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Supreme Court 18 December 2017

R v Afu; R v Caleo (No 2)

[2017] NSWSC 1781

Homicide
EVIDENCE ADMISSIBILITY CRIMINAL PROCEEDINGS TWO MURDERS HEARSAY MAKER UNAVAILABLE

Citation: R v Afu; R v Caleo (No 2) [2017] NSWSC 1781
Court: Supreme Court of New South Wales
Date: 18 December 2017
Judge: R A Hulme J

Background

The accused, Mr Caleo, faced trial in connection with two murders: the killing of Dr Michael Chye on 16 October 1989 and the killing of Dr Chye's sister, Ms Rita Caleo (Mr Caleo's wife), on 10 August 1990. Both deaths were accepted as murders; the only issue at trial was the identity of those responsible.

The Crown sought to adduce evidence from Ms Angela Cheah, a long-time friend of the deceased Ms Rita Caleo. Ms Cheah's 1990 statement recorded various conversations she had with Ms Caleo during 1989 and 1990, as well as her personal observations of Ms Caleo's demeanour during that period.

Because Ms Rita Caleo was deceased, her statements to Ms Cheah constituted hearsay. The Crown sought to admit them under the hearsay exceptions in the Evidence Act 1995 (NSW). Mr Caleo's counsel objected to several passages on grounds of relevance, second-hand hearsay, and the risk of unfair prejudice outweighing probative value.

  • Whether various statements made by the deceased Ms Caleo to Ms Cheah were admissible under the hearsay exceptions in ss 65(2)(b) and (c) and s 66A of the Evidence Act 1995 (NSW)
  • Whether any admissible evidence should nonetheless be excluded under s 137 of the Evidence Act, on the basis that probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether certain representations constituted inadmissible second-hand hearsay (i.e. a statement by Ms Caleo about something Mr Caleo reportedly said)
  • Whether evidence of Ms Caleo's changed demeanour and apparent distress was relevant and admissible

Decision

Hulme J ruled on admissibility paragraph by paragraph against Ms Cheah's statement. Background evidence of the relationship between Ms Cheah, Ms Caleo, and Mr Caleo was held admissible in relation to both murders, not just the first.

Statements by Ms Caleo about the pressures surrounding the property transaction with Dr Chye, including financial difficulties and the emotional strain of the dispute, were admitted under s 65(2)(b). The court inferred that Ms Caleo was speaking from personal knowledge contemporaneously with the events, and that fabrication was unlikely. However, Ms Caleo's reported statement that "Mark is going to fix Michael up" was excluded: it derived from something Mr Caleo allegedly told Ms Caleo, making it second-hand hearsay and therefore inadmissible.

Evidence of Ms Caleo's altered demeanour in early 1990 (observed by Ms Cheah as Ms Caleo appearing troubled and changed) was held admissible. The court noted the close, longstanding friendship and the significance of the changed behaviour occurring between the two murders.

Two particularly inflammatory passages were excluded under s 137. Ms Caleo's reported statement, "get someone to shoot me," and the immediately following statement, "Mark is capable of this," were both ruled inadmissible. The court found that the basis for these statements was entirely unknown, whether they reflected actual knowledge, an admission by Mr Caleo, or mere suspicion. The risk of the jury treating them as predictions or confessions meant the danger of unfair prejudice outweighed their probative value.

Orders Made

• The 4th to 7th sentence of paragraph 7 of the statement of Ms Angela Cheah is ruled inadmissible
• The 4th and 5th sentences of paragraph 8 of the statement of Ms Angela Cheah are ruled inadmissible
• Paragraph 12 in its entirety of the statement of Ms Angela Cheah is ruled inadmissible
• The statements "get someone to shoot me" and "Mark is capable of this" in paragraph 15 of the statement of Ms Angela Cheah are ruled inadmissible

Key Takeaways

  • A deceased person's out-of-court statement is admissible under s 65(2)(b) of the Evidence Act 1995 (NSW) where it can be inferred the maker spoke from personal knowledge contemporaneously with the events and fabrication is unlikely, but this exception does not rescue statements that themselves report what another person said (second-hand hearsay).

  • Under s 66A, a representation that reflects a deceased person's state of mind or emotional condition can be admissible even without detailed explanation of its basis, provided it is relevant to the matters in issue.

  • Section 137 requires exclusion where the danger of unfair prejudice to the accused outweighs the probative value of the evidence. Here, statements carrying the appearance of predictions or indirect confessions, but resting on an entirely unexplained basis, crossed that threshold.

  • Observations by a close friend about a deceased person's changed demeanour and apparent distress are capable of constituting admissible evidence, particularly where the observer had a longstanding intimate relationship with the deceased and the change occurred at a relevant time.

  • Admissibility of evidence as between two separate charged offences in the same trial may turn on separate tendency and coincidence evidence rulings, and Hulme J expressly reserved that question for a further judgment.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65(2)(b), 65(2)(c), 66A, 82, 137

Cases:
- R v Afu; R v Caleo [2017] NSWCCA 1780