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R v Sparos (No 1)

R v Sparos (No 1)

Case [2017] NSWSC 1410 20 October 2017

Stay of Proceedings

Costs

Unconscionable Conduct

Criminal Law

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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

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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Sparos (No 1)

Details

AGLC: R v Sparos (No 1) [2017] NSWSC 1410
Case: [2017] NSWSC 1410
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Sparos (No 1) involved a dispute regarding the circumstances surrounding the accused, Mr. Sparos, who had been charged with murder. The trial was vacated, and Mr. Sparos applied for a stay of the indictment until the Crown had paid the costs that he had previously incurred. The primary legal issue before the court was whether the circumstances necessitating the adjournment were attributable to the Crown, and whether the accused would suffer unfair prejudice if the stay was not granted.

The court considered the legal principles governing stays of proceedings due to financial circumstances and the responsibility for costs. The decision hinged on whether the Crown's actions or inactions had led to the situation where the accused could not afford to have his case heard. The court weighed the principle of fairness in the administration of justice against the Crown's duty to prosecute. Ultimately, the court found that the Crown's failure to pay the costs in a timely manner was a contributing factor to the necessity for the adjournment, and that the accused would indeed suffer significant unfairness if the stay was not granted.

As a result, the court determined that the application for a stay of the indictment should be allowed. This decision was based on the balance of fairness in the proceedings and the Crown's responsibility to ensure that the accused could adequately defend himself. The court's reasoning was grounded in the principles of justice and the need to prevent undue hardship on the accused. Consequently, the court ordered that the indictment be stayed until the Crown had fulfilled its obligation to pay the costs previously incurred by Mr. Sparos.

Orders