Citation: R v Sparos [2018] NSWSC 711
Court: Supreme Court of New South Wales
Date: 21 May 2018
Judge(s): Harrison J
Background
The accused stood trial for the murder of a witness who had been due to give evidence against him on drug charges. The Crown alleged that the accused arranged for that witness to be shot at his home, and that a fellow inmate had been used to source the victim's address beforehand.
A further Crown witness (Witness A) was also listed to give evidence at trial. The Crown sought to tender a series of letters written by another inmate, Reynold Glover, who had been housed with the accused at a high-security correctional centre. Those letters, addressed to Witness A's brother and to another prisoner, urged the brother to persuade Witness A not to appear as a witness and suggested financial inducements to achieve that outcome.
The Crown characterised the letters as evidence of a joint criminal enterprise between the accused and Glover to pervert the course of justice. The Crown did not intend to call Glover at trial, so the letters could only come in through a specific evidentiary pathway.
Legal Issues
- Whether the letters written by Glover were admissible against the accused as representations made in furtherance of a common purpose under s 87(1)(c) of the Evidence Act 1995 (NSW).
- Whether, to establish that common purpose under s 87(1)(c), the court could rely on the letters themselves, or whether independent evidence of the common purpose was required before the letters could be used.
- Whether the letters were admissible as tendency or coincidence evidence under ss 97 and 98 of the Evidence Act.
- Whether admitting the letters would constitute an abuse of process or cause procedural unfairness, given that the accused also faced related charges of perverting the course of justice in separate District Court proceedings.
Decision
On the co-conspirators rule, Harrison J accepted the accused's argument that s 87(1)(c) of the Evidence Act does not permit the letters themselves to bootstrap the proof of the common purpose. Unlike s 87(2), which allows representations to establish agency in certain contexts, s 87(1)(c) preserves the common law requirement: there must be "reasonable evidence" of the common purpose from evidence other than the statements themselves before those statements become admissible against the accused. The Crown had not pointed to sufficient independent evidence establishing that common purpose, so the letters could not come in as admissions by the accused on that basis.
On tendency and coincidence, the judgment does not appear to have resolved those grounds in the Crown's favour. The admissibility ruling was confined to a narrower basis.
On consciousness of guilt, Harrison J held that the letters could be admitted, but only for the purpose of proving the accused's post-offence conduct as evidence of a consciousness of guilt in relation to the murder charge. This was a more limited use than the Crown had sought.
On the abuse of process argument, Harrison J declined to rule on it at this stage. Any procedural unfairness arising from the use of this evidence in the separate District Court proceedings for perverting the course of justice would be a matter for that court to assess once those proceedings were underway and the factual picture had crystallised. The possibility of unfairness remained hypothetical at this point and was not a reason to exclude the letters from the present trial.
Orders Made
- The letters written by Glover may be adduced by the Crown, restricted to the issue of proving the accused's post-offence conduct as evidence of a consciousness of guilt.
Key Takeaways
- Under s 87(1)(c) of the Evidence Act 1995 (NSW), a statement by one person is admissible against another as a representation made in furtherance of a common purpose only where there is independent evidence, separate from the statement itself, from which it is reasonably open to conclude the common purpose existed.
- The broader self-referential approach available under s 87(2) (where a representation can itself help establish the relevant fact) does not extend to common purpose admissions under s 87(1)(c), which retains the common law position from Tripodi and Ahern.
- Where the Crown cannot establish the common purpose through independent evidence, letters or statements by a co-alleged participant remain inadmissible as admissions against the accused, even if their content is compelling.
- A court asked to rule on potential abuse of process or procedural unfairness arising from the use of evidence in future separate proceedings may decline to do so prematurely, leaving the question for the court in those proceedings once the relevant facts have become concrete rather than hypothetical.
- Post-offence conduct, including alleged attempts to interfere with witnesses, can be admitted as consciousness of guilt evidence even where it falls short of satisfying the co-conspirators admissions pathway, provided the appropriate evidentiary foundation is otherwise established.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Evidence Act 1995 (NSW), ss 57(2), 81, 87(1)(c), 87(2), 97, 98
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794
- Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629
- Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12
- Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
- Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
- Lee v Australian Crime Commission (2013) 251 CLR 196; [2013] HCA 39
- R v Mac (NSWCCA, 18 December 1997, unreported)
- Townsend v Townsend [2001] NSWCCA 136
- Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
- Watt v R [2000] NSWCCA 37
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29