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

1. 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.

2. 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.

3. 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

4. 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.

5. An admission is defined in the dictionary of the Evidence Act 1995 as a previous representation:

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

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

6. It is uncontroversial that evidence of lies being told by Mr Sparos may be capable of demonstrating a consciousness of guilt and so fall within the definition of an admission: see R v Esposito (1998) 45 NSWLR 442 at 458. It is also clear that a mere denial would not qualify as an admission: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at 107.

Crown submissions

7. The Crown contends that the whole of Mr Sparos’ evidence, including bare denials of involvement in the murder, are lies and can be tendered in the Crown case.

Mr Sparos’ submissions

8. Mr Sparos maintains that evidence given by him at the first trial does not constitute an admission so as to render the evidence susceptible to tender by the Crown. A precondition to admissibility would be a finding or determination that the evidence given by him was in fact false. There is a continuing dispute in these proceedings about that. Moreover, to the extent that the credit of other witnesses called by the Crown may be in issue, a simple divergence between a version given by them and a version given by Mr Sparos does not of itself demonstrate that Mr Sparos’ evidence was false. Evidence by other witnesses to the effect that Mr Sparos is lying does not meet the definition of an admission, as it is not evidence by Mr Sparos giving a deliberately false version of events.

Preliminary consideration

9. Although the Crown has reduced the number of pages of transcript from more than 600 to only 249, the amount of material remains quite large. Without intending any criticism of the Crown, the admissions upon which the Crown wishes to rely have not been further identified or isolated within those pages. There may be good reason for this, especially as the admission or lie to which the Crown wishes to refer may only be capable of identification within the context of a series of questions and answers covering several pages. It may also be necessary to compare evidence given by Mr Sparos in chief with the answers given by him when cross-examined.

10. Mr Sparos has indicated through his counsel that he intends to give evidence again in the present trial. He is neither bound to give any such indication nor bound by it having done so. He contends, however, that the Crown will have ample and adequate opportunity to cross-examine him again, and to refer to his earlier evidence when doing so. Mr Sparos argues that if, following that course, the Crown still wished to tender his evidence from the previous trial, it could do so in reply.

11. The Crown is not satisfied that such an approach to the question is adequate. Mr Sparos may decide not to give evidence. The impact of the evidence from the earlier trial will be less, according to the Crown, if it is effectively required to split its case. Mr Sparos’ decision about whether or not to give evidence in the current trial may also well be influenced one way or another by the result of the Crown’s present application.

12. The Crown has fairly indicated that it is not proposed to read the transcript until the very end of the Crown case if it achieves success in this application. Having regard to the relatively tight time frame within which I have been asked to determine this issue, I intend to consider it further in the coming days. I do not understand that such a course will disadvantage the Crown or Mr Sparos or constrain anything that might be said in the course of any opening to the jury.

13. I should indicate that the proposed course of reading large tracts of Mr Sparos’ earlier evidence over some days does not appeal to me from a case management perspective. I have a distinct preference for a more efficient approach if one can be designed. The identification and description of the admissions or lies for which the Crown contends would be a good starting point. I also consider that the course of the trial may helpfully inform the parties’ respective positions on this application as well as my understanding of where Mr Sparos’ earlier evidence sits in the overall scheme of the Crown case. I remain optimistic that the amount of material proposed to be read can be further reduced. In so saying I have not ignored Mr Sparos’ contention that if any of his previous evidence is to be read to the jury, all of it should be read.

14. I propose to revisit this issue as soon as possible.

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