Citation: R v Afu; R v Caleo (No 6) [2018] NSWSC 185
Court: Supreme Court of New South Wales
Date: 7 February 2018
Judge: R A Hulme J
Background
This decision concerns evidentiary rulings in a murder trial involving two accused. One accused is charged with the murder of a woman at Double Bay in August 1990. The other is charged with soliciting the murders of a medical practitioner in October 1989 and the same woman in August 1990. The alleged motive relates to a property transaction gone wrong, involving a bounced deposit cheque and subsequent threats exchanged between the deceased doctor and the accused.
The Crown sought to adduce evidence from several witnesses, including representations made by a deceased witness, Peter Henderson, and testimony from available witnesses about statements allegedly made by the deceased doctor in the period leading up to his murder. Defence counsel for one of the accused objected to multiple items of evidence on various grounds.
This is the sixth published interlocutory ruling in the matter, resolving admissibility disputes before the evidence was called at trial.
Legal Issues
- Whether representations made by a deceased witness (Peter Henderson) were admissible under s 65(2) of the Evidence Act 1995 (NSW), in circumstances where those representations involved the deceased doctor reporting threats made by the accused
- Whether that evidence needed to be tendered as proof of the truth of what the deceased doctor asserted, or whether it was admissible simply as evidence that the statement was made
- Whether a witness's expression of opinion about the progress of a property transaction was admissible
- Whether evidence that the deceased doctor feared being assaulted or murdered (without specifically naming the accused) was admissible, having regard to the risk of unfair prejudice under the Evidence Act
- Whether evidence from other available witnesses about threats the deceased doctor said the accused had made against him was admissible on the same basis
Decision
Representations of the deceased witness, Peter Henderson: The court held that Henderson's statements about what the deceased doctor told him were admissible. The evidence was relevant not solely as proof of the truth of what the doctor asserted, but as evidence that those statements were made at all. The fact that the doctor made such representations to Henderson was relevant to establishing disharmony between the parties over the property transaction. It also had a confirmatory function: if the doctor made similar representations to Henderson, it was more likely that he made equivalent representations to the other witnesses who were expected to testify to the same effect.
Threats attributed to the accused by Dr Thompson: The court admitted evidence that the accused had told the deceased doctor words to the effect of "if you don't stop pushing, you are going to find yourself dead." The Crown was not seeking to prove the truth of a fact asserted in that statement but simply to prove that the threat was made. The court found that evidence of the threat itself was capable of rationally affecting the probability of a fact in issue, namely whether the accused solicited the murder of the doctor. No application to exclude the evidence under ss 135 or 137 of the Evidence Act was made.
Opinion evidence: One witness, a lawyer who was a friend of the deceased doctor, proposed to give evidence expressing her opinion on the legal position and likely outcome of the property transaction. The court ruled that portion of her evidence inadmissible as impermissible opinion evidence.
Evidence of fear not naming the accused: A witness proposed to give evidence that the deceased doctor had expressed fear of being assaulted or murdered and intended to commence legal proceedings against the accused, though the evidence of fear did not specifically name the accused. The court ruled that evidence admissible, finding its probative value was not outweighed by the danger of unfair prejudice. Similarly, the evidence of Mr Wilkinson regarding threats that the doctor said the accused had made against him was admitted on the same basis as the other witnesses.
Orders Made
No orders were made in this decision.
Key Takeaways
- Evidence of a representation can be admissible simply as proof that the statement was made, without being tendered as proof of the truth of the facts asserted within it. This distinction matters when assessing whether second-hand hearsay concerns arise.
- Under s 65(2) of the Evidence Act 1995 (NSW), representations by an unavailable witness may be admissible where made in circumstances suggesting likely truth at the time. The Supreme Court confirmed that such evidence can also serve a confirmatory function relative to other witnesses' testimony.
- A threat, once established as having been made, can have direct probative value on the question of whether a person solicited a killing, regardless of whether the Crown seeks to prove the truth of any underlying assertion in that threat.
- Opinion evidence from a lay witness on legal or transactional conclusions remains inadmissible, even where that witness has legal qualifications and personal familiarity with the transaction in question.
- Evidence of a deceased person's fear of assault or murder need not specifically name the accused to be admissible, provided the court is satisfied its probative value is not outweighed by the risk of unfair prejudice.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 65(2), 67, 135, 137; Dictionary, cl 4 of Pt 2
Cases:
- R v Afu; R v Caleo [2017] NSWSC 1780 (overview of the Crown case)