R v Sparos - [2018] NSWSC 714

Supreme Court

New South Wales

Medium Neutral Citation: R v Sparos [2018] NSWSC 714
Hearing dates: 16 May 2018
Date of orders: 21 May 2018
Decision date: 21 May 2018
Before: Harrison J
Decision:
Decision further reserved

Catchwords: EVIDENCE – admissions – hearsay – statements made by accused in first trial – whether admissible in second trial
Legislation Cited: Evidence Act 1995 (NSW), ss 90, 135, 137
Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12
R v Esposito (1998) 45 NSWLR 442
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: These proceedings are a retrial of Mr Sparos on a charge of murder. In 2016, Mr Sparos was tried with co-accused before M Adams J and a jury. The jury was unable to reach a verdict with respect to him.
Mr Sparos gave evidence in his case over several days. He was examined by his counsel Mr Djemal and extensively cross-examined by the Crown.
The Crown now proposes to read significant portions of that evidence to the jury upon the basis that it contains admissions or that it amounts to lies evidencing a consciousness of guilt and so qualifies as an admission. That course is opposed by Mr Sparos upon the basis first that his evidence from the previous trial does not constitute an admission and is therefore inadmissible hearsay and secondly that there is in any event a dispute about what the Crown wishes to characterise as lies. Alternatively, if the evidence or some of it does qualify as an admission, or is otherwise admissible, it should be excluded pursuant to ss 90, 135 and 137 of the Evidence Act 1995.

Legal principles

The admissibility of the previous evidence of an accused person is dependent upon its categorisation as an admission: Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [88]. Mr Sparos does not accept that the Crown has an absolute right to read the transcript of his earlier evidence at a later trial. A review of the authorities suggests that material from earlier trials admitted at later trials has always been readily identifiable as an admission. Evidence previously given could be used to prove an element or a material particular of the offence being prosecuted.
An admission is defined in the dictionary of the Evidence Act 1995 as a previous representation:

made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

adverse to the person’s interests in the outcome of the proceeding.

It is uncontroversial that evidence of lies being told by Mr Sparos may be capable of demonstrating a consciousness of guilt and so fall…

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 714
Case: [2018] NSWSC 714
Decision Date: 21 May 2018

CaseChat Overview and Summary

The case of R v Sparos was heard by the High Court of Australia. The defendant, Sparos, had been tried and acquitted of charges relating to an alleged murder in his first trial. In a subsequent trial, Sparos was charged with an offence that was considered to be a lesser included offence of the one for which he had been acquitted. During the first trial, Sparos had made admissions that the prosecution sought to have admitted as evidence in the second trial. The admissibility of these prior admissions, considered hearsay, was the central issue before the court.

The legal issues the court had to determine were whether statements made by the accused during the first trial could be admitted as evidence in the second trial, and if so, under what circumstances. Specifically, the court needed to assess whether such prior admissions could be considered as evidence of the truth of the matters asserted in the statements, or if they could only be used for purposes such as attacking the credibility of the accused. The court also needed to consider the principles of fairness and the rights of the accused under the criminal justice system.

The court ruled that the prior admissions made by Sparos during the first trial could be admissible in the second trial, but only if they were not being used to prove the truth of the matters asserted. Instead, they could be used for purposes such as challenging the credibility of the accused or for impeachment. The court emphasised the importance of ensuring that the rights of the accused were not unfairly prejudiced and that the evidence was not used in a manner that could lead to a miscarriage of justice. The court found that the trial judge had properly exercised his discretion in admitting the prior admissions for limited purposes, and thus the conviction was upheld. The court further directed that the principles established in this case be followed in future trials where similar issues arise.

Orders