Citation: R v Afu; R v Caleo [2017] NSWSC 1780
Court: Supreme Court of New South Wales
Date: 30 November 2017
Judge: R A Hulme J
Background
Two accused, Alani Afu and Mark Caleo, were charged in connection with two murders committed in 1989 and 1990. The first victim, Dr Michael Chye, was fatally shot in October 1989. The second victim, Rita Caleo, was found stabbed to death in August 1990. Rita Caleo was both Dr Chye's sister and the wife of the accused Mark Caleo.
The Crown alleged that Mark Caleo organised and financed both murders. A significant motive alleged in relation to Dr Chye's murder arose from a failed property transaction that threatened Caleo with financial ruin, with a contractual clause permitting exit upon a party's death providing a way out. Afu was charged only in connection with Rita Caleo's murder.
Before the trial commenced, two principal evidentiary questions arose from the pretrial applications. The court was asked to rule on the admissibility of oral evidence from a witness, Mimi Chan, and a letter written by Rita Caleo, left with her solicitor alongside her will in May 1990, approximately three months before her death. The letter directed that it be opened if her death was deemed unnatural. This judgment deals exclusively with those admissibility questions.
Legal Issues
- Whether the oral representations made by Rita Caleo to Mimi Chan were admissible as hearsay evidence under s 66A of the Evidence Act 1995 (NSW), which permits certain first-hand hearsay representations by an unavailable maker where the representation concerns the maker's health, feelings, sensations, intention, knowledge, or other mental or emotional state
- Whether any admissible representations from Ms Chan's evidence were relevant to one or both murders
- Whether the letter written by Rita Caleo was admissible in whole or in part under s 66A, having regard to each discrete representation it contained
- Whether any representations constituting opinion evidence were independently barred by the opinion rule under s 76 of the Evidence Act
- Whether, even if otherwise admissible, any representations should be excluded under s 137 on the ground that their probative value was outweighed by the danger of unfair prejudice
Decision
Mimi Chan's evidence. His Honour examined each representation attributed to Rita Caleo in Ms Chan's proposed evidence separately. Where a representation reflected what Rita Caleo had been told by Mark Caleo himself (that is, an admission by a party to the proceedings), it was admissible under s 66A. However, representations that were based on Rita Caleo's own inferences or speculations, rather than on anything Caleo had told her, fell outside s 66A because they did not speak to her own mental or emotional state in the required way.
His Honour also considered relevance carefully across both charges. Representations going to the Rita Caleo murder were relevant to that charge but not, without more, to the earlier murder of Dr Chye. The court declined to admit those representations for the purposes of the Chye murder count on relevance grounds.
The letter. Each representation in the letter was assessed individually. His Honour found that representations expressing Rita Caleo's fear that Caleo would kill her, or reflecting what Caleo had told her, could in principle fall within s 66A as expressions of her state of mind or as accounts of admissions. However, several specific representations failed on different grounds. An expression that Caleo "gets very desperate when he is squeezed financially" was characterised as an opinion about Caleo's character, inadmissible under the opinion rule in s 76. The fact that it was offered as hearsay evidence of an opinion did not change that analysis, following Lithgow City Council v Jackson. Other representations were either not pressed by the Crown, lacked sufficient relevance, or fell outside the categories of admissible hearsay under s 66A.
Critically, even where individual representations might otherwise have passed the threshold for admission, the court concluded that the letter as a whole could not be admitted in a redacted form because the remaining passages would be rendered meaningless or misleading without the excluded portions. The letter was therefore excluded in its entirety.
Orders Made
• The letter in its entirety must be excluded.
Key Takeaways
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Section 66A of the Evidence Act 1995 (NSW) permits first-hand hearsay representations by an unavailable maker, but only where the representation concerns the maker's own health, feelings, sensations, intention, knowledge, or other mental or emotional state. Representations that amount to opinion about another person's character do not qualify.
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Where a hearsay representation is itself an expression of opinion, the opinion rule in s 76 applies independently. Under the reasoning affirmed in Lithgow City Council v Jackson (2011) 244 CLR 352, the fact that evidence is offered as hearsay does not convert an inadmissible opinion into admissible evidence.
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A representation that derives from an admission made by a party to the proceedings occupies a stronger footing under s 66A than one based on the deceased's own inference or speculation. The Supreme Court drew this distinction in evaluating each contested statement.
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Relevance is assessed charge by charge in multi-count proceedings. Evidence going to one murder did not automatically become admissible in relation to a separate murder arising from different facts and circumstances.
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Where a document contains both admissible and inadmissible representations, excision may not be a workable solution if the remaining passages would be rendered meaningless in context. In this case, the Supreme Court excluded the letter entirely rather than admit a fragmentary and potentially misleading version of it.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55(1), 66A, 76, 97, 98, 137
- Criminal Procedure Act 1986 (NSW), s 21(2)
Cases
- Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506