R v Sparos [2018] NSWSC 755

Supreme Court New South Wales

Medium Neutral Citation: R v Sparos [2018] NSWSC 755 Hearing dates: 22 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Before: Harrison J Decision: (1) Mr Glover's letters can be used by the Crown in an unredacted form. (2) The tender of impressions upon those letters is rejected. Catchwords: EVIDENCE – exclusion of evidence – criminal proceedings – whether probative value of evidence is outweighed by the danger of unfair prejudice – where letters written in gaol which attempt to influence a Crown witness – where impressions recovered from those letters – where the letters raise violence as a possibility – where impressions invite speculation by the jury Legislation Cited: Evidence Act 1995 (NSW), s 137 Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 R v Sparos [2018] NSWSC 711 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: I have already determined that three letters and the recovered impressions upon them may be adduced by the Crown as evidence of a consciousness of guilt on the part of Mr Sparos. He now applies by reference to the terms of the letters and the recovered impressions to limit or restrict their content so as to eliminate or remove any words that create or cause, or have the potential to create or cause, unfair prejudice to him. That application is made pursuant to s 137 of the Evidence Act 1995 which provides as follows: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. The terms of the letters and the impressions are set forth in my previous judgment: see R v Sparos [2018] NSWSC 711. 2. Mr Sparos now contends that the retention of the following words in the letter dated 12 April 2015 should be redacted: "… by giving him money or something like that then [sic, than] trying to do something to him …" 1. Mr Sparos also contends that the retention of the following words in the letter dated 25 January 2016 addressed to AS should be redacted: "Your bro has to be very careful because this bloke has heaps ($) and his [sic, he's] still got boys outside, but if you give him your word he said he will let it go." 1. Mr Sparos submits that these portions of the letters create an unfair prejudice to him in as much as their author raises violence as a possibility. The material therefore is said to fall within that class of case on unfair prejudice dealing with how juries might improperly reason to the point of unfairly using, or in Mr Sparos' submission misusing, the material in a prejudicial way by speculating that violence was almost inevitable. Mr Sparos argued that the portions of the letters to which he objected were unnecessary (presumably for the Crown's purposes) having regard to the balance of what is written in them. The particular unfair prejudice is said to be the suggestion of specifically giving money to the witness or trying to do something to him. The implication of violence apparent in the portions of the letters objected to created the unfair prejudice alleged. 2. The burden of this submission must be that the jury might inappropriately marshall this evidence as probative of a tendency or as coincidence evidence to Mr Sparos' disadvantage and contrary to the limitations upon its use imposed by my earlier decision. Mr Sparos' concerns raise the perennial issue of whether or not, and if so to what extent, directions to juries are capable of steering them away from an illegitimate course of reasoning, or from no proper reasoning at all, involving illogical speculation or the making of unavailable assumptions that are unsupported by the evidence. 3. The Crown argued that any prejudice flowing to Mr Sparos from the unedited terms of the letters was simply the result of what they said. In that sense there was forensic prejudice to him but it was not unfair. The Crown contended that the letters are highly significant and that their probative value is not overtaken by any danger of unfair prejudice. 4. In the present case, the jury will have to be reminded and appropriately directed that the letters were not written by Mr Sparos, do not refer to him by name, on one view do not sufficiently imply that he was concerned in the formulation of their contents and as I understand the Crown case, are proposed to be tendered without calling their author, Mr Glover, to give evidence. Moreover, having regard to what was said in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, even after the letters have been admitted, the jury will have to be instructed that it is for them to determine whether there is reasonable independent evidence of participation by Mr Sparos in the creation and sending of the letters and that if there is not, they ought not to use the letters for that purpose. 5. Having regard to what on one view is the frailty of the connection between the letters and Mr Sparos, it seems to me that any proper direction to the jury could more than adequately deal with the danger of any unfair prejudice to him. The letters clearly have some probative value which is not in my view outweighed by the danger of unfair prejudice to Mr Sparos. 6. It is obvious, as with the letters, that any case against Mr Sparos that relies upon impressions upon them is wholly circumstantial. If ultimately adduced in evidence, the jury would have to be given similar warnings about them. Mr Sparos argued that the impressions can only be relevant if they are limited to the suggested criminal enterprise actually referred to in, or suggested by, the letters and that appropriate directions and warnings emphasising those limitations would not necessarily alleviate the perceived prejudice. Mr Sparos argued further that the words recovered from the impressions were effectively meaningless and that any attempt by a jury to make sense of them would likely, if not certainly, lead to speculation, to his possibly irreparable prejudice. Accordingly, Mr Sparos argued that no part of the impressions should go before the jury. 7. The Crown contended on the contrary that the impressions are highly relevant material going to the question of whether or not Mr Sparos had, or may have had, anything to do with the creation of the letters. The impressions contain certain names and other details. The Crown emphasised the proposition that the letters emanated from Mr Glover, a known person within the prison system, where Mr Sparos was located and where he was able to associate with Mr Glover. One of the letters contains impressions that include details that are materially significant to Mr Sparos' position as a person awaiting trial on the current charge. The impressions also included references to important witnesses in the Crown case, including a reference to Witness F, the person now serving a term of life imprisonment for his role in the death of Mr Maika. 8. The significant proposition advanced by the Crown is that most if not all of the curiously related collocation of references revealed by the impressions appear to refer to people or things that are closely associated nominally or actually with the death of Mr Maika. 9. In my opinion, there is a significant danger that the impressions will cause unfair prejudice to Mr Sparos and should be excluded entirely. It has to be borne in mind that Mr Maika was killed in April 2011. The letters were written and sent somewhere between four and five years after that event. The use to which the letters can be put is limited to consciousness of guilt: they are not, and the impressions are not, relevant to the elements of the principal conspiracy to kill Mr Maika. There is in those circumstances a very real possibility that references to Witness F by name, who the jury would understand to have fired the fatal shots, could be misused by it to speculate that the impressions were created by Mr Sparos himself and that such a conclusion supported the existence of a tendency to influence witnesses by the use of violence. Such an approach would be wrong for two reasons. First, it would be contrary to the limitation I have placed upon the use to which the material can be put. Secondly, it would involve speculation rather than the permissible drawing of an available inference. 10. If admitted, the impressions could clearly not be used to establish any matters outside or beyond the specifically identified common purpose. That purpose was to influence or bring pressure to bear upon Witness A in order to convince or persuade him not to give evidence against Mr Sparos at his anticipated trial for murder. It is also the very purpose whose existence is supported by the letters themselves. However, unlike the letters, which are clear enough and easy to read and understand, the impressions are strangely discursive, difficult to read or to make sense of, and necessarily invite reconstruction and hence speculation. For example, they contain otherwise unexplained sentences like "[Witness A] (picture) – he drinks at the Ambarvale pub where his girlfriend Shannon … killed smugger". It is frankly not possible to generate anything approaching a rational explanation of those words or indeed any of the words in the recovered impressions. It is also evident that there are several words that have not been recovered which may well have assisted in a clearer understanding of what was written. 11. The impressions refer to Witness F by his real name. By way of relevant distinction, he is not referred to in any of the letters. The jury in the present trial will soon become aware that he has been convicted for the murder of Mr Maika. They will also presumably soon learn that he was arrested in July 2014 and has been in custody ever since. Despite that, there is some prospect that the jury might speculate about Witness F's connection to the plan to warn off Witness A in a way that elevates the implied threat of violence beyond that coming only from the terms of Mr Glover's letters. 12. Finally, as I have already observed, the author of the impressions is unknown. He will always be unknown. This is not a case in which the true author of the recovered words has actually been identified but for some forensic reason his name cannot be revealed to the jury. I originally determined that the impressions were relevant to my task in assessing whether or not Mr Glover's representations were evidence of a common purpose or were made in furtherance of that common purpose. That is quite different to permitting their use as material from which the jury might be asked to assess whether they support the existence of Mr Sparos' consciousness of guilt.