R v Sparos (No 4) [2018] NSWSC 323

Supreme Court New South Wales

Medium Neutral Citation: R v Sparos (No 4) [2018] NSWSC 323 Hearing dates: 27 February 2018, 1 March 2018, 6 March 2018, 8 March 2018, 13 March 2018 and 15 March 2018 Date of orders: 15 March 2018 Decision date: 15 March 2018 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: (1) The notice of motion seeking to vacate the trial date of 19 March 2018 and have the matter placed in the call-over list to obtain a new date is dismissed.

(2) The trial is to be re-listed to commence before Harrison J on 30 April 2018. Catchwords: CRIMINAL LAW – procedure – application to vacate trial date Cases Cited: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 R v Sparos (No 1) [2017] NSWSC 1410 Category: Procedural and other rulings Parties: Luke Sparos (Accused) Regina (Crown) Representation: Counsel: Mr J Korn, until 6 March 2018 (Accused) Self-represented, from 6 March 2018 (Accused) Mr C Patrick SC (Crown)

Solicitors: Kiki Kyriacou Lawyers, until 6 March 2018 (Accused) Director of Public Prosecutions (Crown) File Number(s): 2014/196615

Judgment

Background 1. Luke Sparos is due to stand trial on 19 March 2018 for the murder of Gemahl Maika. 2. On 27 February 2017, a notice of motion was filed in court seeking that the hearing date of 19 March 2018 be vacated. The accused was legally represented at the hearing of the motion by Mr John Korn of counsel who was instructed by Mr Kiki Kyriacou, solicitor. 3. The accused is presently detained at the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater for the purposes of his court appearances. He is otherwise housed at the High-Risk Management Correctional Centre ("HRMCC") at Goulburn. He is considered to be an "Extreme High Security inmate". The circumstances of his incarceration play a large role in his claim that he is unable to properly prepare for his upcoming trial. 4. This is the third time that the accused's matter has been listed for trial. The accused's first trial commenced on 11 April 2016, along with other co-accused, before Adams J. The jury retired on 21 July 2016 but was unable to agree on a verdict in relation to the accused and was discharged in relation to him on 5 August 2016. The second trial was listed shortly thereafter to commence on 3 October 2017. The lengthy adjournment was granted to suit the convenience of defence counsel. I have set out the reasons why that second trial was unable to commence in my decision of 20 October 2017: R v Sparos (No 1) [2017] NSWSC 1410. The procedural history of the matter up until that date is set out therein. At that time, I ordered that the trial be temporarily stayed until the Director of Public Prosecutions (NSW) ("DPP") paid to the accused the costs thrown away due to the vacation of that trial date. The procedural history of the matter from that date to the present is set out in some detail below at [16]-[23]. 5. On 8 December 2017, the third trial was listed to commence on 19 March 2018. 6. The notice of motion seeking to vacate the trial date was heard briefly on 27 February then adjourned until 1 March 2018 for further evidence to be obtained. It proceeded on 1 March and again on 6 March at which time the accused dismissed his legal representatives. I granted Mr Korn and Mr Kyriacou leave to withdraw at that time. I then stood the motion over part heard until 8 March 2018 so that the accused could reconsider his position regarding his legal representation. He remained unrepresented on 8 March 2018. On that date I considered separate notices of motion involving the Commissioner of Police and the New South Wales Crime Commission not relevant to this application. I then stood the motion over part-heard to 13 March 2018 in order to ascertain, inter alia, whether the accused had reconsidered the question of his legal representation. He informed the court that he would be unrepresented for his trial. Final submissions in relation to the motion to vacate the trial date concluded that day and I reserved my decision. 7. Before turning to summarise the detailed evidence adduced and submissions made at the hearing of this motion, it should be stated that the accused stands charged with arranging the murder of a Crown witness due to give evidence against him in a prosecution for serious drug offences. It is not suggested that the accused shot the deceased himself; he was in custody at the time of the shooting. Rather, it is alleged that he organised the murder from custody through a combination of recorded gaol telephone conversations (speaking in code), during visits from various persons and via fellow inmates. 8. The deceased was shot and killed by Maximilian Mazzilli. Mr Mazzilli stood trial with the accused in 2016 and was found guilty by the jury. He was subsequently sentenced by Adams J to life imprisonment. If the accused was to be convicted of the murder it would be anticipated that the Crown may well seek a sentence of life imprisonment in relation to him as well. In these circumstances there can be little doubt that the accused is anxious about his trial. Although the same could be undoubtedly be said for any person standing trial at any given time, it is to be accepted that the stakes for this accused are particularly high. 9. I do not propose to summarise the Crown case against the accused for the purposes of this judgment. It is, however, necessary to explain one aspect of it in order to understand the applicant's central complaint that he will not receive a fair trial unless the trial date of 19 March 2018 is vacated.