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Supreme Court 30 July 2018

R v Sparos

[2018] NSWSC 1164

Homicide
CRIMINAL PROCEDURE WHERE DOCUMENT NOT CAUGHT BY SUBPOENA

Citation: R v Sparos [2018] NSWSC 1164
Court: Supreme Court of New South Wales
Date: 30 July 2018
Judge(s): Harrison J

Background

The accused was standing trial for murder. During the trial, he cross-examined a Crown witness (referred to as Witness E) about the fact that a mutual associate, Gianmarco Romolo, had ceased visiting Witness E in Goulburn Gaol between December 2010 and June 2011. The accused's apparent purpose was to suggest the suspension of visits was deliberate and connected to an alleged plan involving Witness E to murder the deceased, Gemahl Maika.

The Crown subsequently obtained a document from Corrective Services NSW revealing that Romolo had not chosen to stop visiting, but had been denied access by the Department following an incident in the visitors area. This document was marked as Exhibit VD9, and the Crown indicated it intended to tender it at trial.

The accused objected, contending the document should have been produced in response to subpoenas he had issued to Corrective Services NSW and the NSW Police Service many months earlier. He argued the Crown's late production had caused him prejudice by allowing him to cross-examine on a false premise, and he foreshadowed an application to discharge the jury.

  • Whether the document the Crown sought to tender fell within the scope of the subpoenas previously issued by the accused, such that it ought to have been produced in answer to those subpoenas.
  • Whether the accused suffered actual prejudice as a result of any failure to produce the document earlier.
  • Whether the Crown should be permitted to tender the document during the trial.

Decision

Harrison J examined the terms of the two subpoenas issued on 14 February 2018 to Corrective Services NSW and the NSW Police Commissioner respectively. His Honour found that neither subpoena, on its proper construction, required production of the specific document the Crown now wished to tender. The subpoenas sought gaol records, visit lists, and intelligence notes concerning Romolo, but not documents explaining the administrative reasons for a suspension of visiting rights.

His Honour also considered the correspondence between the parties about the subpoenas and rejected the accused's assertion that he had been told by the Crown Solicitor's representative that no documents would be forthcoming. On the evidence, including an affidavit and cross-examination of the Crown Solicitor's officer, Ms Mee, the court was not satisfied that any such representation had been made or that the accused had clearly communicated a desire for documents explaining why the visits stopped.

Harrison J further noted that the accused had not known why the visits were suspended and had understood that Witness E did not know either. In those circumstances, the decision to cross-examine Witness E on the point was a forensic choice the accused made on the available information, not a step induced by any failure of production. The court concluded that tendering Exhibit VD9 was a reasonable course for the Crown to take, as it would correct a possible misapprehension before the jury through the introduction of highly credible evidence.

On the question of prejudice, the court was not persuaded that admitting the document would have an adverse impact on the accused in the eyes of the jury. The cessation of visits was, in any event, a single piece of evidence that did not, alone or in combination with other evidence, sufficiently support the accused's contention that Witness E was involved in the murder.

Orders Made

The court allowed the Crown to tender Exhibit VD9. Harrison J indicated that any application by the accused to discharge the jury should only be considered if and when the document was actually tendered at trial.

Key Takeaways

  • A subpoena only compels production of documents that fall within its expressed terms; a document explaining the administrative reasons for a suspension of prison visits did not fall within subpoena categories directed at gaol records, visit lists, and intelligence notes.
  • Where an accused cross-examines on a topic as a forensic choice based on available information, the mere fact that a further document later emerges touching on that topic does not, of itself, establish prejudice arising from a failure of production.
  • The Crown is permitted to tender a document that was not caught by the defence's subpoenas, particularly where the tender serves to correct a possible misapprehension before the jury rather than to advance a new positive case.
  • Actual prejudice to an accused requires more than embarrassment following cross-examination; the court assessed whether the document, in context, genuinely damaged the accused's position with the jury before determining the tender should be allowed.
  • An application to discharge the jury on grounds of late production or surprise may be premature if considered before the document in question is formally tendered, as the actual impact on the trial cannot be assessed until that point.

Legislation and Cases Referenced

No legislation or cases were cited in the provided text of the judgment.