R v Sparos

Supreme Court of NSW|2018-02-27|Before: Adams J, Harrison J, Mr J

Solicitors: Kiki Kyriacou Lawyers, until 6 March 2018 (Accused) Director of Public Prosecutions (Crown) File Number(s): 2014/196615

Background

Luke Sparos is due to stand trial on 19 March 2018 for the murder of Gemahl Maika.
On 27 February 2017, a notice of motion was filed in court seeking that the hearing date of 19 March 2018 be vacated. The accused was legally represented at the hearing of the motion by Mr John Korn of counsel who was instructed by Mr Kiki Kyriacou, solicitor.
The accused is presently detained at the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater for the purposes of his court appearances. He is otherwise housed at the High-Risk Management Correctional Centre ("HRMCC") at Goulburn. He is considered to be an "Extreme High Security inmate". The circumstances of his incarceration play a large role in his claim that he is unable to properly prepare for his upcoming trial.

Witness E

At the accused's first trial, his senior counsel opened to the jury and outlined the defence case as being that the accused had no motive to kill the deceased as he had always intended to plead guilty to the drug charges in any event. He suggested that another prisoner, to be known in these proceedings as Witness E, is the true suspect and that he also had a motive to want the deceased dead. That witness had been convicted following a trial at which the Crown did not call the deceased as a witness. Witness E was a sentenced prisoner at the time of the murder. Although Witness E had initially lodged an appeal, it was subsequently abandoned.
Witness E was not a witness at the accused's first trial. He subsequently has made a statement to police, as has the solicitor who was representing him at the relevant time. The statement from the solicitor apparently addresses the question of the status of Witness E's appeal and it is anticipated that he will confirm that there was to be no appeal by Witness E. Those statements were served on the accused on or about 7 September 2017. They were not before me on this motion.
In addition, as part of the accused's defence at his first trial, a police officer was cross-examined as to why he had discounted Witness E as a suspect in this matter. That officer was cross-examined as to why he had obtained all of the accused's gaol calls during the relevant time period but had not obtained the calls relating to Witness E prior to October 2010.
On about 18 January 2018, a statement from a Police officer was served on the accused's legal representatives to the effect that he had now listened to Witness E's telephone calls made from custody to friends and family between during particular relevant time periods (including periods before October 2010) and, put simply, there was nothing in them implicating Witness E in the murder. A CD-ROM was also served on the accused containing every personal call made by Witness E from custody: approximately 2,699 calls in total (hereinafter "the Witness E calls"). The Police officer has not listened to all of these calls. A schedule of relevant calls was also served. None of this material was before me on the application.
The disc containing the Witness E calls was served upon the accused's legal representatives consistent with the Crown's disclosure obligations. It is not proposed that any of the calls be played as part of the Crown case. They would be inadmissible in the Crown Case in any event as they could only be relevant to that witness's credit. The accused is not a party to any of those telephone calls. Furthermore, the accused's legal representatives had previously subpoenaed the gaol calls of Witness E in November 2017 and they were produced on subpoena on 8 December 2017. Although the number of calls differs as between those the accused's solicitor obtained under subpoena on 8 December 2017 and those provided by the Crown on 18 January 2018, it is agreed that the accused's solicitor has had access to a large number of the Witness E calls since 8 December 2018.
Apart from the service of these calls, it was not suggested that anything of any significance has been served by the Crown on the defence since the last trial date of 3 October 2017 was vacated.

Procedural History since 20 October 2017

Mr Con Heliotis QC and Mr Avni Djemal appeared for the accused at the first trial and were briefed to appear for him again at his second trial. They withdrew from the matter on 4 October 2017. The reasons for that are set out in R v Sparos (No 1) [2017] NSWSC 1410. The matter was then listed for mention on a number of occasions thereafter in order to fix a new trial date.
On 3 November 2017, the accused appeared unrepresented. He claimed that he had no funds to obtain representation. He also indicated that he had a list of available dates for suitable senior counsel he wished to brief but the earliest available date was in August 2018. He flagged the potential availability of counsel coming from interstate in July 2018. He stated that, if the matter was listed in February or March 2018, he would be forced to represent himself. He had not applied for legal aid. The instructing solicitor for the DPP agreed to notify Prisoner's Legal Service ("PLS") to arrange a visit to assist the accused in custody. I tentatively proposed a trial date of 19 March 2018 with an estimate of 10 weeks and listed the matter for a further mention on 24 November 2017. I made a number of recommendations to Corrective Services New South Wales ("Corrective Services") that day in order to facilitate the accused's attempts to engage legal representation. Those recommendations concerned enabling the unrepresented accused to have access to facsimile services, his brief and his laptop, as well as access to telephone/AVL to liaise with his previous solicitor so that he could be in a position to confirm the trial date of 19 March 2017 at the mention on 24 November 2017.
On 24 November 2017, Mr Bazzi appeared from Mr Kyriacou's office with instructions to assist with obtaining counsel so that the hearing could proceed. He indicated there was a costs dispute with Mr Heliotis. Mr Kyriacou's firm had instructions to remain in the matter up to the commencement of the trial. The accused himself confirmed that that was the case. Mr Kyriacou's trust account details were provided to facilitate the transfer of the money from the DPP for the costs order I made on 27 October 2017.
Mr Bazzi indicated he had spoken with several counsel, both junior and senior, and that the issue was funding. Once the funds were returned he could proceed. The Crown Prosecutor informed the court that PLS had been contacted and a solicitor had visited the accused on one occasion with a further visit being cancelled once Mr Kyriacou came back into the matter. Mr Bazzi asked for an adjournment of two weeks and requested that the accused remain at the MRRC at Silverwater for counsel to more easily be able to visit him. I made a recommendation to this effect. The matter was adjourned for mention to 8 December 2017 to confirm the trial date.
On 8 December 2017, Mr Bazzi again appeared for the accused. He confirmed that Mr Korn of counsel was briefed for the trial subject to certain documents being signed. He confirmed that the costs thrown away from the last adjournment had been paid by the DPP and I formally lifted the stay. The matter was adjourned until 5 February 2018 to confirm the trial date. There was discussion as to whether the trial could start a week later. The Crown Prosecutor did not oppose it starting one week beyond 19 March. I again made certain recommendations to Corrective Services. I requested that, given the length of the trial and the fact that the accused has now engaged new counsel, if possible, he could remain in custody at a correctional centre in Sydney in order to assist his legal representatives being able to prepare this matter for trial in March 2018.
On 5 February 2018, Mr Korn appeared and confirmed that he would be trial counsel in this matter. He informed the court that he had not started the process of reading the brief, was finishing his last commitment, had a jury out in a trial and had otherwise "cleared the decks". He sought that the accused be kept at a correctional centre in Sydney and requested that the trial start on 26 March 2018. The matter was adjourned until 9 February 2018 for further mention. I again made certain recommendations to Corrective Services that, given the age of this matter and the strong need for it to be ready for trial on 19 March 2018, all appropriate steps be taken to ensure that he have access to his legal representatives to prepare the matter for trial (within the power of Corrective Services and having regard to their arrangements regarding the accused). That would include not only him being housed at a correctional facility within the metropolitan region of Sydney but also that his lawyers have sufficient opportunity when they do meet with him to prepare the matter for trial.
On 9 February 2018, it was agreed that pre-trial arguments would commence on 6 March 2018. Mr Korn indicated that another counsel might be brought in to argue the pre-trial legal argument regarding tendency evidence and some additional pre-trial matters. I was informed Mr Tim Game SC had been approached in that regard and Mr Korn was to confirm his availability. The matter was adjourned to 6 March 2018 for pre-trial arguments. I again made certain recommendations to Corrective Services. I requested that a copy of that day's proceedings be provided to Corrective Services. I recommended that, to the extent that it is consistent with the duties of Corrective Services, the accused be housed in a correctional centre in the Sydney metropolitan region and that all efforts be taken to ensure that he has access to the electronic material and other brief material needed to prepare this matter for trial.
On 24 February 2018, Mr Kyriacou emailed an unfiled notice of motion to my associate, returnable on 27 February 2018, seeking to vacate the trial date. The motion was formally filed in court on 27 February 2018. The motion was part-heard on five occasions: 27 February 2018, 1 March 2018, 6 March 2018, 8 March 2018 and 13 March 2018. The evidence adduced by the accused and the DPP is summarised below at [24]-[42]. The submissions and developments relevant to each hearing date is then summarised at [43]-[104].

The evidence on the motion

Nine affidavits were read on the motion. The accused relied upon two affidavits from his solicitor, Mr Kyriacou, sworn on 26 February 2018 and 28 February 2018. The accused also relied upon his own affidavit which was sworn and filed in court on 6 March 2018. The Crown relied upon the affidavit of Timothy Price sworn on 27 February 2018, two affidavits of Peter Sharp sworn on 5 March 2018 and 6 March 2018, the affidavit of Sue Wilson sworn on 5 March 2018, the affidavit of Scott Ryan sworn 12 March 2018 and the affidavit of Lucy Patterson sworn on 14 March 2018.
Briefly, the affidavits relied upon by the accused assert that, because of his accommodation in the HRMCC in Goulburn, it has not been possible for him to access his brief, confer with his legal representatives or listen to the Witness E calls. The affidavits relied upon by the Crown contradict a great deal of the evidence provided by the accused and his solicitor as to the extent of access being denied to the accused.
By the time I was asked to first consider the detailed evidence pertaining to the accused's custodial arrangements on 27 February 2018 it was already out of date. By that time, the accused was being housed at the MRRC at Silverwater again and the court was informed that he would remain there until the trial was concluded. Despite this, and given the fact that the accused made a number of complaints on 13 March 2018 to the effect that this motion was not being properly considered, I propose to summarise all of the evidence before me on this application.

Mr Kiki Kyriacou - Affidavit of 26 February 2018

Mr Kyriacou swore his first affidavit on 26 February 2018. He provides a detailed account in relation to the problems associated with the accused's trial commencing on 19 March 2018. The difficulties are described as being in relation to his access to the Witness E calls and to his legal representatives.
Mr Kyriacou set out all of the correspondence with respect to requests that had been made for the accused to remain at MRRC at Silverwater for the purpose of legal conferences with Mr Korn and requests for the accused's laptop to be unlocked so that he can access USB and CD material. The relevant correspondence for the period between 20 November 2017 and 24 February 2018 is annexed to Mr Kyriacou's affidavit. Ultimately, Mr Kyriacou deposed that the accused has not been given adequate time and access to the relevant material and to his legal representatives to provide instructions - a matter which was beyond his control.

Mr Timothy Price - Affidavit of 27 February 2018

Mr Timothy Price, intelligence officer at the HRMCC, swore an affidavit on 27 February 2018. He confirmed that inmates at the HRMCC are able to receive visits from their legal counsel for a period of up to 1.5 days per week and that these appointments can be booked by legal representatives. Mr Price said that, between 19 November 2017 and 27 February 2018, the accused had not received any in-person visits from his legal representatives at the HRMCC nor had any bookings been made to visit him during this period. With respect to the period between 8 February 2018 and 15 February 2018, during which time the accused was housed at the MRRC at Silverwater, Mr Price confirmed that the accused likewise did not receive any visits from his legal representatives nor were any booking requests made.
Mr Price also confirmed that inmates of the HRMCC are able to have three AVL conferences with their legal teams each week. However, the accused had participated in only two AVL conferences between December 2017 and 27 February 2018, on 19 January 2018 and 8 February 2018. It was noted that an AVL conference had been booked for 28 February 2018.
With respect to computer access, Mr Price said that inmates are able to use the desktop computer which is generally available to inmates every day from 8:30am to 11:30am and 12:30pm to 2:15pm. When using this computer, inmates are able to access CDs, USB drives and external hard drives. Inmates are able to book the computer, with bookings recorded in the "daily access sheets". Mr Price annexed daily access sheets for the 12 weeks between 1 December 2017 and 25 February 2018 and noted that the accused had booked and used the computer on only one occasion during that time and there were 54 occasions between these dates where the computer was available and free to use while the accused was located at HRMCC (it is noted that this included the time that the accused was at the MRRC).
Mr Price also confirmed that the accused has had access to a laptop with a 60GB capacity as part of a pilot program currently being conducted at the HRMCC. Mr Price said that the accused was able to access the laptop at any time of the day and that, if he needed access to additional data, approved service providers known as "legal printers" can assist with loading information and data management, including compression of files into smaller sizes to free up additional storage space.
Finally, Mr Price confirmed that the above information had been communicated to the accused's legal team on 16 January 2018, 19 January 2018 and 24 February 2018.

Mr Kiki Kyriacou - Affidavit of 28 February 2018

Mr Kyriacou swore his second affidavit on 28 February 2018 which responds to the matters made in the affidavit of Timothy Price concerning difficulties in arranging legal visits with the accused, including AVL conferences, particularly during the period 1 December 2017 to 25 February 2018, which includes the period when his offices were closed for the Christmas break between 21 December 2017 and 15 January 2018. Mr Kyriacou further outlined the difficulties with respect to the accused obtaining access to a USB containing the Witness E calls due to the accused's movements between Goulburn and Sydney and procedures concerning access to a desktop computer to access the material. Mr Kyriacou said that requests had been made to Corrective Services to facilitate the progress of the matter to proceed to trial. He further deposed that access to the accused is a "priority" given the size of the evidentiary material and in circumstances where new counsel had been freshly briefed. Mr Kyriacou further said that the Witness E calls had broadened the trial's parameters and the accused should have the opportunity to listen to and analyse the material.

Ms Sue Wilson - Affidavit of 5 March 2018

Ms Sue Wilson, Governor of the MRRC at Silverwater, swore an affidavit on 5 March 2018. She confirmed that the accused is classified as an "Extreme High Security inmate." Ms Wilson outlined the process for utilising legal conferences at the MRRC and deposed that no requests were made nor legal visits conducted during the time the accused was at the MRRC between 8 and 15 February 2018. Ms Wilson stated that a three hour legal conference had been held on 27 February 2018 but that there was no appearance by the accused's legal representatives at the meeting booked for 28 February 2018. Ms Wilson further said that, if bookings are made, there is nothing inhibiting the accused's legal team from visiting him for a number of hours on any day of the week and that, even if bookings are not made, all attempts to facilitate the conferences between the accused and his legal team will be made.

Mr Peter Sharp - Affidavits of 5 and 6 of March 2018

Mr Peter Sharp, manager of video conferencing at Corrective Services, swore his first affidavit on 5 March 2018. Mr Sharp detailed how inmates can access desktop "blue image computers" at the MRRC. He stated that the accused has had access to a personal laptop with 60GB capacity for the last eight months that was provided to him by Corrective Services. He described the process for loading new data onto that laptop and said that the accused may be provided with a new laptop with 120GB capacity. He also stated that the previous practice of permitting approved inmates to have access to external (private) laptops for the purpose of reading external USBs, CD-ROMS and external hard drives (as occurred during the accused's first trial) is no longer in place in New South Wales.
Mr Sharp's swore his second affidavit on 6 March 2018. He confirmed the availability of a new 120GB laptop for the accused and outlined the process of how all of the material on his current 60GB laptop and any other appropriate material (including the Witness E calls) could be transferred to a new laptop within five days from the time the laptop is received by him.

The accused - Affidavit of 6 March 2018

In his affidavit sworn and filed in court on 6 March 2018, the accused provided a detailed account of his movements between the HRMCC at Goulburn and the MRRC in Sydney as follows: from Goulburn to Sydney in September 2017; back to Goulburn on 19 December; to Sydney on 8 February 2018; back to Goulburn on 15 February 2018; and finally to Sydney on 26 February 2018. He explained the difficulties associated with each movement with respect to delay in obtaining access to his brief materials and the procedures to obtain access to a desktop computer and a laptop. The accused detailed issues in relation to access to a desktop computer at the HRMCC. He described a discussion he had at the HRMCC with Mr Poulsen on 24 February 2018 with respect to issues including the "unlocking" of his laptop and the Court recommendation that he remain in Sydney.
The accused detailed the difficulties in relation to gaining access to a USB provided to him on 8 December 2017 containing most of the Witness E calls (relating to the period between 11 October 2010 to 22 February 2012) as well as a second USB containing all of the Witness E calls (relating to the period between 1 January 2010 and 22 February 2012) that he says he received at the end of January 2018 or early February 2018.
The accused deposed that, at his time at the HRMCC, he is generally able to listen to four or five calls each day during his 30 to 40 minute computer access during a "let go period" each morning. He does not have headphones, which makes it difficult to hear the calls because the computer speakers are not clear and there is noise from other inmates. He stated that such access was not recorded on the daily access sheet. The accused stated that he has not had the opportunity to listen to all of the Witness E calls and therefore he is unable to properly instruct his legal team. The accused further deposed that, had the Crown not provided him with the Witness E calls, he was otherwise ready to proceed with the trial. He said that, if he has not listened to all of the calls, he would not being receiving procedural fairness as he would not be ready to proceed to trial.

Mr Scott Ryan - Affidavit of 12 March 2018

Mr Scott Ryan, intelligence officer at the HRMCC, swore an affidavit on 12 March 2018. Mr Ryan said that blue image computer can be booked by inmates. Mr Ryan deposed that Mr Joseph Stephens (Unit Senior of Unit 8) had confirmed that the accused had been accessing the computer room for approximately 30 minutes most days from mid-January onward and that he had accessed the computer in the morning before the computer could be used by other inmates. It was further stated that the accused's morning computer access would not have prevented him from booking the computer at other times when it was available. The accused objected to the reference to "mid-January" - a point which was not pressed by the Crown. He otherwise had no objection to that affidavit being read. The effect of the affidavit is that it lent some support to the accused's contention that he had in fact been listening to calls for 30 to 40 minutes a day (contrary to the evidence of Mr Price).

Ms Lucy Patterson - Affidavit of 14 March 2018

Ms Lucy Patterson, the instructing solicitor from the DPP, provided an affidavit sworn on 14 March 2018. This affidavit was read in court on 15 March 2018. In her affidavit, Ms Patterson makes reference to a document produced by Police which had summarised some of the gaol calls made by Witness E. This document had been served on the accused by the DPP on 18 January 2018, together with the recordings relating to the period between 1 January 2010 and 22 February 2012. She confirms that the summary of the calls does not purport to be a summary of each and every call served on the accused. The relevant periods to which the summary relates are as follows: 1 February 2010 to 31 March 2010; 1 June 2010 to 30 June 2010; 1 October 2010 to 31 December 2010; 28 March 2011 to 15 April 2011.

27 February 2018

On 27 February 2018, Mr Korn submitted that a number of issues were impeding his preparation of the trial.
First, despite the recommendations that I made to Corrective Services on 5 and 9 February 2018 that the accused be kept at the MRRC at Silverwater so that his legal team could have access to him, the accused had in fact been returned to Goulburn.
Second, the accused needed to listen to the Witness E calls. These recordings had been subpoenaed and obtained by the accused's legal team in USB form. The recordings were comprised of a total of 2,699 separate calls, with 2,033 calls served on 8 December 2017 (relating to the period between 11 October 2010 and 22 February 2012) and the balance served on 18 January 2018 (extending this period to 1 January 2010 to 22 February 2012). Mr Korn suggested that the accused was the appropriate starting point to listen to the calls as he has "knowledge about them that we don't". Mr Korn further said that he had spoken with Mr Djemal and that the previous procedure was that the accused would review the material and would thereafter provide "comprehensive written instructions". In response to this submission, the Crown suggested that the accused's legal team were in a better position to listen to the calls, especially as the calls were in English. Following this submission, I observed that I did not understand why the accused needed to listen to all of the recordings in circumstances where the calls were in English and his legal team would be able to listen to them.
Third, Mr Korn submitted that the accused had limited access to the telephone recordings. This was mainly due to the fact that the accused's laptop only had 60GB of storage capacity which had been completely utilised by other brief material. It was also said that, for the new recordings to be transferred to his laptop, old brief material would need to be removed, which could create additional issues concerning cross-referencing. In this respect, Mr Korn said that the accused needed what was referred to as an "unlocked" laptop - one which had a useable CD drive or USB drive so that the recordings could be accessed via external memory. It was accepted that, if the accused did have access to an unlocked laptop, he could listen to the calls in his cell for extended periods of time.
Fourth, it was submitted that although the affidavit of Mr Price suggested that the accused had not been utilising the desktop computers at the HRMCC in Goulburn, there was in fact only one such computer for a number of competing inmates.
Fifth, in response to the suggestion that the accused could read the transcripts of the recordings rather than listen to them, Mr Korn confirmed that the telephone recordings had not been transcribed.
Ultimately, Mr Korn submitted that in order to prepare the trial, he needed the accused to be settled at Silverwater in Sydney with access to his full brief, including the telephone recordings. Mr Korn said that he would attempt to contact the Commissioner of Corrective Services, Mr Severin, in order to expedite this arrangement.
After making these submissions, the motion was stood over to 1 March 2018 to allow the Crown to consider and respond to Mr Kyriacou's second affidavit and to give an indication as to whether the accused would be kept at the MRRC in Silverwater instead of the HRMCC in Goulburn. At the end of the hearing, I again made recommendations to Corrective Services, this time to the effect that all reasonable steps be taken to ensure that the accused and his brief remain at the MRRC.
It is noted that on each occasion that this matter subsequently came back before the court in the following weeks (on 1, 6, 8, 13 and 15 March 2018) there was significant repetition of the above complaints. I do not propose to repeat them. Rather I will only refer to additional submissions and developments thereafter.
At the hearing on 1 March 2018, it was confirmed that the accused had remained at Silverwater and had received his brief. In relation to the Witness E calls, Mr Korn confirmed that there was approximately 292 hours of recorded content and no transcripts, and that the accused wanted to listen to the calls to establish that Witness E was himself involved in the murder. It was said that the accused had been able to listen to approximately 5 calls per day, with each telephone call (having been made from custody) limited to a maximum of 6 minutes. Mr Korn said that the accused had already found "absolutely compelling evidence to support his position" by listening to the calls. Mr Korn further submitted that, if the laptop was "unlocked", the accused would be able to listen to 5-6 hours of calls each day. Mr Korn requested a two week adjournment so as to revisit their position after considering how many calls they could get through during this time, including Mr Korn himself reviewing the material.
Mr Korn also raised the issue that there were some restrictions in terms of getting access to the accused at Silverwater for legal consultations due to newly introduced visitation rules. It was said that bookings were required to be made 24 hours in advance and that visits were restricted to 30-minute blocks. (This was later contradicted by the affidavit of Sue Wilson referred to above at [35].)
At one stage during submissions, the Crown Prosecutor suggested that the accused was seeking the adjournment, not to listen to the Witness E calls, but so that he could arrange for more senior counsel to be briefed. Mr Korn took issue with this and confirmed that he was not a "Clayton's lawyer" and did in fact hold the brief to conduct the trial.
Mr Korn accepted that a great deal of the affidavit material before the court was now out of date. He accepted that the motion may well be able to be dealt with by way of a short adjournment measured in weeks depending on whether certain matters are able to be achieved in the interim.
I stood the hearing over to 6 March 2018. Mr Korn said that, in the interim, he would confirm whether different counsel could be briefed for the purpose of conducting certain pre-trial arguments, including a discrete issue relating to tendency evidence, as had been suggested on 9 February 2018. At the request of Mr Korn, I made a number of recommendations to the Governor of Silverwater, Ms Sue Wilson, as follows: that the accused have access to USB/disc material relevant to his trial; that the accused remain at Silverwater; that the accused's legal team have access to the accused for the full visiting time allowed on each given day; and that visits not be limited to 30-minute blocks.

Proceedings on 6 March 2018

At the hearing on 6 March 2018, Mr Korn indicated that he was now instructed to deal with the motion to finality, seeking that the trial date be vacated and the matter be put back into the callover for allocation of a new trial date. Mr Korn submitted, after looking into the issue of the Witness E calls himself, that he was "unequivocally" satisfied that the appropriate person to listen to them first was the accused as he possesses a "unique knowledge" in relation to the material, and specifically, the whereabouts of various persons at the times the calls were made.
By this stage, the affidavit of Mr Sharp sworn 6 March 2018 was before the court. Mr Sharp confirmed that the accused would be provided with a laptop carrying a capacity of 120GB and that material could be placed on the laptop within 5 days (see above at [37]). It was accepted by the accused that this laptop would be sufficient for his purposes. When asked how long it would take for the accused to listen to the recordings in light of this new development, Mr Korn said that it would take a period of approximately 48 days. I note that this is an average of 6 hours per day assuming that the entire 292 hours were yet to be listened to.
Mr Korn advanced an added difficulty relating to the accused's finances. It was said that the accused did not wish his legal team to examine the recordings before he had the opportunity to do so on that basis that he does not have the funds to cover the costs involved in having his legal representatives do the task. It was submitted that the accused was operating "on a shoe string" as a result of the abortion of the trial in October 2017 and a subsequent claim made by his then senior counsel, Mr Heliotis, for unpaid fees.
Mr Korn then called the accused to give evidence on the motion. A number of matters contained in the accused's affidavit sworn on 1 March 2018 were reiterated. The accused said that, while his legal team had received the subpoenaed recordings on 8 December 2017, he had not personally gained access until around 3 January 2018. The accused said that he had used the desktop computer at the HRMCC in Goulburn on every available morning, but that he was unable to use a computer in the afternoon due to fairness to other inmates who were also facing trial. He also said that, contrary to the affidavit of Mr Price, the computer was not available between 8:30am and 11:30am. Instead, it was said that, after "let-go", the accused would arrive anywhere between 9:00am and 9:15am and would have to be back in the cell by 10:45am so that the lunch breaks of the Corrective Services officers would not be interrupted. The accused ultimately stated that he was able to listen to between 30 and 40 minutes of phone calls each morning that the computer was available to him.
With respect to the run-sheets annexed to Mr Price's affidavit, the accused said that he was not at the HRMCC in relation to a number of the relevant days, and therefore, he could not have used the computer on those occasions. For instance, the accused said that the run-sheets covered a period commencing in November 2017 whereas he didn't get back to the HRMCC until 19 December 2017, and that he was in Sydney between 8 and 15 January 2018.
The accused gave evidence that his brief generally did not travel with him at the times when he had been transported between the MRRC in Sydney and the HRMCC in Goulburn, and on the times it had been, that there were delays in receiving the brief after he had arrived.
When asked by Mr Korn how many hours of recordings he could listen to each day once he received the 120GB laptop loaded with all of the material, the accused said he could process roughly 5 hours of calls each day, noting that further time was required to stop the recording and write notes as required. The accused gave the example that listening to 5 hours of recordings could entail 6 hours of work.
The accused also gave evidence that, during the hours between 9:00am and 3:00pm (outside the hours of "lock-in"), the other inmates were constantly yelling and screaming to each other and that concentrating on the recordings was therefore difficult. The accused indicated that he could listen to the calls only after 3:00pm. However, in response to questions I directed to the accused, he conceded that he could listen to the recordings between 9:00am and 3:00pm albeit in less favourable conditions than at times outside these hours. On this point, the Crown asked the accused in cross-examination whether he had headphones that would assist in blocking out external noise and improve the listening conditions. The accused said that he could probably get them upon request but noted that he had not received headphones when a request had been made prior to his first trial in 2016.
The accused said that he had listened to approximately 120 to 130 of the approximately 2,800 phone calls as at 6 March 2018. He also said that most of the phone calls were made by Witness E to his wife, father-in-law or children.
During cross-examination, the accused said that he had intended to proceed to trial until the Witness E phone calls were served by the Crown on around 18 January 2018: "Q. You're exaggerating your problems in relation to firstly, getting access to a computer to listen to this material, aren't you; that's what you're doing? A. No I'm not. Q. You're doing that I suggest, because you have no intention of this trial starting on the listed date of 19 March, have you? A. I did have an intention of running the case until you put them phone calls in the brief. That's the only reason why we're trying to vacate this trial. The only reason. Q. You're aware because it's been stated in court, that the material the Crown has served on you concerning the telephone calls is not intended to be adduced by the Crown in its case; you're aware of that aren't you? A. No I'm not aware of that."
In relation to how many of the calls the accused had listened to, the following exchange took place: "Q. So out of the 2800 you have had now for over a month, you have listened to‑‑ A. 120, 130, but what I have done, instead of going through the whole lot ‑‑ because I went to certain dates, and then mixing and matching, going back and going forth ‑ that I haven't listened them consistently all the way. I started from the back, went back to the front, to dates I found relevant, dates around the murder, dates around his sentence, for example, and dates around."
The accused also conceded that it was possible that Witness E would not be called until the end of the Crown case, thereby providing a number of additional weeks to listen to the Witness E calls: "Q. As I understand the Crown Prosecutor's question, Mr Sparos, it is this: Do you understand that the estimate of your trial is 8 to 10 weeks? A. Yes. Q. Do you understand it's possible witness E may not be called until the conclusion of the Crown case; do you understand that? A. It's possible."
When cross-examined on the relevance of the Witness E calls to his trial, the accused said that: "I will give you a little bit. I'll give you a little taste. If that's what you want, I will give you a little bit. He has asserted that there is no other trial here, except the jury's verdict of guilty. That's what he asserts. And, yep, he was never going to appeal. He was never going to do anything like that. That's what he says, yes, there is phone calls where he is talking about getting a retrial, which contradicts what he is saying, and that is one that Mr Spelling has transcribed in his little thing and it is even wrong what he put in there. Trying to oversee, so if you are going to rely on them during the trial you should double‑check them yourself. I can give you that heads‑up."
Furthermore, when questioned about a summary document that had been prepared by police and served by the Crown on 18 January 2018, the accused said that "I don't do summaries. I have had a flick through".
During Mr Korn's submissions, I indicated that, whereas I accepted that someone in the accused's legal team had to listen to the recordings before Witness E gave evidence, I did not accept that the accused had to listen to every single call prior to the commencement of the trial.
With respect to whether separate counsel had been organised to conduct the tendency evidence arguments, Mr Korn said it had not been arranged. On this point, the accused' solicitor, Mr Kyriacou, submitted that Mr Tim Game SC had been tentatively briefed for 13 March 2018 but that he had not been formally briefed as there was concern that Mr Kyriacou would incur a bill for his services whereas the money had not yet been provided by the accused for that purpose.
Shortly after this, Mr Korn was passed a note and requested a short adjournment which I permitted. Upon recommencement of proceedings, Mr Korn informed the Court that the accused had withdrawn instructions from his legal team. The accused's legal team thereafter left court.
In light of this development, the Crown Prosecutor maintained his opposition to the trial date being vacated. He stated that, although a cautious approach would have to be taken in the conduct of the proceedings if the accused was to be unrepresented, the accused was a capable and intelligent man able to conduct the proceedings, as he had seen during the first trial. He reiterated that many witnesses who are ready to give evidence at this trial cannot be left in inevitable limbo in circumstances where the matter has already been postponed from October 2017.
With respect to whether the accused would be ready to proceed unrepresented, the following exchange took place: "HER HONOUR: Mr Sparos, if I was to give you some time to listen to the calls, when would you be ready to start the trial representing yourself? Is that what you wish? ACCUSED: I wish to listen to the phone calls myself and have a fair trial. HER HONOUR: That is not an answer to my question, Mr Sparos ACCUSED: That is why we are in this position, but, yes, as soon as I listen to all the phone calls and have a couple of weeks for prep, I will be in a position to run it myself. HER HONOUR: So, what about the tendency argument, would you still get Mr Game to argue that? He probably won't accept a direct brief. You will have to get a solicitor to brief him. ACCUSED: I will have to see about that. I couldn't give you an answer on that. This is the problem that keeps arising. We are going through all these other avenues and fixing every other problem except the main problem. The main problem is the phone calls and the laptop. Once we fix that problem, which I asked to be fixed last December ‑ we wouldn't be in this position now. HER HONOUR: Listen to me, Mr Sparos. Your solicitors were going to arrange to have that laptop changed for one with 120 gigabytes. Now they no longer act for you, are you able to arrange that yourself? ACCUSED: I'll put in a request form. I'll take it up. As soon as I get that computer and from that day I can give you a rough estimate how long it's going to take..." (emphasis added)
I stood the motion over to 8 March 2018 to allow the Crown to adduce further evidence regarding the accused's access to computers whilst housed at the HRMCC in Goulburn, and to give the accused time to reflect on his decision to sack his legal team.

Proceedings on 8 March 2018

On 8 March 2018, a number of unrelated motions were dealt with. The Crown Prosecutor confirmed that he has not yet been able to obtain the further evidentiary material concerning the accused's access to the computers at the HRMCC in Goulburn. He submitted that the hearing of the application should be adjourned so that the accused could further consider whether he would proceed unrepresented.
In order to save time, the Crown Prosecutor sought to serve on the accused a number of items. He provided a disc containing the Witness E calls so that the accused could listen to them on a shared computer during the five day period it would take to transfer the Witness E calls onto the accused's new 120GB laptop. He also provided a set of headphones so that he could listen to the calls in a quieter setting and a transcript that had been made in respect of some of those calls. The most senior Corrective Services officer accompanying the accused in court that day, who identified himself as Mr Delarue, confirmed to the Court that the property would travel with the accused back to the MRRC and get processed, although he was not sure what the policy was regarding headphones at Silverwater. On this note, the Crown Prosecutor advised that the manager of security had confirmed with his solicitor that the accused would indeed be able to have the headphones.
The motion was stood over to 13 March 2018 to ensure the accused's application to have the recordings transferred to his laptop was formally lodged and to allow the accused further time to reflect on whether he wished to remain unrepresented.

Proceedings on 13 March 2018

On 13 March 2018, it was confirmed that the accused's laptop had only been taken away that day to have the Witness E calls uploaded, which was expected to take 7-10 days. I was also informed that the accused had not received his headphones as yet.
Although the accused indicated on a number of occasions that he wished to cross-examine Mr Price, his lawyers had not previously required him for cross-examination. The Crown Prosecutor did not call Mr Price as a witness so that the accused could cross-examine him. In circumstances where the accused made frequent references to Mr Price being "untruthful", I propose to approach his evidence with some circumspection to the extent that it is necessary to make any final determination as to the veracity of his evidence in any event.
The Crown Prosecutor sought to assist the court by summarising the matters raised by the accused during the hearing of the motion. He identified the matters relied upon by the accused as being: the withdrawal of his previous lawyers in October 2017; the ongoing financial dispute with his previous senior counsel; the pending cancellation fee in relation to Mr Korn; his previous desire to have senior counsel who were not available until after August 2018; that he feels pressured by time constraints; that he felt pressured to utilise the services of Mr Korn; that Mr Korn formally came into the matter from 5 February 2018; that the accused has indicated in the "strongest terms" that he needs to examine the calls of Witness E; and that he was "adamant" that he performed the same process in relation to Witness A at the first trial.
The Crown Prosecutor also referred to the accused's complaints concerning access to the gaol calls, that he only had limited access to the shared computer at Goulburn, with access limited to half an hour each day. The accused has made repeated requests to have his laptop "unlocked" so that the calls can be placed on his laptop. He is currently being housed at Silverwater and still has well over 2,000 calls to listen to. He has indicated that he does not accept any summary provided by investigating police as to the content of the calls. The Crown Prosecutor observed that the accused has implied that he terminated the services of his lawyers because he lost confidence in them.
The Crown Prosecutor submitted that, if the accused was legally represented, he may have relied upon the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 ("Dietrich"). He noted that that decision is authority for the proposition that in an exceptional case if an accused person wants legal representation, an adjournment should be allowed to obtain that representation. He submitted that he raised these matters as a matter of fairness to the accused and noted that one of the fundamental issues before the court now was the fact that the accused is unrepresented.
The accused was then given the opportunity to indicate whether he accepted the Crown Prosecutor's summary of his complaints and whether there was anything else he wished to add. The accused stated that "obviously I want to be represented." He stated that when he first met Mr Korn he thought that he could work with him but that when he was sent back to Goulburn he did not get any legal visits or phone calls and was not in a position to give "directions" to counsel. He disputed the evidence about his access to the computer room. He stated that he did not consider the Witness E calls to be "disclosure." He noted that the police have isolated 19 calls in which Witness E confirms that he did not wish to appeal his conviction and which demonstrate that he had no motive to kill a Crown witness. He then stated: "That's why the phone calls need to be listened to. They are not disclosure. If they were disclosure he wouldn't have picked out 19 calls that every single one of these calls is him not doing his appeal so that would go to the no motive, no motive, no motive to kill a Crown witness, him forgiving all people that are behind it. The phone calls that I've listened to are quite, where, completely the opposite, your Honour. Completely the opposite. And these, that's why these phone calls need to be listened to because what the Crown says to you from the bar table your Honour, and what he does later on mid trial by that time the trial has already started. It's too late for us to come back and say oh, we didn't need to listen to it. He's done it before, I've sat through a 17 week trial, your Honour. He's chopped and changed so many times in it."
He also complained about the ongoing issues at his trial if Corrective Services were to maintain their position that he cannot have access to an "unlocked" laptop computer during his trial. He explained that "unlocked" means that external discs and USB sticks can be accessed via the laptop. He then stated: "That's my problem, your Honour. I've been asking for this since back in November. And just so your Honour understands, unlocked is you can put the CD in or the USB in at a time when you want to put it in. Now, there's going to be times during the trial when there is going to be material that is material that is going to be given to us and I'm not going to be able to listen to it during the trial. … But the thing with that is that I can't come in and say, wait a sec. Let's do a stay of the courtroom. The jury has already been picked, we can't have a jury waiting around for weeks. The laptop is going to have to be given back to Mr Sharpe, Mr Sharpe will take his seven days or whatever. … But during the last trial your Honour this is stuff that comes through during the trial. This is material I never got to view or stuff like that. At that time my laptop was unlocked. Now we're going to find ourselves in a position where, let's say that does happen during the trial and the laptop is locked, what am I going to do? Come to your Honour and say your Honour, let's send the jury home for a week because we have to wait for Mr Sharpe to load my computer? That's the situation we are going to find ourselves in."
When I enquired of the accused as to whether the Crown Prosecutor had provided a fair summary of his complaints he stated: "That's a fair summary but you've left out the part where I did engage a counsel and, through no fault of my own, I was escorted back to Goulburn where I couldn't get the proper visitation off that lawyer to give them the directions. And then the new brief is served and I can't brief these barristers unless I've looked at all the material before I can send them on a path and say this is the path I'm going down. And it's not just Witness E's evidence. Like he said, we have evidence where he's saying it is going to be supported by Mr Christopher Ford which was the solicitor acting for Witness E. Then it goes to the officers, there is going to be several officers that need to be cross‑examined over the material of Witness E."
He later confirmed that he did want senior counsel and had to get junior counsel he was comfortable with but then the issue of the Witness E calls arose: "Just on that, he's come along and said that this is a big tactic for me to get the senior counsel. Just to stop that, I'm not in the habit of throwing money away. Now, for me to sack my legal team is going to incur a cost of a cancellation fee, prep that's already been done. Okay. So these are certain things that for me to get a fair trial, this is what I need to do. I need to listen to these calls to be able to brief."
The Crown Prosecutor then proceeded to make his final submissions as to why the trial date should not be vacated. He emphasised that it was ready to proceed for trial and has been since October 2017. In doing so, he accepted that a short adjournment would be required in order for the accused to prepare the defence of his own trial. However, he opposed any lengthy adjournment. He indicated that, as over 50 witnesses have been waiting for this trial to be heard for a significant period of time, it is not only in the interests of the court and the accused that the trial be finalised but also the witnesses.
The Crown prosecutor submitted that, although the motive for being unrepresented is not strictly necessary to determine, fault is. The Crown submission was that the series of events ultimately rests with him and he has made the decision to terminate his counsel because "for some reason he is just not prepared to proceed."
The Crown Prosecutor submitted that the Dietrich principle did not apply because the accused has elected not to have legal representation in this trial. He further submitted that the court would not accept that the accused wanted the trial to commence "but for" listening to the 2800 calls. He relied upon all of the evidence summarised above in support of this submission,
He emphasised the Crown position that it is not necessary for the accused himself to listen to all of the calls. He described this as a "ruse" on the part of the accused to obtain an adjournment. He stated that the calls are "not particularly significant from his point of view it all." He noted that, consistent with his ethical obligations, if he was aware of any material in the Witness E calls that would assist the accused in his defence, he would be obliged to bring it to the court's attention during the hearing of this application. He noted that the Witness E calls do not involve the accused nor is there any code in them known to the accused in contrast to the code used by the accused in some of his own gaol calls relied upon in the Crown Case. It was noted that the calling of Witness E will be delayed until well into the trial.
The accused responded to these submissions at length. His complaints were far-reaching and at times descended into significant detail in relation to factual matters pertaining to his trial. What is clear is that the accused vehemently believes that he cannot get a fair trial until he himself, as opposed to any clerk or lawyer, listens to every single one of Witness E's personal calls. He stated that he has already listened to some of the calls and ascertained matters that will be able to be put to Witness E to attack his credit. His submissions continually returned to his desire to delay his trial until he has listened to the relevant calls.
He submitted that, even though Mr Kyriacou has been his solicitor since before his first trial, he was not present for every day of that trial. He made a number of references to the fact that he never wanted his trial to start in March 2018. He also made further complaint about the money owed to Mr Heliotis.
He referred to the affidavit evidence from Corrective Services that even when a AVL conference is booked it can take some days for it to be available. He did not accept the evidence of Mr Price. He complained that the 54 occasions that Mr Price says the computer room was available to him is wrong and only six of them were available and that, if Mr Price was called as a witness, he would be able to prove that. He made specific complaints about the terms of his incarceration at Goulburn and how inconvenient it was to be moved from Silverwater to Goulburn.
During his submissions the accused stated: "ACCUSED: The only point I want to stress is I have done everything in my power to listen to these calls. What's left for me to do? Do you want me to start assaulting staff, burning my cell? There's nothing else for me to do. HER HONOUR: Mr Sparos, please don't even joke about those matters. ACCUSED: No, I'm not joking about it. That's what certain inmates do down at HRMU when they don't get their own way, they start burning their cells and assaulting staff. Now, I haven't taken that path. I have done everything. I have left it in the Court's hands. Every time we've come here we have asked for the same stuff. It has been left to the eleventh hour. Now I am getting a laptop. It's not fair. And to come along and say, yes, why does he need to listen to the calls, I will tell you why - "
I then asked the accused to be precise about how much actual time he needed. He repeated his sworn evidence that it would take 48 days if he did it for five hours a day. I reminded him that that was his estimate of how long it would take him before he had been provided with headphones and a personal laptop with all of the calls loaded onto it which he could listen to in his room at any time. I asked him how many more hours a day he could spend listening to the calls given the change in circumstances and he answered "I will say around the same." When I questioned him as to why he could not listen to more than five hours a day he stated: "ACCUSED: Now what you were saying before when we brought up the headphones was, "Why can't you listen to them through the day?". Now I am out of my cell for five hours a day, so you want me to do 24 hours a day in my cell? Is that what your Honour is suggesting I do? HER HONOUR: No, clearly I have indicated you need time to sleep and eat. The point I was making, and have made on a number of occasions, is it is somewhat defeatist to suggest that you can only listen to five hours a day when you have a far greater time period available to you to do so. Trying your hardest, not being defeatist, not saying it is only five hours and you can't do any more, I ask you again: What do you think is the most you can listen to a day? ACCUSED: Five to seven hours a day."
The accused made further submissions as to why he needs to listen to the calls rather than the lawyers because "they don't know relevant times, what is going on, who is there, what is on foot or what is proceeding." He repeated his claim that a lawyer listening to the calls would not understand the significance of things being said by Witness E and that matters could be "completely overlooked". He made further complaint about the delay in getting the calls to him. He reiterated that his solicitor had tried to obtain the calls earlier under subpoena but that had been refused.
He referred to the statement of the Police officer who had listened to all of the Witness E calls. The accused later stated: "I am going to say this, for the record: I have not got my laptop. When I get the laptop it will take time for me to listen to these calls and prepare. If your Honour chooses that path, I am going to say on the record, I will be representing myself. That is my position. This is not a bluff, I am not trying to force your hand or anything like that. I will represent myself. This is not a joke. I am not trying to bully your Honour into any corner or anything like that. I will be representing myself. I want to listen to these calls. I will need some prep time. I would love to be represented but at this stage I will not be and I will be representing myself."
He later stated that his legal team has "moved on" but when I questioned him about that it was not apparent to me that he had spoken to them since 6 March 2018.
At various times the accused became very agitated and swore. At one stage he stated: "I could be back in my cell where I would rather be than sit here being bullied. You are bullying me."
When I warned the accused that his aggressive submissions were coming close to making him in contempt of court, he calmed down somewhat and stated: "I did make the assertion and maybe you feel it is not bullying but that is how I feel, I feel I am being bullied into this."
Finally, I confirmed with the accused the following: "HER HONOUR: And the reason you are going to proceed unrepresented is because you don't want to engage counsel until you have listened to all the calls. Is that correct? ACCUSED: There is no suitable counsel and I want to listen to all the calls to prepare for the trial and conduct the trial. It is not me asking for a Christmas list to get everything my own way. I have not been jumping up and down on this since November. It might look that way to your Honour but I have done everything in my power and by your Honour's rules. What you have asked for me I have done."

Proceedings on 15 March 2018

On 15 March 2018, the Crown read the affidavit of Lucy Patterson sworn 14 March 2018 referred to above at [42]. The accused then tendered two documents. They were not objected to. The first document was an extract of the Court Chronology of Witness E's court proceedings tendered at the accused's first trial showing the dates of his trial and mentions before the Court of Criminal Appeal Registrar for his appeal. The second document was page 4,172 of the transcript of the accused's first trial which records the closing address of the Crown Prosecutor. It includes a reference to police obtaining Witness E's telephone calls after October 2010 but not before and a submission that this indicates that there was nothing in those calls after October 2010 that attracted police attention to make that further inquiry. This material was said to be relevant to the question of why the accused needed to listen to those pre-October 2010 calls now.

Consideration

This notice of motion to vacate the trial date was initially brought by the accused's lawyers on the basis of, inter alia, their limited access to the accused to prepare for trial. The accused is now unrepresented. On this basis, before the merits of the motion can otherwise be considered, it is necessary to address the question of whether his matter should proceed to trial with him unrepresented.
It is well established that an unrepresented accused should be granted an adjournment if he or she can prove that the lack of legal representation is not their fault: Dietrich. As Mason CJ and McHugh J observed of that decision (at 315 and [40]): "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial." (emphasis added)
Mason CJ and McHugh J also observed (at 298 and [1]) that: "…the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence."
I have already set out above the timing of the accused's sacking of his lawyers on 6 March 2018. I have had the opportunity to observe the accused on a number of occasions since October 2017. He is clearly well abreast of his brief and the forensic issues involved. He also has a working knowledge of some relevant legal issues in his trial. I have no doubt that when I made certain comments on both 27 February 2018 and 6 March 2018 to the effect that I could not understand why the accused, as opposed to anyone in his legal team, needed to listen to these calls, he understood the implications of that. I formed the tentative view on 6 March 2018, after the accused sacked his lawyers, that he had done so in order to force the court into a position whereby it would be compelled to accede to his wishes. That initial impression was confirmed by what the accused told me on 13 March 2018 when court commenced that day: "HER HONOUR: Mr Sparos, you are still unrepresented? ACCUSED: Yes. HER HONOUR: Have you given any further consideration to that issue? ACCUSED: No I haven't, your Honour. HER HONOUR: And why is that? …….. ACCUSED: Because at the moment I'm representing myself. HER HONOUR: What does that mean? ACCUSED: It means I'm representing myself. HER HONOUR: For the trial. ACCUSED: It means when I get the, listen to all the phone calls and I'm ready for the trial, if your Honour is insisting that she is forcing this trial on, at the moment I don't have counsel and yeah, I will be representing myself. HER HONOUR: Have you made any efforts to obtain a solicitor and counsel? ACCUSED: No, I have not. And I will not until I listen to all the phone calls." (emphasis added)
During his submissions, the accused stated on a number of occasions that he did wish to engage counsel but would not do so until he had listened to all of the Witness E calls.
I am unable to accept the accused's assertion that he sacked his legal team because he no longer had confidence in them. Rather, I am satisfied that he sacked his lawyers for tactical reasons. I am thus not satisfied that he currently appears unrepresented for his trial through no fault of his own.
Nor is there any evidence before me that the accused has insufficient funds to obtain legal representation for his trial. On the contrary, he told me that he was ineligible for legal aid which, given that he has been charged with murder, would suggest he failed the means test rather than any merit test. He has been privately represented throughout his legal proceedings. He was provided with a cheque for $150,950.00 by the DPP on 8 December 2017 in relation the costs order I made on 27 October 2017. He has continually expressed a desire to have senior counsel for his trial and had apparently arranged to have Tim Game SC briefed for his pre-trial arguments. I am satisfied that the accused could not be described as indigent.
Not only am I satisfied that the accused can afford to obtain legal representation and has chosen not to, it also seems to me that there is still a possibility he would be able to re-engage the services of Mr Kyriacou and Mr Korn for his trial if he elected to do so without further delay. He simply refuses to do so until he is allowed to listen to all of the Witness E calls.
For these reasons I do not propose to stay the trial until the accused obtains legal representation.
I turn then to consider the adjournment application itself. Although the initial motion focussed on difficulty for the accused's lawyers in gaining access to him, most of those complaints are now largely irrelevant given the accused's election to proceed to trial unrepresented.
The central issue for consideration is whether the accused's assertion that he cannot receive a fair trial unless he is allowed to listen to all the Witness E calls before the trial commences is to be accepted.
A great deal of time was spent during the hearing of this motion dealing with the significance of the Witness E calls. I was not provided with any summary of these calls because the accused does not accept the summary provided by the Police. In any event, it was not suggested by the Crown Prosecutor, the accused's legal representatives or the accused himself that I needed to consider that material in order to determine this motion. My conclusions in this regard are thus based on the submissions made by the parties.
The accused's defence relies, in part, on an assertion that Witness E is the real suspect. Complaint was made on the accused's behalf at the first trial that Police did not adequately investigate Witness E as a suspect and Witness E was not called as a witness at that trial. Police have now obtained a statement from Witness E and have listened to his gaol calls during the relevant periods. Evidence will apparently be given by investigating Police at the trial that there is nothing in these Witness E calls which implicates Witness E in the murder. The Crown have served the relevant calls in relation to which that conclusion is based so that full transparency exists.
The Crown does not accept that the accused needs to listen to all of the Witness E calls prior to the trial commencing and contends that this is just an excuse to adjourn the trial to a date when the accused can obtain senior counsel of his choice. I do not consider it necessary to make any finding as to any ulterior motive the accused may have to vacate the 19 March 2018 trial date. The real issue is the veracity of the accused's assertion that he cannot receive a fair trial until he listens to all of the Witness E calls and the time that this will take. His evidence on that issue is somewhat problematic.
In his affidavit, the accused stated that he was ready for his trial on 19 March 2018 until the DPP served the Witness E Calls. He confirmed this during his cross-examination on 6 March 2018 (see [66]). The evidence relied upon by the accused in support of this motion establishes that the accused's solicitor had subpoenaed the Witness E calls and the accused was provided with them in court on 8 December 2017 (it is noted that 2,033 calls were provided under subpoena as opposed to the total 2,699 calls which were served by the Crown on 18 January 2018). He and his lawyers already had access to these 2,033 calls for nearly six weeks before the Crown served those same calls and an additional 666 calls on 18 January 2018. Thus, if the evidence of the accused is to be accepted, he was ready for his trial but for the service of the additional 666 calls by the DPP on 18 January 2018. Even on the accused's highly conservative estimates of how long it takes him to listen to the calls, the service of those additional 666 calls should not have been a basis to delay the trial any further.
The accused and his solicitor had known that Witness E, and Witness E's solicitor, would be called in the Crown case since early September 2017. I am not satisfied that any fault for the problems caused by the Witness E calls can be attributed to the Crown.
There is, however, a real issue as to whether the strict conditions of the accused's incarceration are impeding his ability to listen to the calls. Considerable court time was spent on evidence and submissions addressing the question of precisely how much effort the accused had put into listening to the Witness E calls prior to the motion being filed by his lawyers. I have summarised that material above. I ultimately do not consider it necessary to make a finding in relation to each and every complaint made about Corrective Services by the accused. It is sufficient to state that the evidence before me on this application satisfies me that it is clearly more difficult for the accused to listen to the Witness E calls in custody than if he was at large in the community. If the accused was not in custody he would have no explanation for not having listened to these calls by now - over three months after he was first provided with most of them in court on 8 December 2018. I do not propose to sift through all of the claims and counter-claims to arrive at a finding as to precisely how many hours the accused could have listened to these calls and did not.
Having considered all of the evidence before me on this issue, I consider it sufficient to state the following. Although I am satisfied that the accused has exaggerated the problems he encountered listening to the Witness E calls in January and February 2018, I am also satisfied that his classification as an "Extreme High Security inmate" has caused difficulties for him in his preparation for trial. That is not to apportion any blame; it is a simple fact. I will provide just two examples.
First, at the request of the accused's legal representatives, on 24 November 2017, I recommended to Corrective Services that his laptop be unlocked so he could have access to his brief and any subpoenaed material. That did not occur. On 9 February 2018, I again recommended that the accused be given access to the electronic material and other material needed to prepare this matter for trial. His laptop remained full and locked. On 1 March 2018, I recommended to the Governor of the MRRC that "if at all possible" the procedure adopted in the accused's first trial before Justice Michael Adams in 2016 be adopted and the accused's laptop be available to accept and read the USB and disc material relevant to his trial. It was not until 6 March 2018 (the fourth day of the hearing of this motion to vacate the trial date) that an affidavit was produced from Corrective Services indicating that the accused would be provided with a laptop with greater data storage capacity and that the Witness E calls would be uploaded onto it. The affidavit evidence was that this would take five days from receipt of the accused's present laptop. A week later, on 13 March 2018, I was informed that the accused's laptop had only been taken from him that day for replacement and it would now take a further 7 to 10 days until it was returned to him with the calls uploaded onto it.
Second, on 8 March 2018, the Crown Prosecutor provided the accused with, inter alia, a set of headphones. A Corrective Services officer in court assured me that they would travel with the accused back to Silverwater and the Crown Prosecutor confirmed that he was advised that the accused could have access to them. Despite this, when the matter was back before the court on 13 March 2018, the accused had still not had these headphones provided to him for reasons that were unexplained. They were apparently still waiting in the reception area at the MRRC.
I have referred to these two examples because there is no dispute that these two instances of delay occurred. Nor is there any dispute that they occurred through no fault of the accused. It is uncontroversial to state that Corrective Services policy at any given time may well come into conflict with a prisoner's trial preparation time. To accept that there has been some delay outside the control of the accused is not to accept all of his claims concerning the Witness E calls. In any event, a solution has now been arranged by Corrective Services who have provided the accused with a laptop containing all of his brief, including the Witness E calls. I turn then to consider what should happen next.
Despite the fact that it is not apparent to me why the accused believes that the Witness E calls assist the defence case in the way he claims, the fact remains that he has insisted repeatedly, forcefully, and in an increasingly assertive manner, that he would not get a fair trial unless he could listen to them. It is a serious allegation to assert that the Court would be denying a fair trial to an accused person charged with murder. I have given it very careful consideration.
Prior to the accused sacking his legal team I expressed the view that, although it could be accepted that someone in the accused's legal team should listen to the Witness E calls prior to that witness giving evidence, I was not satisfied that the accused himself needed to listen to all of them prior to the trial commencing. He is not a party to any of them. They are all in the English language. They are not to be tendered in the Crown case. They were only served by way of disclosure. The police have summarised some of them in any event.
In circumstances where the accused is now unrepresented, my position remains unchanged: somebody should listen to the calls before Witness E gives evidence. If the accused has sacked his legal team in order to manoeuvre a situation whereby he is the only one left to listen to the calls, then he should be given some time to do so before Witness E gives evidence. The high cost to the accused of this tactical decision is that he will likely be unrepresented at his trial.
The accused gave evidence that he needs approximately 48 more days to listen to the calls. Although he currently has no access to his laptop whilst the process of providing him with a new one is ongoing, the Crown has provided him with a separate disk containing a further copy of the calls so that he can listen to them at the shared computer at the MRRC in the interim. I do not accept the accused's evidence that once he gets his laptop back it will still not be possible for him to listen to the Witness E calls for more than five hours, or even seven hours, a day. He has a laptop in his cell and apart from sleeping and eating and getting some fresh air and exercise, I have not been provided with any reason why he cannot listen to the calls for longer than five hours a day in any 24 hour period. His explanation that the process is slow because he constantly needs to make notes about the calls seems to me to be somewhat exaggerated. Clearly, not all of the calls will be relevant.
Nor do I accept that the accused needs to listen to all of the calls before he can even consider obtaining new legal representation. Although it is a matter entirely for him, it would be in his best interests to seek to re-engage his legal representatives (should they still be available) and have them prepare his trial. In light of the orders I propose, the accused will have time to listen to the relevant calls if he does so with greater dedication than he has up until now. Witness E is only one of many witnesses at the trial and I anticipate there are numerous other aspects of the case that his legal representatives could be attending to apart from that issue if they came back into the matter. Although the accused stated that both his solicitor and Mr Korn have "moved on," he was not in a position to provide any updated material in that regard as he had made no efforts to obtain any legal representation after 6 March 2018.
The accused seeks to have the 19 March 2018 trial date vacated and placed in the next call-over which would result in a new trial date being given in 2019. The deceased was shot on 6 April 2011. The accused was charged on 3 July 2014. The accused is not in custody solely in relation to this matter. He is also bail-refused in relation to recent charges of attempting to pervert the course of justice (by seeking to bribe a witness in this trial). He is also serving the balance of parole in relation to his drug matters. Despite this, the fact remains that the matter has some longevity and any further unnecessary delay should be avoided.
Although the Crown Prosecutor indicated that, if the matter was to go over to a date next year, new counsel would need to be briefed for the Crown, I do not consider that to be a relevant factor militating either for or against the trial date being vacated.
The Crown has had over 50 witnesses ready to give evidence in this matter for some time. A consideration of where the interests of justice lie is not confined to the interests of the accused alone but also those of the prosecution and the community. The deceased was shot on 6 April 2011. I have carefully weighed all these matters and, in particular, the fact that the accused will now need some time to prepare the matter for trial.
I propose that the trial date of 19 March 2018 be adjourned for six weeks. There are three public holidays during that time when the court could not have sat in any event. It seems to me that this will give the accused sufficient time to listen to the calls, if he applies himself diligently to that task and prepares his matter for trial. He would also have some remaining time to do so on the weekends after the trial commences. It will also give him the opportunity to see whether his previous solicitor and Mr Korn are willing to come back into the matter. That is a matter entirely for him. I accept that this is a longer adjournment than the Crown had indicated would be appropriate but I have had to take into account the commitments of this court in order to arrive at a date which both affords the accused some more time whilst avoiding a situation whereby the trial does not commence until 2019.
I will not be the trial judge on 30 April 2018. The trial will commence before Harrison J on that day.
Although it would have been preferable for me to have resolved all of the pre-trial arguments prior to the matter being reallocated to his Honour, I have come to the view, reluctantly, that it is fruitless to attempt to do so whilst the accused is unrepresented and completely preoccupied with the Witness E calls. The Crown Prosecutor indicated that, should the accused remain unrepresented, some of those arguments can be deferred until after the trial commences, and others may not be pressed.
Finally, I wish to note that the interests of the court in ensuring a fair trial differ to the interests of Corrective Services in ensuring the safe custody of prisoners and the community. The court has no power to order Corrective Services to take any steps to facilitate an accused person's preparation for his or her trial. I have no doubt that there is a significant number of other prisoners with similar issues to that of this accused and I am acutely aware of the security issues that need to be taken into account in relation to prisoners housed at the HRMCC. Despite this, the accused is facing a very serious charge and is now unrepresented. It is to be hoped that Corrective Services will continue to take all reasonable steps to ensure that he can listen to the Witness E calls and otherwise prepare for his trial on 30 April 2018.

ORDERS

In consideration of the above, I make the following orders: 1. 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. 2. The trial is to be re-listed to commence before Harrison J on 30 April 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2019

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