Citation: R v Afu; R v Caleo (No 3) [2017] NSWSC 1782
Court: Supreme Court of New South Wales
Date: 18 December 2017
Judge(s): R A Hulme J
Background
The accused, Mark Caleo, faced charges of soliciting the murders of two people: Dr Michael Chye and Rita Caleo, who were siblings. The Crown's case alleged that Caleo arranged the killings of both victims, each of whom was a close relative and each of whom posed a financial threat to him. Both murders occurred in exclusive Sydney suburbs within approximately ten months of each other.
The Crown sought to rely on two categories of evidence at trial: coincidence evidence (using the circumstances of both murders together to show it was improbable they happened without Caleo's involvement) and tendency evidence (using evidence of one alleged murder to show Caleo had a tendency to arrange killings when financially pressured, relevant to the other charge). Caleo also applied to have the two counts tried separately.
This judgment resolved the admissibility of that evidence and the severance application, following earlier rulings in the same proceedings on related evidentiary matters.
Legal Issues
- Whether the Crown's coincidence evidence was admissible under s 98(1) of the Evidence Act 1995 (NSW), including whether the coincidence notice was sufficiently compliant with the Evidence Regulation 2015 (NSW)
- Whether the Crown's tendency evidence was admissible under the Evidence Act 1995 (NSW), including whether it satisfied the heightened "significant probative value" threshold in s 101
- Whether counts 2 and 3 should be severed so that each alleged solicitation to murder was tried separately
Decision
Coincidence evidence: admissible. Hulme J was satisfied the coincidence evidence met the requirements of s 98(1). The crucial circumstances common to both murders included: each victim was killed at home by a contracted killer; each had expressed fear of Caleo and intended to cause him financial harm; the two deaths occurred within ten months while Caleo faced financial threats from both; and Caleo stood to benefit financially from each death. Despite criticism of the Crown's pro forma drafting of the coincidence notice (which left the accused to piece together the specific evidence relied upon from listed witness statements), the defence was nonetheless able to respond substantively, and the notice was treated as adequate. The court found the similarities were sufficiently striking that it was improbable the two murders occurred coincidentally.
Tendency evidence: inadmissible. The tendency evidence did not clear the higher bar imposed by s 101, which requires that the probative value of the evidence "substantially outweighs" any prejudicial effect. Hulme J was not satisfied that evidence relating to the murder of Dr Chye "strongly supports" a tendency on Caleo's part to resort to murder when facing financial difficulty, as required by Hughes v The Queen. The financial pressure Caleo faced in relation to his wife was not shown to be as extreme as that relating to Dr Chye, meaning the tendency could not be reliably inferred to have operated in both situations. The court also identified a real risk of impermissible reasoning by the jury: even if satisfied the tendency existed, jurors might not properly assess whether Caleo acted on it in the second instance, and that risk was not adequately cured by directions.
Severance refused. The parties agreed the severance application would be resolved by the outcome of the coincidence and tendency rulings. Because the coincidence evidence was held admissible, trying both counts together remained appropriate, and the application to sever counts 2 and 3 was refused.
Orders Made
- Coincidence evidence is admissible.
- Tendency evidence is inadmissible.
- Application for severance of counts 2 and 3 is refused.
Key Takeaways
- Coincidence evidence under s 98(1) of the Evidence Act 1995 (NSW) requires that the similarities between events make it improbable those events occurred coincidentally; Hulme J found that threshold satisfied where two murders shared a constellation of features including contracted killers, victims who feared the accused, overlapping financial motives, and a close timeframe.
- A pro forma coincidence notice that lists witness statement paragraphs without explicitly identifying the substance of each item of evidence attracted criticism from the court; while the notice was ultimately not rejected, Hulme J noted the approach placed an undue burden on the accused and the trial judge to reconstruct the Crown's case from the listed materials.
- Under s 101 of the Evidence Act 1995 (NSW), tendency evidence in criminal proceedings faces a heightened admissibility test: its probative value must substantially outweigh its prejudicial effect, and the evidence must "strongly support" the tendency asserted, consistent with the High Court's approach in Hughes v The Queen [2017] HCA 20.
- Where the circumstances underlying each alleged instance of tendency conduct differ in material degree (here, the severity of financial pressure in each situation), a court may decline to find the tendency is "strongly supported" by the first episode.
- Refusal of a severance application will follow naturally where the basis for joinder, namely overlapping coincidence evidence, is held to be admissible.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 98(1), 99, 101
- Evidence Regulation 2015 (NSW), r 6(2)
Cases
- Hughes v The Queen [2017] HCA 20
- R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
- DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- IMM v The Queen (2016) 257 CLR 300
- Selby v R [2017] NSWCCA 40
- Ford v R [2009] NSWCCA 306; 201 A Crim R 451
- CW v The Queen [2010] VSCA 288
- R v Lockyer (1996) 89 A Crim R 457
- R v Afu; R v Caleo [2017] NSWSC 1780
- R v Afu; R v Caleo (No 2) [2017] NSWSC 1781