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Supreme Court 20 October 2017

R v Sparos (No 1)

[2017] NSWSC 1410

Homicide
CRIMINAL LAW MURDER TRIAL VACATED WHETHER UNFAIRNESS TO ACCUSED

Citation: R v Sparos (No 1) [2017] NSWSC 1410
Court: Supreme Court of New South Wales
Date: 20 October 2017
Judge(s): N Adams J

Background

The accused faced a murder charge arising from the alleged killing of a prosecution witness in pending drug proceedings. A first trial involving the accused and three co-accused ran for 17 weeks in 2016, ending in a hung jury on the accused's count. A new trial was fixed for 3 October 2017, with a six-week estimate.

When the re-trial came on, it became apparent that it could not be finalised that year. The difficulties arose from the Crown's late disclosure of additional evidence and delayed forensic decisions about how the re-trial would be conducted. The accused, who was privately funding his defence, moved for a temporary stay of the indictment until the Crown paid his costs thrown away by the vacated trial date.

The hearing of the stay application proceeded on 12 and 17 October 2017. Affidavit evidence was filed by both the Crown's solicitor and the accused's solicitor, and both parties provided written submissions. Most of the underlying facts were not in dispute; the central contest was whether fault for the adjournment lay with the Crown.

  • Whether the circumstances that caused the re-trial to be unable to proceed in 2017 were attributable to fault on the part of the Crown
  • Whether the resulting inability to proceed caused unfairness to the accused
  • Whether those findings justified granting a temporary stay of the indictment, conditional on the Crown paying the accused's costs thrown away
  • Whether the quantum of those costs needed to be established before any stay order could be made

Decision

Adams J found that the recent additional evidence obtained by police could and should have been obtained at a much earlier time. The court also found that the forensic decisions about how the re-trial was to be conducted should have been made earlier. Had those steps been taken in a timely way, the difficulties that prevented the trial from commencing on 3 October 2017 could have been avoided.

The court concluded that fault for the adjournment was attributable to the Crown, and that the resulting wasted preparation by the privately funded accused constituted the relevant unfairness. The court acknowledged the Crown's competing frustrations, noting that 50 witnesses had been on standby, investigating police had waited 13 months since the jury's discharge, and the trial date had been fixed to suit defence counsel's availability. Those factors did not displace the finding of Crown fault.

On the question of quantum, the court accepted that it was not necessary to have evidence of the precise amount of wasted costs before making the stay order itself. The parties agreed that a practical approach was to determine entitlement first and then assess the amount at a separate hearing. The court adopted that course.

Orders Made

  • The trial date of 3 October 2017 was vacated.
  • The proceedings were stayed unless and until the Director of Public Prosecutions (NSW) pays to the accused his reasonable costs thrown away by the trial date being vacated.
  • The amount of costs payable is to be determined by the court at a subsequent hearing.

Key Takeaways

  • A temporary stay of criminal proceedings may be granted where a trial cannot proceed due to Crown fault, and the resulting wasted costs to a privately funded accused constitute cognisable unfairness.
  • The court did not require evidence of the quantum of wasted costs before making the stay order; entitlement and amount can be addressed in separate stages.
  • Crown fault was established here by the late gathering of additional evidence and delayed decisions about the conduct of the re-trial, even though the investigation was complex and the Crown had invested substantial resources in preparation.
  • Competing considerations, including witness inconvenience, police waiting time, and resource expenditure by the prosecution, did not outweigh the unfairness to the accused caused by attributable Crown delay.
  • The decision does not create any general rule about murder re-trials; it turns on the specific procedural history and the court's factual findings about when the Crown's preparatory steps could and should have been taken.

Legislation and Cases Referenced

Legislation
- 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
- Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
- Jago v District Court (NSW) (1989) 168 CLR 23
- 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