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Supreme Court 21 May 2018

R v Sparos

[2018] NSWSC 713

Homicide
EVIDENCE RELEVANCE EXCLUSION OF EVIDENCE

Citation: R v Sparos [2018] NSWSC 713
Court: Supreme Court of New South Wales
Date: 21 May 2018
Judge(s): Harrison J

Background

The accused was facing a retrial for murder. The alleged victim, Mr Maika, had been a Crown witness in earlier proceedings. The central issue was whether the accused had a motive to kill Mr Maika, with the Crown contending that the accused's intention to plead not guilty gave him such a motive.

During 2010 and 2011, while held on remand at the Metropolitan Remand and Reception Centre, the accused made a series of recorded telephone calls to his former wife. Transcripts of some calls had been tendered in the first trial. The Crown sought to tender transcripts of additional calls in the retrial, primarily to demonstrate that the accused had stated an intention to plead not guilty.

The accused did not contest the admissibility of the material on substantive grounds such as legal privilege. His objection was more limited: many of the calls contained aggressive, abusive, and vulgar language directed at his former wife, and he argued that this carried a real risk of unfair prejudice before the jury.

Legal Issues

  • Whether the probative value of the recorded telephone call transcripts was outweighed by the danger of unfair prejudice to the accused
  • Which specific calls or portions of calls should be excluded or redacted on that basis
  • Whether the Crown's argument that the accused's aggressive conduct toward his former wife was relevant as a "comparator" to his claimed intention to plead guilty was sufficient to justify admission

Decision

Issue 1: General admissibility of the calls

Harrison J permitted the Crown to tender the calls in unredacted form as a general proposition, subject to specified exceptions and any portions jointly agreed for deletion by the parties (at [5]). The calls were relevant to the question of whether the accused genuinely intended to plead not guilty, which bore on the motive issue (at [1]).

Issue 2: The call of 3 May 2011

The entire call of 3 May 2011 was rejected. The Crown argued that the accused's aggressive treatment of his former wife in that call was consistent with an expectation of acquittal, because a person anticipating a guilty plea and subsequent sentence would have been motivated to maintain a cooperative relationship with her regarding access to his children (at [6]). Harrison J found this argument gave insufficient weight to the already-deteriorating state of the relationship, observing that the accused showed no general concern for whether his former wife was upset or offended (at [7]). The material was otherwise irrelevant to the proceedings and carried a real potential for unfair prejudice (at [8]).

Issue 3: Specific portions of other calls

Pages 303 to 305 of the call of 9 July 2011 were removed as entirely irrelevant to the proceedings (at [9]). Pages 449 to 453 of the call of 14 July 2011 were also redacted: while the Crown argued the material was relevant to the accused's relationship with his former wife and to the truthfulness of a key earlier call, Harrison J found that relevance too marginal to outweigh the prejudicial potential of showing the accused behaving aggressively (at [10]).

Issue 4: The centrally significant call

The most significant call was identified as the 31 January 2011 conversation, in which the accused appeared to resist his former wife's suggestions that he plead guilty (at [13]). That call had been extensively examined in the first trial and the accused had given evidence explaining it. Harrison J noted that the calls he excluded had either no bearing or only marginal bearing on the question of whether the accused had been truthful during that key conversation (at [13]).

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where recorded jail calls contain a mixture of probative content and highly prejudicial material, a court may admit parts of the calls while excluding or redacting specific portions whose relevance is too marginal to justify the risk of unfair prejudice to the accused (at [5], [8]-[10]).

  • The Crown's "comparator" argument, that an accused's aggressive conduct toward a family member during jail calls was consistent with an expectation of acquittal rather than a guilty plea, was rejected where it did not sufficiently account for the established state of the personal relationship between those parties (at [6]-[7]).

  • A blanket concession that material is not objectionable on substantive grounds (such as legal privilege) does not preclude a targeted objection based on the risk of unfair prejudice arising from the character of the accused's conduct as captured in the recordings (at [3]).

  • Relevance to a collateral issue, such as the general nature of a relationship between the accused and a third party, may be insufficient to save otherwise prejudicial material from exclusion where its forensic significance is marginal (at [10], [12]).

  • The call identified as most central to the Crown's motive case, in which the accused appeared to resist suggestions of a guilty plea, was preserved for tender and noted as likely to feature prominently in the retrial (at [13]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated