R v Sparos [2018] NSWSC 878

Supreme Court New South Wales

Medium Neutral Citation: R v Sparos [2018] NSWSC 878 Hearing dates: 12 June 2018 Date of orders: 12 June 2018 Decision date: 13 June 2018 Before: Harrison J Decision: Application refused Catchwords: CRIMINAL PROCEDURE – application for adjournment – where unrepresented accused – where accused is the author of his own predicament – application refused

EVIDENCE – exclusion of evidence – whether probative value of evidence is substantially outweighed by the danger of unfair prejudice – where Crown intends to call accused's former barrister – where accused unable to retain preferred barrister – no unfair prejudice – application refused Legislation Cited: Evidence Act 1995 (NSW), s 137 Cases Cited: Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 Category: Procedural and other rulings Parties: Regina (Crown) Luke John Sparos (Accused) Representation: Counsel: C Patrick SC (Crown)

Solicitors: Director of Public Prosecutions (Crown) File Number(s): 2014/196615 Publication restriction: Nil

Judgment 1. HIS HONOUR: Mr Sparos seeks an adjournment of a further two weeks following my judgment delivered on 7 June 2018: see R v Sparos [2018] NSWSC 854. The effect of that decision is that Mr Sparos, having withdrawn instructions from Mr Smith SC, and having regard both to the fact that Mr Carroll is not prepared to appear without a leader unless he has four weeks to prepare and Mr Kyriacou has withdrawn, will now have to represent himself. 2. Mr Sparos made a series of submissions in support of his application. Many of those submissions amounted to criticisms of my previous decision and were an invitation to revisit what I had done. Mr Sparos has not, as far as I am aware, sought to challenge my decision in the Court of Criminal Appeal, despite my very clear indication to him that he had a right to do so. It appears from Mr Sparos' comments in response to me when I indicated to him that he had such a right that he was already aware of it. 3. The starting point must be that Mr Sparos is not legally trained and can anticipate some not inconsiderable difficulties representing himself in what is undoubtedly both a serious and difficult criminal trial. Mr Sparos has indicated that, by reason of the complaints that he has concerning Mr Smith's conduct of his defence so far, he will require several witnesses to be recalled for further cross-examination and that in the case of some witnesses whose statements were read by the Crown without objection, they will be required for cross-examination on their previously admitted statements. Mr Sparos also indicated that he will wish further to cross-examine Detective Klotz, Mr Cahill and Witness A, and that he will complete the interrupted cross-examination of Witness B. 4. Mr Sparos has submitted that all of this will require him to spend at least a further two weeks preparing and that he is not in a position to continue the trial before then. As a variation of that request, Mr Sparos has indicated that Mr Djemal of counsel, who appeared as junior counsel for him at his previous trial, has now become available and would be in a position to appear for him if he were also given two weeks to get up to speed. In the case of Mr Djemal there is the added complication that he is one of the witnesses that the Crown proposes to call to give evidence on the question, related to motive, of whether or not Mr Sparos intended to plead guilty or go to trial in his drug trial listed to be heard in the District Court in August 2011. 5. Mr Sparos has also raised the issue of how he might be able, from a practical perspective, to manage his defence having regard to the fact that he will have only late and possibly limited access to a daily transcript and that he anticipates some difficulty managing all of the hard copy and electronic material in the extensive Crown brief. 6. The significant burden of Mr Sparos' contentions is that it would in all of the circumstances be unfair to require him to represent himself and that the only way to ensure a just outcome is for the trial to be aborted and a new trial date set two weeks hence. I have already indicated to the parties that I do not accept that submission. My reasons for taking that view are as follows. 7. Mr Sparos has an unfortunate history of sacking his lawyers. Whether or not he has had good cause on previous occasions to do so is not something upon which I can comment. What is apparent to me is that the withdrawal of Mr Smith's instructions was not reasonable in the sense described in my previous judgment, so that Mr Sparos cannot expect automatically to be given an adjournment to re-brief alternative counsel. The present application is no more than an attempt to have me come to a different view of what should occur. 8. Mr Sparos has not provided me with any compelling material, amounting either to changed circumstances or new evidence, that would lead me to do so. In my view, Mr Sparos' discharge of his senior counsel was an ill-advised attempt to abort the present trial, based upon an unjustified expectation or hopeful anticipation that I would have no choice but to accede to his adjournment request. I was not of that view then and I am not of that view now. 9. The significant majority of the points raised by Mr Sparos in this application were and remain arguments that he can raise as part of the forensic contest as the trial proceeds. For example, if he wishes to apply to withdraw his earlier consent to certain evidence being adduced by the Crown without objection from him, he remains perfectly entitled to do so. That indication should not, however, be thought to foreclose the result of any such application as he may make. 10. One of Mr Sparos' major concerns was that it would not be a good look before the jury if he were now to be seen to be representing himself. Little content was given to that contention beyond its simple articulation as a proposition. I indicated that it was my view that any apparent concerns he might have had in that respect could be overcome by some appropriate instruction to the jury. In the events that occurred I said the following things to the jury when they returned to be told what was to occur in this trial: "I need to indicate to you that you've been out of Court during the past week whilst some technical matters have been dealt with. The upshot of it is Mr Sparos is to proceed with his response to the Crown case in this trial without legal representation. That's his choice, he is perfectly entitled to make that choice. Any person has a right to appear for themselves, if they want to do that. They can have lawyers if they want or they can choose not to. The fact that Mr Sparos up until this point or at least up until the point that you were last involved in hearing evidence, which I think was 2.45 on the Thursday before last … has had legal representation, but now has chosen to appear without them, is a matter of no consequence to your conclusions one way or the other. You can't draw any inference adverse to Mr Sparos if he chooses to proceed in this way. And indeed because Mr Sparos, as I understand it, is not legally trained, some allowance will have to be made by me, certainly, and I think also by you in the way that you hear and come to the conclusions about the facts in this trial. That is to say, the evidence may come out in a slightly different fashion, but that's not to say that you still do not have the same obligation to hear and to determine the facts as you would if they had been elicited with the help of a legal representative. As I say, I cannot emphasise enough that the fact that Mr Sparos now appears unrepresented is not something that you can use in any fashion at all to draw conclusions upon and certainly no conclusions adverse to him. I repeat, it's his entitlement to do that. That's all I need to say about it. I appreciate that you've been sitting cooling your heels today. My preference, because of the way this has come to pass, is that we make a fresh start at 10 in the morning when I anticipate the Crown will want to continue with some evidence. I don't know for certain, but it may not be that that will be with the continuation of Witness B's evidence. It may be with some other evidence. It may be that in the course of the trial [from] here on there may be a need to recall some witnesses, who have already given evidence, if Mr Sparos wishes to ask some further or different questions of some witnesses than those that were asked of his previous counsel, then I will accommodate that, as you would appreciate would be the only proper thing to do. Once again you can direct any frustration or similar feelings you have about this to me because I'm conducting this trial. I make decisions about how that is to occur. You must not direct any frustrations to either of the parties, certainly not to Mr Sparos who is only proceeding to exercise a right that the law unambiguously gives him." 1. If anything else on that subject needs to be said, Mr Sparos is at liberty to indicate to me what further instructions he thinks I should give the jury in that respect. 2. Finally, with respect to Mr Djemal, Mr Sparos maintains that if the Crown wishes to call him as a witness it will cause him an unfair prejudice. That prejudice is said to arise inasmuch as Mr Djemal would not be able to appear as his counsel if he were also to be called as a witness for the Crown. The Crown has indicated that it will not remove Mr Djemal from its list of witnesses and that there must be some considerable doubt about whether Mr Djemal could appear for Mr Sparos even if the Crown indicated that he was no longer to be called in its Crown case. Mr Sparos has emphatically indicated that Mr Djemal has said that he will appear as long as the Crown dispenses with him as a witness. 3. In this last respect, Mr Sparos says that the probative value of Mr Djemal's evidence is outweighed by the danger of unfair prejudice. That prejudice is said to consist in the fact that, on the Crown's view, Mr Djemal would not be able to appear for him. Mr Sparos maintains that the evidence that Mr Djemal could give had little, if any, probative value inasmuch as at least two and possibly more than two other witnesses could give evidence to the same effect. 4. In my view, Mr Sparos' contention is misconceived. Probative value is not to be measured by the uniqueness of the evidence so much as by an examination of its content. In this case, Mr Djemal's evidence, on the Crown case, supports the suggestion that Mr Sparos never indicated to Mr Djemal that he intended to plead guilty. That is evidence going to the question of whether Mr Sparos had or might have had a motive to kill any witness, including Mr Maika, in such circumstances. Clearly enough, the evidence that Mr Djemal could give is not conclusive of the proposition that Mr Sparos had a motive to kill Mr Maika. For example, it is apparent that Mr Sparos will assert that he was at all times aware of the fact that Mr Maika's evidence could be read to the jury if he were dead. However, the suggestion that Mr Sparos may have a potentially limiting or neutralising answer or response to Mr Djemal's evidence does not mean that the evidence lacks evidentiary value. That remains a question for the jury to determine. For present purposes I consider that the evidence has probative value. 5. The more difficult question is whether that probative value is outweighed by the danger of unfair prejudice to Mr Sparos. In this respect, the only prejudice of any kind that Mr Sparos has raised is the prospect that Mr Djemal could not appear for him at his trial. That follows from the rule that would preclude a barrister from accepting a brief in any matter in which it appeared likely that he may be called as a witness. I accept that the measure or assessment of the alleged prejudicial effect is not gauged solely by reference to the content of the evidence itself, and clearly extends to collateral circumstances associated with its admission into evidence, such as the availability of Mr Djemal to appear as an advocate for Mr Sparos in the trial. For present purposes, such a prejudice, being an inability to retain counsel of choice, would qualify as the kind of prejudice contemplated by s 137 of the Evidence Act 1995: see, for example, Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 at [314]–[315]. 6. In the present case, Mr Sparos had retained but dismissed counsel appearing for him. He did so peremptorily and unreasonably. He is in the circumstances the author of his own predicament. Furthermore, although Mr Djemal has some familiarity with the matter, he is not the only barrister who could appear for Mr Sparos. The difficulties associated with obtaining someone else on short notice are the result of Mr Sparos' own actions rather than the Crown's proposal to call Mr Djemal as a witness for the prosecution. In my opinion, the so-called prejudice to him flowing from that decision is not also unfair in the sense contemplated by s 137. As the cases suggest, even where an accused person is forced in response to the challenged evidence to make a forensic choice that may be inimical to his or her defence of the Crown case, that will not necessarily amount to unfair prejudice, even if it is prejudicial in the limited sense. 7. In these circumstances I consider that Mr Sparos' application for an adjournment for a further two weeks should be rejected.