R v Sparos (No 1)

[2017] NSWSC 1410

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sparos (No 1) [2017] NSWSC 1410
Hearing dates:	12, 17 October 2017
Decision date:	20 October 2017
Before:	N Adams J
Decision:	(1) The trial date of 3 October 2017 is vacated. (2) The proceedings against Luke Sparos be stayed unless and until the Director of Public Prosecutions (NSW) pays to him his reasonable costs thrown away by the trial date of 3 October 2017 being vacated. The amount of costs payable will be determined by the court at a subsequent hearing.
Catchwords:	CRIMINAL LAW – murder trial vacated – application for stay of indictment until payment by Crown of accused’s costs thrown away – whether circumstances leading to need for adjournment the fault of the Crown – whether unfairness to accused
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW), s 142 Evidence Act 1995 (NSW), ss 97, 98 Suitors Fund Act 1951 (NSW)
Cases Cited:	Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 Jago v District Court (NSW) (1989) 168 CLR 23; (1989) 41 A Crim R 307 Jones v Dunkel (1959) 101 CLR 298 Lee v Attorney-General for NSW [2017] NSWCCA 27 Petroulias v R [2007] NSWCCA 154 R v Carbone (No. 2) [2017] NSWSC 346 R v Curtis [2014] NSWSC 1582 R v Fisher (2003) 56 NSWLR 625 R v Khazaal [2006] NSWSC 1353 R v Michael John Issakidis [2015] NSWSC 834 R v Mosely (1992) 28 NSWLR 735 R v Seebag (unreported, Court of Criminal Appeal, 16 February 1993) Stewart v The King (1921) 29 CLR 234
Category:	Procedural and other rulings
Parties:	Regina (Crown) Luke John Sparos (Accused)
Representation:	Counsel: Mr C Patrick SC (Crown) Mr C Heliotis QC with Mr A Djemal (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused)
File Number(s):	2014/00196615

Judgment

Background

1. The accused Luke Sparos stands charged that on 6 April 2011 he did murder Gemahl Maika. The deceased was a witness due to give evidence against him in his pending drug trial. The accused was arrested and charged on 3 July 2014.

2. On 11 April 2016, a trial of the accused and three co-accused – Anthony Saliba, Christine Saliba and Maximillian Mazzilli – commenced before Michael Adams J. The trial proceeded for 17 weeks. The jury was directed to acquit Christine Saliba. The jury acquitted Anthony Saliba but convicted Mr Mazzilli. The jury was unable to reach a verdict in relation to the accused and was discharged on 5 August 2016. The accused privately funded his defence at that trial.

3. On 2 September 2016, Johnson J set the matter down for a new trial on 3 October 2017 with an estimate of six weeks.

4. When the re-trial came on before me on 3 October 2017, it became apparent it could not be finalised this year. The reason for this and the extent to which it is the fault of the Crown are the subject of this judgment. After it became apparent on 9 October 2017 that it was not even possible to deal with some of the pre-trial rulings this year, the accused indicated that he would be seeking a temporary stay of the trial until such time as the Director of Public Prosecutions (“DPP”) pays the accused’s costs thrown away by reason of the trial being unable to proceed. The DPP will be referred to as “the Crown” throughout this judgment.

Evidence in support of the application

5. A notice of motion and affidavits in support were filed on this application. The hearing of that motion proceeded on 12 and 17 October 2017, at which time I reserved my decision. Matters relevant to this application were also raised before me on 3, 4 and 9 October 2017 and I have had regard to those as well.

6. Although it was the accused’s application, prior to the filing of evidence by the accused the Crown Prosecutor provided to the Court a copy of an affidavit of Lucy Patterson, the solicitor with carriage of the matter, sworn 9 October 2017 including numerous annexures. The Crown Prosecutor also relied upon written submissions.

7. The accused relied upon three affidavits of his solicitor, Kiki Kyriacou, two sworn on 11 October 2017. The first affidavit was expressed as “in response” to the affidavit of Lucy Patterson and the second was in support of the stay application. Both affidavits contained a large number of annexures. The third affidavit of Mr Kyriacou sworn on 13 October 2017 outlined the financial situation of the accused and the broad details of counsels’ retainers. The accused also relied upon written submissions.

8. Documents tendered on 3 and 4 October 2017 were also in evidence before me on the application.

9. Most of the evidence relied upon by each of the Crown and the accused is not in dispute. This includes the details of the Crown case at the first trial, the additional evidence upon which the Crown seeks to rely at the re-trial, correspondence between the parties and the procedural history of the matter. Where the parties join issue is as to the findings that I would make based upon these facts. The accused contends that this material demonstrates that it is the fault of the Crown that the trial could not be finalised this year. The Crown denies that the fault rests with it.

10. During submissions, a number of matters were asserted from the Bar table concerning the positions taken by the legal representatives at various times. Neither counsel took any issue with this, nor suggested that such material was a matter for evidence. In light of this, I propose to accept any such assertions made from the Bar table that were not in dispute.

11. It is necessary that I summarise the Crown case at the first trial, the procedural history from 2 September 2016 until 3 October 2017, and the new evidence upon which the Crown now relies. I will then outline the relevant legal principles and the submissions of the parties before addressing the ultimate issue: has unfairness to the accused resulted from the trial not being able to proceed and can fault for this be attributed to the Crown?

The Crown case against the accused at the first trial

12. When the first trial before M Adams J commenced on 11 April 2016, Mr Craig Patrick SC appeared as Crown Prosecutor and Mr Con Heliotis QC appeared with Mr Avni Djemal as junior counsel. They were instructed by Mr Kiki Kyriacou of Kiki Kyriacou Lawyers.

13. The summary of the Crown case at the first trial is taken from the amended prosecution case statement filed in court on 2 December 2016, when the new trial date was confirmed.

14. “Operation Schoale” was a joint investigation conducted by the NSW Police Force and the NSW Crime Commission into a criminal syndicate involved in the importation and supply of commercial quantities of cocaine. The accused was charged in July 2007 and February 2008 with offences related to the supply and importation of commercial quantities of cocaine.

15. Between February and March 2008, the deceased Gemahl Maika provided three induced statements to Operation Schoale investigators in which he described his involvement in the syndicate that was the subject of the investigation and his personal association with the accused and other persons. The deceased subsequently gave evidence in committal proceedings at Penrith Local Court. On 21 June 2010, the day before giving evidence at committal, the deceased reported to a police officer that he had received threatening telephone calls in relation to his evidence the previous evening.

16. From 23 July 2010, the accused was placed in 13 Wing of the Long Bay Hospital Area 2. Witness A arrived at 13 Wing on 16 August 2010. The accused asked Witness A, who knew the deceased, to obtain the deceased’s address. The accused told Witness A that he wanted the deceased to change his mind and “stop being a dickhead”. Witness A obtained the address of the deceased from his girlfriend on 28 December 2010.

17. The Crown alleged that the accused formulated a plan to have the deceased killed at some point prior to asking that Witness A obtain his residential address.

18. Maximillian Mazzilli was placed in 13 Wing between 23 April 2010 and 17 December 2010. Witness C was placed in 13 Wing between 13 October 2009 and 29 December 2010. On the Crown case, they were also drawn into the plan to have the deceased killed.

19. As at late 2010, the accused was married to Christine Saliba. Her brother was Anthony Saliba. The accused spoke with both his wife and Anthony Saliba on the gaol phone regularly and both visited him in gaol. It is alleged that, on several occasions in December 2010, the accused was recorded in gaol calls giving directions to Christine Saliba and Anthony Saliba in coded language to liaise with Witness C, who was shortly to be released from custody. He was to act as a go-between, passing information between Christine and Anthony Saliba and Mazzilli.

20. Adam Watt and a person known in the trial as Witness B had previously been in custody with the accused. On 16 January 2011, they visited him in custody and, it is alleged, discussed obtaining a gun. On the Crown case, the accused explained that his trial was starting soon. He said that the gun offered by Watt was not big enough. He asked Witness B, “…what kind of gun can you get me? I desperately need a gun. I’m running out of time.” Witness B replied, “I can possibly get a thirty eight Magnum and a semi-automatic shotgun.” Witness B subsequently took steps to obtain a firearm but was unsuccessful. Witness B met or spoke with Christine Saliba and Anthony Saliba on several occasions during January and February 2011 as he attempted to obtain a firearm.

21. At about 9:40pm on 6 April 2011, the deceased was shot in the garage of his Glen Alpine home by a person using a .45 calibre self-loading pistol. The deceased ran from the shooter into the front yard of the property next door, where he was shot a number of times. He died at the scene. The shooter fled and was seen running in an easterly direction along Nepean Towers Avenue. The Crown alleged that the shooter was Mr Mazzilli and that the accused paid him to kill the deceased.

22. In respect of the case against Mr Mazzilli, the Crown relied on admissions made by Mr Mazzilli to an undercover operative at Tweed Heads.

23. The accused, Mr Mazzilli, Anthony Saliba, Christine Saliba and Mr Watt were arrested and charged on 2 and 3 July 2014. The DPP ultimately determined to take no further proceedings against Mr Watt.

24. On the Crown case, the accused orchestrated the murder of the deceased to prevent him from further giving evidence against him, to send a message to other witnesses about the risks of giving evidence against him, and to punish the deceased for giving evidence against him.

25. The accused pleaded guilty to the drug matters on 1 August 2011.

The accused’s defence at the first trial

26. In his opening address, the Crown Prosecutor outlined to the jury what was said by the Crown to be the accused’s motive to kill the deceased. He stated that, as the accused awaited his trial for the drugs matters in 13 Wing, he began to plan “retribution” against the deceased. Later in his opening, the Crown Prosecutor stated:

“It is alleged, in this trial, that Mr Sparos instigated the murder. He was, it’s alleged, determined to silence a witness in the case against him. Although Mr Sparos was not the actual shooter as he was in custody at this time, he is alleged to be part of…what is referred to as a joint criminal enterprise with Mr Mazzilli to commit the offence and hence that he is also liable for the murder.”

27. In his opening address, Mr Heliotis told the jury that there would be a dispute as to the accused’s alleged motive, whether it be retribution or a desire to “silence” the deceased. He said the evidence of the deceased in the case against the accused was of no significance at all and that his statements and evidence given at committal would be admissible in any event if he were to become unavailable. Further, Mr Heliotis stated that that there was no motive for the accused to murder the deceased because it was always his intention, including prior to the shooting, to plead guilty to the drug charges.

28. A live issue at the first trial was thus whether the Crown could establish the motive upon which it relied. In order to do so, it relied upon a number of recorded telephone calls in which the accused said to Christine Saliba and Mr Watt that he would not be pleading guilty. The Crown also relied upon evidence that the accused’s charges had been committed to the District Court for trial rather than for sentence, that his first trial date had been adjourned to a further trial date and that a bail application was made on 20 October 2010 on the basis, inter alia, that he did not have access to his brief, which he needed to prepare for his trial.

29. On 9 June 2016, Mr Heliotis ceased to appear for the accused at the first trial. From that time, Mr Djemal appeared for the accused unled.

30. On 23 June 2016, Mr Djemal began adducing evidence from the accused in his case. The accused gave evidence that it had always been his intention to plead guilty. In support of this evidence, he recounted numerous conversations that he had had with his solicitor, Mr Ross Hudson, and his barrister, Mr Philip Dunn QC.

31. The accused gave evidence that he was represented by Mr Hudson from soon after he was charged until his plea of guilty on 1 August 2011. Prior to the committal proceedings, his counsel was briefly Mr Winston Terracini SC. At the committal proceedings conducted in 2010, his counsel was Mr Dunn. Although the jury was not told this, Mr Hudson briefed Mr Djemal as counsel in relation to the drug charges approximately one month before the accused pleaded guilty to those charges on 1 August 2011.

32. During the Crown case, the Crown tendered a document containing a list of all the visitors received by the accused whilst in custody from 27 July 2007 to 15 June 2013. It indicates that the accused was visited by Mr Djemal and his instructing solicitor Mr Hudson on 8, 14, 22, 27, 28 and 31 July 2011. As stated above, the accused pleaded guilty on 1 August 2011. The name of Mr Djemal was edited from the version of that document that was tendered at the first trial at the request of the defence.

33. The accused gave evidence that he had lied in the recorded gaol calls in which he stated to Christine Saliba and Mr Watt that he would not be pleading guilty. His evidence was that, if he was ever recorded saying that he was going to trial, that was a lie. The true situation, of which his solicitors were aware, was that he always proposed to plead guilty. He gave reasons for lying to those particular people.

34. On 24 June 2016, the accused gave evidence concerning conversations that he had had with Mr Hudson between 13 July 2011 and 1 August 2011 regarding his intention to plead guilty. When this evidence was adduced, the Crown Prosecutor raised an objection in the absence of the jury. The transcript discloses that he complained about this evidence being adduced by Mr Djemal because it is contradicted by certain of the recorded gaol calls. He noted that it was around this time that Mr Djemal was personally involved in negotiations with the prosecution on behalf of the accused. The Crown indicated that this situation could lead to the Crown having to attack the credibility of Mr Djemal.

35. The objection was overruled by M Adams J, who observed that whether Mr Djemal had an ethical issue was a question for Mr Djemal to determine and did not impact on the admissibility of the relevant evidence. The accused then gave further evidence about the circumstances of his entering his plea of guilty and the conversations that he had with Mr Hudson and his “lawyer” at that time. The “lawyer” was in fact Mr Djemal, but the jury was not made aware of that fact at the trial.

36. The Crown Prosecutor cross-examined the accused over five days on 27, 28, 29, 30 June and 1 July 2016. He was not cross-examined about any conversations that he had had with Mr Djemal in the period in July 2011 leading up to his plea on 1 August 2011.

37. The transcript records some discussion following the close of the defence case regarding the Crown’s efforts to call Mr Hudson as a witness, given the evidence of the accused as to the numerous conversations that he had with him. By 2016, Mr Hudson had been appointed as a Local Court Magistrate in this State. The transcript of the first trial discloses that Mr Hudson was on leave and not available to be called by the Crown in a case in reply at short notice. There was some discussion as to whether a “Jones v Dunkel” direction was required in relation to that evidence (Jones v Dunkel (1959) 101 CLR 298. During that exchange, Mr Djemal suggested that he may be unable to subpoena Mr Hudson because he is now a magistrate. In response M Adams J observed:

“HIS HONOUR: If you subpoena him, he must come. The only conceivable person, perhaps two, the Governor and Governor General who might not be obliged to be subpoenaed, although even that is a nice question. Magistrates, Supreme Court Judges.”

38. Justice Michael Adams also observed as to the waiver of privilege:

“HIS HONOUR: The effect of that evidence [i.e. the evidence of the accused] also was that there was, for all practical purposes, a complete waiver of privilege as to the conduct of the criminal trial.

CROWN PROSECUTOR: Yes.”

39. The Crown did not ultimately call a case in reply at the first trial. Neither Mr Hudson nor Mr Dunn was called as a witness and the jury was ultimately discharged in relation to the accused without a verdict being reached.

The procedural history of this matter since 5 August 2016

40. Following the discharge of the jury on 5 August 2016, correspondence passed between the respective solicitors as to listing the matter for a new trial

41. In her email on 29 August 2016, a DPP solicitor enquired of Mr Djemal and Mr Kyriacou as to whether they would represent the accused at the arraignment on 2 September 2016 and whether one or both of them would represent the accused again at the next trial. In his reply of the same date, Mr Djemal confirmed that he was briefed as at that time and advised that enquiries were being made as to whether Mr Heliotis would also appear. The possibility of M Adams J presiding over the next trial was also raised, on the basis that having the same judge would shorten the trial. The Supreme Court Arraignment Summary tendered by the Crown before Johnson J also noted that the estimate of the trial was six weeks.

42. At the mention before Johnson J on 2 September 2016 a number of matters were raised of significance to this application. I propose to set them out in some detail. The transcript reflects that the Crown Prosecutor who appeared before Johnson J was Mr Barrett. Mr Djemal appeared for the accused.

43. The Crown Prosecutor informed the Court that the trial estimate was six weeks. Mr Djemal responded that there would be a “possibility” of six weeks “…if we were to have the same representatives and possibly an inquiry about the same judge.” Mr Djemal explained that this was because the original trial had an estimate of eight weeks but lasted 17 weeks.

44. Mr Djemal went on to explain to Johnson J that the preponderance of evidence at the first trial was admitted against this accused, not the other three accused. He further explained that there were three accomplice witnesses, some of whom had taken over a week to give their evidence.

45. Mr Djemal then indicated that the first dates convenient to both him and Mr Heliotis were not until 1 October 2017. Johnson J refused to list the trial on that date as it was too far way. Mr Djemal then explained that the matter was privately funded and would be again. He informed the Court that if the matter were to “blow out” again, problems would arise for the accused in being able to fund his trial. It was submitted that having the same legal representatives would “facilitate that to a great deal”. With respect to the six-week estimate, he stated that, “We can manage possibly something along the realms of what the Crown is suggesting but it would need the same representatives.”

40. There was then a discussion as to whether the long adjournment would cause problems for the recollection of witnesses given the credit issues involved. No objection was raised by the Crown Prosecutor to the trial being listed in October 2017.

41. Justice Johnson then asked whether there would be any pre-trial applications. Mr Djemal replied that everything had been “pretty well dealt with” and that he was unaware of any pre-trial issues. He added, “Obviously if there’s some liberty to restore if something does arise. I haven’t been informed of any additional evidence coming.”

42. His Honour then indicated that in the “unusual circumstances of this trial” he was prepared to list the matter on 3 October 2017 with an estimate of six weeks. He directed that the matter come back before him for mention on 2 December 2017. His Honour stated that the “principal purpose” for re-listing the matter would be to indicate who the trial judge would be and to ask if any pre-trial applications were anticipated.

43. At that point, the Crown Prosecutor indicated that all of material upon which the Crown relied had been disclosed “…with a caveat in relation to the material relating to the additional charges that were…laid last week.” He was not in a position to indicate whether those charges would be included on the indictment, but said that he would provide further information at the next mention. His Honour repeated that he proposed to “bring the matter back into the arraignment list on 2 December.” It is to be noted that the additional charges to which the Crown Prosecutor referred at that time are the charges brought contrary to s 319 of the Crimes Act, which are now the subject of an application under ss 97 and 98 of the Evidence Act 1995 (NSW) in this trial (see below at [96]-[102]).

44. In fixing the matter for trial on 3 October 2017 with an estimate of six weeks, his Honour observed that, “Having regard to the length and complexity of the previous trial, there is a significant advantage to the Court in having the same counsel who appeared both to prosecute and to defend in that trial.” His Honour also confirmed that the accused could be re-arraigned on 2 December 2017 and that the matter was listed on that date “…for the purpose of a further discussion about practical matters in advance of the trial.” He made an order that the Crown file and serve a Notice of Prosecution Case in accordance with s 142 of the Criminal Procedure Act on or before 10 February 2017.

45. On 2 December 2016, the accused was re-arraigned before Johnson J on an indictment containing one count of murder. The Crown Prosecutor was Mr Thorpe. Mr Kryiacou appeared for the accused. The Crown Prosecutor filed an Amended Crown Case Statement in court confined to an outline of the evidence adduced at the first trial and a disclosure affidavit of Detective Sergeant Joseph Maree dated 31 August 2016. No pre-trial issues were raised. No trial judge was allocated at that time.

46. In accordance with the orders of Johnson J, a Notice of Prosecution Case in accordance with was served by the office of the DPP by email to Mr Kyriacou on 15 February 2017 attaching two Crown Case Statements, one that was the same as the Crown Case Statement that was filed in court on 2 December 2016 and one that omitted evidence that would have be inadmissible against the accused given that he was to be tried alone. The Crown did not receive a Notice of Defence Case, which Johnson J had ordered be served by 3 March 2017.

47. Consistent with what Mr Djemal told Johnson J regarding the limited funding available for a re-trial, Mr Kyriacou has deposed that, following the conclusion of the first trial, arrangements were made as to the funds required for the second trial. The accused informed Mr Kryiacou that he only had funds to brief senior and junior counsel for a six to eight week trial. It was decided that a legal clerk would instruct counsel at the trial and that Mr Kyriacou would only be involved in pre-trial preparation. Mr Heliotis would be paid for two weeks’ preparation in Melbourne, at least one week’s preparation in Sydney with Mr Djemal, up to eight weeks for a trial and one week to cover possible blowouts in the estimates for preparation and weekends.

48. Mr Heliotis indicated that he would only accept the brief if Mr Djemal were his junior. He also required that a four-week non-refundable deposit be paid up front. When funds ran out, Mr Djemal was to continue to appear for the accused unled. Mr Djemal accepted the brief for a six to eight week trial and two weeks’ preparation time.

49. The evidence on the application was that the accused had no further funds after paying these amounts to counsel. The hearsay evidence in this regard comes from Mr Kyriacou, who states in his third affidavit that, “I understand that the funds have been sourced from his brother and friends” and, “I am instructed that Mr Sparos does not have any assets or income, nor are there any persons who would be able to assist him to fund a further trial in the terms stated above…” Objection was taken to these parts of Mr Kyriacou’s affidavit on the basis that they contain hearsay. I will return to that issue below at [194].

50. The material before me suggests that investigating police, the ODPP solicitor and the Crown Prosecutor started preparing the matter for trial in about July 2017. Their preparation led to the accused’s legal representatives subsequently being served with a significant amount of material additional to that relied upon at the first trial.

51. On 21 July 2017, police served upon Mr Kyriacou two discs containing recordings of gaol calls made by the accused for the period from 25 April 2011 to 1 July 2011 and also from 1 July 2011 to 15 August 2011. Transcripts of the calls from 2 July 2011 to 15 August 2011 were also served on that date. The transcripts numbered 999 pages. Six discs of listening device material covering eight separate days were also served, which involved eight hours of listening time with no transcripts provided.

52. On 11 August 2017, the ODPP caused subpoenas for production to be served on Mr Djemal and the firm of solicitors in which Mr Hudson had previously worked.

53. On 13 August 2017, the ODPP sent an email to the accused’s solicitor indicating that the Crown intended to tender the evidence given by the accused at the first trial.

54. On 15 August 2017, police served upon Mr Kyriacou transcripts of the remaining gaol calls made by the accused between 25 April 2011 and 1 July 2011. The transcripts served numbered 358 pages.

55. On 21 August 2017, the subpoenas were listed before the Registrar. No material was produced at that time. The Registrar was informed that Mr Djemal was overseas and would not return until the first week of September. The subpoenas were adjourned to 3 October 2017, the first day of the trial, at the suggestion of the ODPP solicitor appearing that day.

56. On 24 August 2017, tendency and coincidence notices were served on Mr Kyriacou by way of email. At that time, the accused was put on notice that the Crown would seek to rely upon material contained in another brief of evidence pertaining to charges of doing an act with intent to pervert the course of justice that had recently brought against the accused. Those charges are based on an allegation that there was a joint criminal enterprise between the accused and another inmate, Reynold Glover, to write to the brother of a Crown witness and encourage the witness to withdraw his evidence in return for payment. Those charges are awaiting trial at the District Court at Sydney.

57. Also on 24 August 2017, the defence was served via email with a summary prepared by the Crown of the 2011 gaol calls upon which the Crown proposed to rely at trial. 39 calls were described in that summary.

58. On 28 August 2017, police served on Mr Kyriacou further witness statements of Matthew Damaso, Vicki Portener, Annette Patrick, Detective Senior Constable Gardiner and Ricky Travia. On the same day, police served on Mr Kyriacou the brief of evidence in relation to the pervert the course of justice charges as part of the murder trial brief. The Crown’s position is that Mr Kyriacou already had a copy of that brief from 2 February 2017 as he is the solicitor on the record for that matter. Mr Kyriacou’s evidence is that this was not a “re-service” of the brief that had already been served, but rather was almost twice the volume of the first brief. The brief was served on a disc and, when it was printed out, it amounted to 2,800 pages.

59. On 30 August 2017, Mr Kyriacou requested that the Crown supply the transcripts of 36 calls for which the audio had already been served on 31 July and 15 August 2017.

60. On 4 September 2017, police served two additional statements: one of Rualin Naidoo and the other of a witness to be known in this trial as Witness E. I was informed that at the first trial there was extensive cross-examination of police about the potential involvement of Witness E in the murder and whether police had approached him about such involvement. The statement of Witness E is dated 31 August 2017. I was informed that the statement of Mr Naidoo also pertains to issues about which police were cross-examined at the first trial. His statement is dated 1 September 2017.

61. On 8 September 2017, the Crown served another Crown Case Statement, to which I will refer as the “Further Amended Crown Statement” to distinguish it from the Amended Crown Case Statement filed as part of the Notice of Prosecution Case. It differed from the Amended Crown Case Statement served on 15 February 2017 in a number of significant respects in that it included additional material upon which the Crown had not previously relied. Significantly, references to additional transcripts of certain gaol calls made by the accused in July 2011 were included. As at the first trial, it was asserted that the accused’s decision to enter a plea of guilty was a reluctant one that did not occur until 1 August 2011, the day before his charges were listed for trial. The Crown case is that that prior to that date the accused wanted to go to trial in the hope that he would escape conviction.

62. In support of that contention, the Crown relies upon a number of calls made by the accused between April and July 2011 in which he states that he intended to go to trial. These telephone calls were with his ex-wife Christine Saliba and Adam Watt. There are a number of calls in which the accused relates conversations that he had had with “Avni” consistent with the accused instructing him that he was pleading not guilty and with “Avni” thinking that he might have a good case. The calls all record the accused being unwilling to plead guilty and even having doubts as at 3 August 2011, after the plea was entered.

63. As will be addressed below, the Crown states that it was from this time, 8 September 2017, that Mr Djemal should have realised that he was a potential witness in the matter and returned his brief.

64. Also on 8 September 2017, the accused’s solicitor made a further request of the DPP for gaol call transcripts that were said to have already been served on either 31 July 2017 or 15 August 2017.

65. On 14 September 2017, the ODPP served a proposed edited copy of the accused’s evidence from the previous trial and confirmed that it was intended that that evidence would be tendered at the re-trial. A witness list was provided and attention was drawn to the Further Amended Crown Case Statement and the tendency and coincidences notices.

66. On 15 September 2017, the ODPP filed a notice of motion and affidavit in support regarding the tendency and coincidence evidence. The notice of motion and affidavit were served on the accused’s solicitor by way of email on the same day. A copy of the Crown’s written submissions in support of the application to tender the evidence of the accused at the previous trial was also served on that day.

67. On 19 September 2017, the accused’s solicitor was served with a copy of the Crown’s written submissions regarding the issue of waiver of client professional privilege.

68. On 20 September 2017, the matter was by the Court for mention before me. Mr Patrick appeared for the Crown and Mr Djemal appeared for the accused. From the Court’s perspective, the purpose of the mention was to confirm that the estimate of the trial was still six weeks and that the matter was ready to proceed.

69. The Court was informed of a number of difficulties in relation to the estimate of the trial at that time. Both the Crown Prosecutor and Mr Djemal estimated that the trial would take eight weeks. There was some discussion as to whether I would have capacity to hear pre-trial matters prior to 3 October 2017. I indicated that I did not due to other court commitments up until the trial. The Crown Prosecutor then stated the following:

“If that's the case the first trial date is the Tuesday, 3 October. Accordingly, I anticipate that pre-trial matters would take the first week. I was going to raise with your Honour, there is additional evidence that has been served and which the Crown would rely upon in this second trial. The previous estimate of this trial was six weeks. Whilst it is always a matter largely for the defence as to how long the trial will take, I would think that would be a very conservative estimate. On the last occasion we took four months as the matter really did blow out with a number of co-accused. But the reality is there are still significant issues to be considered before we ultimately get to the point of a jury verdict. I would have thought that the estimate at this stage would be at least eight weeks and I was going to ask what would be your Honour's attitude to not getting a verdict before Christmas.”

76. A number of other difficulties were foreshadowed. The Crown Prosecutor indicated that the Crown sought to call Mr Hudson as a witness, but that he had not yet provided a witness statement. Nor had the Crown expressly been informed that the accused had waived legal professional privilege. The Crown Prosecutor indicated that he did not consider that he was able to compel Mr Djemal.

77. The issue of waiver of privilege was raised at the mention. The Court was subsequently provided with the Crown’s written submissions regarding the question of waiver so that that issue could be addressed on the first day of the trial on 3 October 2017.

78. On 25 September 2017, the ODPP served a copy of the Crown’s written submissions regarding the tendency and coincidence material via email. On the same day, police served by email statements of two additional witnesses, Christopher Ford and Hyerim Lee.

79. On 26 September 2017, police served the statement of a further additional witness, Jag Agora.

80. On 27 September 2017 Mr Kyriacou formally indicated to the ODPP that the accused had waived legal professional privilege. On the same day, access was granted to the Crown to the subpoenaed material produced by Mr Hudson’s firm. Also on 27 September 2017, Mr Djemal provided to the ODPP material produced pursuant to the subpoena issued on him.

81. On Friday, 29 September 2017, the ODPP wrote a letter to the accused’s solicitor advising him of problems obtaining a statement from Mr Hudson and indicating that there would be a delay of two to three weeks in obtaining that statement. Reference was also made to concerns regarding Mr Djemal’s continuing presence in the trial. That letter was before me on this application and, relevantly for present purposes, contains the following:

“I refer to an issue that has been previously raised in this matter concerning the fact that Mr Djemal may be a relevant witness in the above proceedings. If Mr Djemal continues in these proceedings the Crown intends to raise this matter with Her Honour, N Adams J on Tuesday, 3 October 2017.

In raising this matter, the Crown will rely on the following authorities:

1. MG v R [2007] NSWCCA 57 and

2. R v Khazaal [2006] NSWSC 1353

I raise these matters for your information.”

The trial is unable to commence

82. On 3 and 4 October 2017, it became apparent that the trial would not be able to finish this year for four reasons; first, because the pre-trial arguments would extend the length of the trial; second, because the service of additional material would extend the length of the trial; third, because a question had arisen as to Mr Djemal’s continuing involvement in the matter; and, fourth, because the trial had been specially fixed with a six-week estimate, meaning that the Court only had six to seven weeks allocated for the trial. The submissions on 3 and 4 October 2017 were far-reaching. Rather than set them out chronologically, I propose to summarise the parties’ positions under those four headings.

Mr Djemal seeks leave to withdraw from the matter

83. On 3 October 2017, when the trial was due to commence, Mr Heliotis commenced by tendering the letter referred to at [81] above (“the 29 September letter”).

84. Some considerable time was then spent on the question of whether Mr Djemal would be withdrawing from the matter and/or whether the Crown would be calling him as a witness in the trial. With the benefit of hindsight, the submissions proceeded for far longer than was necessary in circumstances where there was no application by the Crown before me to remove Mr Djemal from the trial. I was informed by Mr Heliotis that he was required to place certain things on the record. The Crown indicated that he too was obliged to put before the Court the potential difficulties with Mr Djemal remaining in the matter. The respective positions of the parties were as follows.

85. The Crown Prosecutor confirmed that he was not making any application that Mr Djemal be prevented from appearing for the accused. Nor did he feel that he was able to call Mr Djemal as a witness for the Crown whilst he was still junior counsel briefed to appear for accused. He did, however, feel obliged to bring the situation to the Court’s attention because it may impact on the trial at some stage. He then said:

“The position is this. It's a matter for the defence. It is not for me to tell the counsel not to appear. I don't have that power. I have raised it with the learned senior counsel and I have received a response back and at the moment here we are in court. All I can do is raise it with the court, but I don't want this trial to get to a point where Mr Hudson comes and gives evidence …which does not support the contentions of Mr Sparos it may be ultimately that the defence team will call Mr Djemal if his recollection is different and it may also be in those circumstances the situation where Mr Djemal would go into the witness box in the defence case and I would be in the position where I would be cross-examining him and may in fact have to assert to him that he has acted in a way which is contrary to proper standards and, indeed, I would have to challenge his credibility, bearing in mind the fact that he has adduced evidence from his client in circumstances where there is evidence, for example from Mr Hudson, which suggests that he knew that that was wrong.”

86. He went on to say in relation to Mr Djemal:

“He is an available witness now. He should have provided a statement now. This is couched in terms of criticism of the Crown, in circumstances where the defence knew well before April of 2016 when we started this trial, they knew very well that there was this available evidence from solicitors, being Mr Hudson, or from Mr Djemal, that these are people who can provide evidence about it, for example, the process by which Mr Sparos came to enter his plea of guilty on 1 August, how many meetings were there on that day, was it the case that there was just argument about the facts as Mr Sparos says. He would be able to confirm that yes, it was just a matter of facts and there wasn't any real problem, ultimately the Crown was being difficult and they worked their way around it. He was always a witness to that. Now they knew that.”

87. He went on to add:

“Now, our difficulty is we don't know if he is going to give evidence, but the fact of the matter is there is a witness to these events who is a material witness to facts in issue in this trial and he sits at the bar table. Now, if he wishes to do that then that's a matter for the defence. I don't have any power to exclude the defence counsel. All I can do is bring to the court's attention this issue. I have provided the authorities.”

88. The position of the Crown Prosecutor was that he could not have subpoenaed Mr Djemal after the first trial because “…in terms of the common law…there is no power by one counsel in a trial to call another counsel.” When I enquired of the Crown Prosecutor as to what rule of practice or law would have prevented him from subpoenaing Mr Djemal after the last trial, he conceded that he was unaware of any authority on this point but submitted that leave would need to be granted by the court for such an extraordinary thing to occur on the first day of the trial. He stated that the reason that no approaches had been made to Mr Djemal was because of the Crown’s position that it was not possible to subpoena him whilst he was “active counsel” in the trial.

89. Mr Heliotis responded that there was no “embargo” on the Crown calling Mr Djemal as a witness and that, if the Crown wished to call him, there is no reason why it would not be able to do so. He then stated:

“One can understand why Mr Djemal is hyperactive about his position at the moment but your Honour our position remains unchanged. If the prosecution says that it may call him as a witness, then we perceive that the rules oblige him to withdraw and make himself available.

…

If the prosecution does not seek to call him, come what may, then we will not call him. Mr Sparos is well aware and you can rest assured we have signed or had signed documentation acknowledging the advice given to him by me and we will not call him and we wouldn't call him anyway. The reality is if Mr Hudson is called, if he doesn't give favourable evidence for us, I wouldn't be calling a witness to contradict Mr Hudson in this matter.”

90. Ultimately, the Crown Prosecutor indicated that he did not propose to call Mr Djemal and that he had merely sought to highlight the issue to preserve the Crown’s position. He went on to place on the record that if Mr Djemal approached him to be a witness in the Crown case he would consider it and that he would not object to Mr Djemal being called as a witness in the defence case.

91. The position at the end of 3 October 2017 was that Mr Djemal did not propose to withdraw and that the Crown Prosecutor did not propose to call him as a witness. The matter was then adjourned for the day.

92. On 4 October 2017, Mr Heliotis indicated that, after considering the matter further, Mr Djemal would only remain in the trial, following what had occurred on the previous day, if the Crown Prosecutor placed two things on the record: first, that the Crown Prosecutor did not consider Mr Djemal to be a compellable witness whom he would call in these proceedings; and, second, that the Crown Prosecutor would withdraw the “threat” made in court on 3 October 2017 to complain about Mr Djemal to a “relevant body” at the conclusion of the trial. In response, the Crown Prosecutor confirmed that he considered that Mr Djemal had an ethical problem because he is a witness but that the Crown could not and would not compel him to give evidence. As to the second matter, he said that it would be “entirely inappropriate” to state that the DPP would not consider whether the matter should be referred to the Bar Association after the trial is over.

93. The matter was stood down until 2pm, at which time Mr Heliotis indicated that Mr Djemal was reluctantly withdrawing from the matter. In circumstances where his retainer was conditional on Mr Djemal being briefed, Mr Heliotis also indicated that he would have to withdraw from the matter. He advised that he would continue to appear as amicus curiae for the determination of any pre-trial issues that could be heard this year.

94. I granted leave to both counsel to withdraw given that Mr Djemal felt obliged to do so on ethical grounds and Mr Heliotis indicated that he only accepted the brief on the condition that Mr Djemal be his junior counsel. Mr Heliotis’ position was further complicated by timing and funding issues outlined further below.

The pre-trial rulings

95. It was foreshadowed at the mention on 20 September 2017 that a number of pre-trial rulings would be required. They were to be heard starting on the first day of the trial, 3 October 2017. The Crown Prosecutor suggested that the pre-trial matters could all be dealt with that during that four-day week (Monday, 2 October 2017 having been a public holiday). I expressed some doubt in that regard in circumstances where the pre-trial issues were identified as follows.

96. First, there was the determination of whether the Crown would be permitted to rely on evidence of the accused’s alleged involvement in doing an act with intent to pervert the course of justice as tendency or coincidence evidence. The accused was charged with three counts of attempting to pervert the course of justice on 24 August 2016 and was committed for trial on 7 September 2017 at the District Court at Sydney.

97. The Crown filed tendency and coincidence notices on 24 August 2017. The tendency asserted is particularised as follows:

“The evidence is to be tendered to prove that Mr Luke Sparos had a tendency to have a particular state of mind, namely, the intention to interfere with witnesses to be called in judicial proceedings where he is the accused, and that he had a tendency to act in a particular way, namely:

a. Intended to interfere with the giving of evidence by witnesses to be called in judicial proceedings where he was the accused.

b. He did acts intending to interfere with witnesses to be called in judicial proceedings where he was the accused.

c. He did so by conspiring with others to interfere with the relevant witness.

d. He sought to arrange contact with the prosecution witness by an intermediary.

e. That he sought via the intermediary to encourage the witness to give false evidence or not give evidence.

f. That he sought via the intermediary to convey a threat of harm to the witness if the witness gave truthful evidence against him.

g. That he did the said acts whilst in prison.”

98. The coincidence evidence is particularised in the same way.

99. The Crown case against the accused relies on letters allegedly written by Reynold Glover, who was in custody with the accused at the High Risk Management Correctional Centre (“HRMCC”) at Goulburn and with whom the accused was permitted to associate. One letter was addressed to [name] and was dated 12 April 2015. A second letter was addressed to [name] and was dated 25 January 2016. The first letter suggests that the accused would pay money to the recipient’s brother to give false evidence and the second exhorts the recipient to talk to “his brother” and “tell him to please not show up”. The recipient of the letters is the brother of the person known in this trial at Witness A. There is also a letter from Mr Glover to a Lawrence Bamblett asking Mr Bamblett to “…write to [name]…for our little mate…ask him to pull his older brother up…” Evidence from DNA, fingerprint and handwriting experts links the letters to Mr Glover.

100. There is no direct evidence against the accused implicating him in a joint criminal enterprise to do an act with intent to pervert the course of justice. The case against the accused is circumstantial, relying on the association between Mr Glover and the accused at the HRMCC, the contents of the letters, and the fact that the accused was the only person at the HRMCC with access to the brief of evidence in this matter. The evidence of a forensic document examiner is that there are latent unsourced impressions on the letters, including the words “Max Mozzill” [sic] and “Anthony’s wife”.

101. Although the Crown served a folder of evidence to be relied upon that only contained 18 witness statements, Mr Heliotis indicated that the brief that was served on Mr Kyriacou in February 2017 comprised 2,800 pages. An issue was raised as to how much of that brief of evidence would need to be adduced in this trial if I permitted it to be used as tendency or coincidence evidence. The case involves expert evidence linking the accused to the offences and is of some complexity. There was also an issue of the relevant standard of proof in respect of that evidence in this trial, given that the accused’s trial for the public justice offences is pending.

102. During the pre-trial argument on 9 October 2017, Mr Heliotis indicated that the accused was seeking to obtain his own expert to contradict the expert evidence of the forensic document examiner upon which the Crown relies. That witness gave evidence at Mr Glover’s committal. I was informed that he expressed some doubts as to the significance of his findings. It was submitted that this evidence could add up to a week to this trial if it were permitted to be adduced.

103. The second pre-trial issue was whether the Crown Prosecutor should be permitted to read the evidence that the accused gave at the first trial in the Crown case at the re-trial. I have read the accused’s evidence. It occupies 865 pages of transcript and proceeded over 6 days. The accused was required during his cross-examination to read certain documents and to listen to certain intercepts. It seems to me that it would take two to three days for his evidencd to be read at any trial. After the application was made, written submissions were filed in support in which the Crown relied upon, inter alia, what was said by the High Court in Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 at 295 [88] and Stewart v The King (1921) 29 CLR 234 at 240-241 as to the admissibility in a subsequent trial of admissions made by an accused person in a previous trial.

104. After these submissions were filed, Mr Heliotis placed on the record that the accused would be giving evidence again at the second trial. When I enquired of the Crown whether that changed his position regarding the need to tender the accused’s evidence at the new trial, he submitted that it was irrelevant to his application. It seems to me that it is of some relevance. The difficulty is that if new counsel is briefed, he or she might advise the accused differently, with the result that the accused does not give evidence at the next trial. The issue accordingly was postponed until new counsel is briefed to appear on behalf of the accused.

105. Third, a Basha-type inquiry was foreshadowed in relation to Witness E and a solicitor, Christopher Ford. Mr Heliotis indicated that the cross-examination of these witnesses would be extensive and would add another week to the trial.

106. Fourth, it was initially foreshadowed at the mention on 20 September 2017 that there would be a need for Basha inquiries in relation to the evidence of Mr Hudson and Mr Dunn. By 3 October 2017, it became clear that statements had not as yet been obtained from those witnesses and that they would not be obtained for two or three weeks. It was the position of the Crown that the trial could commence before those statements were obtained and that those witnesses could be examined in the absence of the jury prior to giving their evidence.

107. Fifth, the Crown Prosecutor had foreshadowed at the mention that there may be a need for legal argument in relation to the admissibility of evidence of telephone calls received by the deceased prior to giving evidence at committal and of evidence derivative from the evidence of undercover officer “George”. He also indicated that there would be an application in relation to certain telephone calls adduced in the first trial on the request of another co-accused.

108. Sixth, Mr Heliotis raised the question of the incontrovertibility of the verdicts in relation to the involvement of Christine Saliba and Anthony Saliba. The Crown case was that they were involved in the planning of the murder, yet they have both been acquitted, Christine Saliba by direction and Anthony Saliba by the jury. It was foreshadowed that, prior to the Crown opening, legal argument as to how much of that evidence from the last trial would be admissible at this trial, and on what basis, was required.

109. After Mr Heliotis and Mr Djemal withdrew, they indicated that they could remain in the matter to assist the Court with some of these pre-trial matters. It was agreed that the questions of the admissibility of the tendency and coincidence evidence, as well as the Crown’s application to read all of the evidence given by the accused at the first trial, could be dealt with by Mr Heliotis and Mr Djemal on, effectively, an amicus basis. I stood over consideration of those matters until Monday, 9 October 2017.

110. When court resumed on 9 October 2017, it became clear that the complexity of the pre-trial issues was such that Mr Heliotis and Mr Djemal did not consider it appropriate to bind subsequent counsel in relation to them in circumstances where neither was remaining in the matter. It also became apparent that the matters may need to be argued a second time if the facts upon which the decision was made changed. There was therefore no saving of Court time to deal with them at this stage and in circumstances where new counsel may make different forensic decisions next year.

The estimate of the length of the trial is revised

111. On 3 October 2017, I indicated to counsel at the outset that the estimate was for a six-week re-trial and that I only had capacity to preside over it for seven weeks before I was to commence another trial on 20 November 2017. I enquired whether counsel were of the view that it could be finished in that time. Neither counsel was of the view that the matter could conclude within seven weeks.

112. Mr Heliotis’ position was that, from the accused’s perspective, it was crucial that the trial finish this year. He submitted that, had I been available, he was going to press for the trial to continue until it finished. He stated that, “…even if a verdict could not be reached before Christmas, we were going to ask your Honour to sit on into January so that we could try and finish this trial in January.” He indicated that he was unavailable from February 2018 until late in the year and thus he could not remain in the matter after that time.

113. The Crown Prosecutor submitted that the matter should proceed and that the time estimate had increased because of additional evidence served, but that the pre-trial issues such as the tendency and coincidence evidence could be resolved “reasonably quickly”. He noted that the evidence of Mr Hudson was still outstanding, but submitted that the trial could commence without that evidence. He submitted that he had prepared written submissions to shorten the pre-trial arguments. He thought that the trial could be finalised in eight weeks.

114. On the following day, 4 October 2017, I indicated to the parties that I had overnight made approaches to the Criminal List Judge and that there was a possibility that ten weeks could be allocated. This would require all pre-trial rulings, the trial and deliberations to be finished within slightly over ten weeks. I invited counsel to confirm that the trial could in fact finish before the end of term.

115. I interpolate that it was at this stage that Mr Heliotis foreshadowed that he and Mr Djemal may be withdrawing from the matter, but he submitted that, in any event, he was not in a position to give the Court any assurances that all of the pre-trial arguments, the trial and deliberations could finish within that approximately ten week estimate.

116. After Mr Djemal indicated that he would be withdrawing from the matter, the Crown Prosecutor submitted that Mr Heliotis ought to continue on without Mr Djemal and that new junior counsel could be obtained. He submitted that the trial could commence immediately and that new junior counsel could come into the trial in a few weeks after he or she had had the opportunity to read the relevant material. The Crown Prosecutor said he could call less contentious witnesses at the start of the trial to give the new junior counsel time to familiarise him or herself with the brief of evidence.

117. I informed Mr Heliotis at that time that I would allow the accused a two-week adjournment to obtain new junior counsel. It became apparent that, if this were to occur, the trial could not finish this year given the estimates provided to me.

118. It was at this time that I indicated that the trial date for this year would have to be vacated and a new trail fixed on the first available date in 2018.

Relevant legal principles

119. Before turning to consider whether this trial should be temporarily stayed, it is pertinent to have regard to the relevant principles governing applications of this nature. The parties were in agreement as to the following.

120. The circumstances of this case do not fall within the scope of either the Costs in Criminal Cases Act1967 (NSW) or the Suitors Fund Act 1951 (NSW). Nor is there is there any common law power to award costs in criminal cases. There is, however, a line of authority commencing with the decision of the Court of Criminal Appeal (“CCA”) in R v Mosely (1992) 28 NSWLR 735 for the proposition that a court exercising criminal jurisdiction may in appropriate circumstances order a temporary stay of proceedings until such time as the Crown has paid the accused’s reasonable costs “thrown away” in the proceedings.

121. R v Mosely was an appeal by the DPP in relation to a costs order made by the District Court against the prosecution following a successful adjournment application by the Crown. The adjournment was sought because two police witnesses were unable to attend court to give evidence when they were diverted to other duties. The CCA (Gleeson CJ, with whom Kirby P and Mahoney JA agreed) overturned the costs order on the basis that the District Court, an inferior court with only the powers afford to it by statute, had no power to grant costs. Despite this, it was held that the CCA could stay the criminal proceedings until the costs thrown away by reason of the adjournment were paid by the Crown. As Gleeson CJ observed, the adjournment in that matter had “…caused unfair prejudice to the respondent unless the respondent could by some means be given protection in respect of costs” (at 740-741).

122. The decision in R v Mosely has been followed by the CCA in a number of subsequent matters, usually when the Crown seeks the indulgence of the court in the form of an adjournment.

123. In R v Seebag (unreported, Court of Criminal Appeal, 16 February 1993), the DPP appealed against a decision that as a condition of the grant of a Crown adjournment application the DPP was required to pay the accused’s reasonable costs of the day. James J (with whom Hunt CJ at CL and Smart J agreed) relied upon the decision in R v Mosely and concluded that the orders could not stand as there was no power for the trial judge to order that the Crown pay costs. Despite this, the CCA considered that it should make a similar order to that made in R v Mosely.

124. In R v Bucksath (2000) 114 A Crim R 1; [2000] NSWCCA 135, the Crown Prosecutor sought an adjournment on the first day of a trial. The application was opposed by the accused because he was ready to proceed and had incurred substantial legal costs that would be thrown away if the trial were adjourned. The trial judge stayed the proceedings conditional on the Crown paying costs on an indemnity basis. The basis for the order was said to be “the abuse of process” involved. The CCA (Stein JA, with whom Dunford and Simpson JJ agreed) held that indemnity costs should not have been ordered to be paid on an indemnity basis and that not all of the costs ordered were relevantly “thrown away”. It varied the stay order accordingly.

119. More recently in R v Carbone (No. 2) [2017] NSWSC 346, the Crown sought an adjournment of a murder trial due to the unavailability of a witness. Although the Crown agreed to pay the accused’s costs thrown away, there was a dispute before Davies J as to what that amount entailed. His Honour was of the view that reasonable costs thrown away in that matter included the two-week cancellation fee charged by senior counsel, but not a cancellation fee charged by the solicitor.

120. The decision in R v Fisher (2003) 56 NSWLR 625 was an application for leave to appeal against an interlocutory decision of the District Court refusing to grant a stay of proceedings in respect of the prosecution of a re-trial. There had been no application for an adjournment by the Crown in that matter. Rather, the trial judge had discharged the jury over defence objection when it was revealed that there had been relevant non-disclosure by the investigating authorities. The CCA (Santow JA, Simpson J (as her Honour then was) and Smart J) upheld the appeal and granted the stay until such time as the accused’s wasted costs were paid by the Crown.

121. In that case, the accused had been charged with offences against the Corporations Law and s 178BB of the Crimes Act 1900 (NSW). The jury at his first trial was discharged after six days due to the ill-health of two jurors and of the accused. He received a certificate under the Suitors Fund Act at that time. Three weeks into his second trial, and after counsel had made their closing addresses, a file was located that had earlier been subpoenaed and not produced. The trial judge formed the view that the trial could not fairly continue and he discharged the jury over the opposition of the accused. His parents had funded his previous trials and their resources were exhausted. By the time of the appeal to the CCA, the accused had received a grant of legal aid to defend the charges at the third trial

122. As Simpson J observed in R v Fisher at [42], the relevant unfairness in R v Moseley was that perceived by the trial judge in relation to the burden of costs that had been cast upon the accused by reason of the Crown’s conduct. Simpson J noted (at [45]) that, unlike in R v Mosely, R v Seebag and R v Bucksath, the Crown was not seeking an indulgence. Her Honour considered this factor to be “of some importance” but not determinative. Her Honour went on to observe that:

“It is not here necessary for the Crown to make any application other than, through the usual processes, to have the matter listed for trial. Nevertheless, the court retains a power to control its own processes, and to prevent their being used unfairly. It was unfairness that moved Gleeson CJ to propose the orders he did in Mosely.”

129. Her Honour went on to conclude that what her Honour referred to as a “Mosely order” should be made in this case. She observed at [47]:

“The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these unusual circumstances, fairness demands that he retain the opportunity of having the representation of his choice.”

130. Santow J, who agreed with Simpson J, observed at [7]:

“The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness. But to abort a second re-trial in the circumstances of the present prosecution by reason of the Crown’s own failure to produce a document, even accepting inadvertence, and then ignore the consequence for the defendant in further wasted costs in so proceeding to a third trial, is unjust and unfair, meriting the description of exceptional circumstances.”

131. In Petroulias v R [2007] NSWCCA 154, the accused’s first trial resulted in the jury being discharged as they were unable to agree. His second trial had to be aborted when it was discovered that one of the jurors was ineligible to be a juror. In addition, the accused had raised $785,000 to fund his second trial, but the Australian Taxation Office had effectively frozen those funds. The accused sought a temporary stay of the third trial until the Crown paid him the reasonable costs that he had incurred in the third trial. The trial judge refused that application. The accused then sought leave to appeal to the CCA against that decision. His application was refused.

132. Justice Ipp in Petroulias v R, with whom Latham and Fullerton JJ agreed, considered the decisions of the CCA in R v Mosely and R v Fisher and observed (at 306 [23]):

“The authorities to which I have referred establish that the power of the court to grant a stay, permanently or temporarily, stems from the court’s power to prevent injustice or unfairness in the trial in a case where a temporary stay is sought, subject to the prosecution paying costs. In my opinion, practically speaking, unfairness cannot be established without proof of fault on the part of the prosecution.”

133. As no proof of fault on the part of the prosecution was established in that case, the appeal failed.

134. Justice Fullerton relied upon the above passage in Petroulias v R in R v Selim, where her Honour observed at [51]:

“In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that ‘practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution.’”

135. In R v Curtis [2014] NSWSC 1582, the Commonwealth DPP sought an adjournment of a trial for reasons including that an interlocutory appeal was pending. Davies J was not satisfied, at [48], that any actions or omissions on the part of the prosecuting authorities were unconscionable or unfair that resulted in the accused throwing away costs by reason of the trial date being vacated. His Honour cited the relevant principles at [24] – [27] as follows:

“Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made: Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 557; R v Mosely (1992) 28 NSWLR 735 at 738. Section 17 of the Criminal Appeal Act 1912 (NSW) may be taken to reflect the general rule: R v Mosely at 739.

Nevertheless, there are procedural ways around the problem. An adjournment might be granted if a party agrees to pay the costs or undertakes to do so with the result that any remedy would be in contract: R v Mosely at 738. A similar way of achieving the same result is for the criminal proceedings to be stayed until a costs order is paid. It would be appropriate to do this where there is fundamental unfairness in permitting the Crown to proceed to trial where the costs have been incurred by the Crown's fault of a relatively serious kind: Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at 2 and [46]-[47].

It is necessary, however, to point to some fault on the part of the prosecution. Unfairness cannot be established without proof of fault: Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302 at [25]; R v Selim [2007] NSWSC 154. The power to stay proceedings in circumstances such as for the payment of costs is only to be exercised in the most exceptional of circumstances: Petroulias at [17].

It seems to me, therefore, that if some delinquency, unconscionability or unfairness on the Crown's part can be demonstrated the Court in the control over its own processes would have the power to stay the trial until such time as the costs are paid."

136. In R v Michael John Issakidis [2015] NSWSC 834, it became apparent 55 days into a trial that the Crown had failed to disclose certain material. There was no suggestion that the non-disclosure was intentional. Beech-Jones J referred to the above decision and observed at [81]:

“While the existence of fault is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness…”

137. His Honour went on to order that the trial be stayed until the Commonwealth DPP paid $624,000.00 to the accused.

138. More recently, in [Decision Restricted] [2017] NSWCCA 27, Hoeben CJ at CL (with whom Latham and Price JJ agreed) cited the observations of Davies J in R v Curtis at [24] - [27] and went on to observe at [150]:

“On my reading of the authorities, more than simple fault on the part of the prosecution is required before a court should make an order of the kind under consideration. On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious. It would be sufficient in my opinion if the fault were of a serious kind.”

The submissions of the accused

139. At the hearing of the motion on 9 October 2017, Mr Heliotis had refined his position as to why it was the Crown’s fault that the matter could not proceed. His final position was this: given that this is a re-trial, the Crown ought to have turned its mind to whether the estimate of the trial was in fact six weeks and whether there were in fact any pre-trial issues prior to fixing the matter for trial. If there were to be a change in estimate, that should have been brought to the Court’s attention much earlier than a few weeks before the trial. Mr Heliotis submitted that the trial was estimated at six weeks on the basis that there were no pre-trial issues and that it would run in the same way as at the first trial.

140. He submitted that the question of the fault of the Crown turns on the timing of the service of the additional material.

141. He further submitted that, although the defence was provided with a summary of the accused’s July 2011 gaol calls during the previous trial, it was police, not the accused legal representatives, who had access to all of the calls themselves.

142. It was submitted that no difficulties arose with Mr Djemal appearing at the first trial and that, when that trial was over, no effort was made on behalf of the Crown to interview him. Not only was no objection made to his appearing in the re-trial, the ODPP wrote to Mr Djemal to confirm that he would be appearing and Mr Djemal appeared at the mention before Johnson J on 2 September 2016. The Crown did not raise any issue as to his remaining in the matter at that time.

143. What was clear following the last trial, it was submitted, was that Mr Hudson and Mr Dunn were potential witness at the new trial. No attempt was made until late August 2017, over a year after the first jury was discharged, to obtain statements from them. This is consistent with the Crown’s not turning its mind to this issue until that time.

144. It was submitted that, as at 8 September 2017, there was no further funding to retain experienced junior counsel to absorb all of the brief of evidence and the transcript of the first trial itself. That would be necessary before junior counsel would be in a position to assist senior counsel. Mr Heliotis submitted that he and Mr Djemal had put preparation of the trial to one side so that counsel could consider the new material and pre-trial applications. It was submitted that, as at that date, they had given consideration to whether Mr Djemal should withdraw but determined that this would create an injustice to the accused. In short, there was neither sufficient funding nor time to brief new junior counsel once the Crown had served the Further Amended Crown Case Statement.

145. As for the tardiness in obtaining the statements of Mr Hudson and Mr Dunn QC, Mr Heliotis submitted that the Crown should not be permitted to hide behind the fact that the accused’s solicitor had not expressly advised the Crown that legal professional privilege had been waived because it was so obvious that it had. In fact, M Adams J had observed as much after the accused had finished his evidence at the first trial.

The submissions on behalf of the Crown

146. The Crown Prosecutor relied upon the fact that the Crown was ready to proceed to trial and had made no application for an adjournment. He submitted that it was in effect the accused who sought an adjournment based on Mr Djemal withdrawing from the matter. It was accepted that the trial should not proceed until the accused had the opportunity to obtain new counsel, but that a new trial should be able to commence from February 2018.

147. It was submitted that Mr Heliotis should not have withdrawn and should have proceeded to appear as he already was familiar with the matter, having appeared at the first trial. The briefing of new junior counsel could have occurred without prejudice to the accused whilst the trial proceeded. It was submitted that it was because Mr Heliotis refused to do this that the trial cannot proceed this year,

148. The Crown Prosecutor submitted that that the defence suggestion that the Crown has in some way caused the adjournment is without foundation and that there is certainly no fault of such seriousness as to justify a stay of proceedings

149. It was submitted that the Crown has acted properly in disclosing its case to the defence by the service of additional material and has clearly identified the case that it seeks to prove against the accused. The service of the Further Amended Crown Case Statement on 8 September 2017 clearly indicated that Mr Djemal was potentially a witness in this matter. The Crown Prosecutor submitted that this was done in advance of the trial and that the defence had sufficient time to comprehend the additional material and the basis of the Crown case.

150. It was submitted that, by serving the additional gaol calls in July 2017, the Crown put the defence on notice from that time that there was evidence that contradicted the accused’s evidence at the last trial and that involved his previous legal representatives, including Mr Djemal. The Crown Prosecutor also raised the fact that Mr Djemal was a potential witness at the 20 September 2017 mention. The transcript records that Mr Djemal was aware at that time that he was at risk of being a witness and that he indicated that he would need to take advice on his position

151. It was submitted that the Crown could not have subpoenaed Mr Djemal without a statement setting out the evidence that he would give and that he has not made such a statement. The Crown Prosecutor submitted that, if he had sought to subpoena Mr Djemal, it would have been seen by the Court as an attempt to remove him from the proceedings and would have been perceived as an improper interference with defence representation. This would have required an application similar to that in R v Khazaal [2006] NSWSC 1353. The Crown would have had to establish that no other remedy was available when the Crown had offered another remedy; namely, that Mr Djemal either withdraw and be called in the Crown case or be called without objection in the defence case.

152. It was submitted that Mr Djemal should have come to the realisation that he should withdraw from the matter if not after the first trial, then at the latest after he received the further gaol calls in July 2017. The Crown Prosecutor submitted that the Crown was not responsible for Mr Djemal’s failure to appreciate his ethical problem because of lack of adequate notice.

153. Finally, it was submitted that the Crown took all possible steps to ensure that the trial could be heard this year, including preparing written submissions in advance of the trial. It did not obtain a statement from Mr Hudson or Mr Dunn before the trial was due to commence because there had never been any formal indication from the accused’s solicitor that the accused had waived legal professional privilege.

Consideration

154. The court has no general power to award costs in criminal cases. There are limited statutory exceptions to the general rule that do not arise in this case. It is a generally accepted feature of the criminal justice system that an accused person who privately funds his or her defence may incur considerable costs at various stages of the process for which there is usually no recompense. An accused person may be tried more than once because a jury cannot agree, or a trial is aborted, or a new trial is ordered following a successful appeal. None of these circumstances would give rise to the relief sought in this application. Similarly, if a person expends significant funds on defending charges and is then acquitted, there is no avenue for having those legal costs reimbursed unless the high test in the Costs in Criminal Cases Act can be met.

155. In the usual course of events, there is no avenue to recover the additional costs incurred if the Crown serves further material that has the effect of lengthening the trial. The remedy for any prejudice caused by late service is usually a brief adjournment. In a similar vein, if the Crown case is of some complexity, the fact that a need for pre-trial rulings causes the trial estimate to increase does not create any entitlement for the additional costs incurred to be paid by the Crown.

156. It is only in the exceptional circumstances contemplated in R v Mosely and the cases that have followed it that any obligation for the Crown to pay an accused’s costs thrown away by reason either of a trial not proceeding on a given date or being aborted can arise. It is only if the Court considers that the conduct of the Crown has caused unfairness that it may temporarily stay a trial until such costs are paid. For this reason, the question of fault on the part of the Crown is critical to this application. It is insufficient that an accused person establishes unfairness without also being able to identify the conduct of the Crown that has caused that unfairness.

157. Having regard to the circumstances of this case, I am satisfied that the accused has suffered unfairness arising from his 3 October 2017 trial being vacated. The evidence of Mr Kyriacou is that the accused privately funded his first trial, which ran for 17 weeks, then only had funds to brief senior and junior counsel for a second trial of up to eight weeks. Particular arrangements were made by his legal team to accommodate this. The funding of his defence at the re-trial was raised by Mr Djemal before Johnson J on 2 September 2016. His second trial is now not capable of concluding this year. He has indicated through his solicitor that he no longer has the resources to fund senior and junior counsel at his re-trial because of the costs thrown away by reason of the 3 October 2017 trial not proceeding.

158. In order to grant the relief sought, I must be satisfied that this unfairness can be attributed to the Crown. From an analysis of the decisions referred to above, it is apparent that all of the successful applications for a temporary stay of this nature concerned either the Crown seeking the indulgence of an adjournment or the Crown’s failure to disclose material that subsequently led to the discharge of the jury and the need for a new trial. That is not to say that the categories of case in which a temporary stay could be granted on the basis of unfairness are closed, but the absence of like cases has meant that it is necessary to closely examine the circumstances in which this trial date was vacated in order properly to assess the question of fault.

159. Three decisions in which the Court did not find fault on the part of the Crown were [Decision Restricted], R v Curtis and Petroulias v R. Those decisions turn on their own facts, but I have been assisted by the principles derived from them. They confirm not only that fault on the part of the Crown need be established, but also that that such fault must at least be serious. In [Decision Restricted], Hoeben CJ at CL (with whom Latham and Price JJ agreed) described the relevant fault required (at [150]) as “more than simple fault on the part of the prosecution”, but stated that the authorities do not “unequivocally” say that the fault must be “flagrant or egregious”. It was held in that case that it would be sufficient if the fault “were of a serious kind”.

154. The imposition of a requirement by the court to pay costs is not meant to be punitive. The question that I am asked to consider is not whether the Crown should be penalised in any way for its conduct but whether by its conduct the accused has suffered an unfairness such that his next trial should not proceed until that unfairness has been addressed.

155. The reason that I vacated the 3 October 2017 trial date was because it was clear that the trial could not be finalised this year for a number of reasons, including the revised estimate of its length given the service of the additional material, the need for pre-trial applications and because, after Mr Djemal withdrew, the only way in which the matter could have proceeded this year was if the accused were given a short adjournment to obtain new junior counsel. If that were to occur, the trial, including the pre-trial arguments, could not finish this year.

156. The question is whether, having regard to the combination of these factors, the accused can establish that the unfairness caused by the trial date being vacated was the fault of the Crown, being fault of a serious kind.

157. The position of the Crown was that no fault can be attributed to it such as would warrant the temporary stay of the trial in this matter. In essence, the Crown’s position can be distilled to four propositions: first, the reason the trial did not start was because Mr Djemal withdrew from the matter too late; second, Mr Heliotis should have been able to appear at the trial without junior counsel; third, the service of all of the additional material in the period from July to September 2017 gave the accused’s legal representatives time to be ready for trial; fourth, the Crown was ready for the trial to proceed.

158. I have given careful consideration to these four submissions. Dealing with the last one first, I am satisfied that the Crown Prosecutor was at all times keen for the trial to commence, even if it ran through Christmas. I reject Mr Heliotis’ submission in this regard that I would be satisfied that in fact the Crown wanted to adjourn the trial but refused to make an adjournment application because of the potential costs implications.

159. The fundamental difficulty that I have with the Crown’s reliance on its remaining three propositions to disavow fault is that they can all be answered by this simple proposition: if the Crown had adhered to the position that it took before Johnson J on 2 September 2016, and from which it did not derogate on 2 December 2016, there would have been no need for the trial date to be vacated. The position of the Crown as at 2 September 2016 is significant in four respects. I have summarised what occurred on that date above at [42]-[50] but, in short, the Crown’s position on the record as at that date was:

1. The estimate of the new trial was 6 weeks.

2. The Crown was prepared to agree to a lengthy adjournment of 13 months so that the same counsel could remain in the matter

3. There would be no further pre-trial issues.

4. There would be no further evidence served.

166. The transcript of the proceedings on 2 September 2016 records that Johnson J was only prepared to list the re-trial on a date 13 months hence because the Crown agreed that the same counsel should be in the matter to facilitate the shortening of the trial.

167. The matter was then adjourned for three months until 2 December 2016, at which time these matters were confirmed. At that time a proposed Amended Crown Case Statement was filed in court that was confined to the facts adduced at the first trial. Johnson J made non-standard case management orders on that day including that the Notice of Prosecution Case be filed and served on or before 10 February 2017.

168. It is significant that, before confirming the trial date and estimate at that time, Johnson J stated “But I take it that the pre-trial issues have been well and truly sorted out at the earlier trial.” When Mr Kyriacou agreed that that was the case, the trial date was confirmed.

169. A Notice of Prosecution Case was subsequently filed and served on 15 February 2017. That notice states that all statements and documents to be relied upon by the prosecution at that time had been served previously as part of the brief of evidence, with the material itemised in the brief index previously provided. It further indicates that all relevant material had been disclosed and that the prosecution was not aware of “any information, document or other thing that can reasonably be regarded as relevant”.

170. It is to be noted that the Crown Prosecutor who appeared at the first trial and before me on this application was not the Crown Prosecutor who appeared before Johnson J on either of 2 September 2016 or 2 December 2016. There is no suggestion that the Court was deliberately misled on those occasions. As I observe further below, I am satisfied that the question of what evidence might be led at the re-trial was simply not considered by the Crown at that time. Despite this, the actions of those who represented the Crown before Johnson J on these two occasions led the Court and the accused to proceed on the basis that this was to be a six-week trial with the same legal representation as at the first trial and that there would be no new pre-trial issues.

171. The Crown was thus afforded three opportunities during the seven month period from the discharge of the jury on 5 August 2016 until the filing of its Notice of Prosecution case for the re-trial on 15 February 2017 to indicate whether there would be any change to the Crown case. At no time was any such change indicated. It was not until late July 2017 that the additional material summarised above at [57]-[66] began to be served on the accused’s solicitor. No application was made at that time to have the matter re-listed. It was not until the Court listed the matter for mention on 20 September 2017 to confirm the six-week trial date that it was made aware of any difficulties

172. From 2 September 2016 until late July 2017, the accused’s legal representatives proceeded on the basis that the Crown’s position was as disclosed at the mention on 2 September 2017. To the extent that it is relevant, so did the Court. When extensive further material was served on the defence commencing from late July 2017 up until days before the trial was due to commence, it not only meant that the length of the trial was increased but also that considerable additional preparation time was required by the defence team that had not been anticipated or accounted for.

173. I am satisfied that the change to the Crown case should have been raised at a much earlier time and the matter re-listed once it was apparent that there were pre-trial issues to be ventilated. Ideally, that should have occurred in the period of three months between 2 September 2016 when the trial estimate of six weeks was fixed and 2 December 2016 when that estimate was confirmed. Instead, nothing appears to have occurred during that period.

174. It is of no little significance that among the additional material served in the months leading up to the trial were the transcripts of gaol calls between the accused and others mentioning Mr Djemal by name and, on their face, inconsistent with the defence run by the accused at the first trial (that is, that he never intended to defend his drug charges). These calls recorded the accused recounting to other people that he had told his lawyers, including “Avni”, that he would not be pleading guilty or accepting any deal in relation to his drug charges.

175. I am satisfied that, had the Crown filed the Further Amended Crown Case Statement dated 8 September 2017 before Johnson J on 2 December 2016 instead of the version that it filed at that time, the difficulties identified in this matter before me on 3 October 2017 could have been resolved at a much earlier point in time and the trial date would have been preserved. Although the trial date was vacated due to a number of interconnected factors, these factors all arise from the late change in the Crown’s position as to the scope and length of the Crown case between 2 September 2017 and 8 September 2017, over a year later.

176. It seems it me that I am not required to make any finding as to if or when Mr Djemal should have withdrawn from the matter to determine this application. The extent to which the Crown relies on this as an answer to this application is answered by the fundamental proposition I have already identified: had the Crown filed the 8 September 2017 Further Amended Crown Case Statement (which refers to Mr Djemal by name in the gaol calls) in court on 2 December 2016 rather than the earlier version it filed on that occasion the difficulties faced by defence counsel in the weeks leading up to the trial could have been identified nearly a year earlier.

177. There is no doubt that Mr Djemal’s involvement in the first trial involved some delicacy after Mr Heliotis withdrew from it. Despite this, the trial was able to proceed until such time as the jury was discharged without Mr Djemal finding himself in any obvious difficulty. Although the Crown Prosecutor expressed some concern about Mr Djemal adducing certain evidence from the accused during the first trial, he did not cross-examine the accused about any of the relevant July 2011 gaol calls at the first trial. The defence was first made aware that a different approach may well be taken at the re-trial no earlier than 24 August 2017.

178. No doubt Mr Djemal’s continuing involvement in the matter after the first trial was dependent, at least in part, upon the Crown case being run in the same way as it had at the first trial. Clearly, that was a matter for Mr Djemal to determine for himself, but presumably one of the matters to which he would have had regard was the case that the Crown proposed to present at the re-trial. It is in that context that the change in the Crown’s position between 2 September 2016 and 8 September 2017 is significant. Despite any concern raised by the Crown during the first trial regarding Mr Djemal appearing in this matter, not only was no opposition raised in this regard after the jury was discharged, a lengthy adjournment was agreed to so that the same counsel could remain in this matter for the re-trial.

179. The Crown Prosecutor informed the Court on 3 October 2017 that he had a duty to place on the record that Mr Djemal was a potential witness in this matter, as foreshadowed in the 29 September 2017 letter. It is of some significance that no such duty was thought to exist on the part of the Crown on 2 September 2016 when the question of prospective counsel in the re-trial was being considered. On the contrary, the retention of previous counsel was endorsed by the Crown.

180. Mr Heliotis informed the Court during the hearing of this application and in his written submissions that from 8 September 2017 (when the Further Amended Crown Case Statement was served) it became apparent to the defence team that, if Mr Djemal withdrew from the matter because of this development, the accused would be without counsel, given the conditional nature of Mr Heliotis’ retainer. It was submitted that by that late stage there was neither time nor funding to secure alternative junior counsel. Instead, a decision was made that it was in the accused’s interests for Mr Djemal to remain in the matter.

181. The Crown first raised concerns with the defence concerning Mr Djemal remaining in the matter in a telephone call on Wednesday, 27 September 2017, which was followed by the 29 September 2017 letter. Although some time was spent in submissions on 3 October 2017 addressing whether the Crown could or would call Mr Djemal as a witness while he remained as counsel in the trial (I have extracted those submissions above at [84]-[89]), that is not really the issue. Rather, the key issue is the timing of the Crown’s change in position from 2 September 2016, at which time the retention of the same counsel at the re-trial was expressly endorsed, until 8 September 2017 when a different position was taken.

182. Given the position taken by the Crown from 2 September 2016 that the same counsel should remain in the matter I am unable to accept the Crown submission that Mr Djemal should have withdrawn from the matter before it was listed for re-hearing. Even if I were to accept that he should have withdrawn from the matter on or around 8 September 2017 (a finding I do not believe I am required to make) it was too late by then in any event.

183. For these reasons, I reject the Crown submission that it played no part in the circumstances of Mr Djemal withdrawing from the matter so late in the proceedings.

184. The second matter relied upon by the Crown to disavow fault was the fact that Mr Heliotis sought and was granted leave to withdraw from the matter because he was not in a position to appear for the accused at the trial without junior counsel. He stated that he had not had sufficient preparation time to do so, given the nature of his retainer. I accepted that this was his stated position. Despite this, experienced senior counsel often appear in the criminal jurisdiction of this Court without the assistance of junior counsel. Mr Heliotis was not a stranger to the matter, having previously appeared in it for nine weeks at the first trial. Although I make no criticism of senior counsel in this regard, I accept that Mr Heliotis’ unpreparedness to continue to appear for the accused without a junior was a matter outside the control of the Crown. Even so, it is important to return to the nub of the complaint made by the accused which is this: had the Crown either adhered to its position before Johnson J on 2 September 2016 or filed the 8 September 2017 version of the Amended Crown Case Statement before Johnson J on 2 December 2016 any difficulty with Mr Heliotis’ retainer could also have been resolved in a timelier manner.

185. The third matter relied upon by the Crown in its defence of this application was an assertion that the additional material was served in sufficient time for the defence to absorb it and still be ready for the trial to commence. The change in the proposed Crown case needs to be viewed in the context that the first trial ran for 17 weeks resulting in over 5,000 pages of transcript. As Mr Djemal informed Johnson J on 2 September 2016, the bulk of evidence at the first trial was led against this accused, rather than his three co-accused. Mr Kyriacou’s evidence before me is that the brief of evidence in this matter is in excess of 14,000 pages. There are a number of “accomplice” witnesses. There are apparently 14 folders of subpoenaed material, hundreds of telephone calls, disclosure material, the committal transcript and the transcripts of the accused’s bail applications and sentence proceedings as well as the sentencing proceedings of other relevant co-accused.

186. The factual complexity of this matter is a further reason why I do not accept that the service of the additional material by the Crown in the lead up to the re-trial was done in a timely manner. In any event, the relevance of the timing is not confined to whether the accused’s legal representatives had sufficient time to comprehend the additional material, but also whether there were available funds for this to occur. The service of the additional material was yet another significant departure from what was represented to the court on 2 September 2016 and again on 2 December 2016 (in the Amended Crown Case statement filed that day); namely, that the Crown did not propose to rely ypon any additional evidence.

187. I have also had regard to other difficulties with the trial proceeding on 3 October 2017. It was foreshadowed before me on 20 September 2017 that it was anticipated that Mr Hudson and Mr Dunn may be called as witnesses in the trial. No statements had as yet been obtained from them. The Crown Prosecutor suggested that the trial could commence without those statements and the question of their evidence be addressed at the relevant time in the trial. The explanation for the delay in contacting those witnesses was said to be that it was not until Wednesday, 27 September 2017 that Mr Kyriacou wrote to the ODPP confirming that legal professional privilege had been waived.

188. Lengthy submissions were directed to the issue of when the Crown should have accepted that client legal privilege had clearly been waived by the accused at the first trial. Some of the background to this is extracted above at [38], [77] and [80]. It is not necessary for me to address this question in any detail here. I merely note that the issue of waiver was said to be outstanding at the mention before me on 20 September 2017. I received the Crown submissions on this issue the following week. Although it is to be accepted that legal professional privilege was clearly waived at the first trial having regard to the accused’s evidence, I do not consider it unreasonable for the Crown to require confirmation of that fact from the accused’s current solicitor before approaching the accused’s former solicitor and barrister. The question is why such confirmation was not sought at a much earlier time after the first trial. No explanation for this was advanced before me.

189. As outlined above at [109]-[110], an abortive attempt was made to deal with at least the question of the admissibility of the tendency and coincidence evidence on 9 October 2017 in order efficiently to use the Court’s time in this matter. One of the reasons that argument could not proceed was because Mr Heliotis suggested that the defence proposed to obtain expert evidence to challenge the evidence of the forensic document examiner.

190. I have not as yet considered the Crown’s application to adduce the additional evidence concerning the accused’s recent charges as either tendency or coincidence evidence material and it would not be appropriate to foreshadow any rulings that I might make. I note that the legal argument on this issue will no doubt take some days given the size of the brief in that matter. If I then ruled the evidence inadmissible there would be no impact on the length of the trial, but if I ultimately ruled that material to be admissible it would add at least another week to the trial. The Crown Prosecutor agreed with that estimate. In this regard, it is to be noted that the prospect that this evidence may be relevant to the re-trial was raised by the Crown Prosecutor before Johnson J on 2 September 2016 and his Honour was informed the situation would be clarified before 2 December 2016. At the further mention of the matter on 2 December 2016 an indictment containing one count of murder only was presented and there was no reference made at all to the s 319 charges in the Amended Crown Case Statement filed that day.

191. It is to be accepted that when a re-trial is to take place, the Crown is not confined to the evidence upon which it relied at the first trial. In Cornwell v The Queen, the majority (Gleeson CJ, Gummow, Heydon and Crennan J) observed (at 295 [88]):

“To conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial. The parties are at liberty to re-tender the evidence already tendered. They are also at liberty to tender other evidence.”

192. The conduct of the Crown which the accused relies upon to ground the relief sought in this matter is not the decision to adduce considerable additional material at the re-trial. Rather, it was the timing of its decision to do so, given what the Court and the accused had been told on 2 September 2016. The Court and the accused proceeded on that basis. If the Crown was to resile from its position, it was obliged to do so at a much earlier point in time, ideally in the three month period from when the trial date was fixed on 2 September 2016 until the matter came back for mention before Johnson J on 2 December 2016. If not then, at least by the time of filing the Notice of Prosecution Case on 15 February 2017.

192. Having regard to the particular circumstances of this case, I am satisfied that it was the significant delay on the part of the Crown in indicating to the Court and the accused the proposed changes to the scope and length of the Crown case at the re-trial that led to the trial date of 3 October 2017 being vacated. To put this another way, I am satisfied that it was the Crown’s fault this occurred and the fault is of a kind sufficiently serious such that it is appropriate to grant the relief sought.

193. I have already found the unfairness to the accused to be that I have identified above at [157]. I note further that although objection was taken to certain paragraphs of Mr Kyriacou’s third affidavit concerning the hearsay evidence of the accused’s financial circumstances, there was no objection made on behalf of the Crown to the accused’s characterisation of the relevant unfairness generally. The proposition advanced on behalf of the accused was that he had funding issues following his first trial such that certain arrangements had been made with his legal team to facilitate the funding of his re-trial. When the first trial ran for 17 weeks rather than the estimate of 8 weeks, Mr Heliotis had withdrawn from the trial leaving Mr Djemal unled. The difficulty with funding the re-trial was raised briefly before Johnson J by Mr Djemal on 2 September 2016 with no objection. It was not suggested on behalf of the Crown that the accused’s financial circumstances were such that no unfairness could result from him incurring the costs thrown away by the trial date being vacated. Rather, the focus of the Crown’s opposition to this application was addressed to the question of fault.

194. I note that in R v Fisher a temporary stay pending the payments of costs thrown away by the Crown was granted in circumstances where the costs thrown away had been paid by the accused’s parents and the accused was legally aided for his trial by the time of the hearing of that interlocutory appeal. It seems to me that it is no impediment to the establishment of unfairness on the part of the accused that there is currently no admissible evidence before me as to the precise source of the relevant funds, the accused’s financial circumstances generally, or whether he will be able to fund his trial even if the Crown was to pay its costs thrown away from 3 October 2017 trial being vacated.

195. Overall, I am satisfied that the accused has suffered unfairness in having to fund a further trial next year. I am also satisfied that this unfairness is the fault of the Crown of a sufficiently serious nature such as to warrant the trial being stayed until such time as the Crown pays the accused’s reasonable costs thrown away.

The terms of the order

197. Some general evidence was placed before me contained in Mr Kyriacou’s affidavits, without any amounts specified, as to the terms of the respective retainers and the wasted hours spent by the accused’s legal team preparing this matter for trial. On 17 October 2017, counsel agreed that a practical approach would be for the Court first to determine whether a temporary stay should be granted and then consider the amount of such costs in a separate judgment if need be. This was considered preferable to requiring the accused to provide detailed evidence as to the amounts involved in advance, which the Crown Prosecutor indicated would be disputed.

198. Having regard to the relevant authorities, I am satisfied that it is not necessary for me to have before me evidence of the quantum of the claimed wasted costs in order to make the order sought. Accordingly, I propose to deal with the appropriate amount of the costs payable separately after receiving further evidence and submissions from counsel.

199. I make this final observation. I accept that the Crown Prosecutor and those who instruct him are no doubt disappointed and frustrated that this trial could not proceed this year. Some of this frustration became apparent in Court at various times when this matter has been before me since 3 October 2017. I was informed that the Crown had 50 witnesses on standby, including a number of “rollover” witnesses. Investigating police have waited 13 months for this re-trial since the discharge of the jury in the last trial. The date was fixed in advance to suit the convenience of the accused’s counsel. I am mindful of all of these matters, of the Crown’s duty to proceed to trial in this matter, and of the resources that the Crown and police have no doubt expended in the previous months in order to prepare this matter for trial. Despite this, the recent additional evidence obtained by police could and should have been obtained at a much earlier time. Similarly, the forensic decisions as to how the re-trial was to proceed should have been made at an earlier time. If they had, the difficulties with starting the trial on 3 October 2017 could have been avoided.

orders

200. I make the following orders:

1. The trial date of 3 October is vacated.

2. The proceedings against Luke Sparos be stayed unless and until the Director of Public Prosecutions (NSW) pays to him his reasonable costs thrown away by the trial date of 3 October 2017 being vacated. The amount of costs payable will be determined by the court at a subsequent hearing.

**********

Decision last updated: 13 November 2019