R v Sparos - [2018] NSWSC 854

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Catchwords: CRIMINAL PROCEDURE – where instructions to counsel appearing for accused withdrawn – application for adjournment – application to discharge the jury – whether counsel’s dismissal reasonable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

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.
Mr Sparos’ application arises in the following circumstances.

Background

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sparos

Details

AGLC: R v Sparos [2018] NSWSC 854
Case: [2018] NSWSC 854
Decision Date: 07 June 2018

CaseChat Overview and Summary

The defendant, Sparos, was charged with various criminal offences, including armed robbery and assault. The case was heard in the Supreme Court of New South Wales. The dispute centred around the defendant's counsel being dismissed, which led to an application for an adjournment and an application to discharge the jury. The key issue for the court was whether the defendant's counsel being dismissed was reasonable, and if so, whether the court should grant an adjournment and discharge the jury.

The court considered whether the instructions given to the defendant's counsel were indeed withdrawn and if the dismissal was reasonable under the circumstances. The defendant argued that the dismissal was unreasonable and sought an adjournment to find new counsel. The prosecution countered that the dismissal was reasonable and that the defendant's application should be denied. The court also considered whether the jury should be discharged, given the circumstances of the dismissal. The court determined that the dismissal was reasonable as the defendant had acted unreasonably in withdrawing instructions from his counsel. The court found that the defendant had not demonstrated any prejudice that would warrant an adjournment or the discharge of the jury. The dismissal of counsel did not affect the fairness of the trial, and the jury was not discharged.

The court denied the defendant's application for an adjournment and to discharge the jury. The trial proceeded with the remaining counsel. The final orders were that the application for adjournment and discharge of the jury were dismissed, and the trial continued with the remaining counsel.

Orders