AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 15 March 2018

R v Sparos (No 4)

[2018] NSWSC 323

Homicide
CRIMINAL LAW PROCEDURE APPLICATION TO VACATE TRIAL DATE

Citation: R v Sparos (No 4) [2018] NSWSC 323
Court: Supreme Court of New South Wales
Date: 15 March 2018
Judge(s): N Adams J

Background

An accused facing a third murder trial applied to have his trial date of 19 March 2018 vacated and the matter returned to the call-over list to obtain a new date. The accused was charged with organising the murder of a Crown witness from custody, allegedly using coded telephone calls and communications through visitors and fellow inmates. Given the nature of the charge, the Crown indicated it may seek a life sentence upon conviction.

The accused was classified as an "Extreme High Security inmate" and housed at the High-Risk Management Correctional Centre in Goulburn, which significantly restricted his access to legal materials and his ability to prepare for trial. His first trial in 2016 ended in a hung jury. The second trial, listed for October 2017, was also vacated, with costs ordered against the Director of Public Prosecutions, as detailed in the earlier decision R v Sparos (No 1) [2017] NSWSC 1410.

Shortly before the third trial date, the Crown served approximately 2,699 recorded telephone calls made by a potential alternative suspect (referred to as Witness E) from custody. The accused's defence at the first trial had pointed to Witness E as the true suspect. The accused argued that he needed adequate time to review this material before trial could fairly proceed. During the hearing of the motion, he dismissed his legal representatives and remained unrepresented.

  • Whether the trial date of 19 March 2018 should be vacated and the matter relisted, given the accused's claim that he could not adequately prepare for trial.
  • Whether the late service of approximately 2,699 telephone calls relating to Witness E prejudiced the accused's ability to receive a fair trial on the listed date.
  • What weight should be given to the accused's high-security custodial conditions in assessing whether a fair trial was possible.
  • Whether the accused's decision to dismiss his legal representatives and proceed unrepresented affected the exercise of the court's discretion.

Decision

Adams J dismissed the motion to vacate the trial date in its original form but granted a limited adjournment by relisting the trial to commence on 30 April 2018. The court accepted that the accused had a legitimate concern regarding the volume of the Witness E calls served in January 2018, but found that the adjournment to 30 April 2018 would provide him with sufficient time to review that material, provided he applied himself diligently.

On the question of legal representation, the court noted that the accused had himself dismissed his counsel and solicitor during the hearing of the motion. The court observed that the additional time before the new trial date would give him the opportunity to reconsider retaining his previous legal team, though that remained entirely his choice.

The court acknowledged the limits of its own power in relation to Corrective Services, noting explicitly that it has no power to order Corrective Services to take steps to facilitate an accused person's trial preparation. The court expressed the hope, however, that Corrective Services would continue to take all reasonable steps to enable the accused to listen to the Witness E calls and otherwise prepare for the rescheduled trial.

Adams J also noted that it would be fruitless to attempt to resolve remaining pre-trial arguments while the accused was unrepresented and focused on the Witness E material, and indicated that those arguments would be deferred to Harrison J, who would preside over the trial.

Orders Made

  • The notice of motion seeking to vacate the trial date of 19 March 2018 and have the matter placed in the call-over list to obtain a new date is dismissed.
  • The trial is to be relisted to commence before Harrison J on 30 April 2018.

Key Takeaways

  • The Supreme Court distinguished between granting a short adjournment in the interests of a fair trial and vacating a trial date entirely. A limited adjournment to 30 April 2018 was sufficient to address the accused's legitimate concern about the volume of late-served material.
  • An accused's decision to dismiss their own legal representatives during a hearing is a relevant factor in the exercise of the court's discretion regarding trial preparation applications.
  • Courts have no power to direct Corrective Services to take specific steps to facilitate an accused person's preparation for trial, even where that person faces very serious charges and restrictive custodial conditions.
  • Late disclosure of material that is not part of the Crown case but is relevant to the defence does not automatically warrant a lengthy adjournment. The court assessed the volume and nature of the material to determine how much additional time was reasonably required.
  • Where pre-trial arguments remain unresolved at the time a matter is reallocated to a new judge, those arguments may be deferred for determination by the trial judge, particularly where the accused is unrepresented.

Legislation and Cases Referenced

Cases:
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- R v Sparos (No 1) [2017] NSWSC 1410

Legislation: No specific legislation was cited in the judgment.