the paragraph." 1. In the event, only four of these bases were relied on by the Commissioner in the Amended Schedule to DS McGee's second affidavit. The second basis above was not relied on; and the fourth and fifth bases were relied on only in combination with the first basis. 2. Therefore, I propose to consider the Commissioner's application under the first and third bases and address additional objections as they arise. Documents objected to on the basis that they have already been produced 1. This first basis was advanced by the Commissioner in respect of the following paragraphs of the schedule to the Order: 1, 2(a), 3, 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16. Each of the subheadings below sets out the material called on in these paragraphs of the Order verbatim. 2. The fourth basis was relied on in combination with the first basis, as something of a "safety net", in the following way: "In respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a LFP and will contest the paragraph." This additional objection was made in respect of paragraphs: 6, 8, 13, 15. 3. Finally, the fifth basis was relied on in combination with the first basis in respect of paragraph 16 only. Paragraph 1: "Copy of all telco documents utilised by NSW Police to generate the telephone spread sheet (exhibit J-tendered during trial) that was generated by Sgt Bradley James Dennet." 1. In his letter dated 18 October 2021, Mr Fantakis narrowed the call in this paragraph to "all telco records" for George Karmas, mobile number 0433 781 303. 2. It is the Commissioner's position that any material caught by this paragraph (including the specific material called on in the Mr Fantakis' subsequent letter) has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Alternatively, the Commissioner submitted that there is nothing to produce in response to call for call charge records of George Karmas. 3. Mr Fantakis contends that George Karmas' "telco records" were not included in any brief of evidence, nor have they subsequently been provided in response to a subpoena. He submitted, "if these documents were produced to the court, by way of subpoena by another party to these criminal proceedings, the appellant has no knowledge of such a disclosure." – and that in any event the Commissioner would not be prejudiced by simply reproducing these records. 4. Mr Fantakis contends that these telephone records are relevant to the credibility of George Karmas, who was a central witness for the Crown in the Mr Fantakis' prosecution and could have formed the basis of "significant cross-examination". The production of such records were said to be relevant to grounds 3 and 7 of his appeal. Paragraph 1: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. She also deposed that there is "nothing to produce" in respect of call charge records of George Karmas. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced or are not in the Commissioner's possession. 3. I would set aside paragraph 1 of the Order on the basis that the material has already been produced, and thus any legitimate forensic purpose it had has already been answered, or is not in the Commissioner's possession. Paragraph 2: "Copy of all documents provided by Vodafone to NSW Police pertaining to Mr Elisha (Samuel) Karmas mobile number 0417 499 903 and relating to charges against Mr Elefterios (Terry) Fantakis (DOB 18/01/74) of murder (H52800640), in particular: (a) A copy of all logs and reports pertaining to Mr Elisha (Samuel) Karmas mobile number 0417 499 903." 1. In relation to paragraph 2(a), it is the Commissioner' position that any material caught by this subparagraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. 2. Mr Fantakis contends that while some of Sam Karmas' call records have been produced, other records have not. The production of these records was said to be relevant to grounds 3 and 7 of Mr Fantakis' appeal against conviction. Mr Fantakis further submits that the information provided by Vodafone to police would form part of the Crown's "general duty of disclosure". Paragraph 2: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 3: "Copy of all Crime Scene Warrants, and accompanying Occupiers Notices, executed by NSW Police on premises (including vehicles) owned by Mr Terry Fantakis during the course of investigation Strike Force Flaggy between 13 August 2011 and 3 October 2013; pursuant to s67 LEPRA 2002 [Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)] and Clause 10 – Law Enforcement (Powers & Responsibilities) Regulation 2005." 1. The Commissioner's evidence is that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena, or has been produced to Mr Fantakis otherwise (eg occupiers notices are provided to the occupier on execution of the warrant). Hence, any legitimate forensic purpose has been answered. 2. Mr Fantakis contends that he was never served with an occupiers notice around the time of execution for any of the warrants executed during the Strike Force Flaggy investigation (although "many of these notices" were made available subsequently). Further, he disputes the Commissioner's position that the crime scene warrants were properly identified in the brief of evidence. Out of a total of seven crime scene warrants identified by Mr Fantakis, he submits that only one has ever been produced to him by police. 3. In summary, Mr Fantakis seeks production of "any further crime scene warrants not disclosed or confirmation that the only crime scene warrants are those identified in the prosecution brief." The relevance of these documents to Mr Fantakis' substantive appeal is articulated by him as follows: "It is submitted that forensic examiners, or any other person acting for NSWPF, could not exercise their crime scene investigation powers (taking photograph [sic], taking swabs and fingerprints from vehicles) unless detectives attached to the homicide investigation had applied and obtained crime scene warrants in relation to each vehicle, and for each individual occasion. This will be a material issue raised in the appeal with regards to the admissibility of forensic evidence obtained after a number of unlawful entries to the appellant's vehicles; allowing for the inference of possible cross-contamination or the planting of evidence, subject to the exclusion of evidence on a s138 EA basis." 1. Mr Fantakis submits that doubts exist as to the provenance of specific items of evidence adduced at trial and on the legal principles relevant to the exclusion of evidence under s 138 of the Evidence Act. 2. The grounds of appeal said to be relevant to this class of documents were grounds 4-7. While ground 7 is set out above at [5] and [51]-[55], grounds 4, 5 and 6 are not. They are as follows: Ground 4: The Crown did split/shift its case depriving the applicant of a fair trial, causing the trial to miscarry. Ground 5: Miscarriage of justice did occur by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown and Mr Price. Ground 6: Her Honour failed to give adequate directions during the summing up occasioning a miscarriage of justice: 1. "Shepherds direction"; 2. Breaches of "Browne & Dunn Rule" (sic); 3. Breaches of "Jones & Dunkel rule" (sic); 4. "Murray direction/warning" of danger to conviction on the uncorroborated writings and video evidence; 5. The summing up was unbalanced. 1. The Commissioner maintains that all crime scene warrants were served in the brief of evidence and that Mr Fantakis appears to be conflating "the requirements of police protocols and LEPRA requirements for search warrants on the one hand and crime scene warrants on the other". The same submission is made in respect of paragraph 4 of the Order considered below. Paragraph 3: Determination 1. In the Crown's written submissions on the substantive appeal, it is noted that Mr Fantakis has himself produced documents which show that the standard operating procedures he relies on did not, at the time of the investigation, apply to the execution of crime scene warrants. 2. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 3. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 4. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. In any event, appeal grounds 4 to 6 are legal arguments which do not rely upon the production of new material. Paragraph 4: "Copy of all Property Seizure/Exhibit forms attached to all Crime Scene Warrants executed by NSW Police on premises (including vehicles) owned by Mr Terry Fantakis during the course of investigation Strike Force Flaggy between 13 August 2011 and 3 October 2013." 1. The Commissioner relies on the evidence of DS McGee that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. 2. Mr Fantakis disputes this. He contends that "no documents produce [sic] by NSWPF or included in any brief of service includes any property seizure/exhibit forms that had been filled out by an exhibit officer during the execution of any crime scene warrant" (as opposed to records of exhibits being logged at a police station). It appears that Mr Fantakis is calling on these documents to confirm that "no property seizure/exhibit forms had been utilised by any exhibit officer(s) during the execution of all crime scene warrants." 3. These documents are said to go to grounds 3, 7 and 14 of Mr Fantakis' appeal and demonstrate that police conducted an investigation "with such dereliction of duty". Paragraph 4: Determination 1. As outlined above, DS McGee has deposed the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 5: "Copy of all receipts issued to Mr Terry Fantakis after all crimes scene warrants had been executed on his premises and on vehicles seized by NSW Police during the course of investigation Strike Force Flaggy between the 13 August 2011 and 3 October 2013; pursuant to Clause 8 & 10(1)(d) – Law Enforcement (Powers & Responsibilities) Regulation 2005." 1. The Commissioner contends that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. In light of this, any legitimate forensic purpose has been answered. 2. Mr Fantakis maintains that he has never been served with any "receipt" around the time crime scene warrants were executed by police in connection with Strike Force Flaggy, and again places this category of documents ("contemporaneous accounts of exhibits seized during the execution of a warrant") in contrast with records kept after the evidence is held at a police station. 3. As with previous paragraphs of the schedule to the Order above, Mr Fantakis is calling on these documents in order to confirm that they do not exist and thereby support an allegation of police misconduct. 4. The production of these documents is said to be relevant to grounds of appeal 3, 7 and 14. Paragraph 5: Determination 1. As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 6: "Copy of all Form 20 Reports, including any attached receipts provided to occupier, to all Crime Scene Warrant executed by NSW Police on premises (including vehicles) owned by Mr Terry Fantakis during the course of investigation Strike Force Flaggy between 13 August 2011 and 3 October 2013; pursuant to s 74 LEPRA 2002 and Clause 10(1)(d) – Law Enforcement (Powers and Responsibilities) Regulation 2005." 1. The Commissioner contends that material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, with respect to the call on any "Form 20s" not already provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph. 2. Mr Fantakis maintains that "no brief of service includes any Form 20 with regards to any crime scene warrant, with an attached seizure list or confirmation that the occupant was served with an occupiers notice as mandated by legislation." – and that the police should have no objection to producing all Form 20 records. 3. These documents are sought as being relevant to appeal grounds 3, 7 and 14. 4. In reply, the Commissioner submitted that documents were produced to Mr Fantakis on 16 October 2017 in response to paragraphs 2 and 3 of the subpoena issued on 28 June 2017. The submission relating to conflation of crime scene warrants and search warrants outlined at [89] above is also relied upon by the Commissioner for this paragraph. Paragraph 6: Determination 1. As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. The Commissioner also relies on a second argument in relation to this paragraph: not only is it contended that the documents have been produced, it is further contended that there is no legitimate forensic purpose in any event. 4. In DS McGee's first affidavit she deposed that all documents falling within the various paragraphs have been produced. She established this by reference to the brief index and other documentation kept by the Commissioner. In her second affidavit she qualified that evidence by adding an "even if" disclaimer in relation to some of the paragraphs. The effect of that qualification is that in relation to some of the documents that have already been produced by the Commissioner, an additional argument is brought: in the event that it could not be proven categorically that every single document sought has been provided, then the Commissioner contends that Mr Fantakis has failed to identify a legitimate forensic purpose in any event. 5. It seems to me that this additional argument relied upon by the Commissioner requires the Court to hypothesise whether some documents which might not have already been provided, and which Mr Fantakis is unable to identify, have "apparent relevance" to the appeal grounds. 6. Mr Fantakis does not concede that any of the documents have been provided to him, even in the face of documented evidence that they have. That position does not assist his case in circumstances where he bears the onus of establishing precisely what it is he is looking for. Having regard to what Bell P observed in Blacktown at [39]-[40], his Honour may have qualified what it is to mount a "fishing expedition" in relation to documents sought for cross-examination of a witness at a trial, but the principle otherwise remains that the party seeking access to documents cannot simply seek everything in the hope that some document may establish an argument he has already made without any evidence to support it. 7. Despite the complaints raised by Mr Fantakis in respect of the police evidence, I am not satisfied that he has discharged his onus of establishing that he has not been served with the documents that he now seeks. 8. Furthermore, I accept the Commissioner's argument that Mr Fantakis has conflated the requirements for the execution of crime scene warrants with that of search warrants. He has not established apparent relevance of these documents. 9. I am satisfied that Mr Fantakis is embarking on no more than a "fishing expedition". I consider this paragraph should be set aside on the basis that the documents have already been produced and no legitimate forensic purpose has been established in any event. Paragraph 8: "Production of documents (to include statements, notebook entries, eagle I entries and reports) made by NSW Police officers attached to Crime Scene Warrants executed on premises (including vehicles) owned by Mr Terry during the course of investigation Strike Force Flaggy between the 13 August 2011 and 3 October 2013. Police officers to include: (1) Appointed Case Officer(s), (2) Appointed Independent Observer(s), (3) Appointed Exhibit Officer(s), and (4) Appointed video operators." 1. It is the Commissioner's position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph. 2. It is Mr Fantakis' position that no brief of service includes any statement, or any other document, matching the description in paragraph 8 from any of the four kinds of police officer listed. 3. Again, Mr Fantakis is calling on these documents to confirm that the Commissioner has "nothing to produce" in response. The phraseology used by Mr Fantakis in submissions in respect of this paragraph is that this would show that the Strike Force Flaggy investigation "was conducted for improper collateral purpose to pervert the course of justice". The relevant appeal grounds are 3, 7 and 14. Paragraph 8: Determination 1. As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. As for the Commissioner's additional argument I am satisfied that Mr Fantakis is unable to identify the "apparent relevance" of this material to his appeal grounds. I also accept the Commissioner's argument as to Mr Fantakis' conflation of the requirements for the execution of crime scene warrants with that of search warrants. Thus, I consider this paragraph should be set aside on the basis that the documents have already been produced and no legitimate forensic purpose has been established in any event. Paragraph 9: "Copy of receipts issued to Mr Terry Fantakis in relation to vehicles seized by NSW Police, namely, vehicles BE 32 CB (Blue Ford Transit van) and XRB 545 (White Subaru Forrester wagon) during the course of investigation Strike Force Flaggy." 1. It is the Commissioner's position that any material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. 2. It is Mr Fantakis' position that he was never issued with any "receipt" acknowledging that his vehicles had been seized by police. He "is simply seeking confirmation from NSWPF that they did not issue receipts once [his] vehicles had been seized as required in law". The relevant appeal grounds are 3, 7 and 14. Paragraph 9: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 10: "Copy of all Receipts issued to Mr Terry Fantakis in relation to exhibits seized from within the vehicles belonging to Mr Terry Fantakis, namely, vehicles BE 32 CB (Blue Ford Transit van) and XRB 545 (White Subaru Forrester wagon); vehicles seized by NSW Police during the course of investigation Strike Force Flaggy on the 13 & 14 August 2011." 1. The parties' position under this paragraph is the same as for paragraph 9 immediately above. This is unsurprising given the closely related nature of the documents called on in each. 2. In respect of this paragraph, Mr Fantakis also cites appeal ground 13(1) as being relevant. Paragraph 10: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 12: "Copy of documents held by NSW Police in relation to the storage of vehicles seized from Mr Terry Fantakis in relation to Strike Force Flaggy, namely, vehicles BE 32 CB (Blue Ford Transit van) seized on the 13 August 2011 and XRB 545 (White Subaru Forester wagon) seized on the 14 August 2011. To include: (a) Documents held by Bass Hill Police station and its holding yard; (b) All document attached to registrar, indicating access and execution of warrants to seized vehicles from the 13 August 2011 till present; (c) All documents dealing with movements and relocations of seized vehicles from 13 August 2011 till present." 1. It is the Commissioner's position that any material caught by this paragraph has already been produced in the brief of evidence. Hence, any legitimate forensic purpose has been answered. Further, in response to a subpoena served on 28 June 2017 which included a similar call on this material, the Commissioner did not produce any material on the basis that it had already been served in the brief of evidence. 2. It is Mr Fantakis' position that the brief of evidence does not include "any copy of any original documents held by Bass Hill holding yard in relation to the storage and access to these vehicles". As such the Commissioner's position is "misleading". (Emphasis added.) 3. Again, Mr Fantakis submits that this material would assist in challenging the propriety of the police investigation and is relevant to appeal grounds 3 and 14. Paragraph 12: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 13: "Copy of all documents pertaining to the destruction of exhibit X0000 803 009, destroyed on 15 December 2011, being an exhibit discovered and seized during the execution of Crime Scene Warrant 278/11 between the 14-18 August 2011; in particular: (a) Production of the EFIMS – exhibit details in relation to X0000 803 009 (b) All documents/correspondence sent to a senior police officer to grant an order for the destruction of X0000 803 009. (c) Orders made by a Senior Police Officer for the disposal of drug exhibit X0000 803 009, on the 15 December 2011, pursuant to Sec 39PB or 39PA(1) Drug Misuse & Trafficking Act 1985. (d) Documents/Correspondence instructing police officers to have exhibit X0000 803 009 retrieved, documented and destroyed on the 15 December 2011 from Bankstown LAC. (e) Statement made by police officers in relation to the destruction of X0000 803 009 (in colour if photographs attached); (f) Written Notice to owner or occupant of premises at which the substance was seized, notifying the destruction of X0000 803 009, pursuant to s 39PA (2)(c) Drug Misuse & Trafficking Act 1985. (g) Analyst Certificate warranting the destruction of X0000 803 009, pursuant to 39PA (2)(c) Drug Misuse & Trafficking Act 1985." 1. It is the Commissioner's position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph. 2. In written submissions Mr Fantakis clarified that paragraph 13(a), (e) and (g) are no longer pressed. In respect of paragraph 13(b), (c), (d) and (f) the Mr Fantakis submitted that these documents have never been produced to him by the Commissioner and such "these documents are being sought … if they exist". 3. Mr Fantakis calls on these documents to demonstrate that charges brought against him on 10 December 2012 for possession of an indictable quantity of cannabis had been initiated for an "improper collateral purpose". He submitted that the exhibit in question had been "unlawfully destroyed" during the prosecution of his associate Mr Woods in December 2011. Further, Mr Fantakis submitted: "It should be quite obvious than an improper collateral purpose(s) was obtained by senior detectives due to the wilful neglect of duty followed during all major searches & seizures; resulting in exhibits that had been tendered during the murder trial." 1. He nominates grounds of appeal 3, 13(1) and 14 as relevant to the Order. Paragraph 13: Determination 1. In the Crown's written submissions on the substantive appeal, it is submitted that the documents sought do not demonstrate what Mr Fantakis asserts that they do – that is, that in September 2011 Detective Sergeant McGee planted drugs seized from the Wilga Street property in a vehicle used by Mr Woods. 2. Further, as outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 3. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 4. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. 5. As for the Commissioner's additional argument I am satisfied that Mr Fantakis is unable to identify the "apparent relevance" of this material to his appeal grounds. He cannot even identify whether the documents exist. How they could establish that he was prosecuted for drug possession for a collateral purpose is not clear. Accordingly, I would set this paragraph aside on the further basis that Mr Fantakis has not established the legitimate forensic purpose of the documents. Paragraph 14: "Copy of video recording made by D/Sgt Roxane McGee in relation to the "Repackaging" of exhibit X0000 803 009 on the 31 January 2012, as detailed in [14] of the statement made by DSC Paul Blanch dated the 8 March 2014. (Please refer to statement of DSC Paul Blanch, Annex 2)" 1. It is the Commissioner's position that any material caught by this paragraph has already been produced in the brief of evidence. Hence, any legitimate forensic purpose has been answered. Specifically, the Commissioner submitted that material caught be this paragraph was also produced on 16 October 2017 in response to paragraph 24 of the 28 June 2017 subpoena. 2. It is Mr Fantakis' position that an undertaking was given on 7 September 2017 by the Crown Solicitors Office that the video called on by paragraph 14 would be produced in response to the 28 June 2017 subpoena. This was confirmed on 3 November 2017. However, Mr Fantakis submitted that he has never been provided with any such video recording. 3. Mr Fantakis also submitted that "[t]he material has high evidential value and is relevant to material issues raised in Grounds 3, 14 & 9 (LD recordings tendered as exhibit CX) of the appeal." Ground 9 of the appeal puts forward that, "Her Honour wrongly admitted Listening Device evidence, exhibit CS and CX, on the grounds of Consciousness of Guilt." Paragraph 14: Determination 1. As outlined above, DS McGee has deposed that the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. Paragraph 15: Production of all documents pertaining to the destruction of exhibit X0000 801 677, destroyed on 15 December 2011; exhibit X0000 801 677 is attached to the drug matter H45 273 615 involving Mr Andrew Woods, in particular: (a) Production of the EFIMS – Exhibit details in relation to X0000 801 677, (b) All documents/correspondence sent to a senior police officer to grant an order for the destruction of X0000 801 677. (c) Orders made by a Senior Police Officer for the disposal of drug exhibit X0000 801 77 on the 15 December 2011; pursuant to Sec 39PB or 39PA(1) Drug Misuse & Trafficking Act 1985. (d) Documents/Correspondence instructing Snr/Cst Brett Pardy and other police officers to have exhibit X0000 801 677 retrieved, documented and destroyed on the 15 December 2011. (e) All statements and notes made by Snr/Cst Brett Pardy in relation to retrieving, documenting and destruction of exhibit X0000 801 677 on the 15 December 2011 at Bankstown LAC (Refer to attached brief service, dated 10/01/12, Annex 3). (f) Written Notice to owner or occupant of premises at which the substance was seized, notifying the destruction of X0000 801 677; pursuant to s 39PA (2)(c) Drug Misuse & Trafficking Act 1985. (g) Analyst Certificates made by Ms Susan Laird included in the brief service in the matter of Mr Woods on the 10 January 2012. (Refer to attached brief service, dated 10/01/12, Annex 3)" 1. It is the Commissioner's position that some, if not all, material caught by this paragraph has already been produced in the brief of evidence or in response to a subpoena. Hence, any legitimate forensic purpose has been answered. Further, in respect of any other material that may be caught by this paragraph that has not already been provided, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph. 2. It is Mr Fantakis' position that the material provided by the Commissioner relates only to paragraph 15(a), (e) and (g) and that this material is no longer being sought by Mr Fantakis. Therefore, Mr Fantakis seeks that "[i]f no such document exists in relation to items 15(b), 15(c), 15(d) and 15(f) it should be confirmed by the Commissioner". 3. This material is said to relate to the propriety or lawfulness of police conduct in respect of exhibit X0000 801 677 and be relevant to grounds 3, 13(1) and 14. Paragraph 15: Determination 1. As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. 4. As for the Commissioner's additional argument I am satisfied that Mr Fantakis is unable to identify the "apparent relevance" of this material to his appeal grounds in any event. 5. Mr Fantakis advances a case theory along the following lines (relevant also to grounds 13 and 14 above): cannabis was originally seized by police in August 2011 during a search of the Wilga Street property (exhibit X0000803 009). This exhibit was used by police to bring possession charges against Mr Woods in December 2011 and then against him in December 2012. He also alleges that this exhibit was planted in Mr Woods' vehicle by police to justify its search in September 2011. His argument appears to be that if he can prove that the drugs were not destroyed, this would support his case theory that they were available to be planted by police as alleged and then used in the prosecutions in 2011 and 2012. 6. However, Mr Fantakis has not established the apparent relevance of these documents to the grounds of appeal identified by him. I am satisfied that what he seeks is no more than a "fishing expedition" to substantiate a case theory that does not go beyond speculation. 7. I would set this paragraph aside on the further basis that Mr Fantakis has not established the legitimate forensic purpose of the documents sought to be produced. Paragraph 16: "A copy of all documents pertaining to enquiries made with ANZ bank in relation to the homicide investigation of Mr Elisha (Samuel) Karmas, in particular: (a) All communications with the ANZ Bank in relation to accounts belonging to Ms Maria Lourdes Angeles, without redactions; (b) All documents produced by the ANZ bank including documents attached to Account Number 012340531344865, belonging to Ms Maria Lourdes Angeles, without redactions; (c) Documents produced by the ANZ bank in relation to the recipient of the electronic transfer made from Account Number 012340531344865, belonging to Ms Maria Lourdes Angeles, on the 15 August 2011 for the amount of $50,222.72 without redactions (Refer to Annex 4)." 1. In respect of this paragraph, the Commissioner has multiple responses: 1. Material caught by this paragraph has already been produced in the brief of evidence. Hence, any legitimate forensic purpose has been answered. 2. The remainder of material sought was also caught by subparagraph (e) of the subpoena served on 16 March 2018. This subparagraph was set aside by the "Court below" (by Wilson J) on 22 March 2018 from which there was no appeal. In this respect, the Commissioner cannot discern a legitimate forensic purpose and contests the paragraph. 3. Material caught by this paragraph was also produced on or before 15 February 2016 in response to paragraph 18(a) of a subpoena served on 12 October 2015. 1. It is Mr Fantakis' position that the Commissioner has not produced material which properly matches the description called on by this paragraph; the documents which have been produced were "generated by NSW police, excluding any copy of any original document produced by the ANZ Bank". Further, ground 8 of Mr Fantakis' current appeal challenges the decision of the Court on 22 March 2018 to set aside of the 16 March 2018 subpoena. 2. Mr Fantakis also maintained that the Commissioner's response that similar calls were made in prior subpoenas (12 October 2015 and 15 January 2018) does not properly satisfy the current call in paragraph 16. He submitted that he "is seeking all documents held by NSW Police that were obtained/produced by the ANZ bank in relation to accounts held by Ms Maria Angeles", a central witness at trial, and the relevant appeal grounds are said to be 3, 7 and 14. Paragraph 16: Determination 1. As outlined above, DS McGee has deposed that most of the documents sought have already been provided. I have considered her affidavit and in particular the Amended Schedule setting out the documentary basis for her assertion. 2. In response, Mr Fantakis simply disputes the police evidence. But he bears the evidentiary onus of establishing that the documents have not already been produced. Mr Fantakis has not discharged the onus of establishing that the Commissioner is either mistaken or dishonest in asserting that these documents have already been produced. 3. I would set this paragraph of the Order aside on the basis that the material has already been produced and thus any legitimate forensic purpose it had has already been answered. 4. As for the Commissioner's additional argument that some of the material was caught by paragraph (e) of the subpoena issued on 16 March 2018 which was set aside by Wilson J, Mr Fantakis seeks this material in order to establish that George Karmas had committed a fraud. However, I am not satisfied that that information could have assisted Mr Fantakis' case. Not only is there no basis to infer that these documents have anything to do with the disappearance of Sam Karmas, the evidence before Wilson J established that the police investigation ended early on, when it became clear that there was no evidence to establish the commission of any criminal offence by George Karmas. 5. Mr Fantakis has not established that these documents have any apparent relevance, and I would set this paragraph of the Order aside as well on the basis of lack of legitimate forensic purpose. Documents objected to on the basis that the Commissioner has nothing to produce 1. This objection was raised on its own by the Commissioner in respect of the following paragraphs of the schedule to the Order: 2(b), 7 and 11. Paragraph 2: "Copy of all documents provided by Vodafone to NSW Police pertaining to Mr Elisha (Samuel) Karmas mobile number 0417 499 903 and relating to charges against Mr Elefterios (Terry) Fantakis (DOB 18/01/74) of murder (H52800640), in particular: (b) the report sent by Vodafone after a request was made by NSW Police on the 13 August 2011. Please refer to attached request made by NSW Police on the 13 August 2011, Annex 1." 1. Mr Fantakis submitted that the Commissioner's position that there is nothing to produce in respect of paragraph 2(b) is "misleading". He appears to be seeking production of the "original document" forwarded by Vodafone to police in response to police's request and submitted that the information provided by Vodafone to police would form part of the Crown's "general duty of disclosure". 2. Despite these submissions, I accept evidence of DS McGee that there is nothing to produce. Mr Fantakis has not discharged the onus of establishing there is. I would not set this paragraph of the Order aside but note that there is nothing to produce. Paragraph 7: "Copy of all video recordings (filming) made by NSW Police of crime scene warrants executed on premises (including vehicles seized by NSW Police) owned by Mr Terry Fantakis during the course of investigation Strike Force Flaggy between the 13 August 2011 and 3 October 2013, pursuant to s88 LEPRA and in compliance to NSW Police Force Standing Operation Procedures attached to warrants." 1. In response to the Commissioner's objection, Mr Fantakis submits that it demonstrates the improper manner in which police conducted their investigation (relevant to appeal grounds 3, 7 and 14) and that the Court of Criminal Appeal will be "moved" to make a finding of this nature in the substantive appeal. 2. Again, I accept evidence of DS McGee that there is nothing to produce. Mr Fantakis has not discharged the onus of establishing there is. I would not set this paragraph of the Order aside but will note that there is nothing to produce. In fact, Mr Fantakis relies on the fact that nothing is produced to support an allegation of police impropriety. Paragraph 11: "Production of documents providing evidence of the current odometer reading from seized vehicle BE 32 CB (Ford Transit van belonging to Mr Fantakis)." 1. The Commissioner submitted that she "is not in possession of any material recording the current odometer reading". 2. It is Mr Fantakis' position that the material called on by this paragraph has been the subject of previous subpoenas issued to the Commissioner on his behalf. He contends that the Commissioner did not object to produce proof of the odometer reading of vehicle BE32CB in response to a subpoena served on 21 August 2013 and provided a misleading response to a similar call in a subpoena served on 28 June 2017. What he seeks is for a record to be made of the "current" odometer reading of vehicle BE32CB and gives authority for this to be done. This evidence is said to be relevant to the admissibility of the expert evidence given by Dr Fitzpatrick at trial (regarding analysis of soil taken from the wheel arches of his vehicle BE32CB). The relevant grounds of appeal put forward as being the basis for the Order are 3, 7, 13(1) and 14. 3. In reply, the Commissioner submitted that Mr Fantakis appears to acknowledge that the material he seeks is not in existence. 4. I accept the Commissioner's evidence that there is nothing to produce in relation to the previous odometer reading. Mr Fantakis has not discharged the onus of establishing any basis for police to undertake an examination of the vehicle in order to obtain an updated reading. I would not set this paragraph of the Order aside but note that there is nothing to produce. ORDERS 1. Accordingly, I make the following order: 1. The Order to Produce made on 20 September 2021 on application by Elefterios (Terry) Fantakis is set aside, save as for paragraphs 2(b), 7 and 11. It is noted that there are no documents to produce in relation to these paragraphs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2022