R v Sparos

[2018] NSWSC 568

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sparos [2018] NSWSC 568
Hearing dates:	1 May 2018
Date of orders:	02 May 2018
Decision date:	02 May 2018
Before:	Harrison J
Decision:	(1)    Subject to order (2), not being satisfied that the interests of justice so require, I decline to make the evidence of the known person available to Mr Sparos as the person charged with the offence concerned, or to his lawyers or to the Crown. (2)    Grant liberty to Mr Sparos and the Crown, if so advised, to apply to vary, amend or revoke order (1).
Catchwords:	CRIMINAL LAW – whether evidence given before Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – where application opposed by known person – where evidence does not appear to contain exculpatory or inculpatory evidence – where submissions heard in absence of Crown and accused – application refused
Legislation Cited:	Crime Commission Act 2012 (NSW), s 45
Cases Cited:	R v Francis [2004] NSWCCA 85; (2004) 145 A Crim R 233 R v Quami & Ors (No 11) [2016] NSWSC 252
Category:	Procedural and other rulings
Parties:	NSW Crime Commission Known Person
Representation:	Counsel: R Bhalla (NSW Crime Commission) P Lange (Known Person)   Solicitors: NSW Crime Commission Hope Lawyers (Known Person)
File Number(s):	2014/196615
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 8 March 2018, Natalie Adams J issued a certificate pursuant to s 45(4) of the Crime Commission Act 2012 certifying that she considered that it may be desirable in the interests of justice that particular evidence given by a known person before the New South Wales Crime Commission be made available to the legal practitioners in these proceedings. It is now accepted that I should proceed, as the trial judge, to consider the question raised by s 45(5) of that Act. That provision provides as follows:

“(5)    If:

(a)    the Commission makes evidence available to a court in accordance with subsection (4), and

(b)    the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.”

2. The evidence in question was given by a known person to the Crime Commission in the form of an interview on 17 September 2012. A transcript of the evidence has been provided to the Court in accordance with the certificate issued by her Honour. I have examined that evidence. I am not satisfied that the interests of justice require that the evidence should be made available to Mr Sparos, the person charged with the offence concerned, or to his lawyers or to the Crown. My reasons for coming to that view are set out below.

3. First, there is currently no suggestion that the known person is likely to be a witness in the trial. Mr Sparos has indicated that he has no intention of calling the known person. The Crown is similarly disposed, although it has indicated that its position may change, depending upon whether it is given access to the evidence and what that evidence may reveal. Having regard to the evidence, it would seem to be unlikely that either party would wish to call the known person to give evidence in the trial. In expressing that view, however, I am not purporting to foreclose the prospect that either Mr Sparos or the Crown might take a different view if the evidence were made available to them.

4. Secondly, as presently advised, the evidence in question does not appear to me to contain exculpatory or incriminating information that either party may respectively wish to utilise. It does not appear to me to give rise to the spectre of any case theories that are not already apparent from my perusal of both the Crown case statement and the evidence given previously.

5. Thirdly, the known person, through his counsel, has contended that it would be inimical to the interests of justice for the evidence to be made available having regard to both the witness’s expectation when the evidence was given and the prospect that his safety may be compromised if his identity were revealed. With respect to the former proposition, I was referred to what was said by Hamill J in R v Quami & Ors (No 11) [2016] NSWSC 252 at [23] as follows:

“[23] As emphasised in Chapman v Gentle the ‘paramount consideration’ is that the accused person should have a fair trial. However, the Court will generally start from the proposition that the evidence was given in private and is subject to an order that the evidence must not be published. The witness who gave the evidence will probably have been told at the commencement of the hearing that the evidence that they give will not be published. That creates in the witness a reasonable expectation that the things that they say are said in private and that the material will not be published. That is a relevant factor in determining where the interests of justice lie.”

6. The known person was given such an assurance in the present case.

7. With respect to the latter proposition, Mr Lange of counsel, who appeared for the known person, did not rely on evidence to suggest, and did not otherwise suggest, that his client held any specific or identified fears for his own safety if the evidence were provided to the parties. He did, however, contend that as a matter of general application, someone in the position of the known person should be entitled to the protection of anonymity in the circumstances and should not correspondingly be exposed to the potential risks associated with even the limited dissemination of his evidence to the parties in these proceedings.

8. Fourthly, the known person does oppose the provision of his evidence to the parties.

9. The view I have formed was arrived at in a closed court session in the absence of both Mr Sparos and the Crown. I adopted that approach having regard to what was said in R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85 at 237. The submissions that I received were therefore limited to submissions from the Crime Commission and the known person. The Crime Commission conceded that, in the absence of a full appreciation of the issues likely to arise in the trial, its ability to assist me in an assessment of the issue arising under s 45(5) was necessarily limited.

10. On one view of the matter, a proper assessment of that issue cannot be made until at least a significant amount of evidence in the trial has been led. In the light of that fact, and to the related fact that neither the Crown nor Mr Sparos has been heard on the present application, I propose to grant them liberty to apply to vary, amend or revoke my order, in the event that they wish in due course to do so.

11. I make the following orders:

1. Subject to order (2), not being satisfied that the interests of justice so require, I decline to make the evidence of the known person available to Mr Sparos as the person charged with the offence concerned, or to his lawyers or to the Crown.

2. Grant liberty to Mr Sparos and the Crown, if so advised, to apply to vary, amend or revoke order (1).

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Decision last updated: 17 August 2018