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Supreme Court 5 March 2018

R v Afu; R v Caleo (No 15)

[2018] NSWSC 245

Public order & justice offences
EVIDENCE DISCRETIONS EXCLUSIONS OF EVIDENCE EXCEPTION TO HEARSAY RULE WHERE MAKER UNAVAILABLE EVIDENCE EXCLUDED EVIDENCE

Citation: R v Afu; R v Caleo (No 15) [2018] NSWSC 245
Court: Supreme Court of New South Wales
Date: 5 March 2018
Judge(s): R A Hulme J

Background

This decision arises from a criminal trial before the Supreme Court involving two accused. The Crown sought to adduce the contents of a statement made on 21 November 1990 by a witness, Ms Angela Cheah, a Malaysian resident who had avoided all contact attempts and was accepted as unavailable to give evidence.

The statement recorded conversations Ms Cheah said she had with a woman (Ms Rita Caleo) over a period stretching from August 1989 to approximately May 1990. The conversations touched on sensitive topics including the investigation into a murder and matters concerning the accused. Because Ms Cheah could not be called to give oral evidence, the Crown sought to admit her prior representations through the hearsay exception in s 65 of the Evidence Act 1995 (NSW).

The defence opposed admission, arguing that neither of the two relied-upon exceptions under s 65(2) was satisfied. Hulme J ruled on the admissibility of Ms Cheah's statement.

Legal Issues

  • Whether Ms Angela Cheah was "unavailable" as a witness within the meaning of the Evidence Act 1995 (NSW)
  • Whether Ms Cheah's prior representations were admissible under s 65(2)(b): that is, whether they were made "when or shortly after" the asserted fact occurred and in circumstances making fabrication unlikely
  • Whether Ms Cheah's prior representations were admissible under s 65(2)(c): that is, whether they were made in circumstances that make it "highly probable" that the representations are reliable

Decision

Issue 1: Unavailability

Hulme J accepted, without contest from the Crown or defence, that Ms Cheah was unavailable to give evidence. She was a Malaysian resident who had indicated reluctance to cooperate and had actively avoided contact (at [1]-[3]).

Issue 2: Section 65(2)(b) — "Shortly after" and fabrication

The court held that the phrase "shortly after" in s 65(2)(b) must denote a period that is relatively minimal. Minutes, hours, or a few days may suffice, but a gap of six months or more plainly does not (at [24]). The Crown argued that the requirement was met because Ms Cheah would still have retained an adequate memory of the conversations, but Hulme J rejected this reasoning: freshness of memory is not the concern of s 65(2)(b), which is distinct from other provisions such as ss 32 and 66 of the Act (at [25]).

The court also clarified that the fabrication limb of s 65(2)(b) focuses on the circumstances in which the representation was made, not on whether the witness herself was likely to have fabricated her evidence. The Crown's submissions conflated the two, and that conflation was treated as irrelevant to the inquiry (at [26]). The court was not satisfied that s 65(2)(b) was made out (at [27]).

Issue 3: Section 65(2)(c) — High probability of reliability

The court found that little was known about the circumstances in which Ms Cheah made her statement beyond that it was taken at the Australian High Commission in Kuala Lumpur (at [28]). No information was provided about how the statement was taken or what materials, if any, Ms Cheah had to assist her recollection. One specific representation in the statement was demonstrably incorrect, pointing to a real possibility of error in recalling what was actually said during the conversations (at [29], [33]). The court emphasised, following Sio v The Queen (2016) 259 CLR 47, that the question is the reliability of the representations as evidenced by the circumstances of their making, not the witness's general reliability or truthfulness (at [32]). The Crown failed to meet the high threshold of establishing that reliability was "highly probable" (at [34]-[35]).

Orders Made

  • Evidence inadmissible: Ms Cheah's prior representations set out in her statement of 21 November 1990 are excluded.

Key Takeaways

  • Under s 65(2)(b) of the Evidence Act 1995 (NSW), the phrase "shortly after" requires a period that is relatively minimal. The Supreme Court confirmed that a gap of six months or more between the occurrence of the asserted fact and the making of the representation will not satisfy this requirement (at [24]).

  • Freshness of memory is not the relevant consideration under s 65(2)(b). That provision differs from other sections of the Act that explicitly address memory, and arguments about a witness's capacity to still remember events at the time of making a statement do not speak to the statutory test (at [25]).

  • The fabrication limb of s 65(2)(b) focuses on the circumstances in which the representation itself was made, not on whether the particular witness was personally likely to have fabricated evidence. These are distinct inquiries, and conflating them misdirects the analysis (at [26]).

  • Section 65(2)(c) demands that reliability be "highly probable" having regard to the circumstances in which the representation was made. Truthfulness and reliability are not the same concept: a witness may have had no intention to deceive, yet the circumstances of the representation may still fall short of the high threshold required for admission (at [30], [34]).

  • Where the Crown bears the onus of establishing admissibility under s 65(2)(c), the presence of demonstrable factual errors within the statement itself can weigh against a finding of high probable reliability, even where the general subject matter was personally significant to the maker (at [29], [33]-[34]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 59, 62, 65

Cases
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32