R v Sparos (No 3)

[2018] NSWSC 307

Supreme Court

New South Wales

Medium Neutral Citation:

R v Sparos (No 3) [2018] NSWSC 307

Hearing dates:

8 March 2018

Date of orders:

13 March 2018

Decision date:

13 March 2018

Jurisdiction:

Common Law - Criminal

Before:

N Adams J

Decision:

(1) The civilian Crown witness who has provided a statement in these proceedings under the pseudonym “Witness E”, dated 31 August 2017 (“the witness”), be allocated the pseudonym “Witness E”.

 

(2) The witness be referred to by the said pseudonym during the course of these proceeding, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings, and for all other purposes of these proceedings.

 

(3) The order sought in Order 2 does not operate to prevent reference being made during the course of the proceedings to the true identity of the witness:

 

(a) for the purpose of determining any legal or procedural matter where the true identity of the witness is in issue;

 

(b) for the purpose of another witness in the proceedings identifying a person about whom he or she is giving evidence;

 

(c) for the purpose of the Court and/or the legal representatives of the Crown and the defence identifying the witness to any other witness in the proceedings; and

 

(d) as might otherwise be necessary for the proper conduct of the proceedings.

 

(4) The true identity of the witness be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (“the Act”), together with any evidence, submission, discussion, document or information that might facilitate identification of the true identity of the witness, on the following grounds:

 

(a) the order necessary to prevent prejudice to the proper administration of justice;

 

(b) the order is necessary to protect the safety of a person; and

 

(c) the order is otherwise necessary in the public interest.

 

(5) Without limiting the generality of the foregoing orders, any visual or other description or depiction of the physical appearance or other identifying feature of the witnesses be suppressed, until further order of the Court, pursuant to s 7 of the Act, on the grounds set out in Order 4(a), (b) and (c) above.

 

(6) Orders 4 and 5 are to apply throughout the Commonwealth of Australia, pursuant to section 11 of the Act.

 

(7) The Court be closed for the duration of the evidence of the witness in these proceedings.

 (8) The representative of the Commissioner and officers of the New South Wales Police Force shall have liberty to make arrangements with the court officers and Sheriff’s officers regarding entry to and exit from the courtroom by the witness.

Catchwords:

CRIMINAL LAW – procedure – suppression order

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW),ss 6, 7, 8

Cases Cited:

Attorney General v Kaddour [2001] NSWCCA 456
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

Category:

Procedural and other rulings

Parties:

Commissioner of Police (Applicant)
Luke Sparos (Accused)

Representation:

Counsel:
Mr R Grady (Applicant)
Self-represented (Accused)

File Number(s):

2014/196615

Judgment

Background

1. Luke Sparos is due to stand trial on 19 March 2018 for the murder of Gemahl Maika. This is the third time his matter has been listed for trial. His first trial commenced on 11 April 2016 before Adams J. The jury retired on 21 July 2016 but was unable to agree on a verdict and was discharged on 5 August 2016. A second trial was unable to proceed on 3 October 2017.

2. Before and during the first trial, a number of orders were made by his Honour under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Court Suppression Act”). Specifically, orders were made by consent that three witnesses give evidence under the pseudonyms of Witnesses A, B and C and that, inter alia, the court be closed for their evidence. Those orders are still on foot and will apply to the re-trial.

3. By notice of motion filed on 6 March 2018, the Commissioner of Police seeks orders of a similar nature in relation to a fourth witness who has provided a statement since the first trial. It is requested that he be known as Witness E in these proceedings. In support of the notice of motion is an open affidavit of Assistant Commissioner Malcolm Arthur Lanyon (“AC Lanyon”), sworn on 2 March 2018. As is common practice in applications such as this, the Commissioner also relied upon a confidential affidavit of AC Lanyon, sworn on the same date.

4. Although the open affidavit was provided by the Commissioner to the parties (the Crown Prosecutor and the accused), the confidential affidavit was provided to the Court only and on a confidential basis. The Crown Prosecutor did not seek to rely upon any evidence nor did the accused.

5. I note that, as at the time that this application was heard, the accused had recently withdrawn instructions from his legal representatives and was unrepresented. He stated that he understood the nature of the application and he had no opposition to the orders being made. He indicated that previous orders were made of a similar nature at his first trial and that they had likewise been consented to. I am satisfied that the accused understood the nature of the application and the implications of his consent to the orders. Counsel for the Commissioner informed the Court that the accused’s legal representatives at his first trial had had some input into the terms of the proposed orders regarding witnesses A, B and C and orders sought in relation to Witness E are in similar terms reflecting this.

6. The open affidavit briefly sets out the nature of the Crown case and the history of the prosecution, matters of which I was already aware given my previous involvement in this matter. Briefly, the accused was charged in 2007 with a number of other co-accused with the importation and supply of large commercial quantities of a prohibited drug and dealing with the proceeds of crime. Gemahl Maika, the deceased, had provided a number of statements against the accused and his co-accused. At the time of his death on 6 April 2011, the deceased was due to give evidence at the accused’s trial in May 2016. At that time, Mr Sparos was the only person with a pending trial out of all of the accused originally charged with the drug offences. The Crown case is that the accused organised for another man to shoot the deceased.

7. AC Lanyon states that concerns are held for the safety of Witness E, his family and acquaintances, if information about his true identity is disclosed during the trial. Further details with respect to the perceived risks to the witness are provided in the confidential affidavit. I am satisfied that it was appropriate to receive the confidential material so as to not defeat the protection that the Commissioner seeks to invoke: see Attorney General v Kaddour [2001] NSWCCA 456 at [20] (Sully J, with whom Spigelman CJ and Adams J agreed).

8. The power to make the orders sought is to be found in s 7 of the Court Suppression Act which provides that a court may, by making a suppression order or non-publication order on grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information that comprises, inter alia, “information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court…”.

9. The grounds upon which a suppression order or non-publication order may be made are set out in s 8(1) of the Court Suppression Act. Those grounds include, among other things, that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)), that the order is necessary to protect the safety of any person (s 8(1)(c)), and that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice (s 8(1)(e)).

10. Each of the grounds set out in s 8 of the Court Suppression Act imports a test of “necessity”. I have had regard to the statements of principle by Bathurst CJ in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] and of Basten JA at [46] and [48] as to the meaning of “necessity” in this statutory context.

11. In deciding whether to make a suppression order or a non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 of the Court Suppression Act. Although these orders were ultimately sought by consent, it is nonetheless necessary that I be satisfied that in making them, an appropriate balance is struck between the need to protect the safety of the witnesses, the need for a fair trial and principles of open justice.

12. Counsel for the Commissioner submitted that there would be no difficulty if the true name of Witness E was disclosed in open court; if the court was closed for his evidence and the transcript referred to him by way of pseudonym that would alleviate any concerns held by police.

13. I am satisfied that suitable directions could be given to the jury as to the reason why witness E is to give his evidence by way of a pseudonym that would minimise any potential prejudice to the accused. It is not unusual for witnesses to give evidence with a pseudonym and the courts have been able to craft directions to remove any prejudice associated with such a course being taken at a trial.

14. I am satisfied (based on the material in the confidential affidavit) that the concerns currently held by police have a proper basis and it is appropriate that I suppress the name of Witness E. Although there is a degree of overlap as between the relevant grounds in s 8(1), in the circumstances, I am satisfied that it is necessary to make the pseudonym orders sought on the grounds provided in 8(1)(a), (c) and (e) of the Court Suppression Act.

15. Turning specifically to the question of whether the court should be closed for the evidence of Witness E, I am satisfied that an order for a pseudonym and a non-publication or suppression order alone may not be sufficient to address the relevant concerns of police regarding the witness’s identity as persons could come into the courtroom and observe the physical appearance of the witness.

16. Finally, I have had regard to the potential prejudice that might arise by virtue of the fact that four witnesses are now giving their evidence under the names witnesses A, B, C and E respectively. I considered varying the order in relation to Witness E such as to give him a more “neutral” pseudonym such as, for example, Richard Brown. The difficulty with such a course being adopted is that Witnesses A, B and C have already given evidence under those pseudonyms and, apparently, documentation has already been edited to refer to them by those pseudonyms. It is a thus too late, in practical terms, for such a course to be adopted.

17. Based on the material before me, I am satisfied that the orders sought are appropriate.

ORders

18. I make orders as follows:

1. The civilian Crown witness who has provided a statement in these proceedings under the pseudonym “Witness E”, dated 31 August 2017 (“the witness”), be allocated the pseudonym “Witness E”.

2. The witness be referred to by the said pseudonym during the course of these proceeding, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings, and for all other purposes of these proceedings.

3. The order sought in Order 2 does not operate to prevent reference being made during the course of the proceedings to the true identity of the witness:

1. for the purpose of determining any legal or procedural matter where the true identity of the witness is in issue;

2. for the purpose of another witness in the proceedings identifying a person about whom he or she is giving evidence;

3. for the purpose of the Court and/or the legal representatives of the Crown and the defence identifying the witness to any other witness in the proceedings; and

4. as might otherwise be necessary for the proper conduct of the proceedings.

4. The true identity of the witness be suppressed until further order of the Court pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (“the Act”), together with any evidence, submission, discussion, document or information that might facilitate identification of the true identity of the witness, on the following grounds:

1. the order necessary to prevent prejudice to the proper administration of justice;

2. the order is necessary to protect the safety of a person; and

3. the order is otherwise necessary in the public interest.

5. Without limiting the generality of the foregoing Orders, any visual or other description or depiction of the physical appearance or other identifying feature of the witnesses be suppressed, until further order of the Court, pursuant to s 7 of the Act, on the grounds set out in Order 4(a), (b) and (c) above.

6. Orders 4 and 5 are to apply throughout the Commonwealth of Australia, pursuant to section 11 of the Act.

7. The Court be closed for the duration of the evidence of the witness in these proceedings.

8. The representative of the Commissioner and officers of the New South Wales Police Force shall have liberty to make arrangements with the court officers and Sheriff’s officers regarding entry to and exit from the courtroom by the witness.

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Decision last updated: 18 November 2019