Citation: R v Sparos [2018] NSWSC 740
Court: Supreme Court of NSW
Date: 23 May 2018
Judge: Harrison J
Background
The accused faced a retrial for murder. At his earlier trial, he had given evidence from the witness box that was, on its face, consistent with his plea of not guilty. That evidence included his account of matters in issue, among them claims about his intention to plead guilty to the charges.
The Crown sought to have approximately 249 pages of that earlier trial transcript read to the jury by a neutral person in the retrial. The Crown's theory was that several of the accused's earlier statements were lies, contradicted by gaol telephone calls, and that the jury's acceptance of that conclusion would be adverse to his interests in the outcome of the proceedings.
The accused opposed the application, contending that the material did not qualify as admissions, could not be read selectively without injustice, and should in any event be excluded under sections 135, 137 and 90 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether evidence given by the accused at his previous trial, exculpatory on its face and consistent with his plea of not guilty, qualifies as an "admission" under the Evidence Act 1995 (NSW)
- Whether the Crown could characterise such evidence as adverse to the accused's interests on the basis that other evidence might show it was a lie
- Whether, if otherwise admissible, the evidence should be excluded under sections 90, 135, or 137 of the Evidence Act
Decision
Issue 1: Whether the previous trial evidence constituted admissions
The court rejected the Crown's characterisation of the earlier evidence as admissions (at [14]). The Evidence Act definition of an admission requires that it be a previous representation adverse to the person's interests in the outcome of the proceedings. Harrison J held that evidence entirely consistent with a plea of not guilty cannot meet that test (at [9]). The ordinary meaning of "adverse" is something harmful, unfavourable or disadvantageous, and the accused's previous evidence did not concede anything inimical to his defence (at [9]).
The Crown's central argument was that the evidence could be shown to be false when compared to the gaol telephone calls, and that its falsity made it adverse to the accused. The court rejected this reasoning directly, holding that the possibility a jury might ultimately find a statement was a lie does not convert that statement into an implied admission adverse to the accused's interest at the time it was made (at [10]). To hold otherwise would impermissibly stretch the statutory language (at [10]).
Issue 2: Distinction from R v Horton
The court distinguished the Court of Criminal Appeal's decision in R v Horton (1998) 45 NSWLR 426, where an apparently exculpatory statement ("the victim fell on the knife") was admitted as adverse to the accused's actual defence of intoxication. In that case the statement was adverse to the specific defence raised at trial. The present case was different: the Crown was relying on statements that were intentionally asserted and alleged to be lies, not statements whose exculpatory appearance concealed adversity to a separately raised defence (at [11]).
The court also drew a useful illustration from the facts: if the accused had said in the earlier trial that he provided a gun for a benign purpose, the representation that he provided the gun at all would qualify as an admission, even though the purpose offered was exculpatory. By contrast, an unqualified denial of providing a gun, even if shown to be false, would not be adverse to his interests and would not qualify (at [13]).
Issue 3: Sections 90, 135 and 137 of the Evidence Act
Having concluded the evidence was not admissible as an admission, the court addressed the remaining arguments briefly. Section 90 was found irrelevant because the previous evidence had been given voluntarily (at [16]-[17]). The court found that section 137 did not apply, as the evidence was not an admission and the probative value of evidence of which the accused was the sole author would not be outweighed by unfair prejudice (at [18]-[19]). On section 135(c), the court found that reading the evidence, if it were otherwise admissible, would not cause an undue waste of time, and also recorded no fundamental difficulty with the practice of having a third person read prior evidence in criminal proceedings (at [21]-[23]).
Orders Made
- The Crown's application to read the evidence given by the accused at his earlier trial is rejected.
Key Takeaways
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Evidence given by an accused at an earlier trial that is consistent with a plea of not guilty does not qualify as an "admission" under the Evidence Act 1995 (NSW), even where other evidence suggests it may have been false (at [9]-[10]).
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The possibility that a jury might ultimately reject prior evidence as a lie does not convert that evidence into an implied admission adverse to the accused's interests in the outcome of the proceedings (at [10]).
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A clear distinction exists between a statement that is exculpatory in its purpose but adverse to a specific defence raised at trial (which may qualify as an admission, following R v Horton) and a wholly exculpatory statement that is merely alleged to be dishonest (which does not) (at [11]).
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Where an accused voluntarily gives evidence in an earlier trial, section 90 of the Evidence Act has no work to do on an application to use that evidence in a later trial, as the circumstances of the voluntary choice to testify do not raise unfairness (at [16]-[17]).
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The Supreme Court confirmed that having a neutral person read prior transcript evidence in criminal proceedings raises no fundamental difficulty as a method of adducing evidence (at [23]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 90, 135, 137
Cases
- Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
- R v Heffernan; R v Peters (NSWCCA, Smart J, 23 February 1998, unreported)
- R v Horton (1998) 45 NSWLR 426
- R v McGregor (1967) 51 Cr App R 338
- R v Mills [1986] VR 617
- R v Sonnet [2011] VSC 551
- R v Sparos [2018] NSWSC 714
- Stuart v The King (1921) 29 CLR 234