Citation: R v Sparos [2018] NSWSC 755
Court: Supreme Court of New South Wales
Date: 25 May 2018
Judge(s): Harrison J
Background
The accused faced a murder charge arising from the death of a man referred to as Mr Maika, who was killed in April 2011. In earlier proceedings, Harrison J had ruled that three letters written in gaol could be tendered by the Crown as evidence of the accused's consciousness of guilt. The letters were written by a fellow prisoner and were said to be connected to an alleged scheme to pressure a Crown witness not to give evidence.
The letters also bore physical impressions, meaning indentations left on paper beneath the sheet on which someone had originally written. Forensic examination had recovered words from those impressions, revealing references to names and other details connected to the Crown case.
In this ruling, the accused applied to have portions of the letters redacted and sought to have the recovered impressions excluded entirely, arguing that both created a danger of unfair prejudice exceeding their probative value under section 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether specific passages in the gaol letters, which raised the possibility of violence against a Crown witness, should be redacted under section 137 of the Evidence Act 1995 (NSW) on the basis that their prejudicial effect outweighed their probative value.
- Whether the impressions recovered from those letters should be excluded entirely under the same provision, given the risk that a jury would speculate impermissibly about their authorship and meaning.
Decision
Issue 1: Redaction of the letters
Harrison J rejected the application to redact the contested passages from the letters. The Crown argued the prejudice flowing from the letters was forensic rather than unfair, and the court agreed that appropriate jury directions could adequately address any danger of unfair prejudice (at [9]). The letters carried clear probative value, and that value was not outweighed by the prejudice the accused identified (at [9]). The court noted the jury would need to be directed that the letters were not written by the accused, did not name him, and were proposed to be tendered without calling their author as a witness (at [8]).
Issue 2: Exclusion of the impressions
The impressions were excluded in their entirety. Harrison J found a significant danger that they would cause unfair prejudice to the accused, for several reasons (at [13]). The impressions referred by name to a witness (Witness F) who the jury would understand had been convicted of firing the fatal shots at Mr Maika. That reference was absent from the letters themselves, creating a real risk the jury would speculate that the accused had authored the impressions and, from there, infer a tendency to influence witnesses through violence (at [13], [15]).
Unlike the letters, which were clear and readable, the impressions were described as "strangely discursive" and difficult to interpret, necessarily inviting reconstruction and speculation rather than the drawing of available inferences (at [14]). The authorship of the impressions was unknown and would remain unknown, which distinguished them from the letters. Harrison J also noted that his earlier consideration of the impressions had served a different and more limited purpose, namely assessing whether the letters formed part of a common purpose, and that this was not the same as placing the impressions before a jury to assess consciousness of guilt (at [16]).
Orders Made
- The Crown may tender Mr Glover's letters in unredacted form.
- The tender of the impressions recovered from those letters is rejected.
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), probative value must be weighed against the danger of unfair prejudice, and where evidence invites speculation rather than permissible inference drawing, exclusion may be appropriate even where the evidence has some relevance.
- The Supreme Court drew a clear distinction between the letters and the impressions: clear, readable evidence capable of being addressed by jury directions is treated differently from fragmentary, unattributed material whose interpretation necessarily requires speculative reconstruction (at [9], [14]).
- Evidence admitted for a limited purpose, in this case consciousness of guilt only, remains vulnerable to exclusion if there is a substantial risk the jury will deploy it for an impermissible purpose such as tendency reasoning or coincidence reasoning (at [6], [13]).
- The unknown authorship of the impressions was a material consideration. Because the author could never be identified, the jury would lack a rational foundation from which to draw available inferences, leaving speculation as the only interpretive path (at [16]).
- Even where evidence forms part of a wholly circumstantial case, appropriate jury directions may suffice to manage prejudice; however, where the evidence is inherently opaque and the risk of misuse is elevated, directions alone may not be a sufficient safeguard (at [9], [13]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- R v Sparos [2018] NSWSC 711