Citation: R v Sparos [2018] NSWSC 714
Court: Supreme Court of New South Wales
Date: 21 May 2018
Judge(s): Harrison J
Background
The accused faced a retrial on a charge of murder, following a first trial in 2016 before Adams J in which the jury could not reach a verdict. During that first trial, the accused gave evidence over several days, subject to both examination-in-chief and extensive cross-examination by the Crown.
In the retrial, the Crown sought to tender substantial portions of the accused's previous trial evidence. The Crown's position was that this evidence contained admissions, or alternatively constituted lies demonstrating a consciousness of guilt, which would also qualify as admissions.
The accused opposed the tender on the grounds that the evidence did not constitute admissions and was therefore inadmissible hearsay. In the alternative, the accused argued that even if the evidence were admissible, it should be excluded under sections 90, 135 and 137 of the Evidence Act 1995.
Legal Issues
- Whether an accused's evidence from a prior trial is admissible at a retrial, and if so, on what basis
- Whether evidence characterised by the Crown as lies can constitute admissions for the purpose of the Evidence Act 1995
- Whether bare denials of involvement can qualify as admissions
- Whether the evidence, even if admissible, should be excluded under the discretionary and mandatory exclusion provisions of the Evidence Act 1995
- How the Court should manage the tender of a large volume of transcript in a way that is procedurally fair and efficient
Decision
Issue 1: Admissibility of prior trial evidence as an admission
Harrison J confirmed that admissibility of an accused's previous evidence in a later trial depends on whether that evidence can be categorised as an admission, following Cornwall v The Queen (at [4]). The court noted that, across the authorities, material from prior trials that was admitted at later trials had always been readily identifiable as an admission capable of proving an element or material particular of the offence (at [4]).
Issue 2: Lies and consciousness of guilt
The court accepted that evidence of lies told by an accused may demonstrate a consciousness of guilt and thereby fall within the definition of an admission, citing R v Esposito (at [6]). However, the court also confirmed that a mere denial does not qualify as an admission, drawing on Barca v The Queen (at [6]).
Issue 3: Bare denials and the Crown's position
The Crown contended that the entirety of the accused's prior evidence, including bare denials of involvement in the murder, constituted lies capable of being tendered in the Crown case (at [7]). The accused argued that admissibility of any statement as a lie required a prior finding that the evidence was in fact false, and that no such finding had been made (at [8]). The court noted that a divergence between the accused's version and the version given by other Crown witnesses does not of itself establish that the accused's evidence was false, and evidence from other witnesses to that effect does not meet the definition of an admission (at [8]).
Issue 4: Case management and procedural approach
The court expressed a clear preference against reading large portions of transcript over several days, describing that as unappealing from a case management perspective (at [13]). Harrison J indicated that better identification and isolation of the specific admissions or lies on which the Crown relies would be a useful starting point, and noted that the course of the trial might assist in informing the parties' positions (at [13]). The decision on admissibility was reserved for further consideration (at [14]).
Orders Made
- Decision further reserved
Key Takeaways
- Admissibility of an accused's prior trial evidence in a retrial depends on whether that evidence constitutes an "admission" within the meaning of the Evidence Act 1995, as confirmed by the High Court in Cornwall v The Queen (at [4]).
- Evidence of deliberate lies told by an accused can qualify as an admission by demonstrating a consciousness of guilt, but a mere denial does not meet the definition of an admission (at [6]).
- A divergence between an accused's account and the accounts of other Crown witnesses does not, without more, establish that the accused's evidence was false or constitute an admission (at [8]).
- Before prior evidence can be tendered as a lie amounting to an admission, there must be some basis for determining that the evidence was in fact false, not simply disputed (at [8]).
- Where a Crown seeks to tender a large volume of prior transcript, the Supreme Court indicated a strong preference for prior identification and isolation of the specific passages said to constitute admissions or lies, rather than reading lengthy, undifferentiated extracts to the jury (at [9], [13]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 90, 135, 137
Cases
- 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