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 442Category: Procedural and other rulings Parties: Regina (Crown)
Luke John Sparos (Accused)Representation: Counsel:
Solicitors:
C Patrick SC (Crown)
C Smith SC with D Carroll (Accused)
Director of Public Prosecutions (Crown)
Kiki Kyriacou Lawyers (Accused)
File Number(s): 2014/196615 Publication restriction: Nil
Judgment
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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.
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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.
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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
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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.
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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.
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It is uncontroversial that evidence of lies being told by Mr Sparos may be capable of demonstrating a consciousness of guilt and so fall…
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- AGLC
- R v Sparos [2018] NSWSC 714
- Case
- [2018] NSWSC 714
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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