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Supreme Court 28 February 2018

R v Afu; R v Caleo (No 14)

[2018] NSWSC 224

Homicide
EVIDENCE DISCRETIONS EXCLUSIONS OF EVIDENCE WIFE EVIDENCE SIGNIFICANT TO MOTIVE EVIDENCE ADMITTED EVIDENCE

Citation: R v Afu; R v Caleo (No 14) [2018] NSWSC 224
Court: Supreme Court of New South Wales
Date: 28 February 2018
Judge(s): R A Hulme J

Background

This decision is one of several interlocutory rulings in a murder trial involving an accused charged in connection with the deaths of his former wife and another person. The Crown sought to call evidence from the accused's former wife, who had been married to him from 2003. Her proposed evidence covered two separate statements he had made to her during the course of their relationship.

The first statement concerned the accused telling her, while they were courting, that he had been in an "open relationship" with his murdered wife, and that a woman named Janice was known to both of them. The Crown argued this statement was relevant to establishing motive, specifically that the accused had been conducting an affair prior to his wife's murder. The second statement concerned the accused telling the same witness that his murdered wife had died of cancer, when in fact she had been murdered.

Both statements were objected to by defence counsel, who argued that any probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).

  • Whether evidence of the accused's description of his marriage as an "open relationship" was admissible, given its relevance to motive and the possibility it would also be used as credibility evidence
  • Whether evidence of the accused lying to his former wife by saying his murdered wife died of cancer was admissible solely as evidence going to the accused's credit
  • In each case, whether the probative value of the proposed evidence was outweighed by a danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW)

Decision

The "open relationship" evidence: admitted. Hulme J found that the accused's statement characterising his first marriage as an "open relationship" carried meaningful probative value beyond a simple acknowledgment of an affair. It would allow the jury to understand the relationship with the other woman as more significant, which in turn supported the Crown's theory of motive. The fact that the Crown relied on the evidence primarily for that purpose, rather than solely to attack credibility, resolved the doubt about whether an asserted lie could be admitted purely on credibility grounds. His Honour was satisfied that probative value was not outweighed by danger of unfair prejudice.

The cancer lie: excluded. The accused's statement that his murdered wife had died of cancer was, undeniably, false. However, Hulme J concluded that this lie was incapable of supporting an inference of consciousness of guilt, because telling the truth about the cause of death would not have implicated the accused in the murder. The Crown's sole remaining basis for admission was credit.

On the credit question, Hulme J found the lie too trivial to carry meaningful weight. It was a single, isolated statement made approximately 12 years after the death, apparently to garner sympathy, and the truth about the cause of death would not have harmed the accused's relationship with the witness. The probative value was assessed as negligible. Despite the availability of jury directions, the risk remained that the jury could misuse the evidence by treating it as evidence of bad character. The evidence was excluded under s 137.

Orders Made

• The evidence is inadmissible.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), evidence of a lie told by an accused is not automatically admissible as credibility evidence; the court must assess whether the probative value is outweighed by a danger of unfair prejudice in the particular circumstances.

  • Where a lie is adduced primarily to establish motive rather than solely to attack credit, concerns about admissibility on credibility grounds alone may fall away, and the evidence can be admitted on the stronger, independent basis.

  • A lie of minimal significance, made in circumstances where telling the truth would not have incriminated the accused, carries negligible probative value and may be excluded even where jury directions could theoretically address the risk of misuse.

  • The Supreme Court emphasised that jury directions are not a universal remedy: where evidence is trivial enough that a jury might nonetheless give it undue weight or treat it as evidence of bad character, exclusion under s 137 remains appropriate.

  • Crown Prosecutors disavowing one basis for admissibility (such as consciousness of guilt) while asserting another (credit or motive) will not necessarily save evidence from exclusion if the remaining basis is insufficient to justify the prejudice the evidence creates.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where probative value is outweighed by danger of unfair prejudice)

Cases cited
No cases were cited in the judgment text provided.