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Supreme Court 9 July 2018

R v Sparos

[2018] NSWSC 1042

Homicide
EVIDENCE EXCLUSION OF EVIDENCE WHERE NEW CIRCUMSTANCES WHERE ACCUSED UNREPRESENTED

Citation: R v Sparos [2018] NSWSC 1042
Court: Supreme Court of New South Wales
Date: 9 July 2018
Judge: Harrison J

Background

The accused was standing trial for the second time, having previously been tried before Adams J. At the centre of this evidentiary ruling was a summary of phone records relating to four calls made on the night of 20 June 2010, the eve of a scheduled committal hearing in which a witness, referred to here as Gemahl Maika, was due to give evidence for the prosecution against the accused.

The following morning, Detective Klotz learned that Maika had received threatening phone calls the night before, with a male voice instructing him to "stick to the original story." Two of the four calls at issue were exchanged between Maika and Daniel Agius, an associate of the accused. The remaining two were made from a payphone to Maika, and the caller could not be identified.

The Crown sought to tender the phone records. The accused, who was now unrepresented, objected on the ground that the evidence was more prejudicial than probative. The Crown also argued that, because Adams J had admitted the same evidence at the previous trial, the ruling was binding under section 130A of the Criminal Procedure Act 1986 (NSW).

  • Whether the probative value of the four phone call records was outweighed by the danger of unfair prejudice to the accused under the Evidence Act balancing test.
  • Whether section 130A of the Criminal Procedure Act 1986 (NSW) required the trial judge to follow Adams J's earlier ruling admitting the same evidence.
  • Whether it would be in the interests of justice, given changed circumstances in the retrial, to depart from that earlier evidentiary ruling.

Decision

Harrison J rejected the tender of all four call records. The core difficulty with the two payphone calls was that neither could be attributed to any known person. There was no material from which a jury could legitimately reason that the caller was the accused or anyone connected with him.

The Crown's stated purpose was not to assert that the accused made or arranged the calls, but rather to rebut a defence suggestion that the threats came from interests associated with the accused's co-accused in the original drug committal, referred to as Mato and Witness E. Those individuals had, however, already been committed for trial by the time of the threatening calls and could have had no continuing stake in Maika's evidence.

Harrison J found that permitting the jury to hear evidence of calls that could not be linked to any identified person, in a context where the calls were clearly connected to the accused's committal proceedings, created a real danger that the jury would give the evidence disproportionate weight. A direction to the jury might not adequately address that risk.

On the section 130A question, Harrison J acknowledged that Adams J had admitted the evidence at the previous trial, making the ruling prima facie binding. However, the judge found that the interests of justice required departure from that ruling. Three features distinguished this retrial: the accused was now unrepresented and actively opposing the tender; Witness E, who had not testified at the first trial, was now a Crown witness; and the Crown had led other important evidence not adduced previously. These new circumstances made it inappropriate to admit the records without fresh scrutiny.

Orders Made

  • The tender of MFI 84 (the summary of four phone call records) was rejected.

Key Takeaways

  • A prior evidentiary ruling from an earlier trial is binding on a retrial judge under section 130A of the Criminal Procedure Act 1986 (NSW), but the trial judge retains a discretion to depart where it would not be in the interests of justice to follow the earlier ruling.
  • Changed circumstances, including a change in the accused's representation status, the introduction of new Crown witnesses, and new evidence not led at the first trial, can collectively justify declining to follow an earlier admissibility ruling.
  • Where the Crown cannot positively assert that tendered evidence connects the accused to the conduct in question, the risk of a jury drawing an impermissible inference may cause the prejudicial effect to outweigh probative value.
  • Phone records admitted for the limited purpose of rebutting a defence inference are not necessarily saved from exclusion simply because the Crown disavows the broader inference the evidence might generate.
  • The accused's lack of legal representation was a relevant, though not determinative, circumstance in the interests-of-justice assessment under section 130A.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW) (applied implicitly through the probative value and unfair prejudice analysis)

Cases cited: None stated in the judgment.