Supreme Court New South Wales Medium Neutral Citation: R v Sparos [2018] NSWSC 713 Hearing dates: 14 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Before: Harrison J Decision: See reasons Catchwords: EVIDENCE – relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where recorded telephone calls made by the accused to his wife from gaol – where the accused is aggressive and offensive in those calls – where calls relevant to whether the accused had an intention to plead guilty Category: Procedural and other rulings Parties: Regina (Crown) Luke John Sparos (Accused) Representation: Counsel: C Patrick SC (Crown) C Smith SC with D Carroll (Accused) Solicitors: Director of Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused) File Number(s): 2014/196615 Publication restriction: Nil Judgment 1. HIS HONOUR: During 2010 and 2011, Mr Sparos was recorded in the course of several telephone calls made by him from gaol. Transcripts of several of these calls were tendered in an earlier trial. The Crown now proposes to tender the transcripts of additional calls. The significant, but not exclusive, basis for doing so is the Crown contention that Mr Sparos is occasionally heard to assert in the course of these telephone conversations that he intended to plead not guilty. The Crown seeks to rely upon evidence of this type in anticipation of Mr Sparos' response to the Crown case contending that, in such circumstances, he could have had no motive to kill Mr Maika, a Crown witness who would therefore no longer be of any relevance or importance. Mr Sparos simultaneously contended that any evidence that could have been given by Mr Maika would not have had an adverse impact upon him in any event. The issue of whether or not any statements made by Mr Maika could have been relied upon by the Crown after his death has not been raised before me. 2. Mr Sparos objects to some portions of the proposed tender material upon the basis that in many of the conversations with Ms Saliba, his former wife, he can be heard using aggressive, abusive and often vulgar language. He is concerned that this may give an unfavourable impression of him to a jury with the possible result that he might suffer prejudice that could not be remedied. 3. I have read all of the transcripts in question. I have also listened to the audio of some of them. Mr Sparos does not assert that he has any substantive objection to the admissibility of the material. For example, none of the conversations was recorded in apparent breach of client legal privilege. Apart from the references to his plea in the then pending proceedings and discussions about a likely sentence following a conviction, including references to the sentence imposed on a co-accused, legal matters do not figure prominently in what is discussed. 4. All of the conversations commence with the usual warning that the call is being made by an inmate at the Metropolitan Remand and Reception Centre and that the conversation will be recorded and may be monitored. Mr Sparos' concern about the content of the calls has therefore to be understood in that context. 5. In my opinion, subject to the exceptions referred to below, the Crown should be permitted to tender all of the conversations in an unredacted or unamended form unless the Crown and Mr Sparos otherwise jointly agree that particular portions should be deleted. Apart from material deleted in accordance with any such agreement, I consider that the following matters should also be removed. 6. I consider that the entire call made on 3 May 2011 number 739380 should be rejected. It deals with matters that are personal to Mr Sparos and Ms Saliba and are otherwise irrelevant to these proceedings. I accept and understand that the Crown wishes to rely upon this material to contend that the offensive and aggressive way in which Mr Sparos can be heard to deal with her at this time is an important comparator with his assertion that he was always intending to plead guilty. The Crown argues that Mr Sparos' treatment of Ms Saliba in the course of this conversation is aggressive and offensive and that it is consistent with the prospect that he might soon be acquitted and return to the community. The Crown argues that Mr Sparos' behaviour is in fact uninhibited because he expected to be acquitted and therefore he would not have been concerned to remain on good terms with Ms Saliba in order to ensure her cooperation to organise gaol visits from his children when sentenced following a guilty plea. 7. As interesting as that argument appears to be, it fails to give sufficient importance to the then deteriorating state of the relationship between Mr Sparos and Ms Saliba. Mr Sparos can be seen from many of the calls to be less than polite to her and instead to be actually very unpleasant. He does not strike me as a person who agonised over whether or not Ms Saliba might be upset or offended over anything he said to her. Notwithstanding this treatment, Ms Saliba appears undaunted. I do not think that much can be taken from this material that is important in these proceedings. 8. Furthermore, Mr Sparos' behaviour does not portray him in a good light. There is a potential for this otherwise irrelevant material to cause him unfair prejudice. The whole of this conversation should be rejected. 9. In the telephone call made on 9 July 2011 number 5386202, pages 303 to 305 should be removed. The content relates to matters that are personal to Mr Sparos and Ms Saliba, have no bearing upon the proceedings and are otherwise completely irrelevant. 10. Pages 449 to 453 of the call made on 14 July 2011 number 5394389 should be redacted. The material is potentially unfairly prejudicial to Mr Sparos as it again shows him treating Ms Saliba in an aggressive manner. I accept that the Crown contends that that the material is relevant to their relationship and that that has, or may have, a bearing on Mr Sparos' assertions concerning his truthfulness in the 31 January 2011 conversation. In my opinion, its relevance for that purpose is marginal and does not rise high enough to meet Mr Sparos' concerns about its prejudicial potential. 11. The following telephone calls should be entirely removed: 1. 4 July 2011 numbers 5377667 and 5379450 2. 9 July 2011 numbers 5386986 and 5387700 3. 10 July 2011 number 5388001 4. 17 July 2011 number 5400646 1. The material in these calls is either entirely irrelevant or of such marginal relevance as to be of no forensic significance. Any impact upon an assessment of the relationship between Mr Sparos and Ms Saliba from these calls is very small. 2. The most important call would appear to be that between Mr Sparos and Ms Saliba on 31 January 2011. It is reasonably clear from that conversation that Mr Sparos is resisting Ms Saliba's suggestions that he should plead guilty. That conversation was the subject of extensive attention in the previous trial. The Crown is now also possessed of Mr Sparos' evidence from that trial dealing with his explanation of that conversation. It will no doubt figure prominently in the trial that is about to commence. The impact, upon the issue of whether Mr Sparos was or was not telling the truth in that call, created by any of the later calls that I have excluded is in my view either non-existent or marginal. The conversation between Mr Sparos and Mr Watt much later on 31 May 2011 would appear to be in a distinctly different category. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2018