R v Sparos

[2018] NSWSC 1164

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sparos [2018] NSWSC 1164
Hearing dates:	25 July 2018
Date of orders:	30 July 2018
Decision date:	30 July 2018
Before:	Harrison J
Decision:	Exhibit VD9 may be tendered by the Crown
Catchwords:	CRIMINAL PROCEDURE – production of documents in answer to subpoena – whether subpoena required production of a document that the Crown now wishes to tender – where document not caught by subpoena – where the tender of the document may correct a possible misapprehension about evidence already given – where no adverse impact upon the accused
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: During the course of his cross-examination of Witness E on 20 July 2018, Mr Sparos asked questions concerning the fact that a man known as Gianmarco Romolo had ceased to visit Witness E in Goulburn Gaol between December 2010 and June 2011. The Crown perceives that Mr Sparos will contend that the cessation of these visits during this period, which includes the date of the murder of Gemahl Maika, has some significance as it indicates, or is consistent with, Witness E’s involvement in that murder. For example, Witness E has agreed that he was disinclined to be photographed with strangers lest the photographs might later be used as evidence of his association with particular people. Mr Sparos effectively contends that, in a like manner, Witness E instructed Mr Romolo to cease visiting him from December 2010 in order to divert attention from their plan, allegedly conceived before then, to kill Mr Maika in the following year.

2. It is apparent that Mr Sparos was aware of the timing of Mr Romolo’s visits from material produced pursuant to subpoenas issued on his behalf.

3. On 24 July 2018, the Crown referred to this issue in the following terms:

“During cross examination of Witness E, again this is something that has been received this morning, reference was made to Mr Romolo not attending the prison for a period of time of some six months.

HIS HONOUR: From December to July?

CROWN PROSECUTOR: Yes, for the purpose of restricting his contact to assist in the murder of the deceased. I can indicate, your Honour, that records provided from the Corrective Services Department indicate that Mr Gian Marco Romolo was somebody who was denied access by the Department of Corrective Services, so that he could not visit between the dates of 6 December 2010 to 6 June 2011. It being said he was denied access following, it says, ‘Visitor blew nose onto floor in visitors area - Office of the Commissioner’. Again I disclose these documents. I thought it was important that these disclosures be made clear before further cross examination of Witness E continues. This was the material that I wanted to raise. (Handed to accused).”

4. The document produced by Corrective Services NSW became Exhibit VD9. The Crown indicated that it proposed to tender it. Mr Sparos responded in the following terms:

“ACCUSED: If he does that I ask to discharge the jury. I'm this far into my cross examination, I have just lost all credibility in front of the jury because this was not disclosed before that and I subpoenaed this well in advance, a year ago, and for the reason why I wanted all this material and nothing’s done. After I'm finished now with the witness and moved on from that topic he wants to bring this in and now run it's not acceptable, your Honour.”

5. Mr Sparos’ concerns are inspired by his complaint that the document that the Crown now wishes to tender fell properly within the scope of at least one of the subpoenas issued by him and that it was not produced. Mr Sparos accordingly contests the appropriateness of the responses made by the recipients of the subpoenas and maintains that he has effectively altered his position to his detriment, and is thereby prejudiced, by cross-examining Witness E on this issue at all.

6. One of the subpoenas was issued on 14 February 2018 to the Proper Officer, Corrective Services NSW. For presently relevant purposes, that subpoena sought production of the following documents:

“2.    Copies of all gaol records outlining the location and cell placements of the following inmates:

a.    Luke Sparos (MIN: 298209) for the period between 2.4.10 to 17.12.2010

b.    Martin Lam Dang (MIN: 241551) between 26.4.10 to 10.10.11

c.    Rodney John Dwight (MIN: 230324) between 26.4.10 to 3.8.11

d.    Bilal Abdul Razzak (MIN: 324057) 23.6.10 to 10.11.10

e.    Gianmarco Remola (D.O.B. 28/5/1983) (AKA: Marco Romolo) between 1.1.2009 to 31.12.2012.

3.    Copies of all gaol calls in both audio and typed format involving [Witness E] for the period between 27 May 2011 to 27 July 2011 inclusive.

4.    Copies of all gaol calls in both audio and typed format involving Zoltan Mato for the period between 1 October 2010 to 1 October 2012 inclusive.

5.    Copies of all the following documents relating to Gianmarco Remola (D.O.B: 28/5/1983) (AKA: Marco Romolo):

a. Intelligence notes, reports and entries

b. Visit Lists.”

7. The other subpoena was also issued on 14 February 2018 to The Commissioner, NSW Police Service. For presently relevant purposes, that subpoena sought production of the following documents:

“5.    Copies of all Eaglei entries and intelligence reports in relation to the following persons:

a. Gianmarco Romolo (D.O.B. 28/5/1983) (AKA Marco Romolo)

b. Mejid Hamzy.”

8. In addition to reliance upon the terms of these subpoenas as a basis for the production of the documents upon which the Crown wishes to rely, Mr Sparos contended that he had in effect been advised by Ms Mee for the Crown Solicitor that the documents would not be produced. That assertion is denied by Ms Mee. In order to resolve the issue, I required evidence to be provided in a proper form. Ms Elizabeth Mee from the Crown Solicitor’s Office swore an affidavit on 24 July 2018. She was cross-examined. Mr Sparos also gave evidence.

9. Ms Mee said that she received instructions from both Corrective Services NSW and the Commissioner of Police to respond to the subpoenas. Annexed to her affidavit is a letter written on 14 February 2018 by Jodie Cobbin, Director, Open Government Information and Privacy, Department of Justice to Mr Sparos’ then solicitors as follows:

“Dear Mr Kyriacou,

I refer to your subpoena to produce issued at the Department of Justice (‘the Department’) in the above matter which is returnable at Supreme Court Sydney on 21 February 2018. I am responding to your subpoena on behalf of the Department.

The schedule to the subpoena seeks the production of documents relating to numerous third parties. Please explain the legitimate forensic purpose of the subpoena so that the apparent relevance can be confirmed. I note that it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the document is sought.

Additionally, I note that dates of birth have not been provided for each of the persons named in item one of the schedule. Without a date of birth or MIN number to confirm the identity of the persons named in the schedule the Department will not be able to conduct searches for records.

Accordingly, kindly provide your client’s legitimate forensic purpose for production of this material and further identifying particulars.”

10. Mr Kyriacou replied on 2 March 2018 in these terms:

“RE:    LUKE SPAROS SUBPOENA TO PRODUCE UPON DEPARTMENT OF JUSTICE – 14.2.2018

I refer to your letter dated 14 February 2018 and advise as follows:

• In respect of schedule 1 and 2, Corrective Services Officer Cahill gave evidence in the 2016 trial, that the list of inmates produced under subpoena, who were in custody at the relevant time, was an accurate list. We take issue with the accuracy of the list, and I am instructed that the persons named in the schedule of the subpoena were in fact persons who were incarcerated at that time, and did not appear in the record previously produced to the Court.

• In respect of schedule 3, we no longer press the audio calls, however we continue to call upon production of the transcripts or typed format of the calls. The person named in the schedule is a witness against Mr Sparos and is known as witness E.

• In respect of schedule 4, as to the person named in the schedule, evidence adduced by the Crown in the 2016 trial suggested that the shooter (who has been since convicted) told an undercover operative that he had done the job (that is to kill the deceased) for those who were doing 27 and 19 years. This is a reference to witness E and Zoltan Mato. It is the defence case that the murder was organised by witness E and Zoltan Mato.

• In respect of paragraph 5, witness E provided a statement in August 2017 which he directly refers to Marco Romolo. The credit of witness E and any person he referred to in his statement is in issue.”

11. Ms Mee replied by email dated 15 May 2018 as follows:

“Dear Kiki,

I refer to our previous correspondence in relation to the above matter.

Para 1 – As per my email dated 11 May 2018, the Proper Officer, Corrective Services maintains an objection to production on the basis of a lack of legitimate forensic purpose for the reason set out below.

By letter dated 2 March 2018, you said as follows:

In respect of schedule 1 and 2, Corrective Services Officer Cahill gave evidence in the 2016 trial, that the list of inmates produced under subpoena, who were in custody at the relevant time, was an accurate list. We take issue with the accuracy of the list and I am instructed that the persons named in the schedule of the subpoena were in fact persons who were incarcerated at that time, and did not appear in the record previously produced to the Court.

In answer to a prior subpoena issued on the Proper Officer, Corrective Services, a list of inmates located in Long Bay Correctional Centre 13 Wing on 4 November 2010 was produced to the Court (as distinct to the Cahill list served in the Brief of Evidence). All of the inmates named in paragraph 1 of the schedule to the subpoena issued on 14 February 2018 were included in the list produced to the Court (as distinct to the Cahill list served in the Brief of Evidence).

In relation to paragraph 1(e), as my client’s records indicate that Gianmarco Remola was not incarcerated in Long Bay Correctional Centre 13 Wing on 4 November 2010, it is unclear as to how the production of his records might assist in your client’s defence.

Para 3 – I note that your client does not press for the production of the audio calls. There are no transcripts or typed format of the calls to be produced.

Para 4 – The calls will be produced to the Court tomorrow morning. There are no transcripts or typed format of the calls to be produced.

Para 5(a) – My client instructs me that there are no documents to produce.

Para 5(b) – Corrective Services maintains an objection to production on the basis of a lack of legitimate forensic purpose for the reasons set out in my letter dated 9 May 2018.

If you have any questions as to the above, don’t hesitate to call me.”

12. Ms Mee replied to Mr Kyriacou by letter dated 9 May 2018 in these terms:

“R v Sparos – Subpoena addressed to the Proper Officer, Corrective Services issued on 14 February 2018

I refer to the Subpoena for Production issued by the Supreme Court on behalf of your client on 14 February 2018, for service on the Proper Officer, Corrective Services (‘the subpoena’).

The Crown Solicitor acts for the Proper Officer in respect of the subpoena.

I am instructed to respond to the subpoena as outlined below.

Paragraph 1

I refer to the letter of Mrs Jodie Cobbin, Director, Office of the General Counsel, Open Government Information and Privacy, Department of Justice, to you dated 14 February 2018.

As indicated in that letter, please provide the date of birth or MIN number of the individuals named. If you are unable to provide the date of birth or MIN number, kindly provide all possible detail identifying and describing the individuals listed. For example, details such as dates of incarceration, location of incarceration, length of sentences, offences, etc. Corrective Services is very mindful of the need to properly identify any individuals named prior to releasing or producing material concerning them.

Paragraph 2

In your letter to Mrs Cobbin dated 14 February 2018, reference is made to a list of inmates produced previously in response to a subpoena, and about which Corrective Services Officer Cahill gave evidence in the 2016 trial. The document to which you refer is a list of inmates produced in response to a subpoena issued to my client on 13 April 2017, specifically identifying inmates incarcerated in 13 Wing of the Long Bay Correctional Centre on 4 November 2010, as was required by the terms of that subpoena. I note that Mr Sparos’ name and cell location on the latter date was included in that list.

Given those circumstances, I ask that you consider in greater detail your client’s legitimate forensic purpose for seeking the location of the named inmates for the large array of dates provided in that paragraph, beyond 4 November 2010. Please advise the reasonable basis, beyond speculation, that it is likely that the documents caught by the subpoenas will materially assist in relation to the issues in dispute in these proceedings.

Paragraph 3

…

To return to the subpoena issues, I note by reference to your letter to Mrs Cobbin, that your client does not press for the production of the audio calls required by this paragraph.

Whilst my instructing officer is making enquiries concerning the existence of such calls, I understand that it is highly unlikely that my client holds transcripts or typed formats of any conversations. You are of course aware that a subpoena cannot require my client to make transcription of audio calls, where no transcripts presently exist.

I anticipate that if any material is produced in response to this paragraph, I will be instructed to make redactions to the documents on the basis of public interest immunity and/or seek orders limiting access to the material produced.

Paragraph 4

I am awaiting further instructions from my client concerning the material caught by this paragraph.

However, as I indicated above, it is my understanding that it is highly unlikely that my client holds transcripts or typed formats of any audio conversations.

Paragraph 5

In your letter dated 2 March 2018, you advised that your client’s legitimate forensic purpose in relation to the material required by this paragraph was connected to the reference in Witness E’s statement to Mr Romolo.

Paragraph 24 of ‘Witness E’s’ statement merely refers to Mr Romolo informing ‘Witness E’ that Mr Sparos’ legal team was trying to implicate ‘Witness E’ in the murder of Gemahl Maika. It is my understanding that the accused’s legal representatives indeed raised the latter proposition in the first trial. It is therefore difficult to discern how the fact that this information was passed on to ‘Witness E’ by Mr Romolo could be observed to give rise to a need for copies of all intelligence and visit material referring to Mr Romolo.

Whilst I understand that it is your client’s case that the murder was organised by Witness E and Zoltan Mato, Mr Romolo has not provided a statement in relation to this case and is not a witness in the proceedings. Accordingly, it is unclear how Mr Romolo’s credit is in issue.

I note that my client has previously produced in answer to a prior subpoena, a copy of the visit records of Mr Mato and Witness E.

With respect, it would seem that your client is engaging in a fishing expedition and, as such, I am instructed to maintain an objection to production of any material caught by this paragraph. If you press for production of the material, I am instructed to seek to have this paragraph set aside on the basis that it lacks a discernible legitimate forensic purpose and, possibly, in relation to the call for intelligence records, on public interest immunity grounds.”

13. The Crown also tendered a letter written earlier by Ms Mee to Mr Sparos on 22 March 2018 confirming a telephone conversation between them on that day with respect to the subpoena directed to the Commissioner of Police. That letter is in the following relevant terms:

“Sparos L: subpoena to Commissioner of Police issued 14 February 2018

I refer to your telephone conversation with Miss Elizabeth Mee, Senior Solicitor of my Office, earlier today in relation to the subpoena above.

I summarise, for your consideration, the contents of the conversation.

I also provide in this letter, my client’s instructions as to paragraphs 4, 5a, 5b, 6 and 7, said instructions received following the above mentioned conversation.

1. Miss Mee confirmed that the material required by paragraph 1, subject to redactions required to remove references to the identifying details of witnesses, will be produced to the Court on Monday 26 March 2018.

2. Miss Mee confirmed that a copy of the only statement caught by this paragraph was produced to the Court on 21 February 2018.

3. Miss Mee said that the Commissioner will produce a copy of all CCRs and RCCRs for [Witness F] and “Witness C” for the period 1 January 2011 to 30 April 2011 to the Court. Some of the records were produced to the Court on 21 February 2018, the remaining material will be produced to the Court on 26 March 2018. The Commissioner does not possess any CCRs and RCCRs for [Witness F] and “Witness C” after 30 April 2011.

5. You indicated that as Witness E was now a witness in the proceedings, you believed that the documents should be produced. Miss Mee said that the Commissioner would maintain his objection to the production of the notes for the reasons expressed in my letter dated 19 March 2018.

5a. You told Miss Mee that you had previously been served in these proceedings with Mr Romolo’s criminal history.

In the conversation, by way of elaboration of the legitimate forensic purpose set out in Mr Kyriacou’s letter dated 5 March 2018, you informed Miss Mee that you believe Mr Romolo had a reason to speak with Witness E about your trial. You believe Mr Romolo was involved in the murder of Gemahl Maika.

The Commissioner maintains his objection to the production of the documents required by paragraph 5a. The Commissioner is not persuaded that the above beliefs are sufficient to demonstrate a legitimate forensic purpose for the production of the material required by this paragraph.

5b. You informed Miss Mee that Mr Mejid Hamzy is Mr Romolo’s co-accused. You told Miss Mee that the documents about Mr Hamzy are sought to demonstrate that Mr Romolo associates with persons involved in crimes, that is, you seek the material to attack Mr Romolo’s credit.

The Commissioner maintains his objection to the production of the documents required by paragraph 5b. The Commissioner is not persuaded that the above basis is sufficient to demonstrate a legitimate forensic purpose for the production of the material required by this paragraph.

6. The Commissioner is not persuaded that you have demonstrated a legitimate forensic purpose for the production of the material required by this paragraph.

7. You informed Miss Mee that your former solicitor had erred in his description of the material required by this paragraph. You intended to seek the production of all intelligence reports relating to the gun used in the murder of Gemahl Maika. You believe the police have intelligence reports which would indicate that the gun was involved in other crimes.

Miss Mee told you that she will seek instructions from the Commissioner but it is likely that those instructions would be that you need to issue a new subpoena requesting the alternative reports.

Please note, I have since been instructed by the Commissioner that police have no intelligence reports referrable to the gun being involved in other crimes. Accordingly, if you request the issue of a new subpoena seeking such intelligence reports, the Commissioner will have no documents to produce in response thereto.

I am instructed that if the gun was involved in other crimes, reference thereto would be contained in the ballistic reports.

All of the ballistic reports caught by this paragraph in the Commissioner’s possession were served in the brief of evidence. Again, to assist you, the Commissioner produced a copy of those reports to the Court on 21 February 2018.

8, 9 and 10

You informed Miss Mee that you believe police have additional material to produce in answer to these paragraphs. Miss Mee reiterated I am instructed that there is no further material to produce. Miss Mee said that a subpoena requires the production of existing documents, police are not required to create or obtain transcriptions which do not exist. You told Miss Mee that you have an eaglei entry which will prove that further material exists. Miss Mee suggested that you bring the eaglei entry to the Court on Monday 26 March 2018 and she will seek further instructions from police as to the documents.

As discussed, Miss Mee intends to inform the Court on Monday 26 March 2018 that a hearing as to the subpoena will need to take place and will seek a date for the hearing when Mr Grady of counsel is available to appear for the Commissioner.

Please do not hesitate to contact Elizabeth Mee … if you have any queries in relation to this matter.”

14. Witness E was re-examined on the topic of Mr Romolo’s visits as follows:

“Q. Sir, you were asked a number of questions concerning Mr Romolo?

A. Yes.

Q. And his being absent during a six month period in terms of visiting you?

A. Mm mm.

Q. Now, thinking back to it sir, do you know of any reason why it is that he was not visiting during that six month period?

A. No, no.

Q. Do you have any recollection sir in terms of your dealing with people who would visit whether there was any restriction placed on any of those people at any point in time?

A. I can't remember, I can't remember.

Q. You made reference to when people would visit there would be more than one person who would visit from time to time; is that the case?

A. Yes, that's the case.

Q. Was that the situation with Mr Romolo, would he generally visit alone or did he generally visit with other family members?

A. He'll come with family members, but he has visited me alone, he has.

Q. You were taken to the fact that he was not visiting for six months and then he recommenced visiting you; is that correct?

A. Yes.

Q. Can you just tell us, did that continue on for some period of time thereafter?

A. Yeah. He was, he visited me every now and then. It wasn't a consistent visiting. When he could I guess, got some time he will visit me.

Q. Was he a friend of yours?

A. He's a friend of mine, yes.”

15. The Crown explained its position with respect to Exhibit VD9 as follows:

“CROWN PROSECUTOR: Your Honour, Mr Sparos raised an issue which foreshadowed an application to discharge the jury for a supposed non disclosure by the Crown in relation to Mr Romolo's situation. Can I just provide a copy of a document to your Honour on that subject matter. Your Honour will see on the second page is the relevant information. The context is Mr Sparos has put a suggestion that his absence was deliberate to cover up the circumstances of a murder.

Your Honour, the complaint is there has been non disclosure and this was subpoenaed. I have only received this document this morning and only after I got to court. My enquiries indicate that the Crown, in terms of the Director of Public Prosecutions, was unaware of this document until today, although we have been told verbally that something was coming, and I can only indicate to your Honour that that was since the cross examination last Friday and we have got it today.

In terms of subpoenaing this document, I have made enquiries and those enquiries do not reveal that this document has ever been subpoenaed at all although other documents were subpoenaed by Corrective Services. Accordingly, what I would ask Mr Sparos to do before moving on an issue concerning the discharge of the jury in relation to this document, that he ask his solicitors to provide a copy of the subpoena because at the moment I don't have a copy of it. A similar thing will be done with the Crown Solicitor's office, but initial enquiries with them indicate that this is not a document that was subpoenaed. So if Mr Sparos could attempt to locate what it is he suggests was subpoenaed, it might then advance his argument, but at the moment the suggestion that he has asked for this document and it has not been provided is contrary to what is being told to me. In any case, I can confirm that, as far as the police were concerned, they were unaware of this document as well.”

16. Mr Sparos’ response was to the following effect:

“ACCUSED: I did put on subpoenas to the New South Wales Police in regards to Mr Romolo and to Corrective Services for his case files, intel reports, all that stuff, which would have supplied that and I was working off the times that were missing, the relevant times off his criminal records to show that he wasn't in gaol.

Then off the phone records where I could show that I could understand that Mr Romolo was around attending birthday parties, attending his sister's house and all of that to show that he wasn't overseas. For him to come now, after I took it that step further, and say, well, here's the reason why he wasn't coming. The witness didn't know why he's not coming, I didn't even know. Now this paperwork is produced today, this morning, it would have an adverse effect on the case.

HIS HONOUR: Let's just narrow it down, you say that this trial should be aborted because you cross examined Witness E about his relationship with Mr Romolo hoping to draw some support from the fact that his visits to [Witness E] stopped for a period of six months, when you anticipate that the Crown will produce a benign answer to that? So you would be, if you like, professionally embarrassed. Is that the proposition?

ACCUSED: If this evidence was produced before that I wouldn't have took it that step further.

HIS HONOUR: I think the Crown is accepting that.” [Emphasis added]

17. In support of his position on this issue, and in response to Ms Mee’s evidence, Mr Sapros gave the following evidence:

“HIS HONOUR: For the record your full name is Luke John Sparos and you're the accused in these proceedings.

A. I sure am, your Honour.

Q. What do you want to say?

A. I just want to clarify just one part where about the where she said it was only the police subpoena. The conversation I had with Ms Mee it was that I will be pressing all the subpoenas, doesn't matter what you heard from my lawyer now that I am unrepresented I'm representing myself, I press

Q. Not to too fast. Yes?

A. I press the Corrective Services' one and the police one.

Q. Was that in the course of the conversation with Ms Mee that she just referred to?

A. Yes sir and that was in the Court and on the video link and that's when she kept telling me, ‘We will be not producing any documents to do with Mr Romolo for Corrective Services and for the New South Wales Police.’ She goes, ‘I've been advised it is a fishing expedition.’ That is when I told her that it's not fishing expedition, the defence will be asserting that Mr Romolo is the one who supplied the firearm to Witness F for the killing.

And then we went into the ballistics of it when I was trying to see if that gun was linked to any crimes that may be linked to BFL or that side, if you could see in my cross examination with Witness E when I was saying, ‘Did you know how Mr Romolo was involved with that Hamzys, that he was Mejid's co- ey’. He denied it, but that was the Ms Mee told us as well that she even told Detective Spelling that and Detective Maree. So as of six months ago they were well aware of where I was going with it, your Honour.

Q. BLF is Brothers for Life, correct?

A. That's correct.

Q. Did you want to say anymore?

A. (No verbal reply).

ON VOIR DIRE CROWN PROSECUTOR

Q. You at no stage informed any member of the Crown that Mr Romolo did not visit Witness E for six months, did you?

A. I don't believe I did.”

18. In my opinion, there are several reasons why the Crown should be entitled in all of these circumstances to lead the evidence in Exhibit VD9.

19. First, neither of the subpoenas issued by Mr Sparos extends in terms or by implication to the information contained in Exhibit VD9. For example, a reference in the subpoena directed to Corrective Services NSW to “visit lists” in relation Mr Romolo, a one time inmate of a New South Wales prison, appears in terms clearly to call up a list of visitors to him when in gaol, not by him when at large. The reference in the subpoena issued to the Commissioner of Police to Eaglei entries and intelligence reports relating to Mr Romolo would even moreso not extend to or contemplate records, assuming that they were in the possession of the Commissioner at all, of visits by him to an unnamed or unspecified inmate in a New South Wales gaol at an unspecified time.

20. Secondly, as Mr Sparos candidly concedes, he cross-examined Witness E not knowing the reason why Mr Romolo had ceased to visit him between December 2010 and June 2011.

21. Thirdly, and to a more significant extent, Witness E is said by Mr Sparos himself not to have known why the visits stopped. That concession appears to me clearly to undercut his theory that there was some suspicious reason why Mr Romolo stopped visiting Witness E and that it points towards Witness E’s role in the death of Mr Maika.

22. Fourthly, it is apparent that Mr Sparos took the forensic risk that the reason for Mr Romolo’s visits being suspended would not emerge, thus leaving open the opportunity speculatively to suggest that some occult reason existed. The taking of that risk was not the result of any relevant failure by the Crown to provide the information in Exhibit VD9 at some earlier stage.

23. Fifthly, and in any event, the prospect that Mr Romolo would have recommenced his visits to Witness E so soon after the murder of Mr Maika, as he did, if he were in fact involved with Witness E in arranging it, seems to me to be unlikely in the extreme.

24. Finally, quite apart from the terms of the subpoenas themselves, Mr Sparos did not make it clear either in correspondence written by his former lawyers or in his own conversation with Ms Mee that he wanted material explaining why Mr Romolo ceased for a time to visit Witness E. That is unsurprising having regard to Mr Sparos’ concession that he did not know why the visits were temporarily suspended and his understanding that Witness E did not know either. Mr Sparos did not significantly challenge Ms Mee upon this issue during her cross-examination, although I do not place any emphasis on this given his legally unrepresented status.

25. In my view, it is clear that Mr Sparos took the opportunity to explore the suspension of visits by Mr Romolo when cross-examining Witness E. He took the chance that it may have been productive of material that supported his contention that Witness E was responsible for the murder of Mr Maika. That course was not based upon any failure by the Crown to produce what is now Exhibit VD9. Moreover, the Crown’s proposal to tender the document is perfectly reasonable having regard to the fact that it will correct, by the tender of highly credible evidence, a possible misapprehension about why the visits stopped.

26. I am not convinced that this will in any event have an adverse impact upon Mr Sparos in the eyes of the jury. This is principally for the reason that the cessation of the visits is a single piece of evidence that does not appear to me, either alone or in combination with any other evidence, to support Mr Sparos’ avowed proposition that Witness E was concerned in the death of Mr Maika. For example, there is as yet no evidence that Witness E agreed or conspired in some way that gives rise to the inference that the visits stopped so as not to draw attention to the friendship and association between Witness E and Mr Romolo or to some nefarious connection between them.

27. I note that the Crown proposes to tender Exhibit VD9 in the trial. I will allow that course. At my suggestion, Mr Sparos’ foreshadowed application to discharge the jury, if that proceeds, should only be considered in the event that the document is actually tendered.

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Decision last updated: 17 August 2018