Humphries M v RHumphries A v R [2012] NSWCCA 270
R v Heffernan
Judgment (2 paragraphs)
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Judgment
HIS HONOUR: On 21 May 2018, I delivered reasons for judgment in which I specifically reserved for further consideration the question of the Crown's application to read significant portions of evidence given by Mr Sparos at his earlier trial: see R v Sparos [2018] NSWSC 714. I have now heard further submissions on this question.
It will be recalled that the Crown proposes to lead this evidence as constituting a series of admissions made by Mr Sparos. An admission is defined in the Evidence Act 1995 as a previous representation:
"(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person's interests in the outcome of the proceeding."
The Crown has identified a series of topics that it says facilitate an understanding of the way in which it proposes to characterise this evidence and has reduced the amount of evidence upon which it wishes to rely to approximately 249 pages of the previous trial transcript. The Crown wishes to adduce all of this evidence by having it read to the jury by a neutral person.
Mr Sparos' position remains unchanged. He contends that the material does not qualify as admissions, cannot be selectively read without doing injustice to the true meaning and effect of the evidence, must be rejected pursuant to s 137 of the Act or ought otherwise to be excluded pursuant to s 135 of the Act. Alternatively, Mr Sparos contends that if any of his earlier evidence is to be read, it should all be read.
The Crown contends that in the course of his previous evidence, Mr Sparos provided a version of events in which he commented on facts in issue in the prosecution case. The Crown maintains that in doing so he provided both inculpatory and exculpatory statements or accounts that constitute admissions. The Crown maintains that Mr Sparos' evidence contains a series of answers that are adverse to his interest as they amount to a false version of events. In particular, the Crown asserts that Mr Sparos falsely claimed the following matters:
1. That the evidence of Mr Maika did not have an impact upon his case or was not important to his case.
2. That Mr Maika's evidence was helpful to his case.
3. That he was pursuing a strategy whereby he was always going to plead guilty and was not going to take the drug charges he was facing to trial.
4. That most people he knew, except Christine Saliba, were all aware that he was going to plead guilty.
5. That he deliberately misled Christine Saliba about whether he was going to trial in order to ensure that he retained access to his child.
6. That the prosecution had accepted his claim as to his role in the importation charge at the time of his plea of guilty on 1 August 2011.
7. That he had an expectation of receiving a non-parole period of 7 years in relation to his drug charges.
8. That he had not received a brief of evidence for the drug charges.
9. That references to a parcel in conversations with Christine Saliba and Anthony Saliba in late December 2010 and early January 2011 related to a scheme to forward contraband to him in gaol and were not references to money or a gun to be forwarded to Witness C.
10. That he had no involvement in the death of Mr Maika.
11. That he did not ask Witness A to obtain Mr Maika's address.
12. That he did not ask Witness B to source a gun.
13. That he had no motive to involve himself in Mr Maika's death.
The Crown maintains that the extensive evidence given by Mr Sparos at his previous trial must have been the result of a deliberate choice on his part to answer questions on oath from the witness box. That decision was voluntary. There does not appear to be any dispute before me about that.
The Crown also intends in this trial to tender evidence of a series of gaol telephone calls made by Mr Sparos, including calls that were tendered at the previous trial as well as calls that were not tendered at that time. The Crown asserts that this material contradicts Mr Sparos' claims that he was never going to trial and that most people he knew thought he was going to plead guilty. The Crown asserts that the evidence also contradicts his claims that he was misleading his wife concerning his intention to plead guilty. The Crown contends that Mr Sparos deliberately provided a false version on multiple occasions in the previous trial in order to suggest that he was never going to defend the charges and therefore that he had no motive to kill Mr Maika who was an anticipated witness for the prosecution.
I am not presently in a position to determine or assess whether any of what Mr Sparos said in the previous trial was a lie. I have not yet heard evidence in the present trial. I have been provided with the Crown case statement and the transcripts of gaol calls which, on one view, cast considerable doubt upon Mr Sparos' version of events or some of them. For example, Mr Sparos appears determined to reject a plea deal when speaking in the gaol calls, whereas he vehemently denies in his previous evidence that he was ever going to trial.
My difficulty with the suggestion that this evidence could be characterised as adverse to Mr Sparos' interests stems from the fact that it was all on its face entirely exculpatory or consistent with his plea of not guilty in these proceedings. I understand that the Crown asserts that "adverse to the person's interests in the outcome of the proceeding" can and should be read so as to include a situation where there is material in the case upon the basis of which it could be suggested to the jury that the previous evidence was a lie and that an acceptance of that fact by a jury would accordingly be adverse to Mr Sparos' interests. In my opinion, that is not an available reading of the definition of an admission. One of the ordinary English meanings of an admission is a confession or an acknowledgment of an error or of a crime or of the truth of something. The Evidence Act dictionary definition is not contextually different. "Adverse" contemplates something that is harmful, unfavourable or disadvantageous. Mr Sparos has not to my mind given evidence of anything that was in terms adverse to his defence of the Crown case. In my opinion, he made no relevant admission.
None of the cases to which I have been referred contains an example of the reception into evidence of a so-called admission that was consistent with the position in the proceedings adopted by the maker of the statement: Stuart v The King (1921) 29 CLR 234; [1921] HCA 17; R v Mills [1986] VR 617; R v McGregor (1967) 51 Cr App R 338; R v Heffernan; R v Peters (NSWCCA, Smart J, 23 February 1998, unreported); R v Sonnet [2011] VSC 551. All of the cases drawn to my attention concern situations in which the accused has in effect conceded something inimical to his or her interest in the outcome of the trial. It is in my view an impermissible stretch of the language to suggest, if Mr Sparos says, whether truthfully or not, that he was always going to plead guilty, that such evidence is adverse to his interest if it supports and is consistent, for example, with his contention that he had no motive to kill Mr Maika. The same applies more generally if what Mr Sparos said on the previous occasion was not inconsistent with his plea of not guilty or, in other words, not adverse to his interest in the outcome in the proceeding. As I have said, the ultimate effect of Mr Sparos' earlier evidence may be that it is rejected by the jury as a lie when compared to other evidence in the trial. That does not, in my opinion, convert what may ultimately be found to have been a lie into an implied admission adverse to his interest at the time it was made.
The Court of Criminal Appeal would appear to have adopted a broad approach to what may constitute a representation that is adverse to the person's interests in the outcome of the proceedings. In R v Horton (1998) 45 NSWLR 426 the Court determined that a statement at the scene to a police officer by an accused on a charge of murder, that the victim "fell on the knife", which on its face was exculpatory, was adverse to the accused's interests. That was in the context of a defence of intoxication raised by the accused at trial and was admitted to show that the accused was not affected by alcohol and as such adverse to the accused's defence. That is entirely different to the Crown's argument in the present case in which the Crown relies on intentionally asserted facts in his previous trial which the Crown alleges were lies.
Senior counsel for Mr Sparos referred to the decision of Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270. Latham J said the following:
"[4] I have had the considerable advantage of reading Fullerton J's judgment in draft. I gratefully adopt her Honour's summary of the evidence and the trial process. I agree with the orders proposed by her Honour and with her Honour's reasons with respect to the impugned direction. I prefer to express no view with respect to the alleged infringement of the appellants' right to silence. The disposition of the appeal turns upon a fundamental confusion generated in the trial between the credibility of the account given by the appellants in their respective interviews with police on the one hand, and the legitimate inferences that could be drawn from a combination of circumstances on the other.
[5] As Fullerton J has noted, the Crown's submission at trial when the question of a consciousness of guilt direction was first raised was that such an inference could be drawn from the combination of a number of circumstances, including the absence of each appellant from their usual place of residence for a period of days after the incident, their presentation to the police together on the same day and their respective uniform accounts of being assaulted by the complainants. The submission was that, rather than make a timely complaint to police about serious assaults committed upon them, their conduct supported the conclusion that the appellants had jointly manufactured their account. So much might be accepted. However, the next step in the Crown's submission, that these circumstances legitimately gave rise to an inference that the appellants acted as they did and said what they said to police out of a consciousness of guilt, ought to have been rejected by the trial judge.
[6] As I observed in McKey, the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions.
[7] In this case, even assuming that the Crown had pressed the whole of the circumstances surrounding the appellants' conduct in support of consciousness of guilt reasoning (which was not done in the closing address), the appellants' conduct was not capable of constituting an implied admission. To the contrary, it was the essence of their defence at trial. Whether the jury accepted their explanation for the delay in going to the police was a matter that went to the credibility of their account generally, but a consciousness of guilt direction potentially converted their defence into a plank in the prosecution case and thereby deprived it of appropriate consideration by the jury."
Although the Court was in that case considering the issue of consciousness of guilt, I see no basis for rejecting its applicability in the present circumstances. Mr Sparos was entitled to give evidence in the previous trial that was consistent with his plea of not guilty to the charge of murder. In my opinion, that is what he did. It remains to be seen whether or not any evidence given by him on that occasion attains significance in these proceedings. I do not consider that the definition of an admission in the Evidence Act operates in a way to permit the Crown to use Mr Sparos' evidence in his previous trial as a plank in its case unless it clearly amounts to a representation adverse to his interests in the outcome of this trial. It would be different, by way of example, if the Crown wished to read evidence given by Mr Sparos from the earlier trial in which he said that he provided a gun that was used to kill Mr Maika to a person for delivery to Witness F because Witness F was concerned to carry a firearm for his own safety. The exculpatory suggestion that the gun was provided for an arguably benign purpose would not disqualify the representation that he provided the gun as an admission properly understood. A statement that he provided the gun would be a representation adverse to his interests. Conversely, an unqualified denial by Mr Sparos that he provided a gun to anybody, even if found to be a lie, would not be adverse to his interests in the outcome of the proceeding and would therefore not qualify as an admission.
In these circumstances I consider that the Crown's application to read any of the evidence given by Mr Sparos at his previous trial should be rejected.
It becomes unnecessary to consider Mr Sparos' additional arguments. I propose therefore to mention them only briefly.
Section 90 of the Evidence Act provides as follows:
"90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
In my opinion, this provision has no present relevance. The evidence in question said by the Crown to contain the so-called admissions was adduced in the course of evidence voluntarily given by Mr Sparos. There can in those circumstances be no suggestion of any unfairness to him.
Section 137 of the Evidence Act 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."
I have already concluded that the evidence is not admissible in as much as it does not qualify as an admission. Apart from that conclusion, I would not consider that the reception of the evidence created a danger of unfair prejudice to Mr Sparos. As I have earlier observed, the evidence in question is material of which Mr Sparos is the sole author. It emerged in the course of evidence voluntarily given by him on a prior occasion. Whatever might otherwise be the probative value of the evidence would not be outweighed by the existence of any unfair prejudice in the circumstances.
Section 135 of the Evidence Act provides as follows:
"135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time."
It is necessary only to consider paragraph (c). The predictions of counsel were that the reading of all of the evidence previously given by Mr Sparos would occupy several days. That is understandable given the time taken to adduce all of his evidence at the trial. The time required to read his evidence would be considerably less if the evidence were limited to the 249 pages for which the Crown currently contends, or even if the evidence given by Mr Sparos in re-examination were added to it. No more precise estimate is available.
The effect of my conclusions is that the reading of this evidence would cause or result in an undue waste of time. However, if the evidence were otherwise admissible, and were capable of being adduced by the Crown for the purposes suggested by it, it would not in my view cause or result in an undue waste of time. Indeed, depending upon the forensic decisions made by Mr Sparos in those circumstances, the reception of the evidence could actually shorten the trial or not significantly extend it.
Finally, Mr Sparos contends that any method adopted for reading any of his evidence, but especially any reading of less than all of it, would cause him an injustice. That would be so if there were any risk that the timings, inflections and nuances that would have been apparent to the jury that heard the evidence in the earlier trial were lost or degraded by having a third person read what he said in his previous evidence. For my part I do not consider that this is a particularly significant point. Upon my reading of significant portions of Mr Sparos' evidence from the previous trial, one is left in very little doubt about what he is saying. There does not seem to me to be any realistic scope for misunderstanding what Mr Sparos said on the last occasion, even without the advantage of seeing him in the witness box when he did so. Moreover, the reading of evidence of witnesses regularly occurs in criminal trials for any number of reasons, mostly associated with efficiency and convenience. I have not observed there to be any fundamental problem with this method of adducing evidence from witness statements or police interviews or transcripts of proceedings.
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Decision last updated: 17 August 2018