R v Sparos

1. [1]

   HIS HONOUR: By his notice of motion filed in Court on 4 June 2018, the accused Mr Luke Sparos seeks an order either that the trial be adjourned for four weeks or that the jury be discharged and a new trial be scheduled no earlier than 2 July 2018. For the purposes of understanding the procedural history of this case and the general forensic context, I will assume a familiarity with the previous decisions of N Adams J in R v Sparos (No 1) [2017] NSWSC 1410, R v Sparos (No 2) [2017] NSWSC 1462 and R v Sparos (No 4) [2018] NSWSC 323.

2. [2]

   Mr Sparos’ application arises in the following circumstances.

Background

1. [3]

   Mr Sparos is charged with the murder of Gemahl Maika. He was previously tried before Adams J and a jury in 2016 when the jury was unable to reach a verdict. His then co-accused Witness F was convicted by the same jury of murdering Mr Maika and sentenced to life imprisonment. Witness F is to be called in the present case by the Crown. It is the Crown case that Mr Maika was shot and killed by Witness F at the direction of Mr Sparos.

2. [4]

   The current trial commenced before me and a jury on Monday 21 May 2018 when the jury was empanelled. Subject to the events described below, Mr Sparos has at all times been represented by his solicitor Mr Kyriacou and Mr Smith SC and Mr Carroll of counsel. Until last Monday 4 June 2018, the case had also proceeded uneventfully. That position changed at approximately 2.45pm on Thursday 31 May 2018.

3. [5]

   Mr Smith was at that time well advanced in his cross-examination of Witness B, who was giving evidence via video link from an undisclosed location. Witness B had previously given extensive evidence in the Crown case in the 2016 trial. Mr Smith then asked the following question:

4. [6]

   That question provoked an objection from the Crown and Mr Smith and the Crown briefly conferred. Mr Smith then asked whether he could raise something in the absence of the jury. The jury was then sent out and the video link with Witness B was disconnected. Mr Smith then said this:

5. [7]

   For reasons unconnected with the present proceedings, the next scheduled sitting day in the case was Monday 4 June 2018. I accordingly sent the jury away until then and adjourned the proceedings.

6. [8]

   At 10am on that day, Mr Carroll appeared and described his position in the following terms:

7. [9]

   Although Mr Carroll indicated that Mr Smith’s instructions were withdrawn on 1 June 2018, it appears in fact that his instructions were withdrawn by Mr Sparos at approximately 2.45pm the previous day when he was handed a note from Mr Sparos while he was cross-examining Witness B. It was in fact that development which led Mr Smith to confer with the Crown in the way that I have described, being the matter that Mr Smith indicated necessitated his having a conference with Mr Sparos.

8. [10]

   The Crown’s response to Mr Carroll’s announcement can be discerned from what then ensued as follows:

9. [11]

   Mr Sparos’ application was at that time unsupported by any affidavit evidence or indeed any evidence at all. Mr Carroll sought an adjournment until the following day in order to allow Mr Sparos to confer with Mr Kyriacou. The matter then returned the following day 5 June 2018 when the application was heard. Mr Sparos gave evidence. No other evidence was adduced in support of the application. In order to permit Mr Kyriacou to consider his position further, including whether or not to call or adduce additional evidence, I adjourned the hearing of the application to 6 June 2018. No more evidence was tendered. Mr Kyriacou and the Crown made detailed submissions and I reserved my decision until today at 3.00pm.

Mr Sparos’ submissions

1. [12]

   Mr Sparos contends that Mr Smith failed to follow his instructions concerning the cross-examination of Witness A and Witness B. He drew upon what had been put to these witnesses in the previous trial and contended that the transcript from that trial provided what was in effect a template or script from which Mr Smith should have drawn his inspiration and from which no significant deviation should occur. Mr Kyriacou submitted that insofar as the questioning of one of these witnesses was concerned, Mr Smith put some matters that “were not entirely correct in terms of dates and attendances and so forth.” It was suggested that what was put did not accord with evidence that had been given by Mr Sparos at his first trial.

2. [13]

   Mr Kyriacou was quick to emphasise that there was no suggestion about the competence of his counsel. His concern was that Mr Sparos had written and passed several notes to Mr Carroll and Mr Smith during the course of cross-examination of Witness A and Witness B and that these notes had either not been read or alternatively had been read but disregarded. The notes were not shown to me and their precise terms were not otherwise revealed.

3. [14]

   Mr Kyriacou informed me that he was “not in a position [on 5 June 2018] to put forward the intricacies of the particular issues at hand for this Court to determine”. He indicated that that would require Mr Sparos “to go through the transcript, to highlight the times in which he instructs me that matters were incorrectly put.” Mr Kyriacou also indicated that it “would also involve cross-referencing with his evidence from the first trial and the line of questioning in the first trial to show the irregularity in terms of the cross-examination and where things have gone wrong.”

4. [15]

   Mr Kyriacou provided some examples of Mr Sparos’ concerns. Mr Smith is said to have suggested to Witness B that the first time that Christine Saliba met with Witness B after 16 January 2011 was on a boat on 26 January 2011. Witness B denied this. Mr Kyriacou indicated that Witness B had in fact met Christine Saliba in his crystal shop on 22 January 2011, and that that is how the evidence came out at the previous trial. This was said to involve an error by Mr Smith in his characterisation of events when putting them to Witness B.

5. [16]

   Mr Sparos gave evidence. He indicated that Mr Smith did not suggest to Witness A that he had received a discount on his sentence for giving assistance to police or that he had been charged with perverting the course of justice. Mr Sparos also said that Mr Smith did not follow the line adopted by Mr Heliotis QC, his predecessor in the previous trial, concerning Witness A’s statement to the police when he was pulled over and questioned concerning an unrelated matter. Witness A told the previous jury that he would not have lied to the police whereas he said in the present case that he was “probably being a smart arse”. Mr Sparos maintained that this was a matter of some significance.

6. [17]

   Mr Sparos also said that Mr Smith ignored a note written by him with a big heading that said, “put this”. This was said to relate to the suggestion that Witness E first approached Witness A saying that Mr Maika and Mr Ballard were police informants and that copies or summaries of their statements were provided to him by Witness E. Mr Sparos said that his piece of paper was put in front of Mr Smith by Mr Carroll but “Mr Smith just dismissed it. Didn’t even consider it. Just pushed it away.”

7. [18]

   Mr Sparos also complained that Mr Smith failed to play certain additional gaol phone calls to Witness A, in addition to the ones that were played to him during cross-examination.

8. [19]

   With respect to the cross-examination of Witness B, Mr Sparos raised a concern about whether Christine Saliba would ring a solicitor named Rodney Boyd herself or would ring Witness B and ask if he could do so on her behalf. Mr Sparos said that he passed a note about this and that his instructions about what questions to ask were not followed.

9. [20]

   Mr Sparos also said Mr Smith cross-examined Witness B concerning Jamie Mather after he was told, via a post-it note from Mr Sparos, to stop. Mr Smith was said to be putting to Witness B that the sole purpose of his visit to Mr Sparos in gaol was to chase up money that Mr Mather owed Witness B for drugs with which he had been supplied. That was said to be the explanation for Witness B’s visits to Mr Sparos in gaol after Witness B was given bail. Mr Sparos said that he instructed Mr Smith to stop cross-examining Witness B at that point but that he ignored instructions to do so. Mr Sparos said that he sent a note to Mr Smith saying “stop on that topic, that’s enough, move onto the next topic, don’t take it any further.” Mr Sparos said that the purpose of the visit on 16 January 2011 was in fact to “sort out the money from the sale of a watch.” The cross-examination of Witness B on that topic ended when Mr Sparos said Witness B said that he was “visiting Luke just to lift his morale. It was not about collecting money.”

10. [21]

    A fair summary of Mr Sparos’ complaints appears in the following transcript from his examination in chief on 5 June 2018:

11. [22]

    Mr Kyriacou indicated that Mr Carroll would only be prepared to continue to act alone as junior counsel if he were given a further four weeks to prepare. In particular, this was because Mr Smith had been assigned the task of cross-examining Witnesses E, F and G, as they were critical witnesses, and Mr Carroll would need time to master that task if it were now given to him. In those circumstances, Mr Sparos would not be represented by counsel if the matter were not adjourned for that period. Mr Kyriacou also would not continue to represent Mr Sparos without counsel.

Crown’s submissions

1. [23]

   The Crown contended that Mr Sparos’ application was a transparent and disingenuous attempt to derail the trial. It was submitted, in effect, that the application had nothing to do with any concerns that Mr Sparos had or could have had about the way in which Mr Smith was conducting his defence or the manner of his cross-examination of Witness A or Witness B. The Crown submitted that this was apparent from a number of things, including the fact that Mr Sparos had not identified anything that could not have been corrected or attended to in further consultation with Mr Smith. The Crown maintained that Mr Sparos’ major concern was in fact that his counsel were not sufficiently prepared, despite the additional time that they were afforded prior to the commencement of the trial. The Crown referred to what Mr Sparos said in his evidence, such as the following:

2. [24]

   Mr Sparos was cross-examined further shortly thereafter in these terms:

3. [25]

   The Crown submitted that Mr Sparos’ answers made it clear that he was concerned not with any alleged failure by Mr Smith to follow his instructions but by a concern that his lawyers were not ready or properly prepared. The Crown’s contention was that in the course of the trial so far very experienced counsel had not sought an adjournment in order to become more familiar with any portion of the brief and could easily have done so if it appeared to be necessary. The inference that presents itself in those circumstances is said to be that Mr Sparos’ concern about his instructions not being followed was a confected claim intended to abort the trial.

Consideration

1. [26]

   An accused person is entitled at any stage of proceedings to withdraw his or her instructions from counsel or a solicitor. The issue is not whether such a right exists but what consequences may flow from an exercise of that right in particular circumstances. At one end of the spectrum an accused person may be entitled to have the trial terminated in order to retain alternative representation at a later time. At the other end, an accused person may be required, even in a trial of a very serious crime, to continue with the trial without representation.

2. [27]

   The result in each case will depend upon an assessment of the reasonableness of the accused’s action in withdrawing instructions.

3. [28]

   In R v Gilfillan (2003) 139 A Crim R 460; [2003] NSWCCA 102, the appellant stood trial on six counts of aggravated sexual assault. One week into the trial and partly as a result of witness statements recently served, the appellant’s solicitor developed a conflict of interest. The solicitor and counsel withdrew. The trial judge was reluctant to waste the time already spent on the trial and gave the appellant a short adjournment to obtain fresh representation, which he was unable to do. The trial judge refused an application for further adjournment and to terminate the trial. Perhaps unsurprisingly, the Court of Criminal Appeal disagreed with the trial judge’s characterisation in that case of the withdrawal of instructions as not being substantial, finding that the trial judge failed to take into account the reasonableness of the appellant’s withdrawal of instructions and the conflict of interest issue.

4. [29]

   In that case, Smart AJ said this at 471–472:

5. [30]

   As I have already indicated, the present trial has been running for nearly three weeks and was at the end of the second week when counsel’s instructions were withdrawn. Several witnesses had by that time given evidence, including the important evidence of Detective Klotz, the officer-in-charge of Operation Schoale, Witness A and Witness B. The case has therefore reached a fairly advanced stage, although by no means is it in its final stages. The Crown’s best estimate is that there remains about three weeks of evidence in the Crown case, which is somewhat less than might have been expected given the pre-trial estimate of between eight and ten weeks.

6. [31]

   There is no suggestion in the present case that Mr Smith or Mr Carroll were conducting Mr Sparos’ case in an obviously incompetent fashion. So much is obvious from both my observations of them during the trial and Mr Sparos’ concession that he makes no submission to the contrary.

7. [32]

   The issues for determination are whether or not Mr Sparos’ action in withdrawing instructions was reasonable in the circumstances and, if it was not, whether he is nevertheless entitled to the adjournment that he seeks.

8. [33]

   Assessment of the first issue can only be made upon the basis of the evidence provided to me. That evidence is limited to Mr Sparos’ evidence-in-chief and his cross-examination by the Crown. Mr Sparos has not chosen to provide me with any of the notes that he contends were written by him and provided to counsel during the trial. Neither Mr Smith nor Mr Carroll has given evidence or provided a statement about the receipt or content of these notes. This is despite the fact that I specifically alluded to the prospect that they may have illuminated Mr Sparos’ assertions about what it was that concerned him. I therefore have some difficulty being satisfied of the precise content of the notes that Mr Sparos has indicated were provided to counsel. However, it seems to be accepted by the Crown that the notes were provided as Mr Sparos contends, even if the subject matter of the notes is not certain.

9. [34]

   It is apparent that Mr Sparos wishes to take an active part in the conduct of his response to the Crown case. It becomes necessary for me in these circumstances to determine whether his instructions to counsel were of a kind that Mr Sparos was entitled to expect his counsel would follow.

10. [35]

    In giving evidence that Mr Smith did not suggest to Witness A that he had received a discount on his sentence for providing assistance to police, Mr Sparos is wrong. Mr Smith cross-examined Witness A at T 604 in the following terms:

11. [36]

    Mr Sparos expressed concern that Mr Smith did not cross-examine Witness A about the fact that he had been charged with perverting the course of justice and that a failure to do so showed an impermissible disregard for his instructions. However, the evidence otherwise reveals that Witness A was not convicted of that offence and that the charge was in fact withdrawn. Mr Smith’s decision not to cross-examine Witness A about that was perfectly reasonable, as would have been any decision Mr Smith might have made to disregard Mr Sparos’ instruction to do so.

12. [37]

    I do not accept that Mr Smith was somehow bound slavishly to adopt the same line of cross-examination of witnesses as Mr Sparos’ counsel at his previous trial had taken. If Mr Sparos instructed Mr Smith to cross-examine Witness A about whether he lied to the police, it seems perfectly reasonable for Mr Smith to have disregarded that instruction. That is for the obvious reason that Witness A told the previous jury that he would not have lied to the police whereas in this trial he indicated that he might have been being a smart arse. The answers were insignificant apart from the effect upon Witness A’s credibility and Mr Smith managed to elicit answers from Witness A that were in conflict with his previous evidence. The rule in Browne v Dunn (1893) 6 R 67 does not apply in a criminal trial so that Mr Smith would not later have been precluded from referring to this discrepancy despite the fact that he had not put it directly to Witness A as Mr Sparos wanted. An instruction to do so could and should quite properly have been ignored by Mr Smith.

13. [38]

    In this regard, it is important to recall that a barrister “must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently”: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 42. In Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 556–7, Mason CJ said:

14. [39]

    A similar situation arises with respect to Mr Smith’s cross-examination of Witness B about the meeting on 26 January 2011. When Mr Smith’s cross-examination of this witness ended, albeit not by then concluded, he had managed on one view to demonstrate that Witness B was either confused or lying about what contact he had had with Cristine Saliba since 16 January 2011. Mr Sparos complains that Mr Smith did not challenge Witness B with evidence to suggest either of these possibilities. However, once again, Mr Smith was not obliged to do so and was in a position later in the trial, by reference to other unchallengeable material, to highlight the discrepancy to the jury. Mr Sparos’ complaint is in effect that Mr Smith did not give Witness B the chance to cure the defect. Mr Smith was not obliged to do so and would arguably have strengthened the Crown case if he had. Mr Smith was entirely within his rights to disregard Mr Sparos’ instruction to cross-examine Witness B further on this topic if such an instruction had been given to him.

15. [40]

    Mr Smith played a series of gaol phone calls to Witness A. Mr Sparos complains that all of the relevant calls were not played when Witness A was being cross-examined. I have not yet seen the transcript of these calls. They may yet be tendered. Mr Smith was not obliged to put them to Witness A. There may have been important forensic reasons for not doing so. Mr Sparos has not even hinted at what might be the disadvantage from not doing so.

16. [41]

    I am presently unable to assess what is or might be the alleged significance of Mr Sparos’ concerns about Mr Smith’s cross-examination of Witness B with respect to Christine Saliba’s dealings with Rodney Boyd. Mr Sparos’ evidence about that was as follows:

17. [42]

    At one level, the issue of whether or not Ms Saliba contacted Mr Boyd directly or indirectly seems to be entirely irrelevant. If it is not, it would have been a relatively simple matter for Mr Smith to have asked further questions of Witness B. Unfortunately, I have not been given any material about what further questions Mr Sparos says he instructed Mr Smith to ask. Any assessment of the reasonableness or otherwise of either Mr Smith’s refusal to ask the questions, or Mr Sparos’ decision to terminate his instructions for failing to do so, can only confidently be assessed by reference to the specific instructions Mr Sparos says that he gave. That detail did not emerge when Mr Sparos gave evidence before me. It is surprising that Mr Sparos was not able in the circumstances to provide it.

18. [43]

    The question of Mr Sparos’ instructions to Mr Smith concerning his cross-examination of Witness B about Jamie Mather remains in doubt. Witness B was cross-examined by Mr Smith concerning Mr Mather as follows:

19. [44]

    Doing the best I can, it seems to be Mr Sparos’ complaint that Mr Smith suggested to Witness B that the purpose of his visits to see Mr Sparos, or at least a topic of conversation between them when he did so, was Witness B’s concern about $100,000 owed to him by Mr Mather and the suggestion that Mr Sparos might assist him in recovering it. Mr Sparos insists that the purpose of the visit on 16 January 2011 was to sort out the question of money from the sale of a watch. Witness B was in fact cross-examined about this by Mr Smith as follows:

20. [45]

    Mr Sparos has not clarified in the course of the present application precisely what complaint he raises about Mr Smith’s cross-examination on the topic of Mr Mather’s debt beyond the suggestion that he cross-examined Witness B for too long about it or that he did not stop doing so when instructed. I note in passing that Mr Smith’s cross-examination on that topic was fairly extensive and it has not been explained to me at just what stage Mr Smith is said to have been told to cease asking further questions about it. I have also not been given any indication of what difficulty, if any, Mr Smith’s questions are said to have created or whether Mr Smith had been instructed not to ask any questions at all upon that topic. The latter seems to me to be highly unlikely having regard to the extent of his cross-examination of Witness B about it.

21. [46]

    It is in my opinion not without significance that Mr Kyriacou submitted that he would require Mr Sparos to go through the transcript in order to highlight the times in which Mr Sparos contended that matters had been incorrectly put by counsel. That task was said to require or involve cross-referencing his evidence from the previous trial with Mr Smith’s line of questioning in the present case in order to “show the irregularity in terms of the cross-examination and where things have gone wrong”. In my opinion, that submission lends support to the Crown’s submissions that Mr Sparos did not withdraw Mr Smith’s brief because Mr Sparos’ specific instructions were not being followed. If it were otherwise, Mr Sparos would already be in a position to indicate where that is said to have occurred, as with the limited examples referred to by Mr Sparos in his evidence before me.

22. [47]

    It seems to me that Mr Sparos’ conduct in peremptorily dismissing his senior counsel amounted to gratuitous and unreasonable conduct and that he is the sole author of his currently (partly) unrepresented state. I am not satisfied that any circumstances existed that made it reasonable for Mr Sparos to discharge Mr Smith and at the same time expect that he would or should be given an adjournment of four weeks for Mr Carroll to get up to speed.

23. [48]

    Mr Sparos has exhibited a strong inclination to be involved in the instructions that are provided to counsel and the way in which those instructions are executed. So much is understandable and reasonable. By the same token, it is not reasonable to withdraw counsel’s instructions upon the basis of what in my opinion are insignificant differences between Mr Sparos’ lay opinion of how his case should be conducted and Mr Smith’s expert opinion of how it should be done. I am of course not privy to any conversations between Mr Sparos and his legal advisers, except to the extent that he has chosen to reveal them for the purposes of this application. However, in my experience clients dismiss lawyers most often because they receive good advice rather than because they receive bad advice. I have not been able to discern any error or misjudgement by Mr Smith in his conduct of the trial so far. In the same context, it seems to me that Mr Sparos’ complaints that Mr Smith has failed or refused to follow his instructions is no more or less than Mr Sparos’ concern that the script from the previous trial is not being followed word by word.

24. [49]

    It was not reasonable for Mr Sparos to terminate Mr Smith’s instructions in the circumstances.

25. [50]

    The question therefore becomes, having done so, what should follow. That question remains relevant inasmuch as even an unreasonable withdrawal of instructions may, in the interests of justice, not mean that the trial must continue with an unrepresented accused. The interests of justice is not a purely one-sided concept.

26. [51]

    I am not prepared to consider the adjournment of the trial for four weeks and the simultaneous retention of the jury. A delay of that kind would in my view be inimical to the jury’s function as the tribunal of fact. A delay of that order would be inconsistent with the jury’s ability properly to remember and assess the evidence. It would also possibly be inconvenient to them, a not inconsiderable factor, not merely from the point of view of their personal circumstances but also from the perspective of any perceived pressure to produce a decision within some contracted time frame having regard to what would by then have become the extended length of the trial.

27. [52]

    It seems to me that the choice is realistically between discharging the jury and granting a new trial or proceeding with the present one. I consider that the latter course is preferable and is consistent with the interests of justice.

28. [53]

    The Crown has indicated that the evidence yet to be called can be marshalled in a way that eliminates or reduces the difficulties that might otherwise confront Mr Sparos if he is without counsel. For example, Witnesses E, F and G and the balance of Witness B could be left until later in the Crown case. I am led to understand that there remains much evidence that can be adduced in the form of documents and recordings with associated transcripts. That course has been adopted extensively thus far with relatively little involvement of defence counsel. Modest adjournments during the proceedings can also be granted where necessary to assist Mr Sparos. I note in this respect that Mr Kyriacou has indicated that he will cease to act for Mr Sparos if he is without counsel to appear so that the conduct of his defence will be left to Mr Sparos himself. I obviously recognise that to be a regrettable and unfortunate circumstance from several perspectives.

29. [54]

    As I have already noted, I am informed that Mr Carroll has indicated to Mr Kyriacou that he requires four weeks to prepare for the cross-examination of Witnesses E, F and G and to continue the cross-examination of Witness B. It would be remarkable in my experience if that estimate were not somewhat conservative, especially having regard to the fact that, with the understandable exception of Witnesses F and G, all other witnesses will have been cross-examined previously and apparently in accordance with Mr Sparos’ instructions. Moreover, Witness F gave evidence at the previous trial that he now wishes completely, or at least relevantly, to contradict. For example, Witness F unsuccessfully defended a charge of murder upon the basis that he was not involved. The prospect that he now proposes to give a contrary version indicating that he was involved suggests an extensive and on one view not too complicated scope for his effective cross-examination.

30. [55]

    It was not contended in the course of this application on behalf of Mr Sparos that anything less than an adjournment of four weeks would suffice.

Orders

1. [56]

   In these circumstances I am not prepared to discharge the jury or grant Mr Sparos an adjournment of four weeks. I will hear the parties concerning when the jury should be requested to return.