AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 7 June 2018

R v Sparos

[2018] NSWSC 854

HomicidePublic order & justice offences
CRIMINAL PROCEDURE APPLICATION FOR ADJOURNMENT APPLICATION TO DISCHARGE THE JURY WHETHER COUNSEL’S DISMISSAL REASONABLE

Citation: R v Sparos [2018] NSWSC 854
Court: Supreme Court of New South Wales
Date: 7 June 2018
Judge(s): Harrison J

Background

The accused stood trial for murder, alleged to have directed a co-offender to shoot and kill the deceased. This was the accused's second trial: a jury in 2016 had been unable to reach a verdict, and a retrial commenced before Harrison J in May 2018.

The accused had been represented by a solicitor, a senior counsel, and a junior counsel. During cross-examination of a key Crown witness on 31 May 2018, senior counsel received a note from the accused and immediately sought to pause proceedings. It became apparent that the accused had withdrawn senior counsel's instructions mid-cross-examination.

When the matter resumed on 4 June 2018, junior counsel appeared on an "amicus" basis (that is, assisting the court without formally holding a brief) and advised that he would require four weeks of preparation before he could properly conduct the remainder of the trial, particularly the cross-examination of the informer witnesses. The accused then brought a motion seeking either a four-week adjournment or the discharge of the jury entirely.

  • Whether the accused's dismissal of senior counsel was reasonable in the circumstances
  • Whether a four-week adjournment should be granted to allow junior counsel to prepare to take over as sole counsel
  • Whether the jury should be discharged and a new trial ordered at a later date
  • Whether the interests of justice required one course over the other

Decision

Harrison J examined whether the accused's decision to dismiss senior counsel mid-trial had any proper foundation. The accused contended that senior counsel had failed to follow instructions during cross-examination, departing from a "template" derived from the transcript of the 2016 trial. His Honour found no adequate evidentiary basis to support the characterisation of senior counsel's conduct as a failure to follow instructions in any material sense. The accused's dismissal of senior counsel was not considered reasonable.

His Honour also assessed whether the four-week adjournment was genuinely necessary. Noting that most witnesses remaining in the Crown case had already been cross-examined in the 2016 trial, the court considered that the four-week estimate provided by junior counsel was likely conservative rather than an underestimate. One key witness, who had previously contested the murder charge, now intended to give a contradicting account, which Harrison J observed created a relatively clear scope for cross-examination.

The court weighed the competing interests of the accused and the administration of justice more broadly. Harrison J acknowledged the regrettable position that would result if the accused proceeded without counsel, particularly given that his solicitor indicated he would also cease to act if no counsel remained. Nonetheless, the court concluded that the better course in the interests of justice was to continue the existing trial rather than discharge the jury and begin again.

Harrison J noted that the Crown had offered to marshal remaining evidence so as to reduce difficulties for the accused, including deferring the cross-examination of the most contentious witnesses and proceeding first with documentary evidence and recordings. Modest adjournments during proceedings could also be granted where needed.

Orders Made

  • The application to discharge the jury was refused.
  • The application for a four-week adjournment was refused.
  • The court indicated it would hear the parties on when the jury should be requested to return.

Key Takeaways

  • An accused's dismissal of counsel mid-trial will not automatically attract an adjournment or jury discharge; the court will scrutinise whether the dismissal was reasonably justified on the evidence.
  • Where an accused asserts counsel failed to follow instructions, that assertion must be supported by proper evidence, not merely a comparison with how cross-examination was conducted at an earlier trial.
  • Refusing to discharge a jury and ordering a continuation of the trial, even with reduced or absent representation, can be consistent with the interests of justice where the accused's own conduct caused the prejudice.
  • The court retains flexibility to manage the order of evidence and grant modest adjournments during a trial to assist an unrepresented or newly represented accused, without aborting the proceedings entirely.
  • A conservative estimate of preparation time offered by incoming counsel is a relevant but not determinative factor; the court may assess the realistic complexity of remaining cross-examination independently.

Legislation and Cases Referenced

Legislation:
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 42

Cases:
- Browne v Dunn (1893) 6 R 67
- Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
- R v Gilfillan (2003) 139 A Crim R 460; [2003] NSWCCA 102
- R v Sparos (No 1) [2017] NSWSC 1410
- R v Sparos (No 2) [2017] NSWSC 1462
- R v Sparos (No 4) [2018] NSWSC 323