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Supreme Court 13 June 2018

R v Sparos

[2018] NSWSC 878

Public order & justice offences
CRIMINAL PROCEDURE APPLICATION FOR ADJOURNMENT WHERE UNREPRESENTED ACCUSED APPLICATION REFUSED EVIDENCE EXCLUSION OF EVIDENCE NO UNFAIR PREJUDICE

Citation: R v Sparos [2018] NSWSC 878
Court: Supreme Court of NSW
Date: 13 June 2018
Judge: Harrison J

Background

An accused was on trial for serious criminal offences. During the course of the trial, he withdrew instructions from his senior counsel, Mr Smith SC, in circumstances the court had previously characterised as unreasonable (see R v Sparos [2018] NSWSC 854). This left the accused without representation, as his preferred alternatives were either unwilling to appear without a leader on short notice or had withdrawn.

The accused applied for a further two-week adjournment to obtain new representation. He nominated Mr Djemal of counsel, who had appeared as his junior at a previous trial, as his preferred replacement. The Crown, however, intended to call Mr Djemal as a witness on the question of whether the accused had intended to plead guilty or proceed to trial in separate District Court proceedings, which was relevant to the Crown's motive case.

The accused argued that the Crown's proposal to call Mr Djemal as a witness caused him unfair prejudice under s 137 of the Evidence Act 1995 (NSW), because it would disqualify Mr Djemal from acting as his advocate.

  • Whether the accused should be granted a two-week adjournment to obtain new legal representation
  • Whether the Crown's proposed calling of the accused's preferred counsel as a Crown witness constituted "unfair prejudice" under s 137 of the Evidence Act 1995 (NSW), such that the evidence should be excluded
  • How the jury should be directed in relation to the accused's decision to proceed unrepresented

Decision

Harrison J refused the adjournment application. The court had already determined in its earlier judgment that the withdrawal of instructions from senior counsel was unreasonable. The present application was characterised as an attempt to revisit that earlier decision without any new evidence or changed circumstances to justify a different outcome. The court found that the accused had dismissed senior counsel as an ill-advised attempt to abort the trial, based on an unjustified expectation that an adjournment would inevitably follow.

On the s 137 application, the court accepted that Mr Djemal's proposed evidence had probative value. It also accepted, following Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, that prejudice under s 137 is not limited to the content of the evidence itself and can extend to collateral consequences, including the unavailability of a particular advocate. In principle, therefore, an inability to retain counsel of choice could qualify as the kind of prejudice contemplated by the section.

However, the court held that the prejudice in this case was not "unfair" within the meaning of s 137. The accused had himself peremptorily and unreasonably dismissed his existing legal team. The difficulty in obtaining alternative counsel on short notice flowed from the accused's own conduct, not from the Crown's decision to call Mr Djemal. The court noted that Mr Djemal was not the only barrister who could appear for the accused. In those circumstances, the accused was the author of his own predicament, and the resulting prejudice did not carry the quality of unfairness required to enliven s 137.

The court also addressed the accused's concern that appearing unrepresented before the jury would create an adverse impression. Harrison J directed the jury that the accused's choice to proceed without legal representation was a lawful entitlement, that no adverse inference could be drawn from it, and that allowances would be made for his lack of legal training. The court indicated it would accommodate any applications to recall witnesses if the accused wished to ask questions beyond those put by his former counsel.

Orders Made

• Mr Sparos' application for an adjournment for a further two weeks is rejected.

Key Takeaways

  • An accused who unreasonably dismisses legal representatives during trial cannot automatically obtain an adjournment to re-brief alternative counsel, and a further application based on the same grounds without new evidence or changed circumstances will be refused.
  • Under s 137 of the Evidence Act 1995 (NSW), the assessment of prejudice extends beyond the content of the evidence itself to collateral consequences, including the potential unavailability of a preferred legal representative.
  • Where an accused's own unreasonable conduct creates the circumstance said to give rise to prejudice, that prejudice is not "unfair" within the meaning of s 137, even if it adversely affects forensic choices available to the defence.
  • A trial judge may adequately address any potential jury concern about an accused appearing unrepresented through a carefully worded direction emphasising that self-representation is a legal right and that no adverse inference may be drawn from it.
  • In dismissing both applications, the Supreme Court confirmed that a self-created forensic disadvantage does not, without more, satisfy the unfairness threshold required to exclude prosecution evidence under s 137.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137

Cases:
- R v Sparos [2018] NSWSC 854 (earlier judgment in the same proceedings)
- Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373