R v Sparos

HIS HONOUR: The Crown proposes to tender a summary of phone records. That tender originally included a total of seven calls. In response to Mr Sparos’ objection, the Crown has now discarded three of these. The remaining four calls were marked as MFI 84 and are as follows:

The evidence so far reveals that Daniel Agius had been an associate of Mr Sparos and that he had previously visited Mr Sparos in gaol. Mr Sparos’ committal hearing was scheduled to resume in the Local Court at Penrith on 21 June 2010.

On 24 May 2018, Detective Klotz gave the following evidence:

That evidence was given without objection on the fourth day of this trial. Mr Sparos was at that time represented by counsel.

Mr Sparos now maintains that the phone records must be excluded upon the basis that their probative value is outweighed by the danger of unfair prejudice to him. The Crown opposes that contention and submits further that I am bound to admit the evidence having regard to s 130A of the Criminal Procedure Act 1986 and the fact that Adams J admitted the evidence at Mr Sparos’ previous trial.

In my opinion, all of the calls should be rejected. This is for the following reasons.

Apart from the two calls made between Mr Maika and Mr Agius, it is unknown by whom the other calls were made. Neither of the two calls made from a payphone to Mr Maika can be sourced or attributed to a known person. There is no material from which a jury could legitimately reason that the caller in either of these calls was Mr Sparos or anyone associated with him.

The Crown has contended that all of the calls should be admitted as a matter of fairness to Mr Sparos upon the basis that there would then be evidence from which the jury might conclude that the threatening or occult calls to Mr Maika that Detective Klotz was told about might arguably have been made by someone other than Mr Agius. In other words, because Mr Maika was unable to identify the caller who told him him to stick to his story, and because he received a series of other calls on the night in question, there is some doubt that the threatening call on the night came from Mr Agius. If all of the calls in question are not admitted, the jury might be left with the impression that the relevant call must have been made by Mr Agius.

There may originally have been some argument available to Mr Sparos to oppose the evidence from Detective Klotz in which he referred to what Mr Maika told him about the calls he received on the night in question. However, Mr Sparos was legally represented when that evidence was led and no objection to it was raised. Therefore, having regard to the fact that that evidence has now been heard by the jury, the issue of whether the probative value of the four calls is outweighed by the danger of unfair prejudice to Mr Sparos necessarily falls to be assessed by reference to how the Crown proposes to use the calls as part of its case.

The Crown maintains that the evidence is necessary in order to rebut what it anticipates will be Mr Sparos’ contention, that the threatening call could have come from interests associated or connected with Mr Mato or Witness E. These men were Mr Sparos’ co-accused in the drug charges that were the subject of the committal proceedings at Penrith Local Court on 21 June 2010. However, they had by then already been committed for trial on 17 December 2008 and so could have had no continuing interest in Mr Maika’s evidence.

During the course of argument on this point, the following exchange took place between me and the Crown:

The relevant portion of exhibit P, a police note of a conversation with Mr Maika on 14 December 2010, is a follows:

That exhibit was tendered by the Crown at the request of Mr Sparos’ legal advisers.

The Crown accepts that it cannot assert that the calls in question came from Mr Sparos or from someone associated with him but at his direction. The Crown wishes to tender the call records to demonstrate that threats were made to Mr Maika prior to the resumption of the committal hearing. However, unless the Crown is able in some fashion to connect the calls to Mr Sparos, I have some considerable difficulty understanding their relevance. For example, as far as I can see, the Crown’s concern to rebut the proposition that the calls were made on behalf of Mr Mato or Witness E can only have any significance in this trial if it is necessary in order to leave open the inference that the calls and the threat were somehow connected to Mr Sparos. As the Crown has accepted, the relevance is that the threats were made in the shadow of proceedings in which Mr Sparos was involved and in which Mr Mato and Witness E were not.

In my view, the probative value of this evidence is accordingly very low. On one view it has no relevance at all. It is only being tendered to rebut a suggestion that the threats about which Mr Maika told Detective Klotz came from Mr Mato or Witness E. Correspondingly, exhibit P is itself a hearsay document and will have to be the subject of a warning in such circumstances.

Moreover, I fail to see how the calls in question could operate or are even necessary to rebut the suggestion that the threats could have come from Mr Mato or Witness E. The evidence establishes that they were committed for trial long before. That evidence would be alone sufficient to meet the Crown’s concern about the source of the threats. The evidence of the call records does not advance the proposition that they could not have been responsible for the threats to Mr Maika on the night in question any more than the evidence establishing that Mr Mato and Witness E had already been committed for trial.

The call records may also operate unfairly to Mr Sparos to the extent that they could give rise to a misconception in the mind of the jury that Mr Sparos must have been responsible for the threats. In the case of the calls between Mr Maika and Mr Agius, it seems highly unlikely that Mr Maika would have returned a call to someone who had threatened him in the first call or that Mr Agius only threatened him in the return call. In the case of the calls from the phone box, they are calls from an unknown person and cannot be attributed to Mr Sparos in any way.

Accordingly, there is a real danger that the jury might give undue weight to the phone records. In my view, this danger cannot be ameliorated, as the Crown suggests, by a direction to the jury. Such a direction may have the undesirable effect of unnecessarily focusing the jury’s attention on what may be regarded as prejudicial evidence.

The fact that Mr Maika’s conversation with Detective Klotz leaves open the possibility that the threats might have come from the phone box calls, and that this necessarily supports Mr Sparos, is something about which Mr Sparos indicated he was unconcerned. Clearly enough, that argument would not be available to him if the call records are rejected.

Section 130A of the Criminal Procedure Act is as follows;

The evidentiary ruling in question concerning the call records was made by Adams J in the previous trial. Mr Sparos was then legally represented. That is no longer the case. Mr Sparos strenuously opposes the tender of the call records. Further, there have been changes in the circumstances since the ruling by Adams J. The Crown now proposes to adduce evidence from Witness E, who was not a witness in the previous trial. The Crown has also adduced important evidence that was not led in the previous trial. Accordingly, it would in my view be undesirable to admit the evidence in question without an examination of the probative value and the prejudicial effect of the evidence in light of the particular circumstances of this trial. Accordingly, having regard to my view that the evidence may be unfairly prejudicial to Mr Sparos, as well as the fact that such prejudice may not be clearly ameliorated by a direction to the jury, I consider that it is not in the interests of justice for the previous evidentiary ruling to be binding.

The tender of MFI 84 is rejected.