Supreme Court New South Wales Medium Neutral Citation: R v Elefterios [Terry] FANTAKIS [2018] NSWSC 156 Hearing dates: 15 February 2018 Date of orders: 15 February 2018 Decision date: 15 February 2018 Jurisdiction: Common Law Before: Wilson J Decision: 1. Set aside paragraphs 7, 8, 11, 12 and 35 of the subpoena of 15 January 2018 upon the Commissioner of Police. 2. Order production of the material encompassed by paragraph 17 of that subpoena by 10am on 21 February 2018. 3. Adjourn proceedings and the call on subpoena relevant to paragraphs 10, 13, 14, 19, 21, 22, 27 and 31 to 19 February 2018. 4. I will make the order sought by Mr Lee, for production on a peremptory basis to the material referred to in paragraph 4, as redacted, and paragraph 25. 5. The parties have photocopy access to the material which has been produced by the Commissioner today, or which will be produced before 19 February 2018. Cases Cited: Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404 Attorney-General (NSW) v Dylan Chidgey [2008] NSWCCA 65 Carroll v Attorney-General (NSW) (1993) 70 A Crim R at 162 Category: Principal judgment Parties: Elefterios Fantakis (Offender) The Commissioner of Police (Subpoena) Representation: Counsel: Mr Iain Andrew Todd (Fantakis) Mr Lee (Commissioner of Police) Solicitors: Wasim Jabakhangi from Zahr Partners (Fantakis) Linda Crawford of Crown Solicitors Office (Solicitor for the Commissioner of Police) File Number(s): 2013/297834 Publication restriction: 15 February 2018 Restricted to the Parties Proceedings the subject of a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010, such that the names of the applicants, the deceased, and witnesses likely to give evidence at trial, and any material which tends to identify these individuals, is suppressed, pending the conclusion of the trial or further order of the Court, whichever comes first. 08 November 2018 Conclusion of trial – Publication restriction removed. ex tempore Judgment – on subpoena 1. HER HONOUR: The accused stands charged with the murder of Elisha Karmas on 11 August 2011. 2. The Court has heard argument concerning a subpoena issued on 15 January this year, at the request of the accused, upon the Commissioner of Police, and returnable today. The subpoena contains 42 paragraphs and seeks production of a considerable quantity of material, which is or may be relevant, to the investigation of the death of Mr Karmas. 3. Counsel for the accused and counsel for the Commissioner have discussed the matter over a number of days and an agreement has been reached in relation to many of the individual paragraphs of the subpoena. Much of the material sought has either been produced in answer to earlier subpoenas, or has been served as part of the brief of evidence. Some paragraphs are the subject of further discussions and will be further mentioned before the Court on 19 February 2018. 4. Today the Court is asked to make orders in relation to six paragraphs, each of which the Commissioner of Police asks the court to set aside as an abuse of process, or on the basis that there is no legitimate forensic purpose in seeking access to the material. Those paragraphs are paragraphs 7, 8, 11, 12, 17 and 35. 5. The law with respect to a dispute as to production on subpoena is well settled. Before an order for production is made, or access is granted to material produced, it is for the accused to identify, firstly, a legitimate forensic purpose for which access to the material is sought and, secondly, to establish that it is "on the cards" that the documents would materially assist his case. 6. For there to be a legitimate forensic purpose, the parties seeking production must establish more than that the material is or may be relevant to his or her case. It has been held in Carroll v Attorney-General (NSW) (1993) 70 A Crim R at 162 at [181] that a "court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." 1. Mere relevance is not enough. It is not open to the accused to press a claim for production or access "merely to see whether the documents contain something which might be relevant or might help his case. 1. A party is not entitled to use a subpoena as what is frequently referred to in the authorities as a "fishing expedition", by endeavouring to discover if there is something that may be of use in his or her case." 2. The accused must be able to establish that it is "on the cards" that the documents will materially assist his case: Alister v R ("Hilton Bombing case") [1984] HCA 85; (1984) 154 CLR 404; Attorney-General (NSW) v Dylan Chidgey [2008] NSWCCA 65. 3. Paragraph 7 of the subpoena seeks "production of all surveillance documentation, including video surveillance still-shots, handwritten surveillance notes, event entries, investigator notes, Eaglei entries and COPS entries gathered or generated by New South Wales Police between 24 and 29 November 2011 in relation to Strike Force Flaggy". 1. Mr Todd for the accused argues that the material caught by this paragraph goes to his client's capacity to test and challenge the legitimacy of electronic and visual surveillance carried out by police. In the period 24-29 November 2011, listening device product and other material served as part of the brief of evidence suggests that the accused and a co-accused, Andrew Woods, were the subject of surveillance. The accused does not accept the veracity and accuracy of this material and seeks the material nominated in the paragraph as potentially capable of aiding him in testing that evidence. 2. Mr Lee, for the Commissioner of Police, argues that the material produced or served to date provides no basis upon which to conclude that such material, if it exists, could be useful for the purpose the accused has outlined. Additionally, an earlier subpoena seeking the same material, but with a different range of dates, has already been set aside in the Local Court on the basis that there is no legitimate forensic purpose. 3. The legitimate forensic purpose contended for here is the same as that earlier subpoena. 4. In my view, and setting aside the issue of the Local Court orders, this material falls into the category of a "fishing expedition". The accused has already been provided with listening device product for the relevant period. and with the surveillance log. There is no suggestion that anything in that material gives rise to a reasonable basis upon which to conclude that the evidence has been falsified in some way. There is no basis to conclude that production of the material sought would allow the accused to go beyond that and to challenge the legitimacy of the evidence. What the accused seems to be doing is asking to look at the material, in the hope he may find something of use to him. 5. Whilst there may be a legitimate forensic purpose in that, it cannot be on the cards that he will in fact find something of use to him in his case. 6. That paragraph of the subpoena should be set aside. 7. Paragraph 8 of the subpoena seeks "production of all surveillance documentation, including video surveillance, still-shots, handwritten notes, event entries, investigator notes, Eagle 1 entries and COPS entries gathered and generated by New South Wales Police for 25 July 2012 in relation to Strike Force Flaggy." 1. The accused raises the same argument in support of his claim for access to this material. He wishes to discover whether he was, in fact, the subject of surveillance on 5 July 2012 and, if so, whether documents relating to the surveillance are consistent with listening device product for the same day. 2. The Commissioner has advised the Court that photographs which would be caught by the paragraph have already been provided to the accused, as have the unedited listening device product from a vehicle on that date, and the relevant surveillance logs. 3. The same objection is advanced by the Commissioner to this paragraph, as was raised with respect to paragraph 7. 4. Since the Court has not been referred to it, it is reasonable to infer that there is nothing in the material already served which gives rise to a reasonable basis to doubt the legitimacy of the evidence. As with paragraph 7, the accused is doing no more than issuing a broadly-framed call, in the hope that something will turn up that is of use. There is no basis to conclude that it is on the cards that his hope will be fulfilled. 5. Paragraph 8 should be set aside. 6. Paragraph 11 seeks "production of duty book, notebook entries of all electronic communication, and COPS entries and Eagle I entries made for 5 July 2012 in relation to Strike Force Flaggy, and or Mr Andrew Woods, by: (a) Detective Senior Constable Roxanne McGee; (b) Detective Sam Brennan; (c) Inspector Joseph Doueihi; and (d) Sergeant Mark Heywood, of the Ashfield Highway Patrol." 1. This paragraph relates to a vehicle stop of the co-accused Andrew Woods on 5 July 2011. Although some notebook entries and other material has been produced, the accused believes that there is more, and that police have not produced everything caught by the paragraph. He is seeking material that would permit him to challenge the legitimacy of listening device and surveillance evidence relevant to that day. 2. The Commissioner contends that this is no more than a "fishing expedition", without any reasonable basis to conclude that there could be anything further to produce which would be of material use to the accused. 3. I accept the Commissioner's submission in that regard. The accused's belief, which appears to be founded only in his suspicion of the police, is not sufficient to establish that it is on the cards that other documents exist and that they will be of use to him or may be of use to him. This paragraph falls into the category of a broad call made in the hope that something will turn up. Whilst I can see the forensic purpose for the call, the accused has not established that it is reasonably possible that the Commissioner has possession of material that would assist his case. 4. This paragraph should be set aside. 5. Paragraph 12 seeks "production of police radio messages, MDT recordings, and VKG transmissions, recorded on 5 July 2012 involving officers attending to Strike Force Flaggy to Sergeant Mark Heywood". 1. This paragraph seeks material which relates to the same vehicle stop on 5 July 2012, and has been issued for the same purpose. The accused hopes to test the correlation between listening device product and physical surveillance for that day. 2. The Commissioner makes the same objection, challenging that this call is anything more than a "fishing expedition". 3. For the same reasons to which I have referred with respect to paragraph 7, 8 and 11, I am unable to accept that the accused has established that the call is likely to produce something of material assistance to his case. This is a call which is based upon hope, rather than logic. 4. Paragraph 17 seeks "production of all documents, including notes and photographs created by Detective Senior Constable Donna White, Senior Constable Elliot, Senior Constable Banks and Detective Bryce Watson in relation to FCN-1552489 during forensic examination of 37 Wilga Street, Punchbowl between 14 and 18 August 2011". 1. The accused contends that this material is critical to his defence, as it relates to the forensic examination of the alleged crime scene, in circumstances where the Crown will rely upon the condition of the crime scene in support of its case at trial. 2. The Commissioner concedes that photographs from the forensic examination should be produced and has indicated that those photographs will be produced. With respect to other material, the Commissioner argues that, given that the photographs have been or will be provided, there can be no basis to call for anything more. It is submitted that the accused cannot know what is in the material to establish that it is on the cards that it will assist him. 3. The voluntary production of the photographs by the Commissioner will go a considerable distance to assist the accused in investigating the matters he wishes to consider relevant to the premises at 37 Wilga Street. 4. Despite this, I consider the accused to have met the two-step test for access. I accept that there may be something in the forensic file and the case notes created by crime scene officers that could be of use to the accused. Analysis of the crime scene is an important part of the Crown case. To deny the accused access to the notes or other working documents upon which crime scene reports and statements are likely to be based, is to deny him material that could enable him to compare the evidence with the primary material from which the evidence may have been derived. 5. That is, there is a legitimate forensic purpose, and it is on the cards that something of material use will be produced. 6. I do not propose to set aside paragraph 17. 7. Paragraph 35 seeks "production of all documents held by the New South Wales Police in relation to an official police complaint made on 12 June 2011 involving Ms Maria Angeles, Robert Wicks, John O'Dwyer and Sam Karmas". 1. The accused says he wishes to explore the state of mind of persons relevant to the Crown case for murder, as at 12 June 2011, and relevant to this incident, and that this is a legitimate forensic purpose. He argues that it is likely the material sought will permit that. 2. The Commissioner says that the events are not relevant to the trial and, in any event, the paragraph, as drafted, would encompass material going well beyond the forensic purpose identified. 3. I agree with the Commissioner, that the paragraph, as drafted and pressed, does go beyond the scope of the forensic purpose identified; it is likely to encompass documents and records that could not have a bearing on the state of mind of those nominated. 4. Although there seems to be some relevance of the material, at least insofar as Mr Wicks and Mr O'Dwyer are concerned, the same cannot be said with respect to Ms Angeles and Mr Karmas, who were not present at the material time. The accused already has witness statements from Mr Wicks and Mr O'Dwyer. I can see no basis to conclude that the accused has established that there is anything further which might materially assist his case. 5. This paragraph should be set aside. ORDERS 1. The Court makes the following orders: 1. Set aside paragraphs 7, 8, 11, 12 and 35 of the subpoena of 15 January 2018 upon the Commissioner of Police. 2. Order production of the material encompassed by paragraph 17 of that subpoena by 10am on 21 February 2018. 3. Adjourn proceedings and the call on subpoena relevant to paragraphs 10, 13, 14, 19, 21, 22, 27 and 31 to 19 February 2018. 4. I will make the order sought by Mr Lee, for production on a peremptory basis to the material referred to in paragraph 4, as redacted, and paragraph 25. 5. The parties have photocopy access to the material which has been produced by the Commissioner today, or which will be produced before 19 February 2018. ********** Amendments 27 November 2018 - Amended Publication Restriction Field to read: 15 February 2018 Restricted to the Parties Proceedings the subject of a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010, such that the names of the applicants, the deceased, and witnesses likely to give evidence at trial, and any material which tends to identify these individuals, is suppressed, pending the conclusion of the trial or further order of the Court, whichever comes first. 08 November 2018 Conclusion of trial – Publication restriction removed. 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: 27 November 2018