R v Sparos

Background

1. On 6 April 2011, Gemahl Maika was shot and killed at his home in Glen Alpine by Maximillion Mazzilli. Mr Maika was to have been a witness against Mr Sparos and others in relation to drug charges of supplying and importing cocaine. Mr Sparos was arrested on 2 July 2014 and charged with the murder of Mr Maika. The Crown alleges that Mr Maika was shot by Mr Mazzilli at the request of Mr Sparos, who were at one time inmates in Long Bay prison. Mr Mazzilli was released on 17 December 2010. Mr Mazzilli has since been convicted of the murder of Mr Maika and is serving a sentence of life imprisonment.
2. Witness A was also an inmate at Long Bay. In November and December 2010, Mr Sparos spoke to Witness A and asked him to obtain Mr Maika's home address. Witness A's brother had a family connection with Mr Maika. During this period, Mr Sparos showed statements made by Mr Maika to Witness A. Witness A forwarded an envelope containing letters to Mr Maika suggesting that he should stick to his original (false) statement exculpating Mr Sparos.
3. On 28 December 2010, Witness A was provided with Mr Maika's home address and gave it to Mr Sparos. The Crown alleges that Mr Maika was killed so as to pervert the course of justice and prevent him from giving evidence against Mr Sparos.
4. Reynold Glover was an inmate at the High Risk Management Correctional Centre at Goulburn on 12 April 2015 and had been there since 25 June 2010. Mr Sparos had been an inmate at the same unit from 14 July 2014. The Crown proposes to call Witness A in the present proceedings.

Crown submissions

1. The representations upon which the Crown wishes to rely were made by Mr Glover. He is not to be called by the Crown as a witness in the trial. The Crown therefore recognised that the only basis upon which the letters could be admitted against Mr Sparos were if they qualified as a representation made by a person in furtherance of a common purpose, whether lawful of not, amounting to an admission by Mr Sparos, in accordance with s 87(1)(c) of the Evidence Act. A court is to admit the representation "if it is reasonably open" that the representation was made in furtherance of a common purpose.
2. The Crown contended further, that with respect to establishing provisional relevance, s 57(2) of the Evidence Act provides that in deciding the issue of whether the representation was made in furtherance of a common purpose, the Court may use the evidence itself in determining whether the common purpose existed. That proposition was said to flow from Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 and Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22.

Mr Sparos' submissions

1. Mr Sparos opposed the admission of the letters as evidence in his trial.
2. First, as already noted, Mr Glover will not be called by the Crown as a witness against Mr Sparos and Mr Sparos did not write the letters in question. He submitted that there is therefore no direct evidence surrounding the circumstances of the creation or sending of the three letters apparently written by Mr Glover. Secondly, there is also no direct evidence foreshadowed by the Crown to indicate how Mr Sparos was or might have been connected with the letters or, relevantly for present purposes, whether he and Mr Glover were part of or engaged in a common purpose.
3. Mr Sparos submitted in these circumstances that the Crown's approach was misconceived. Section 87(2) allows for evidence of hearsay statements of another to prove agency, such as the scope of a person's employment. With respect to matters covered by s 87(2), the representations of another can be used to establish the existence of the fact sought to be proved against him or her. That exception to the hearsay rule, however, does not apply to representations made by a person in furtherance of a common purpose: s 87(1)(c). Accordingly, the test that applies at common law that a statement by one person could only be admissible against another if there was "reasonable evidence" establishing the existence of the common purpose, apart from the statement itself, continues to apply under the Act: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794 at [53]; R v Mac (NSWCCA, 18 December 1997, unreported); Watt v R [2000] NSWCCA 37 at [8]; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629.
4. Mr Sparos' contentions draw heavily upon what was said in Leahy at [52]-[54] as follows: "[52] The other issue that may arise in this case, with respect to which it is necessary to look at some authorities, is the question of the admissibility against one respondent of an admission made by another respondent. For instance, if A gives evidence of a conversation between A and B, and A's evidence is that, in the course of the conversation, B said something probative of the existence of an arrangement or understanding between B and C, the evidence is plainly admissible against B as an admission, pursuant to the exception in s 81(1) of the Evidence Act to the hearsay rule in s 59(1). The question is whether this admission is also admissible against C. [53] Section 57(2) of the Evidence Act does not answer this question itself. It provides in its own terms that it deals only with the relevance of evidence. Indeed, it is one of the provisions in Pt 3.1 of the Evidence Act, all of which deal with relevance. There can be no doubt that, if the statement made by B in the conversation with A is indicative of the existence of an arrangement or understanding between B and C then, consistently with s 57(2), the Court may use the content of that statement to determine whether it is evidence that the requisite common purpose existed, and therefore that the evidence is relevant to that question. Given its relevance, the evidence is still not admissible against C unless s 87(1)(c) of the Evidence Act applies. For that to apply, it must be reasonably open to the Court to find that the statement was made in furtherance of a common purpose that B and C had. It is clear that s 87(1)(c) can only operate if it is reasonably open from evidence other than the statement itself that the statement is made in furtherance of a common purpose. This follows from the terms of s 87 itself. The three paragraphs of subs (1) deal with three different situations in which a representation by one person is taken to be an admission by another person. Subsection (2) makes provision for the prerequisites to admissibility under s 87(1)(a) and (b) to be proved by a representation by the same person who made the representation that is tendered as an admission. The prerequisite representation may, and often will, be contained in the same statement that is sought to be tendered as an admission against the party who made it. Section 87(2) says nothing at all about the manner in which the prerequisite to admissibility under s 87(1)(c) is to be established. If the existence of the required common purpose could be established by the representation itself, then a statement by B that indicated that B had a common purpose with C would always be admissible against C. The statement by B would be permitted to pull itself up by its own bootstraps. This would be an undesirable, and unintended, result of the application of s 87(1)(c). [54] Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that s 87(1)(c) of the Evidence Act 1995 (NSW) (which is in the same form as s 87(1)(c) of the Evidence Act) reproduces the pre-existing common law. See R v Macraild (unreported, NSW Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997) at 9 and Watt v R [2000] NSWCCA 37 at [8]. The pre-existing common law is found in Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 at 7 and Ahern v R [1988] HCA 39; (1988) 165 CLR 87 at 100. In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were 'reasonable evidence' establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as the New South Wales Court of Criminal Appeal appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' preferred by the legislature. For present purposes, however, Macraild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of s 87(1)(c) of the Evidence Act, Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that s 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself." [Emphasis added]
5. Mr Sparos has accordingly submitted that the letters themselves cannot be used as "reasonable evidence" establishing "the furtherance of the common purpose", even if they can be used as evidence of the existence of such a purpose.

Consideration

1. The Crown did not accept that Mr Sparos' particular reliance upon Leahy could be supported having regard to the well-known statements in Ahern at 100: "In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words 'reasonable evidence' have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between 'reasonable evidence' and 'a prima facie case', which in this context we very much doubt, then the words 'reasonable evidence' are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator's acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term 'reasonable evidence' is desirable."
2. The Crown relies upon at least three sets of circumstances from which it contends that the existence of such a common purpose may be inferred. First, Mr Glover and Mr Sparos were in the same gaol shortly before the first letter was written. They knew each other and associated together in gaol.
3. Secondly, the Crown case is said to include evidence of what are referred to as recovered impressions or indentations taken from the 12 April 2015 letter. The Crown will contend that these were caused by handwriting on a preceding page of the notepad from which the letter in question was taken. Some of these recovered impressions are referred to later in these reasons.
4. The expert evidence in relation to the indentations does not go as far as identifying the handwriting or the source of the handwriting said to have created the impressions. In short, the recovered impressions are the product of handwriting produced by an unknown author who has not been and presumably cannot be linked in time or place to Mr Sparos. Their significance arises from the fact that they appear to have come from a person using the same notepad as Mr Glover when writing his first letter as well as from the content of the recovered impressions themselves.
5. Thirdly, the letters contain material, not consisting of the representations upon which the Crown wishes to rely as being attributable to Mr Sparos, which is said to contextualise or explain the reason for the letters being written to AS, the brother of Witness A.
6. The only way in which the purported representations contained in Mr Glover's letters could be admissible is by operation of s 87(1)(c) of the Evidence Act. That section is in these terms: "87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority."
7. Mr Sparos contests the Crown's contention that in deciding the s 87(1)(c) issue of whether a representation was made in furtherance of a common purpose, the Court may use the evidence itself in determining whether the common purpose existed. In support of the Crown's contention to that effect, it relied expressly upon the terms of s 57(2) of the Evidence Act. Section 57 is as follows: "57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding, or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed."
8. Having regard to these matters I take the position to be that there are two separate questions to be determined. The first is whether it is reasonably open to find that the alleged common purpose exists. The second is whether it is reasonably open to find that the representations were made in furtherance of the alleged common purpose. Section 57(2) of the Evidence Act authorises the use of the content of the letters written by Mr Glover for the non-hearsay purpose of determining whether it is evidence that the requisite common purpose existed and therefore that the evidence is relevant to that question. If the evidence is relevant, it is still not admissible against Mr Sparos as an admission made by him unless s 87(1)(c) of the Act applies. For that to apply it must be reasonably open to the Court to find that Mr Glover's representations were made in furtherance of a common purpose that he and Mr Sparos had.
9. With respect to the first question, I consider that the letters themselves bespeak the existence of a common purpose to influence or to bring pressure to bear upon Witness A not to give evidence against Mr Sparos at his trial upon the charge that he currently faces. There is in my view evidence capable of supporting the inference that Mr Glover wrote his letters as part of an agreement with Mr Sparos that he would do so. Mr Glover refers specifically to Mr Sparos in the first letter and to the fact that he is (and was then) facing an upcoming trial for murder. Witness A is known to be a witness scheduled to give evidence against Mr Sparos at that trial. Mr Glover is personally uninterested in the events that give rise to that trial and presumably also personally disinterested in the outcome. Mr Glover refers in terms to his favourable view of Mr Sparos and his letters arguably at the very least amount to an intercession by him on Mr Sparos' behalf.
10. With respect to the second question, I consider that there is reasonable evidence that Mr Glover wrote the letters in furtherance of that common purpose. In deference to Mr Sparos' reliance upon Leahy, it is sufficient for this purpose to limit myself to a consideration of the recovered indentations or impressions discovered on the first letter. Without being exhaustive, there are references to the persons now known as Witness A and Witness F, the pub at which Witness A is known to drink, a reference to words that say "these details on this side of the page are just for message from Luke to you send by Lukes brother you can help him", and "the main dog is the islander". There is also an impression of the words contained in the third letter saying "PS could you write to [AS] for our little mate (say it's from you and him not me) his at Wello ask him to pull his older brother up. Our mate asked you and if you could also get spike and the other main brothers to write to [AS] A.S.A.P very important."
11. In forming my opinion on this second question, I observe that I am doing no more that expressing the view that it is reasonably open to find that Mr Glover's representations were, or one of them was, made by him in furtherance of a common purpose with Mr Sparos in accordance with s 87(1)(c). In doing so I am mindful of what was also said by the High Court in Ahern at 100-101, to which no argument or submissions have yet been addressed, in the following terms: "The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance, for the evidence of acts and declarations ought not to be admitted at all for that purpose if no basis can be shown for its admission. But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue."
12. Subject to what follows it is my opinion that the evidence can be used by the Crown in this trial.

Tendency

1. The Crown's tendency notice is in the following terms: "Notice is hereby given that the Prosecution presently intends to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. (1) The person whose 'tendency' is the subject of the evidence sought to be adduced is Mr Luke Sparos. (2) The evidence is to be tendered to prove that Mr Luke Sparos had a tendency to have a particular state of mind, namely, the intention to interfere with witnesses in judicial proceedings where he is the accused, and that he had a tendency to act in a particular way, namely: a. Intended to interfere with the giving of evidence by witnesses to be called in judicial proceedings where he was the accused. b. He did acts intending to interfere with witnesses to be called in judicial proceedings where he was the accused. c. He did so by conspiring with others to interfere with the relevant witness. d. He sought to arrange contact with the prosecution witness by an intermediary. e. That he sought via the intermediary to encourage the witness to give false evidence or not give evidence. f. That he sought via the intermediary to convey a threat of harm to the witness if the witness gave truthful evidence against him. g. That he did the said acts whilst in prison. (3) The substance of the 'tendency' evidence which the Prosecution intends to adduce is contained within the documents identified in the attached schedule (Annexure A). These documents have previously been served upon you. (4) So far as is known to the Prosecution, particulars of the date, time, place and circumstances at, or in which, the conduct referred to in paragraph 3 above occurred are contained within the documents referred to in the attached schedule (Annexure A). (5) So far as is known to the Prosecution, the names of each person who saw, heard or otherwise perceived the conduct referred to in paragraph 3 above are contained within the documents referred to in the attached Schedule (Annexure A). (6) In view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: (a) whether Luke Sparos, on 6 April 2011, in the State of New South Wales, did murder Gemahl Maika. ANNEXURE A - SCHEDULE OF TENDENCY EVIDENCE Events previously adduced in Evidence 1. On 6 April 2011 Gemahl Maika was murdered at his home address in Glen Alpine by Maximillion Mazzilli. 2. Gemahl Maika was a witness in proceedings against Luke Sparos in relation to charges of Supply Prohibited Drug and Importation of a drug. 3. On 20 June 2010, two days before Gemahl Maika gave evidence in committal proceedings against Luke Sparos and others, Gemahl Maika received a telephone call in which the caller said, 'Stick to the original story'. This was a threat that he should give false evidence in accordance with this first and incorrect statement. 4. Telephone records for 20 June 2010 indicate that at 19.55 a call was made to Mr Maika's telephone from a phone that registered to the Lyng Group. Daniel Agius had access and used this phone. Daniel Agius is an associate of Luke Sparos and is recorded on gaol visitor records as a visitor to Luke Sparos. 5. In November and December 2010 Luke Sparos spoke to Witness A, an inmate in 13 Wing, Long Bay Prison, seeking that he obtain the home address of Gemahl Maika. 6. Witness A's brother had a family connection to Gemahl Maika. 7. That during this period Luke Sparos showed statements from Gemahl Maika to Witness A. 8. That an envelope was left for Witness A to find. Witness A forwarded this envelope containing letters to Maika indicating that he should stick to his original statement. Mr Maika's first statement was a statement containing false information. 9. On or after 28 December 2010 Witness A provided the home address of Gemahl Maika to Luke Sparos. 10. The murder of Gemahl Maika was committed at the instigation of Luke Sparos. Luke Sparos and Maximillion Mazzilli were inmates in 13 Wing, Long Bay Gaol until Mazzilli's release on 17 December 2010. 11. The killing of Gemahl Maika was motivated by a desire to interfere with prosecution witness and to pervert the course of justice. Evidence of Events 1 to 11 12. Evidence establishing the events referred to in paragraphs 1 to 11 above was adduced in proceedings before the Supreme Court in proceedings number 2014/00196615 commencing on 18 April 2016. A table of evidence supporting the allegations concerning the events described at 1 to 11 above is listed below. Events involving Luke Sparos and Reynold Glover 13. On 12 April 2015 Reynold Glover was an inmate at the High Risk Management Correctional Centre (HRMCC) located at Goulburn Prison since 25 June 2010. 14. The accused Luke Sparos was inmate at High Risk Management Correctional Centre (HRMCC) located at Goulburn Prison since 14 July 2014. 15. Witness A is a witness to be called in proceedings against Luke Sparos for the offence of murder of Gemahl Maika. 16. [AS] is the brother of Witness A in proceedings against Luke Sparos. 17. On 12 April 2015 Reynold Glover forwarded a letter to [AS] informing him that Luke Sparos would pay money to Witness A to give false evidence by saying, "he never gave that paper to your brother". 18. That in this same letter Reynold Glover informed [AS] of a possible threat to Witness A saying, 'He would rather sort it out with your brother by giving him money or something like that then trying to do something to him'. 19. That in this same letter Reynold Glover informed [AS] that committal proceedings against Luke Sparos would soon commence saying, 'His got committal next month May 14th'. 20. On 25 January 2016 Reynold Glover wrote to [AS] the brother of Witness A, a witness who was to be called in the trial of Luke Sparos on April 2016 for the offence of Murder. 21. In this letter Reynold Glover asked [AS] to talk to his brother, namely Witness A, and 'tell him to please not show up' and 'tell him to go hide somewhere for two months'. 22. In this letter Reynold Glover threatened Witness A saying, 'Your bro has to be very careful because this bloke has heaps ($) and his still got boys outside but if you give him your word he said he will let it go'. 23. On 25 January 2016 Reynold Glover wrote a letter to Laurence Bamblett, an inmate of Lithgow Gaol. In that letter Glover asked Bamblett to write to [AS] about his brother, namely Witness A, saying 'ask him to pull his older brother up, our mate asked you'. 24. In this letter Glover also asked Bamblett to get, 'the other main brothers to write to [AS] A.S.A.P. very important'. 24. In writing letters to [AS] and Laurence Bamblett it is asserted that Glover was acting pursuant to a joint criminal enterprise with Luke Sparos to interfere with a prosecution witness, namely Witness A intending thereby to pervert the course of justice. Relevant Tendency [As earlier set forth]."
2. Section 97(1) of the Evidence Act is in these terms: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
3. The first step in determining the admissibility of the evidence is clearly to identify the tendency which the evidence is said to support: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [51]. Until the particular tendency is identified it is not possible to assess whether the evidence supports the tendency or how it could rationally affect the probability of a fact in issue. In the present case, in order to satisfy the test of significant probative value, the disputed evidence should make more likely, to a significant extent, proof of the facts that make up the elements of the charge of murder. This is, as Mr Sparos points out, an evaluative judgment upon which it is inevitable that reasonable minds might differ.
4. In Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [16], a majority of the High Court said this: "[16] The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence."
5. As was observed in Townsend v Townsend [2001] NSWCCA 136 at [78], the generality with which a tendency is stated may be such that it provides a handicap to that evidence having significant probative value. A tendency expressed at a high degree of generality might establish no more than relevance as distinct from significant probative value: Hughes at [64].
6. The articulation of an alleged tendency is ultimately a question of semantics. The fact that a person has arranged to kill a Crown witness or that a person has encouraged someone to write a letter to warn off a witness from giving evidence both separately amount to perverting the course of justice and may each satisfy a conclusion that the person concerned had a tendency to do so. A tendency expressed in terms as general as that in the present case would certainly, or at least arguably, satisfy a test of relevance. By way of contrast, is doubtful that a tendency to pervert the course of justice, if established, would be significantly probative of the fact that the hypothetical letter writer might also have carried out the elements of the offence of murder. By the same token, a tendency described as specifically as one encouraging the writing of threatening letters to Crown witnesses may be significantly probative of a tendency to pervert the course of justice but would hardly be relevant to an assessment of the guilt of the person on the far more serious charge of murder.
7. There is in this case a marked disparity or difference between the charged acts and those said to constitute or evidence the particular tendency. An express or implied suggestion contained in a letter written by a third party to a witness indicating that he or she should not give evidence against that person, even assuming that the suggestion can be taken to be associated with a threat of violence, is very far removed from actually arranging for such a person to be killed. In my view, that disparity or difference is so great that the evidence said to constitute or establish the tendency on the Crown case is neither relevant to the proof of the probability that Mr Sparos arranged or organised for Mr Maika to be killed nor, if it is relevant, is it significantly probative of the allegation that he did so. Even accepting that the evidence upon which the Crown relies supports the asserted tendency, I am not satisfied that proof of the existence of the asserted tendency makes the facts making up the charged offence more likely: see Hughes at [41].

Coincidence

1. Section 98(1) of the Evidence Act is as follows: "98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
2. The Crown's coincidence notice and its tendency notice are in cognate terms and the coincidence notice is not reproduced here.
3. The starting point must be an assessment of the similarities in the events or the circumstances in which Mr Sparos is alleged to have arranged for Mr Maika to be killed and those in which Mr Sparos is alleged to have arranged for Mr Glover to write letters intended to influence Witness A. The Crown proposes to tender Mr Glover's letters to prove that Mr Sparos had a particular state of mind, namely, the intention to interfere with witnesses in judicial proceedings where he is the accused, and that he acted in a particular way, being the same acts particularised as those said to support the existence of Mr Sparos' tendency to act in a particular way.
4. I accept that there are the similarities in both events that the Crown has in effect particularised in its coincidence notice. However, the one marked dissimilarity is the fact that Mr Maika was killed and Witness A was not. Indeed, not only was Witness A not killed, but the letters sent to him did not closely or even remotely approach a threat or a suggestion that he would or might be killed if he did not, in effect, decide against giving evidence unfavourable to Mr Sparos. I have some difficulty with the notion that causing someone to write a threatening letter to a witness is significantly probative of the allegation that the same person may have in fact killed another witness who was expected to give evidence against him in criminal proceedings.

Consciousness of guilt

1. Mr Sparos accepted uncontroversially that in certain circumstances post-offence conduct can be used as evidence of consciousness of guilt. He emphasised in the particular circumstances of this case, however, that it was fundamental to the use of such evidence that the relevant conduct was the conduct of the particular accused.
2. That concern does not, in my opinion, avail Mr Sparos in the present circumstances. The letters written by Mr Glover are alleged by the Crown to have been acts for which Mr Sparos is liable upon the basis of a joint criminal enterprise. Mr Sparos' liability for Mr Glover's acts in the context of this case will be a matter for the jury in due course. There is no point to be made that the Crown's contention fails at the threshold.
3. The distinct and critical difference between the Crown's intention to use Mr Glover's letters as evidence of consciousness of guilt on the one hand and its proposal to use them as demonstrating either a particular tendency or the existence of an otherwise inexplicable coincidence on the other hand, is that there is no tension between the fact that Mr Sparos stands charged with murder and the fact that the letters merely purport to threaten a witness. This is for the obvious reason that even a threat falling short of violence or death of a witness can very easily qualify as, or be understood by a jury to be, an act performed by an accused person with a consciousness of guilt or with a fear that the witness in question might assist in establishing such guilt. In that setting, the particular nature of the crime with which the present trial is concerned is entirely beside the point: the evidence of Mr Sparos' alleged connection to Mr Glover's letters is not directly probative of his performance of the acts constituting the charge of murder but is directed at a different layer or level of deliberation by the jury in assessing the evidence led in the trial as part of the Crown's circumstantial case. Ultimately the precise way in which the Crown will be able to use Mr Glover's letters may well depend upon the course of the trial, in particular the issue of whether or not Mr Sparos chooses to give evidence.
4. I am not attracted to Mr Sparos' submission that if the letters are admitted, the jury will necessarily assume that they were authorised by him. I am not satisfied that it would not be possible to direct the jury about the use that they can make of the letters tendered as evidence of Mr Sparos' consciousness of guilt.

Procedural fairness and abuse of process

1. Mr Sparos objects to the use of the letters at all and for any purpose upon the basis that he has already been charged in relation to them and is scheduled to stand trial in November this year on charges pursuant to s 319 of the Crimes Act 1900 that he did an act intending to pervert the course of justice.
2. Mr Sparos says that he will be giving evidence in the present proceedings. He contends that a certificate under s 128 of the Evidence Act would not be available to him because the evidence relates to a suggested "act the doing of which is a fact in issue": Evidence Act, s 128(10); see Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12. Evidence given by Mr Sparos will therefore be available for use by the Crown in the prosecution of the pending s 319 charges. Mr Sparos draws by analogy upon the principles developed in a different context by cases such as X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 and Lee v Australian Crime Commission (2013) 251 CLR 196; [2013] HCA 39.
3. Putting aside what appears to be the significant likelihood, if not the certainty, that Mr Sparos will deny, if asked, that he had anything to do with Mr Glover's letters, it is somewhat difficult to foresee what procedural unfairness or abuse of process is likely to arise. His forensic and evidentiary position in this trial and in the District Court appears to be identical. It is not, for example, as if Mr Sparos will seek to embrace or adopt a particular position in this Court from which he will want in the District Court to resile. I note in particular that Mr Sparos has not identified any such prospect by reference to any concrete example but proffers his submissions at no higher than a hypothetical level.
4. There is, however, a more fundamental answer to Mr Sparos' present concerns. The existence or otherwise of an abuse of process or some procedural unfairness should not to be determined in this Court in the present proceedings at this time but in the District Court in the s 319 proceedings at a later time. By the time those proceedings are heard, which on any view will be following the completion of the present proceedings, the situation concerning whether or not Mr Sparos has chosen to give evidence and what he will have said if he does will have crystallised. The actual, as opposed to the hypothetical, existence of any unfairness to him will then be apparent and capable of a reasoned and evidence based assessment in the District Court. At one extreme, Mr Sparos may even be entitled in that Court to apply for a permanent stay of the prosecutions upon the basis that, by reason of what has transpired in this Court, he could no longer receive a fair trial. I do not consider that the Crown should be prevented from adducing the evidence of Mr Glover's letters upon the basis of some as yet unidentified and unspecified abuse of process or procedural unfairness.

Orders

1. I consider that the letters written by Mr Glover may be adduced by the Crown, restricted to the issue of the proof of Mr Sparos' post-offence conduct as evidence of a consciousness of guilt.

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