R v Sparos

HIS HONOUR: During the course of his cross-examination of Witness E on 20 July 2018, Mr Sparos asked questions concerning the fact that a man known as Gianmarco Romolo had ceased to visit Witness E in Goulburn Gaol between December 2010 and June 2011. The Crown perceives that Mr Sparos will contend that the cessation of these visits during this period, which includes the date of the murder of Gemahl Maika, has some significance as it indicates, or is consistent with, Witness E’s involvement in that murder. For example, Witness E has agreed that he was disinclined to be photographed with strangers lest the photographs might later be used as evidence of his association with particular people. Mr Sparos effectively contends that, in a like manner, Witness E instructed Mr Romolo to cease visiting him from December 2010 in order to divert attention from their plan, allegedly conceived before then, to kill Mr Maika in the following year.

It is apparent that Mr Sparos was aware of the timing of Mr Romolo’s visits from material produced pursuant to subpoenas issued on his behalf.

On 24 July 2018, the Crown referred to this issue in the following terms:

The document produced by Corrective Services NSW became Exhibit VD9. The Crown indicated that it proposed to tender it. Mr Sparos responded in the following terms:

Mr Sparos’ concerns are inspired by his complaint that the document that the Crown now wishes to tender fell properly within the scope of at least one of the subpoenas issued by him and that it was not produced. Mr Sparos accordingly contests the appropriateness of the responses made by the recipients of the subpoenas and maintains that he has effectively altered his position to his detriment, and is thereby prejudiced, by cross-examining Witness E on this issue at all.

One of the subpoenas was issued on 14 February 2018 to the Proper Officer, Corrective Services NSW. For presently relevant purposes, that subpoena sought production of the following documents:

The other subpoena was also issued on 14 February 2018 to The Commissioner, NSW Police Service. For presently relevant purposes, that subpoena sought production of the following documents:

In addition to reliance upon the terms of these subpoenas as a basis for the production of the documents upon which the Crown wishes to rely, Mr Sparos contended that he had in effect been advised by Ms Mee for the Crown Solicitor that the documents would not be produced. That assertion is denied by Ms Mee. In order to resolve the issue, I required evidence to be provided in a proper form. Ms Elizabeth Mee from the Crown Solicitor’s Office swore an affidavit on 24 July 2018. She was cross-examined. Mr Sparos also gave evidence.

Ms Mee said that she received instructions from both Corrective Services NSW and the Commissioner of Police to respond to the subpoenas. Annexed to her affidavit is a letter written on 14 February 2018 by Jodie Cobbin, Director, Open Government Information and Privacy, Department of Justice to Mr Sparos’ then solicitors as follows:

Mr Kyriacou replied on 2 March 2018 in these terms:

Ms Mee replied by email dated 15 May 2018 as follows:

Ms Mee replied to Mr Kyriacou by letter dated 9 May 2018 in these terms:

The Crown also tendered a letter written earlier by Ms Mee to Mr Sparos on 22 March 2018 confirming a telephone conversation between them on that day with respect to the subpoena directed to the Commissioner of Police. That letter is in the following relevant terms:

Witness E was re-examined on the topic of Mr Romolo’s visits as follows:

The Crown explained its position with respect to Exhibit VD9 as follows:

Mr Sparos’ response was to the following effect:

In support of his position on this issue, and in response to Ms Mee’s evidence, Mr Sapros gave the following evidence:

In my opinion, there are several reasons why the Crown should be entitled in all of these circumstances to lead the evidence in Exhibit VD9.

First, neither of the subpoenas issued by Mr Sparos extends in terms or by implication to the information contained in Exhibit VD9. For example, a reference in the subpoena directed to Corrective Services NSW to “visit lists” in relation Mr Romolo, a one time inmate of a New South Wales prison, appears in terms clearly to call up a list of visitors to him when in gaol, not by him when at large. The reference in the subpoena issued to the Commissioner of Police to Eaglei entries and intelligence reports relating to Mr Romolo would even moreso not extend to or contemplate records, assuming that they were in the possession of the Commissioner at all, of visits by him to an unnamed or unspecified inmate in a New South Wales gaol at an unspecified time.

Secondly, as Mr Sparos candidly concedes, he cross-examined Witness E not knowing the reason why Mr Romolo had ceased to visit him between December 2010 and June 2011.

Thirdly, and to a more significant extent, Witness E is said by Mr Sparos himself not to have known why the visits stopped. That concession appears to me clearly to undercut his theory that there was some suspicious reason why Mr Romolo stopped visiting Witness E and that it points towards Witness E’s role in the death of Mr Maika.

Fourthly, it is apparent that Mr Sparos took the forensic risk that the reason for Mr Romolo’s visits being suspended would not emerge, thus leaving open the opportunity speculatively to suggest that some occult reason existed. The taking of that risk was not the result of any relevant failure by the Crown to provide the information in Exhibit VD9 at some earlier stage.

Fifthly, and in any event, the prospect that Mr Romolo would have recommenced his visits to Witness E so soon after the murder of Mr Maika, as he did, if he were in fact involved with Witness E in arranging it, seems to me to be unlikely in the extreme.

Finally, quite apart from the terms of the subpoenas themselves, Mr Sparos did not make it clear either in correspondence written by his former lawyers or in his own conversation with Ms Mee that he wanted material explaining why Mr Romolo ceased for a time to visit Witness E. That is unsurprising having regard to Mr Sparos’ concession that he did not know why the visits were temporarily suspended and his understanding that Witness E did not know either. Mr Sparos did not significantly challenge Ms Mee upon this issue during her cross-examination, although I do not place any emphasis on this given his legally unrepresented status.

In my view, it is clear that Mr Sparos took the opportunity to explore the suspension of visits by Mr Romolo when cross-examining Witness E. He took the chance that it may have been productive of material that supported his contention that Witness E was responsible for the murder of Mr Maika. That course was not based upon any failure by the Crown to produce what is now Exhibit VD9. Moreover, the Crown’s proposal to tender the document is perfectly reasonable having regard to the fact that it will correct, by the tender of highly credible evidence, a possible misapprehension about why the visits stopped.

I am not convinced that this will in any event have an adverse impact upon Mr Sparos in the eyes of the jury. This is principally for the reason that the cessation of the visits is a single piece of evidence that does not appear to me, either alone or in combination with any other evidence, to support Mr Sparos’ avowed proposition that Witness E was concerned in the death of Mr Maika. For example, there is as yet no evidence that Witness E agreed or conspired in some way that gives rise to the inference that the visits stopped so as not to draw attention to the friendship and association between Witness E and Mr Romolo or to some nefarious connection between them.

I note that the Crown proposes to tender Exhibit VD9 in the trial. I will allow that course. At my suggestion, Mr Sparos’ foreshadowed application to discharge the jury, if that proceeds, should only be considered in the event that the document is actually tendered.