Supreme Court New South Wales Medium Neutral Citation: R v Sparos [2018] NSWSC 854 Hearing dates: 4-6 June 2018 Date of orders: 07 June 2018 Decision date: 07 June 2018 Before: Harrison J Decision: Accused's application to discharge the jury or alternatively to adjourn the proceedings is refused Catchwords: CRIMINAL PROCEDURE – where instructions to counsel appearing for accused withdrawn – application for adjournment – application to discharge the jury – whether counsel's dismissal reasonable Legislation Cited: Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 42 Cases Cited: Browne v Dunn (1893) 6 R 67 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 R v Gilfillan (2003) 139 A Crim R 460; [2003] NSWCCA 102 R v Sparos (No 1) [2017] NSWSC 1410 R v Sparos (No 2) [2017] NSWSC 1462 R v Sparos (No 4) [2018] NSWSC 323 Category: Procedural and other rulings Parties: Regina (Crown) Luke John Sparos (Accused) Representation: Counsel: C Patrick SC (Crown) Solicitors: Director of Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused) File Number(s): 2014/196615 Publication restriction: Nil Judgment 1. HIS HONOUR: By his notice of motion filed in Court on 4 June 2018, the accused Mr Luke Sparos seeks an order either that the trial be adjourned for four weeks or that the jury be discharged and a new trial be scheduled no earlier than 2 July 2018. For the purposes of understanding the procedural history of this case and the general forensic context, I will assume a familiarity with the previous decisions of N Adams J in R v Sparos (No 1) [2017] NSWSC 1410, R v Sparos (No 2) [2017] NSWSC 1462 and R v Sparos (No 4) [2018] NSWSC 323. 2. Mr Sparos' application arises in the following circumstances. Background 1. Mr Sparos is charged with the murder of Gemahl Maika. He was previously tried before Adams J and a jury in 2016 when the jury was unable to reach a verdict. His then co-accused Witness F was convicted by the same jury of murdering Mr Maika and sentenced to life imprisonment. Witness F is to be called in the present case by the Crown. It is the Crown case that Mr Maika was shot and killed by Witness F at the direction of Mr Sparos. 2. The current trial commenced before me and a jury on Monday 21 May 2018 when the jury was empanelled. Subject to the events described below, Mr Sparos has at all times been represented by his solicitor Mr Kyriacou and Mr Smith SC and Mr Carroll of counsel. Until last Monday 4 June 2018, the case had also proceeded uneventfully. That position changed at approximately 2.45pm on Thursday 31 May 2018. 3. Mr Smith was at that time well advanced in his cross-examination of Witness B, who was giving evidence via video link from an undisclosed location. Witness B had previously given extensive evidence in the Crown case in the 2016 trial. Mr Smith then asked the following question: "Q. Just excuse me, Witness B, for a moment. It was about two weeks after the boat that Christine came into your crystal shop?" 1. That question provoked an objection from the Crown and Mr Smith and the Crown briefly conferred. Mr Smith then asked whether he could raise something in the absence of the jury. The jury was then sent out and the video link with Witness B was disconnected. Mr Smith then said this: "SMITH: I'm instructed that something has arisen. I've just indicated this informally to my friend which requires me to have a conference with my client. That may take some time. I'd prefer, I apologise for this, I would prefer not to continue until that matter is attended to." 1. For reasons unconnected with the present proceedings, the next scheduled sitting day in the case was Monday 4 June 2018. I accordingly sent the jury away until then and adjourned the proceedings. 2. At 10am on that day, Mr Carroll appeared and described his position in the following terms: "CARROLL: Your Honour, I appear currently on an amicus basis and to assist the Court. On Friday Mr Smith's instructions were withdrawn by Mr Sparos. I accepted this brief as junior counsel, obviously, at a relatively short notice. In terms of the way in which the witnesses have been divided, your Honour has seen how it has been done so far. Mr Smith was the person who was allocated the task of cross examining the informants. Whether I have the capacity or capabilities to accept the brief as the sole counsel, I have advised Mr Kyriacou, in my view, and this is a considered view, I have obviously consulted Mr Dalton, or the senior people in my chambers, the first question is does this matter require a senior counsel? Secondly, can one counsel conduct the matter? Thirdly, how long it would take for me to be in a position to resume this trial. What I have advised Mr Kyriacou is that I require four weeks to be in a position to be able to be in a state where I can properly conduct this trial. That is the position I am currently at in relation to this matter." 1. Although Mr Carroll indicated that Mr Smith's instructions were withdrawn on 1 June 2018, it appears in fact that his instructions were withdrawn by Mr Sparos at approximately 2.45pm the previous day when he was handed a note from Mr Sparos while he was cross-examining Witness B. It was in fact that development which led Mr Smith to confer with the Crown in the way that I have described, being the matter that Mr Smith indicated necessitated his having a conference with Mr Sparos. 2. The Crown's response to Mr Carroll's announcement can be discerned from what then ensued as follows: "HIS HONOUR: Mr Crown, what do you say should happen? CROWN PROSECUTOR: Our position is as always, we would like to proceed. We would like to finish off the current witness, that is Witness B. There are security measures in place in relation to him. There is a cost to the Government in terms of those security measures and I would have thought from the way the cross examination was progressing on Thursday, that the issues that were being tackled, bearing in mind the previous trial, it was probably about three quarters of the way through. So I would ask, if it is at all possible, to finish off Witness B. HIS HONOUR: Witness B was being cross examined? CROWN PROSECUTOR: Yes. HIS HONOUR: What do I understand is the content of your comment that we should finish off Witness B? Mr Carroll says he is not in a position to do it. CROWN PROSECUTOR: That's a matter for the defence to decide between themselves what they want to do at this point in time. From my point of view, what I want to do is continue on producing evidence. Once Witness B is completed, at least to a particular point, and he is released, if there needs to be a recall at a later point in time to go back to other issues that can be arranged. For the moment we would like to finish him off as far as we can. Thereafter, I would not object to an adjournment of a day, at this stage, so the defence can consider their position. I would also be prepared to delay the calling of informer witnesses and to proceed with other evidence, which is probably not contentious or not particularly contentious. For example, there are 120 telephone calls that have to be played. There is evidence the defence has asked us to produce in terms of undercover witness Westie and undercover witness Aaron. There is the 4 June listening device recording, which the defence wishes us to play as it supports, the defence say, their case. There is the evidence to be read of undercover George in relation to Witness C. There is a surveillance disc in the Parramatta cells that the defence wish us to play in relation to him. All of that can be done. That would take, I anticipate, a number of days, for example. It is entirely possible that what could occur is that once the defence and, indeed, Mr Sparos comes to a realisation that the trial needs to move on, that time can be arranged for the defence counsel if he needs to prepare for each informer witness or a contentious witness. Certainly, if there is a need for an adjournment of a day, for example, in between the witnesses, I won't object to that. I am quite happy to assist counsel to come up to speed if that assists in their deliberations as to whether they can proceed. But I am opposed to bringing the trial to a point where we are adjourned for four weeks because, effectively, as I understand it, that would be a very unusual result and, ultimately, is an application that would lead to an aborting of the trial, which I would oppose. I would say at this stage, that if it was possible, that the defence be allowed some time to consider for themselves today to see if we can finish, as far as we can, Witness B. Then for them to be given a little bit of time so they can consider their position and we can then consider where we are possibly tomorrow. But I do wish to proceed and if that means Mr Sparos is unrepresented so be it." 1. Mr Sparos' application was at that time unsupported by any affidavit evidence or indeed any evidence at all. Mr Carroll sought an adjournment until the following day in order to allow Mr Sparos to confer with Mr Kyriacou. The matter then returned the following day 5 June 2018 when the application was heard. Mr Sparos gave evidence. No other evidence was adduced in support of the application. In order to permit Mr Kyriacou to consider his position further, including whether or not to call or adduce additional evidence, I adjourned the hearing of the application to 6 June 2018. No more evidence was tendered. Mr Kyriacou and the Crown made detailed submissions and I reserved my decision until today at 3.00pm. Mr Sparos' submissions 1. Mr Sparos contends that Mr Smith failed to follow his instructions concerning the cross-examination of Witness A and Witness B. He drew upon what had been put to these witnesses in the previous trial and contended that the transcript from that trial provided what was in effect a template or script from which Mr Smith should have drawn his inspiration and from which no significant deviation should occur. Mr Kyriacou submitted that insofar as the questioning of one of these witnesses was concerned, Mr Smith put some matters that "were not entirely correct in terms of dates and attendances and so forth." It was suggested that what was put did not accord with evidence that had been given by Mr Sparos at his first trial. 2. Mr Kyriacou was quick to emphasise that there was no suggestion about the competence of his counsel. His concern was that Mr Sparos had written and passed several notes to Mr Carroll and Mr Smith during the course of cross-examination of Witness A and Witness B and that these notes had either not been read or alternatively had been read but disregarded. The notes were not shown to me and their precise terms were not otherwise revealed. 3. Mr Kyriacou informed me that he was "not in a position [on 5 June 2018] to put forward the intricacies of the particular issues at hand for this Court to determine". He indicated that that would require Mr Sparos "to go through the transcript, to highlight the times in which he instructs me that matters were incorrectly put." Mr Kyriacou also indicated that it "would also involve cross-referencing with his evidence from the first trial and the line of questioning in the first trial to show the irregularity in terms of the cross-examination and where things have gone wrong." 4. Mr Kyriacou provided some examples of Mr Sparos' concerns. Mr Smith is said to have suggested to Witness B that the first time that Christine Saliba met with Witness B after 16 January 2011 was on a boat on 26 January 2011. Witness B denied this. Mr Kyriacou indicated that Witness B had in fact met Christine Saliba in his crystal shop on 22 January 2011, and that that is how the evidence came out at the previous trial. This was said to involve an error by Mr Smith in his characterisation of events when putting them to Witness B. 5. Mr Sparos gave evidence. He indicated that Mr Smith did not suggest to Witness A that he had received a discount on his sentence for giving assistance to police or that he had been charged with perverting the course of justice. Mr Sparos also said that Mr Smith did not follow the line adopted by Mr Heliotis QC, his predecessor in the previous trial, concerning Witness A's statement to the police when he was pulled over and questioned concerning an unrelated matter. Witness A told the previous jury that he would not have lied to the police whereas he said in the present case that he was "probably being a smart arse". Mr Sparos maintained that this was a matter of some significance. 6. Mr Sparos also said that Mr Smith ignored a note written by him with a big heading that said, "put this". This was said to relate to the suggestion that Witness E first approached Witness A saying that Mr Maika and Mr Ballard were police informants and that copies or summaries of their statements were provided to him by Witness E. Mr Sparos said that his piece of paper was put in front of Mr Smith by Mr Carroll but "Mr Smith just dismissed it. Didn't even consider it. Just pushed it away." 7. Mr Sparos also complained that Mr Smith failed to play certain additional gaol phone calls to Witness A, in addition to the ones that were played to him during cross-examination. 8. With respect to the cross-examination of Witness B, Mr Sparos raised a concern about whether Christine Saliba would ring a solicitor named Rodney Boyd herself or would ring Witness B and ask if he could do so on her behalf. Mr Sparos said that he passed a note about this and that his instructions about what questions to ask were not followed. 9. Mr Sparos also said Mr Smith cross-examined Witness B concerning Jamie Mather after he was told, via a post-it note from Mr Sparos, to stop. Mr Smith was said to be putting to Witness B that the sole purpose of his visit to Mr Sparos in gaol was to chase up money that Mr Mather owed Witness B for drugs with which he had been supplied. That was said to be the explanation for Witness B's visits to Mr Sparos in gaol after Witness B was given bail. Mr Sparos said that he instructed Mr Smith to stop cross-examining Witness B at that point but that he ignored instructions to do so. Mr Sparos said that he sent a note to Mr Smith saying "stop on that topic, that's enough, move onto the next topic, don't take it any further." Mr Sparos said that the purpose of the visit on 16 January 2011 was in fact to "sort out the money from the sale of a watch." The cross-examination of Witness B on that topic ended when Mr Sparos said Witness B said that he was "visiting Luke just to lift his morale. It was not about collecting money." 10. A fair summary of Mr Sparos' complaints appears in the following transcript from his examination in chief on 5 June 2018: "Q. You have given evidence on a number of occasions that notes were passed on. Your response was that they were dismissed? A. Yes. Q. At the time that they were dismissed, what was going through your mind? A. When Witness A was finished in re-examination I called over my legal team. I had a little blow up. I told them I wasn't happy with the way things had went. There were certain things that were not put to the witness. I flagged a couple of things. Some of them they said, we can't fix them through this witness, but some of them we can fix through other witnesses. I said, 'I am not going to cop this, everybody has got to be prepared. Youse have not prepared properly for this.' They said, 'Don't worry, we will sort it out, we will get on top of it.' We come the next day, they come down in the morning and I had a visit with Mr Carroll. He said he sees the problem, everyone is not working together, see how the witnesses were split up. Someone might have knowledge of this witness. That person doesn't have knowledge of that witness, but all the witnesses have got to be taken as a collective and not dealt with individually, because all their evidence overlaps. Q. Do you say to this Court that the notes that you had passed were not looked at by your counsel? A. They could have been looked at, but. Q. Let's focus firstly on Mr Carroll. A. Yep. Q. Did you see him consider any notes that were passed to you? A. I seen him, especially the he did look at the you know, the police report that I told you that he highlighted, that he highlighted, and passed on to Mr Smith, but Mr Smith didn't even consider it, he didn't even read it. Q. When you say 'didn't even consider it', can you please explain what you mean by that? A. It was put up in front of him and he just pushed it away. He didn't even read the contents of it or ask, what's the relevance of that, why should it be taken? Q. What was the purpose then of dismissing Mr Smith of his brief in this matter, what was your concern? A. He was not listening to my instructions. He was going off doing his own thing. He was not prepared for the case. He wasn't properly prepared. Certain things he was saying to witnesses that was completely wrong. If he had read my evidence correctly, he would know the line of questioning that had to be taken. It's not rocket science. It's not that hard." 1. Mr Kyriacou indicated that Mr Carroll would only be prepared to continue to act alone as junior counsel if he were given a further four weeks to prepare. In particular, this was because Mr Smith had been assigned the task of cross-examining Witnesses E, F and G, as they were critical witnesses, and Mr Carroll would need time to master that task if it were now given to him. In those circumstances, Mr Sparos would not be represented by counsel if the matter were not adjourned for that period. Mr Kyriacou also would not continue to represent Mr Sparos without counsel. Crown's submissions 1. The Crown contended that Mr Sparos' application was a transparent and disingenuous attempt to derail the trial. It was submitted, in effect, that the application had nothing to do with any concerns that Mr Sparos had or could have had about the way in which Mr Smith was conducting his defence or the manner of his cross-examination of Witness A or Witness B. The Crown submitted that this was apparent from a number of things, including the fact that Mr Sparos had not identified anything that could not have been corrected or attended to in further consultation with Mr Smith. The Crown maintained that Mr Sparos' major concern was in fact that his counsel were not sufficiently prepared, despite the additional time that they were afforded prior to the commencement of the trial. The Crown referred to what Mr Sparos said in his evidence, such as the following: "Q. Now you, sir, I suggest, are complaining about your barrister not being on top of his brief, but of course it was the case that you're aware that he came into this brief only in sometime in April. You agree with that? A. That's right. Q. So you're aware that he is not somebody, for example, that was briefed much earlier so, therefore, he has had to play catch-up in order to get on top of the material, you are aware of that? A. Correct, you took care of that. Q. Well, be that as it may, sir, the fact of the matter is you have had the opportunity, if you wanted to, to speak with your solicitor and your counsel about issues that you have about evidence that you want adduce in the trial, isn't that correct? A. That's correct and I put that to him and it wasn't followed. Q. And you had the opportunity A. No, I don't have the opportunity because I got forced into a trial at a certain trial and we haven't had time to prepped, they are not prepped, they don't have enough time. Q. That's what it is all about. A. No, that's not what it is all about. Q. The fact of the matter is A. No, they told me that they were on top of it, don't worry, by the time the date comes we will have everything down pat, we will not miss anything. We've came here, it's been a completely different story." 1. Mr Sparos was cross-examined further shortly thereafter in these terms: "Q. You could have asked for a day, couldn't you? A. What's a day going to do for me, sir? Your Honour, I flagged this matter when there's only been two and a half witnesses that have come. Very early in the piece. Okay? When I've seen the issues and I've seen it is not getting met I flagged it very early. All you've done is you've read out evidence, you've brought Klotz, you've brought B and you brought A. Okay? I'm not doing this in week 10 just before the closings. I'm doing this right at the start when this problem has arisen. Okay? We asked for an adjournment just to get on top of it, that is all we have done. I'm not coming here trying to derail the trial, trying to play games, throw money down the drain, I don't have the funds. I need David Carroll to stay into the matter because of all the money that I have paid him already on prep. Okay? I'm already at a loss from what you've done to me with Mr Heliotis and Mr Djemal and you know that, sir, because you're sitting there with a big smirk on your face. Q. We paid A. You paid peanuts compared to what the bill was and you shafted me and you know what you've done. You've done it on purpose that is why you left it to the last minute, that is why you are laughing. Q. Look, sir, you determined some weeks ago that you were not happy with this trial starting A. No, I was very happy. Q. Isn't that correct? A. I was very happy for this trial to start, back then, because I was told by my legals that they were ready and prepped and we would be in a position. Q. What you did was you waited for an opportunity to go along and just abort the trial. A. Abort the trial? Okay, did we rock up and on the first day of trial what did you pull out of your backside? A Witness F. Then a week later what do you pull out of your backside? A Witness G. So how can my lawyers be getting on top of this when you just keep bringing, adducing more material, more material. Then a forensic decision gets made to let in the Glover letters and then it's another two days of legal arguments where my lawyers have to get on top of it to get certain materials taken out of them documents. Not an easy case. You have a whole Police Force behind you. I'm one inmate in gaol where I can't get stuck or contact to them. Okay? You are in a better position than me. Okay?" 1. The Crown submitted that Mr Sparos' answers made it clear that he was concerned not with any alleged failure by Mr Smith to follow his instructions but by a concern that his lawyers were not ready or properly prepared. The Crown's contention was that in the course of the trial so far very experienced counsel had not sought an adjournment in order to become more familiar with any portion of the brief and could easily have done so if it appeared to be necessary. The inference that presents itself in those circumstances is said to be that Mr Sparos' concern about his instructions not being followed was a confected claim intended to abort the trial. Consideration 1. An accused person is entitled at any stage of proceedings to withdraw his or her instructions from counsel or a solicitor. The issue is not whether such a right exists but what consequences may flow from an exercise of that right in particular circumstances. At one end of the spectrum an accused person may be entitled to have the trial terminated in order to retain alternative representation at a later time. At the other end, an accused person may be required, even in a trial of a very serious crime, to continue with the trial without representation. 2. The result in each case will depend upon an assessment of the reasonableness of the accused's action in withdrawing instructions. 3. In R v Gilfillan (2003) 139 A Crim R 460; [2003] NSWCCA 102, the appellant stood trial on six counts of aggravated sexual assault. One week into the trial and partly as a result of witness statements recently served, the appellant's solicitor developed a conflict of interest. The solicitor and counsel withdrew. The trial judge was reluctant to waste the time already spent on the trial and gave the appellant a short adjournment to obtain fresh representation, which he was unable to do. The trial judge refused an application for further adjournment and to terminate the trial. Perhaps unsurprisingly, the Court of Criminal Appeal disagreed with the trial judge's characterisation in that case of the withdrawal of instructions as not being substantial, finding that the trial judge failed to take into account the reasonableness of the appellant's withdrawal of instructions and the conflict of interest issue. 4. In that case, Smart AJ said this at 471–472: "[71] While there are differences of some significance between a case where the trial is well underway (as in the instant case) and one where the trial has not started and the accused does not have legal representation, the observations of the High Court of Australia as to the latter instance in Craig v. South Australia (1994-1995) 184 CLR 163 at 183-184 (citations omitted) are helpful: 'The decision of the court in Dietrich v The Queen established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices: "we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available". The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being 'through no fault on his or her part' was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of the accused which had contributed to his or her lack or representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: "…what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune." A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused". [72] Where, as here, a trial has been proceeding for a number of days, and the accused has ceased to have legal representation including where he has withdrawn instructions the matters to be taken into account will be somewhat broader. They would include the interests of the witnesses, their health, if ill or aged, and their availability. [73] Unreasonable dispensation with legal representation by an accused during a trial would amount to fault on the part of an accused and usually in such circumstances a trial would not be terminated. Whether an adjournment would be granted would depend on all the circumstances, for example, fresh legal representation may be able to be obtained within a couple of days, thus enabling the trial to continue. [74] In applying Craig this Court in Director of Public Prosecutions (NSW) v Allan (unreported, Court of Criminal Appeal, NSW, 1 November 1995) per Allen J observed that the touchstone of the common law was reasonableness and that that applied to the concept of fault. [75] Circumstances may exist where it is reasonable for an accused to withdraw his instructions even at an advanced stage of a trial. For example, his counsel may be conducting his case in an obviously incompetent fashion or incorrectly disregarding instructions which were not improper or for personal reasons may not feel able to cross examine a witness adequately. This list is not exhaustive." 1. As I have already indicated, the present trial has been running for nearly three weeks and was at the end of the second week when counsel's instructions were withdrawn. Several witnesses had by that time given evidence, including the important evidence of Detective Klotz, the officer-in-charge of Operation Schoale, Witness A and Witness B. The case has therefore reached a fairly advanced stage, although by no means is it in its final stages. The Crown's best estimate is that there remains about three weeks of evidence in the Crown case, which is somewhat less than might have been expected given the pre-trial estimate of between eight and ten weeks. 2. There is no suggestion in the present case that Mr Smith or Mr Carroll were conducting Mr Sparos' case in an obviously incompetent fashion. So much is obvious from both my observations of them during the trial and Mr Sparos' concession that he makes no submission to the contrary. 3. The issues for determination are whether or not Mr Sparos' action in withdrawing instructions was reasonable in the circumstances and, if it was not, whether he is nevertheless entitled to the adjournment that he seeks. 4. Assessment of the first issue can only be made upon the basis of the evidence provided to me. That evidence is limited to Mr Sparos' evidence-in-chief and his cross-examination by the Crown. Mr Sparos has not chosen to provide me with any of the notes that he contends were written by him and provided to counsel during the trial. Neither Mr Smith nor Mr Carroll has given evidence or provided a statement about the receipt or content of these notes. This is despite the fact that I specifically alluded to the prospect that they may have illuminated Mr Sparos' assertions about what it was that concerned him. I therefore have some difficulty being satisfied of the precise content of the notes that Mr Sparos has indicated were provided to counsel. However, it seems to be accepted by the Crown that the notes were provided as Mr Sparos contends, even if the subject matter of the notes is not certain. 5. It is apparent that Mr Sparos wishes to take an active part in the conduct of his response to the Crown case. It becomes necessary for me in these circumstances to determine whether his instructions to counsel were of a kind that Mr Sparos was entitled to expect his counsel would follow. 6. In giving evidence that Mr Smith did not suggest to Witness A that he had received a discount on his sentence for providing assistance to police, Mr Sparos is wrong. Mr Smith cross-examined Witness A at T 604 in the following terms: "Q. Later, after being questioned by the Crime Commission, you were then questioned by New South Wales Police Officers, correct? A. Yep. Q. They, the police, then questioned you under a similar promise, do you understand what I mean by that? A. Yeah. Q. That basically you were questioned by the police and the promise was that anything you said could not be used against you in general terms, yes? A. Yeah. Q. As a result of speaking to those authorities and I mean by that the Crime Commission and the New South Wales Police you know that the judge, who gave you the sentence for the affray, was given a letter by them telling them about your assistance, correct? A. Yeah. Q. As a result of that assistance your sentence for the affray was reduced, correct? A. Yep. Q. You got a benefit or a discount for your plea of guilty, correct? A. Yeah, I think so. Q. Separate to that you received a separate 20% discount off your sentence for your assistance to the authorities, correct? A. Yeah, I'm not sure of the percentage, yeah." 1. Mr Sparos expressed concern that Mr Smith did not cross-examine Witness A about the fact that he had been charged with perverting the course of justice and that a failure to do so showed an impermissible disregard for his instructions. However, the evidence otherwise reveals that Witness A was not convicted of that offence and that the charge was in fact withdrawn. Mr Smith's decision not to cross-examine Witness A about that was perfectly reasonable, as would have been any decision Mr Smith might have made to disregard Mr Sparos' instruction to do so. 2. I do not accept that Mr Smith was somehow bound slavishly to adopt the same line of cross-examination of witnesses as Mr Sparos' counsel at his previous trial had taken. If Mr Sparos instructed Mr Smith to cross-examine Witness A about whether he lied to the police, it seems perfectly reasonable for Mr Smith to have disregarded that instruction. That is for the obvious reason that Witness A told the previous jury that he would not have lied to the police whereas in this trial he indicated that he might have been being a smart arse. The answers were insignificant apart from the effect upon Witness A's credibility and Mr Smith managed to elicit answers from Witness A that were in conflict with his previous evidence. The rule in Browne v Dunn (1893) 6 R 67 does not apply in a criminal trial so that Mr Smith would not later have been precluded from referring to this discrepancy despite the fact that he had not put it directly to Witness A as Mr Sparos wanted. An instruction to do so could and should quite properly have been ignored by Mr Smith. 3. In this regard, it is important to recall that a barrister "must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently": Legal Profession Uniform Conduct (Barristers) Rules 2015, r 42. In Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 556–7, Mason CJ said: "… a barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case … This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court." 1. A similar situation arises with respect to Mr Smith's cross-examination of Witness B about the meeting on 26 January 2011. When Mr Smith's cross-examination of this witness ended, albeit not by then concluded, he had managed on one view to demonstrate that Witness B was either confused or lying about what contact he had had with Cristine Saliba since 16 January 2011. Mr Sparos complains that Mr Smith did not challenge Witness B with evidence to suggest either of these possibilities. However, once again, Mr Smith was not obliged to do so and was in a position later in the trial, by reference to other unchallengeable material, to highlight the discrepancy to the jury. Mr Sparos' complaint is in effect that Mr Smith did not give Witness B the chance to cure the defect. Mr Smith was not obliged to do so and would arguably have strengthened the Crown case if he had. Mr Smith was entirely within his rights to disregard Mr Sparos' instruction to cross-examine Witness B further on this topic if such an instruction had been given to him. 2. Mr Smith played a series of gaol phone calls to Witness A. Mr Sparos complains that all of the relevant calls were not played when Witness A was being cross-examined. I have not yet seen the transcript of these calls. They may yet be tendered. Mr Smith was not obliged to put them to Witness A. There may have been important forensic reasons for not doing so. Mr Sparos has not even hinted at what might be the disadvantage from not doing so. 3. I am presently unable to assess what is or might be the alleged significance of Mr Sparos' concerns about Mr Smith's cross-examination of Witness B with respect to Christine Saliba's dealings with Rodney Boyd. Mr Sparos' evidence about that was as follows: "Q. If we firstly concentrate on the cross examination concerning Christine calling Witness B? A. My evidence when I was in the box was we never put it to the witness in the last trial about how Christine would ring Rodney Boyd and if Rodney Boyd would not answer she would then ring Witness B to get through to give a message to Witness B to say, 'When you bump into Rod tell him to call me.' Now, there was a phone call in, I think it is Exhibit 32, that the Crown attacked me on when I was in the box last time in my last trial, where he was trying to say that I'm telling Christine to chase Duffy, like, I told her to do a month ago. When I explained it in the box I gave the exact explanation, which was the truth, and this witness would have corroborated me on that, so I wouldn't have to deal with this issue of being attacked in the box. Q. To put it into context, do you accept that the cross examination in this trial at page 701, line 20, was put to Witness B: 'Q. When she', and "she" is referring to Christine, 'would refer to Rodney, that would sometimes be in the context that she had just spoken to Rodney before she was speaking to you, correct? A. I don't believe, I don't really recall any conversations like that, no.' Is that a correct approach in terms of your instructions that ought to have been put to Witness B? A. That is completely wrong and at that stage I passed a note to Mr Carroll to tell him to say, no, he's got it wrong. She would not ring Mr Boyd to say, I just spoke to Mr Boyd. She would not ring Witness B to say, I just spoke to Mr Boyd. She would in fact ring him to say, can you get through to Rodney for me and, when you do, tell him to call me. Q. The answer that you just gave, was that consistent with evidence that was given by you in the first trial under cross examination? A. Consistent with my evidence and consistent with what Crown calls, I think, it is Exhibit 32. Q. Did you pass a note concerning that particular issue? A. Yes, I did. Q. Can you say what occurred, if anything, in relation to the receiving of that note? A. I passed a note to him, told him you are putting this wrong to the question putting the question wrong to the witness. This is what the question should be. Q. Was your proposed line of questioning put to the witness? A. No, it wasn't." 1. At one level, the issue of whether or not Ms Saliba contacted Mr Boyd directly or indirectly seems to be entirely irrelevant. If it is not, it would have been a relatively simple matter for Mr Smith to have asked further questions of Witness B. Unfortunately, I have not been given any material about what further questions Mr Sparos says he instructed Mr Smith to ask. Any assessment of the reasonableness or otherwise of either Mr Smith's refusal to ask the questions, or Mr Sparos' decision to terminate his instructions for failing to do so, can only confidently be assessed by reference to the specific instructions Mr Sparos says that he gave. That detail did not emerge when Mr Sparos gave evidence before me. It is surprising that Mr Sparos was not able in the circumstances to provide it. 2. The question of Mr Sparos' instructions to Mr Smith concerning his cross-examination of Witness B about Jamie Mather remains in doubt. Witness B was cross-examined by Mr Smith concerning Mr Mather as follows: "Q. You know a person named Jamie Mather? A. Yes. Q. And Mather is spelt M A T H E R? A. I think so, yes. Q. He, back in 2011 was a very good friend of yours? A. Yes. Q. He had been a friend of yours since you were aged about 21? A. Yes. Q. You lived together for a period of time as well, yes? A. Yes. Q. When you lived together with him for a period of time, that was during the time that you would supply drugs to people, correct? A. Yes. Q. Jamie Mather was a person who you also sold drugs to, correct? A. Yes. Q. Not just little bits of drugs, quite significant amounts of drugs you would sell to Mr Mather, correct? A. Both. Q. Say that again? A. I can't remember selling back then I'd be only be selling, like, a couple of grams of coke or something, it wasn't anything significant. Q. I suggest to you, firstly, you did used to sell drugs to Jamie Mather, is that right or wrong? A. Yes, I did Q. Let me finish, I suggest to you that when you did sell him drugs he paid you money for those drugs, correct? A. Oh, correct. Q. There was a time when Jamie Mather owed you money for drugs, is that right? A. Yes, yes. Q. Sorry? A. Yes, that's correct that's later on though that's a from when we lived together from when he owed me a lot of money for drugs, that's about five or six years. Q. So there was a time when Jamie Mather owed you a lot of money for drugs, yes? A. Yes. Q. About $100,000? A. That's correct. Q. So it follows from that you had supplied him, Jamie Mather, a significant amount of drugs for him to owe you such an amount of money? A. Yes, that's correct. Q. You've given some evidence about a time or times when you were in gaol with the accused, Mr Sparos, yes? A. Yes. Q. When you were in gaol with Mr Sparos, you had told him about the money that Jamie Mather owed you, correct? A. Yes, that's correct. Q. You had told Mr Sparos that he owed you about $100,000, correct? A. Yes. Q. You had asked him, that is you had asked Mr Sparos, could he, Mr Sparos, try and help you to get the money back off Mr Mather, you did that, didn't you? A. Yes, I did ask him that once, yes. Q. When you did ask that, it was for the $100,000, is that correct? A. Yes. … Q. I've asked you questions about when during that time when you had been in custody previously, you had brought up this issue about Jamie Mather owing you money, you remember those questions? A. Yes. Q. When you first visited Mr Sparos after you getting bail, you spoke with him about Jamie Mather again, correct? A. Oh, yes. Q. At that time the $100,000 was still owed to you? A. Yes. Q. You told Mr Sparos that it was still owed to you at that time, correct? A. Yes he had actually asked me about it, he was very concerned. I didn't really care too much about it because he was a good friend. Q. It was $100,000 sir, wasn't it? A. Yes, $100,000, that's correct. Q. And you were very concerned about it, weren't you? A. No, I wasn't really concerned about it. Q. On the very first visit with Mr Sparos after you got bail you raised that debt of $100,000 again with him, that's correct, isn't it? A. I think Sparos may have brought it up because Sparos knew about the money being owed to me, yeah. It wasn't a real big concern for me. Q. During 2009 on every visit where you spoke to Mr Sparos you continued to raise the money that Mather owed you, correct? A. No. Q. You asked Mr Sparos to send some sort of letter on your behalf to Mr Mather, correct? A. Yes, we did have discussions of just sending him a letter, yes, but Luke was going out of his way to do this, I actually I actually Mr Mather was a very good friend of mine. I wouldn't want any harm to happen to him. Q. You were the one who wanted the letter sent, Witness B, weren't you? A. Actually it was Sparos's idea. I was on the visit, visiting him out of being nice and he said, 'What are you are going to about the money that Jamie Mather owes you?' And I said I wasn't that concerned about it. He's offered that he was going to send him a letter and we were going to try and get the money out of him because apparently he had a fair bit of money, but it wasn't a big concern to me. Q. You said to Mr Sparos, 'If you can get the money out of him I'll give you $30,000 of it,' correct? A. I can't recall saying that, I can't remember. … Q. Every time you visited Mr Sparos in 2009 you kept raising the $100,000 that Mather owed you, that's right, isn't it? A. No. … Q. You discussed the debt that Jamie Mather owed to you during this conversation [at gaol on 16 January 2011]? A. No, no, definitely not, that was that was that discussion was only brought up the first couple of visits of seeing Luke. Q. I'm suggesting you definitely did raise it with him? A. No. Q. Didn't you? A. No. Q. And you are lying when you say you didn't? A. I've got no reason to lie, it's not a big deal. If I did I would say so. I was visiting Luke just to lift his morale, it was not about collecting money." 1. Doing the best I can, it seems to be Mr Sparos' complaint that Mr Smith suggested to Witness B that the purpose of his visits to see Mr Sparos, or at least a topic of conversation between them when he did so, was Witness B's concern about $100,000 owed to him by Mr Mather and the suggestion that Mr Sparos might assist him in recovering it. Mr Sparos insists that the purpose of the visit on 16 January 2011 was to sort out the question of money from the sale of a watch. Witness B was in fact cross-examined about this by Mr Smith as follows: "Q. Was there ever any arrangement in relation to the selling of a watch for Mr Sparos? A. No. Q. Sorry? A. Definite no." 1. Mr Sparos has not clarified in the course of the present application precisely what complaint he raises about Mr Smith's cross-examination on the topic of Mr Mather's debt beyond the suggestion that he cross-examined Witness B for too long about it or that he did not stop doing so when instructed. I note in passing that Mr Smith's cross-examination on that topic was fairly extensive and it has not been explained to me at just what stage Mr Smith is said to have been told to cease asking further questions about it. I have also not been given any indication of what difficulty, if any, Mr Smith's questions are said to have created or whether Mr Smith had been instructed not to ask any questions at all upon that topic. The latter seems to me to be highly unlikely having regard to the extent of his cross-examination of Witness B about it. 2. It is in my opinion not without significance that Mr Kyriacou submitted that he would require Mr Sparos to go through the transcript in order to highlight the times in which Mr Sparos contended that matters had been incorrectly put by counsel. That task was said to require or involve cross-referencing his evidence from the previous trial with Mr Smith's line of questioning in the present case in order to "show the irregularity in terms of the cross-examination and where things have gone wrong". In my opinion, that submission lends support to the Crown's submissions that Mr Sparos did not withdraw Mr Smith's brief because Mr Sparos' specific instructions were not being followed. If it were otherwise, Mr Sparos would already be in a position to indicate where that is said to have occurred, as with the limited examples referred to by Mr Sparos in his evidence before me. 3. It seems to me that Mr Sparos' conduct in peremptorily dismissing his senior counsel amounted to gratuitous and unreasonable conduct and that he is the sole author of his currently (partly) unrepresented state. I am not satisfied that any circumstances existed that made it reasonable for Mr Sparos to discharge Mr Smith and at the same time expect that he would or should be given an adjournment of four weeks for Mr Carroll to get up to speed. 4. Mr Sparos has exhibited a strong inclination to be involved in the instructions that are provided to counsel and the way in which those instructions are executed. So much is understandable and reasonable. By the same token, it is not reasonable to withdraw counsel's instructions upon the basis of what in my opinion are insignificant differences between Mr Sparos' lay opinion of how his case should be conducted and Mr Smith's expert opinion of how it should be done. I am of course not privy to any conversations between Mr Sparos and his legal advisers, except to the extent that he has chosen to reveal them for the purposes of this application. However, in my experience clients dismiss lawyers most often because they receive good advice rather than because they receive bad advice. I have not been able to discern any error or misjudgement by Mr Smith in his conduct of the trial so far. In the same context, it seems to me that Mr Sparos' complaints that Mr Smith has failed or refused to follow his instructions is no more or less than Mr Sparos' concern that the script from the previous trial is not being followed word by word. 5. It was not reasonable for Mr Sparos to terminate Mr Smith's instructions in the circumstances. 6. The question therefore becomes, having done so, what should follow. That question remains relevant inasmuch as even an unreasonable withdrawal of instructions may, in the interests of justice, not mean that the trial must continue with an unrepresented accused. The interests of justice is not a purely one-sided concept. 7. I am not prepared to consider the adjournment of the trial for four weeks and the simultaneous retention of the jury. A delay of that kind would in my view be inimical to the jury's function as the tribunal of fact. A delay of that order would be inconsistent with the jury's ability properly to remember and assess the evidence. It would also possibly be inconvenient to them, a not inconsiderable factor, not merely from the point of view of their personal circumstances but also from the perspective of any perceived pressure to produce a decision within some contracted time frame having regard to what would by then have become the extended length of the trial. 8. It seems to me that the choice is realistically between discharging the jury and granting a new trial or proceeding with the present one. I consider that the latter course is preferable and is consistent with the interests of justice. 9. The Crown has indicated that the evidence yet to be called can be marshalled in a way that eliminates or reduces the difficulties that might otherwise confront Mr Sparos if he is without counsel. For example, Witnesses E, F and G and the balance of Witness B could be left until later in the Crown case. I am led to understand that there remains much evidence that can be adduced in the form of documents and recordings with associated transcripts. That course has been adopted extensively thus far with relatively little involvement of defence counsel. Modest adjournments during the proceedings can also be granted where necessary to assist Mr Sparos. I note in this respect that Mr Kyriacou has indicated that he will cease to act for Mr Sparos if he is without counsel to appear so that the conduct of his defence will be left to Mr Sparos himself. I obviously recognise that to be a regrettable and unfortunate circumstance from several perspectives. 10. As I have already noted, I am informed that Mr Carroll has indicated to Mr Kyriacou that he requires four weeks to prepare for the cross-examination of Witnesses E, F and G and to continue the cross-examination of Witness B. It would be remarkable in my experience if that estimate were not somewhat conservative, especially having regard to the fact that, with the understandable exception of Witnesses F and G, all other witnesses will have been cross-examined previously and apparently in accordance with Mr Sparos' instructions. Moreover, Witness F gave evidence at the previous trial that he now wishes completely, or at least relevantly, to contradict. For example, Witness F unsuccessfully defended a charge of murder upon the basis that he was not involved. The prospect that he now proposes to give a contrary version indicating that he was involved suggests an extensive and on one view not too complicated scope for his effective cross-examination. 11. It was not contended in the course of this application on behalf of Mr Sparos that anything less than an adjournment of four weeks would suffice. Orders 1. In these circumstances I am not prepared to discharge the jury or grant Mr Sparos an adjournment of four weeks. I will hear the parties concerning when the jury should be requested to return. ********** 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: 17 August 2018