R v Sparos - [2018] NSWSC 755

Supreme Court

New South Wales

Medium Neutral Citation: R v Sparos [2018] NSWSC 755
Hearing dates: 22 May 2018
Date of orders: 25 May 2018
Decision date: 25 May 2018
Before: Harrison J
Decision:
(1) Mr Glover’s letters can be used by the Crown in an unredacted form.
(2) The tender of impressions upon those letters is rejected.

Catchwords: EVIDENCE – exclusion of evidence – criminal proceedings – whether probative value of evidence is outweighed by the danger of unfair prejudice – where letters written in gaol which attempt to influence a Crown witness – where impressions recovered from those letters – where the letters raise violence as a possibility – where impressions invite speculation by the jury
Legislation Cited: Evidence Act 1995 (NSW), s 137
Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
R v Sparos [2018] NSWSC 711
Category: Procedural and other rulings
Parties: Regina (Crown)
Luke John Sparos (Accused)
Representation:
Counsel:
C Patrick SC (Crown)
C Smith SC with D Carroll (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Kiki Kyriacou Lawyers (Accused)

File Number(s): 2014/196615
Publication restriction: Nil

Judgment

HIS HONOUR: I have already determined that three letters and the recovered impressions upon them may be adduced by the Crown as evidence of a consciousness of guilt on the part of Mr Sparos. He now applies by reference to the terms of the letters and the recovered impressions to limit or restrict their content so as to eliminate or remove any words that create or cause, or have the potential to create or cause, unfair prejudice to him. That application is made pursuant to s 137 of the Evidence Act 1995 which provides as follows:

“137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

The terms of the letters and the impressions are set forth in my previous judgment: see R v Sparos [2018] NSWSC 711.
Mr Sparos now contends that the retention of the following words in the letter dated 12 April 2015 should be redacted:

“… by giving him money or something like that then [sic, than] trying to do something to him …”

Mr Sparos also contends that the retention of the following words in the letter dated 25 January 2016 addressed to AS should be redacted:

“Your bro has to be very careful because this bloke has heaps ($) and his [sic, he’s] still got boys outside, but if you give him your word he said he will let it go.”

Mr Sparos submits that these portions of the letters create an unfair prejudice to him in as much as their author raises violence as a possibility. The material therefore is said to fall within that class of case on unfair prejudice dealing with how juries might improperly reason to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sparos

Details

AGLC: R v Sparos [2018] NSWSC 755
Case: [2018] NSWSC 755
Decision Date: 25 May 2018

CaseChat Overview and Summary

The parties in this case were the Crown, represented by R, and the defendant, Sparos. The dispute was about whether certain evidence should be excluded in a criminal proceeding due to the risk of unfair prejudice outweighing its probative value. The case was heard in a court of law in Australia. The nature of the dispute was focused on whether letters written by the defendant in gaol, which attempted to influence a Crown witness, and impressions recovered from those letters, should be excluded from the trial. The letters raised the possibility of violence and the impressions invited speculation by the jury.

The legal issues that the court had to decide were whether the probative value of the evidence was outweighed by the danger of unfair prejudice, and if the prejudicial effect of the evidence was so significant that it should be excluded. The court had to consider the potential impact of the evidence on the fairness of the trial and whether it would be more prejudicial than probative. The court also had to consider whether the prejudicial effect of the evidence was so significant that it should be excluded under the relevant legislation.

The court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The court noted that the evidence was relevant to the case and had the potential to assist the jury in making a decision. However, the court also acknowledged that the evidence raised the possibility of violence and invited speculation by the jury. The court held that the prejudicial effect of the evidence was not so significant that it should be excluded. The court found that the evidence was admissible and could be considered by the jury in making their decision.

The final orders of the court were that the evidence was admissible and could be considered by the jury in making their decision. The court held that the prejudicial effect of the evidence was not so significant that it should be excluded. The court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The evidence was relevant to the case and had the potential to assist the jury in making a decision.

Orders