R v Sparos

[2018] NSWSC 1042

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sparos [2018] NSWSC 1042
Hearing dates:	4 July 2018
Date of orders:	09 July 2018
Decision date:	09 July 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	The tender of MFI 84 is rejected
Catchwords:	EVIDENCE – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where the Crown seeks to tender evidence of phone records of calls to the deceased – where the Crown cannot assert that the call records demonstrate that threats came from the accused or by someone associated with the accused – where the Crown seeks to rely on the call records to rebut the inference that threats to the deceased were made by others – where there is a danger that the jury may give too much weight to the evidence CRIMINAL PROCEDURE – Criminal Procedure Act 1986 (NSW), s 130A – whether it would not be in the interests of justice for the previous order to be binding – where evidence admitted in the first trial – where evidence is unfairly prejudicial to the accused – where new circumstances – where accused unrepresented
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 130A
Category:	Procedural and other rulings
Parties:	Regina (Crown) Luke John Sparos (Accused)
Representation:	Counsel: C Patrick SC (Crown)   Solicitors: Director of Public Prosecutions (Crown)
File Number(s):	2014/196615
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The Crown proposes to tender a summary of phone records. That tender originally included a total of seven calls. In response to Mr Sparos’ objection, the Crown has now discarded three of these. The remaining four calls were marked as MFI 84 and are as follows:

Date	Time	Duration	Type	Caller	Receiver	Location
2.	20/06/2010	19:55:34	0:01:49	Voice	0428487927 – Daniel AGIUS	0414286131 – Gemahl MAIKA	Hoxton Park
3.	20/06/2010	20:08:24	0:02:24	Voice	0414286131 – Gemahl MAIKA	0428487927 – Daniel AGIUS	Unknown
5.	20/06/2010	22:19:57	0:00:34	Voice	0246461200 – Payphone	0414286131 – Gemahl MAIKA	Melaleucca Rd & Holdsworth Dr, Narellan Vale
6.	20/06/2010	22:22:16	0:00:09	Voice	0246461200 – Payphone	0414286131 – Gemahl MAIKA	Melaleucca Rd & Holdsworth Dr, Narellan Vale

2. The evidence so far reveals that Daniel Agius had been an associate of Mr Sparos and that he had previously visited Mr Sparos in gaol. Mr Sparos’ committal hearing was scheduled to resume in the Local Court at Penrith on 21 June 2010.

3. On 24 May 2018, Detective Klotz gave the following evidence:

“Q. Paragraph 17, the committal hearing was then next set down to continue at Central Local Court from 24 to 28 May 2010, is that correct?

A. That is correct.

Q. Paragraph 22, it was conducted between 24 and 28 May 2010, but it was not complete?

A. That's correct.

Q. Did Gemahl give evidence?

A. No, he didn't.

Q. Was it then next set down to occur at Penrith Local Court before a Local Court Magistrate by the name of Magistrate Bradd from 21 June 2010 to 9 July 2010?

A. Yes, that's correct.

Q. Paragraph 24, sir, can you tell us what you did?

A.

‘On 9 June 2010 I completed the necessary paperwork and created a subpoena to give evidence for Gemahl Maika requiring him to attend Penrith Local Court on Monday 21 June 2010.

About 6.10pm this date I emailed this subpoena to Gemahl.

On 16 June 2010 I received an email from Gemahl in reply to my email dated 9 June 2010.

During the morning of Monday 21 June 2010 I was contacted by Gemahl on my mobile phone. In the following conversation, Gemahl informed me that he had received two threatening phone calls last night (being 20 June 2010) at about 7pm and 10pm. He stated that in one call, a male voice stated, “Stick to the original story.” Gemahl then went on to say that he had seen a vehicle drive past his house around the time he received the calls. He stated that he was suspicious about this vehicle and this vehicle had been seen by other members in his family. He did not get the vehicle's registration

Following this I contacted Detective Senior Constable Studdert at the Casino and Racing Investigation Unit, due to him having been involved in Operation Schoale. I provided Detective Senior Constable Studdert with Gemahl's mobile telephone number being 0414 286 131 and requested that reverse call charge records be obtained for this number. I was later informed of and given a copy of an email that Detective Senior Constable Studdert had sent requesting this information.’

Q. Can you explain to the jury what reverse call charge records are?

A. It is an inquiry to make to see what numbers have been calling a particular number, whether it be a landline or mobile.

Q. Paragraph 28?

A.

‘Later this date I contacted Gemahl on his mobile telephone and made certain arrangements for his attendance at Penrith Local Court on Tuesday 22 June 2010.

On Tuesday 22 June 2010 I met with Gemahl and took him to Penrith Local Court. There he gave brief evidence for the prosecution. His statements were tendered. Gemahl was then cross-examined at some length about his evidence. His cross-examination was conducted by counsel on behalf of Luke Sparos. Following his evidence I escorted Gemahl away from Court.’

Q. I will stop you there. In relation to the cross-examination, was the only person who conducted cross examination of Mr Maika, was that the counsel, Mr Dunn, who appeared for Mr Sparos?

A. That's correct, yes.”

4. That evidence was given without objection on the fourth day of this trial. Mr Sparos was at that time represented by counsel.

5. Mr Sparos now maintains that the phone records must be excluded upon the basis that their probative value is outweighed by the danger of unfair prejudice to him. The Crown opposes that contention and submits further that I am bound to admit the evidence having regard to s 130A of the Criminal Procedure Act 1986 and the fact that Adams J admitted the evidence at Mr Sparos’ previous trial.

6. In my opinion, all of the calls should be rejected. This is for the following reasons.

7. Apart from the two calls made between Mr Maika and Mr Agius, it is unknown by whom the other calls were made. Neither of the two calls made from a payphone to Mr Maika can be sourced or attributed to a known person. There is no material from which a jury could legitimately reason that the caller in either of these calls was Mr Sparos or anyone associated with him.

8. The Crown has contended that all of the calls should be admitted as a matter of fairness to Mr Sparos upon the basis that there would then be evidence from which the jury might conclude that the threatening or occult calls to Mr Maika that Detective Klotz was told about might arguably have been made by someone other than Mr Agius. In other words, because Mr Maika was unable to identify the caller who told him him to stick to his story, and because he received a series of other calls on the night in question, there is some doubt that the threatening call on the night came from Mr Agius. If all of the calls in question are not admitted, the jury might be left with the impression that the relevant call must have been made by Mr Agius.

9. There may originally have been some argument available to Mr Sparos to oppose the evidence from Detective Klotz in which he referred to what Mr Maika told him about the calls he received on the night in question. However, Mr Sparos was legally represented when that evidence was led and no objection to it was raised. Therefore, having regard to the fact that that evidence has now been heard by the jury, the issue of whether the probative value of the four calls is outweighed by the danger of unfair prejudice to Mr Sparos necessarily falls to be assessed by reference to how the Crown proposes to use the calls as part of its case.

10. The Crown maintains that the evidence is necessary in order to rebut what it anticipates will be Mr Sparos’ contention, that the threatening call could have come from interests associated or connected with Mr Mato or Witness E. These men were Mr Sparos’ co-accused in the drug charges that were the subject of the committal proceedings at Penrith Local Court on 21 June 2010. However, they had by then already been committed for trial on 17 December 2008 and so could have had no continuing interest in Mr Maika’s evidence.

11. During the course of argument on this point, the following exchange took place between me and the Crown:

“HIS HONOUR: … Mr Crown, just so I understand it. Is it any part - I may have raised this before and you may have answered it - but just, it's bothering me. Is it any part of the Crown case that you will assert that any threat that came to Mr Maika on the 20th inferentially emanated from Mr Sparos?

CROWN PROSECUTOR: I'm not permitted to do that, in light of the judgment, your Honour, on a previous occasion, so it's only unless I approached it

HIS HONOUR: So you say the only relevance of these phone calls is to rebut the presumption [sic, suggestion] that it didn't come from Mr Sparos, if you like?

CROWN PROSECUTOR: It rebuts the suggestion.

HIS HONOUR: That it came from somewhere else?

CROWN PROSECUTOR: That there were threats coming from E.

HIS HONOUR: Yes.

CROWN PROSECUTOR: And Mato. That's what it's there for.

HIS HONOUR: No, I understand.

CROWN PROSECUTOR: So the Crown can't say that this was somebody acting not on behalf of Mr Sparos but off their own back [sic, bat], but the significance of it is it clearly related to the committal proceedings.

HIS HONOUR: It did. Well, it did.

CROWN PROSECUTOR: Without that. And that's the significance, because it's the committal proceedings to occur the next day, and Mr Maika is the following day after that, that's the significance, and Mr Sparos can't quite get away from that.

HIS HONOUR: No, no. When you say ‘that's the significance,’ that assumes, or incorporates the implicit suggestion that it's somehow related to Mr Sparos, doesn't it?

CROWN PROSECUTOR: It relates to his proceedings.

HIS HONOUR: Yes, yes, I know that.

CROWN PROSECUTOR: But it doesn't mean necessarily that it relates to

Mr Sparos. It doesn't mean Mr Sparos ordered it.

HIS HONOUR: No. Well, then, why is the probative value of the material not outweighed by the risk of unfair prejudice?

CROWN PROSECUTOR: Because the whole defence case is based upon exhibit P, which is to say, it was Mato and witness E.

HIS HONOUR: I know.

CROWN PROSECUTOR: Now, if you want to go along and say that, then you have to be honest and say that there were other threats, apparently, in existence. There were two on this night, immediately prior to the committal, and the fact that they're immediately prior to the committal, which is after the conclusion of Mato in his trial

HIS HONOUR: I know that. I know that.

CROWN PROSECUTOR: That's the difficulty with it. The defence want the benefit, and that's what they did in the first trial, and it was fundamentally misleading, and they were in effect saying, ‘Threats are coming from these men’. There's also another threat that's referred to at the end of April, which there was also evidence about in the trial, this trial, of that same year. So, again, the whole suggestion, the whole argument by the defence has been over and over again that there are threats from E and there are threats from Mr Mato.

Now, if it's the case that it relates, that this man gets a threat prior to the committal proceedings, that is Mr Mato [sic, Maika], prior to the committal proceedings, that are to start the next day.

HIS HONOUR: Re-commence the next day.

CROWN PROSECUTOR: Re-commence the next day, how can it have anything to do with E? Now, that's the problem. And if you want the benefit of one…

HIS HONOUR: No. You say there are approbating and reprobating?

CROWN PROSECUTOR: Yes

HIS HONOUR: I understand that.

CROWN PROSECUTOR: Now, the portion you were taken to, and this is where he doesn't appreciate the way in which it's carefully put before the jury, by the Crown, as to how they can use it, and they will be told yet again that they can't go along and reason that the threat came from Mr Sparos. In other words, it can be cured by direction, and indeed, the Crown is not going to say it came from Mr Sparos. The point is, somebody, for some reason, wanted to interfere with Mr Maika prior to Mr Maika giving evidence against this gentleman.

HIS HONOUR: And the Crown wants the evidence in to show that it was highly unlikely, indeed probably could not have been Mr Maika [sic, Mato] or witness E?

CROWN PROSECUTOR: That's right, but I've got that evidence in.

HIS HONOUR: I know.

CROWN PROSECUTOR: So I've got the evidence in. All I want to put in is the telephone calls. And what Mr Sparos is able to do is to use some of it for his own good, but by the same token the Crown can go along and establish that there were these calls.

Now, what Mr Sparos' submission ignores is a question from the jury along the lines of, ‘Does the Crown have some evidence of these telephone calls from call charge records for the night? Were any enquiries conducted as to who it is that made these calls to his phone on that particular night?’ So Mr Sparos is not going to ask those questions. Now, how do I deal with these calls if I don't go along in this incident on this night - bear in mind it's already in - how do I deal with that piece of evidence without now producing call charge records, which exist?

It's a fact. I mean, Mr Sparos mightn't like it, but for some reason his friend is speaking to Mr Maika, the deceased, prior to his committal. Now, that seems to be fact. At least his phone. Now, that's where we're at, and that's why I would like to get the call charge records in.”

12. The relevant portion of exhibit P, a police note of a conversation with Mr Maika on 14 December 2010, is a follows:

“GM [Gemahl Maika] also reported that he last saw Adam Ballard in March 2010, when collecting meat from Ballard’s butcher shop. Ballard tried to discuss GM’s involvement in this matter, for which GM was reluctant to do so. In this conversation, Ballard made the following comments, ‘They really want you. I would not want to be in your shoes’. It was also alleged that Ballard was approached by solicitors for Mato/Witness E who offered a lot of money for information on the addresses of witnesses. Ballard indicated that they wanted to knock someone to make all these threats appear real.”

13. That exhibit was tendered by the Crown at the request of Mr Sparos’ legal advisers.

14. The Crown accepts that it cannot assert that the calls in question came from Mr Sparos or from someone associated with him but at his direction. The Crown wishes to tender the call records to demonstrate that threats were made to Mr Maika prior to the resumption of the committal hearing. However, unless the Crown is able in some fashion to connect the calls to Mr Sparos, I have some considerable difficulty understanding their relevance. For example, as far as I can see, the Crown’s concern to rebut the proposition that the calls were made on behalf of Mr Mato or Witness E can only have any significance in this trial if it is necessary in order to leave open the inference that the calls and the threat were somehow connected to Mr Sparos. As the Crown has accepted, the relevance is that the threats were made in the shadow of proceedings in which Mr Sparos was involved and in which Mr Mato and Witness E were not.

15. In my view, the probative value of this evidence is accordingly very low. On one view it has no relevance at all. It is only being tendered to rebut a suggestion that the threats about which Mr Maika told Detective Klotz came from Mr Mato or Witness E. Correspondingly, exhibit P is itself a hearsay document and will have to be the subject of a warning in such circumstances.

16. Moreover, I fail to see how the calls in question could operate or are even necessary to rebut the suggestion that the threats could have come from Mr Mato or Witness E. The evidence establishes that they were committed for trial long before. That evidence would be alone sufficient to meet the Crown’s concern about the source of the threats. The evidence of the call records does not advance the proposition that they could not have been responsible for the threats to Mr Maika on the night in question any more than the evidence establishing that Mr Mato and Witness E had already been committed for trial.

17. The call records may also operate unfairly to Mr Sparos to the extent that they could give rise to a misconception in the mind of the jury that Mr Sparos must have been responsible for the threats. In the case of the calls between Mr Maika and Mr Agius, it seems highly unlikely that Mr Maika would have returned a call to someone who had threatened him in the first call or that Mr Agius only threatened him in the return call. In the case of the calls from the phone box, they are calls from an unknown person and cannot be attributed to Mr Sparos in any way.

18. Accordingly, there is a real danger that the jury might give undue weight to the phone records. In my view, this danger cannot be ameliorated, as the Crown suggests, by a direction to the jury. Such a direction may have the undesirable effect of unnecessarily focusing the jury’s attention on what may be regarded as prejudicial evidence.

19. The fact that Mr Maika’s conversation with Detective Klotz leaves open the possibility that the threats might have come from the phone box calls, and that this necessarily supports Mr Sparos, is something about which Mr Sparos indicated he was unconcerned. Clearly enough, that argument would not be available to him if the call records are rejected.

20. Section 130A of the Criminal Procedure Act is as follows;

“130A Pre-trial orders and orders made during trial bind trial Judge

(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.

(2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless:

(a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or

(b) that order is inconsistent with an order made on appeal.

(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.

(4) In this section, ‘pre-trial order’ means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.

(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.”

21. The evidentiary ruling in question concerning the call records was made by Adams J in the previous trial. Mr Sparos was then legally represented. That is no longer the case. Mr Sparos strenuously opposes the tender of the call records. Further, there have been changes in the circumstances since the ruling by Adams J. The Crown now proposes to adduce evidence from Witness E, who was not a witness in the previous trial. The Crown has also adduced important evidence that was not led in the previous trial. Accordingly, it would in my view be undesirable to admit the evidence in question without an examination of the probative value and the prejudicial effect of the evidence in light of the particular circumstances of this trial. Accordingly, having regard to my view that the evidence may be unfairly prejudicial to Mr Sparos, as well as the fact that such prejudice may not be clearly ameliorated by a direction to the jury, I consider that it is not in the interests of justice for the previous evidentiary ruling to be binding.

21. The tender of MFI 84 is rejected.

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Decision last updated: 17 August 2018