Citation: R v Camelo-Gomez (No 2) [2022] NSWSC 211
Court: Supreme Court of New South Wales
Date: 3 March 2022
Judge(s): Wilson J
Background
The accused was charged with the murder of her mother, Mrs Irene Jones, who was killed by ligature strangulation and stabbing at her Lansvale home on 2 November 2001. The Crown alleged the accused acted alone or in joint criminal enterprise with her partner, Carlos Camelo, motivated by a desire to inherit the deceased's estate. Camelo was not charged and, following a serious car crash in 2013 that left him with a severe permanent brain injury, took no part in the proceedings.
Before trial commenced, the court was asked to rule on the admissibility of disputed evidence, including numerous out-of-court statements made by the deceased to friends, neighbours, and relatives about her deteriorating relationship with the accused and her concerns about Camelo. The Crown sought to lead those statements as evidence of the truth of the facts asserted, relying on the hearsay exceptions in ss 65(2) and 66A of the Evidence Act 1995 (NSW).
A second category of disputed evidence concerned statements the accused had made to a colleague, presented in the form of a hypothetical scenario. The court ruled on both categories in this judgment, with remaining issues to be addressed separately.
Legal Issues
- Whether representations made by the deceased to various witnesses about Camelo, financial pressures, and the accused fall within the hearsay exceptions in ss 65(2)(b), 65(2)(c), or 66A of the Evidence Act 1995 (NSW)
- Whether each representation satisfies the "first-hand hearsay" requirement in s 62, meaning the deceased had personal knowledge of the asserted fact
- Whether representations admitted under a hearsay exception should nonetheless be excluded under s 135 (substantial unfair prejudice) or s 137 (probative value outweighed by unfair prejudice)
- Whether certain redacted evidence concerning the accused's relationship with Camelo should be excluded under s 137
Decision
Issue 1: Approach to admissibility
Wilson J confirmed that each representation had to be considered individually rather than on a compendious basis, applying the caution articulated by the High Court in Sio v The Queen (2016) 259 CLR 47. The representations were made to different individuals in different circumstances, making a generalised approach inappropriate (at [54]). Her Honour noted an unresolved tension in the authorities as to the meaning of "shortly after" in s 65(2)(b), observing that the authorities "do not all speak with one voice" on that construction (at [15]).
Issue 2: Admissibility of the deceased's representations to individual witnesses
Representations admitted under s 66A included: the deceased's feelings of dislike for Camelo, expressed contemporaneously with holding those feelings (at [65]); her stated intention not to sell her house to fund a business for Camelo and the accused, expressed in the present tense (at [66]); her distress at learning of the accused's secret marriage in Colombia (at [72]); and her state of mind concerning security at her home (at [86]). Representations admitted under s 65(2)(b) included those made to Mrs Bowerman about arguments with the accused over Camelo, where the language used conveyed immediacy and the statement was likely made within hours of the event (at [64]), and those made to Mrs Bunter about financial demands on the deceased (at [98]-[99]).
Several representations were excluded. Representations to Mr Zillken and others were excluded because the court could not be satisfied they were made "shortly after" the asserted fact, and the circumstances did not make it highly probable they were reliable, as required for admission under s 65(2)(c) (at [74], [77]-[79]). A representation about Mrs Jones's intention to change her will lacked sufficient detail and could not be related in time to the formation of that intention (at [80]). Representations concerning Camelo's departure for Colombia were excluded where the deceased lacked personal knowledge of that fact, failing the first-hand hearsay requirement in s 62 (at [83]). Some representations admitted in principle were then excluded under s 135(b) as meaningless without inadmissible context, creating a real risk of jury confusion (at [84], [93]).
A representation made by Mr Sheldrick in 2018, concerning Camelo sleeping in the master bedroom with the accused, was excluded under s 135. Although it was otherwise admissible under s 66A, the account had not appeared in Mr Sheldrick's 2001 statement and emerged for the first time 17 years after the event, creating real questions about reliability that substantially outweighed the evidence's probative value (at [119]).
Issue 3: The accused's statements to a colleague
The Crown sought to lead evidence of a conversation in which the accused appeared to recount her own circumstances to a colleague in the form of a hypothetical scenario, as circumstantial evidence of her intimate relationship with Camelo and her motive for murder. Wilson J found the evidence was relevant and the inference the Crown sought to draw was open (at [137]). However, her Honour concluded the probative value was not high, and there was a very real risk that at least some jurors would be unfairly prejudiced by the nature of the subject matter in a way that directions alone could not reliably cure. The evidence was excluded under s 137 as one of the rare situations where the court could not be confident that directions would adequately address the risk of prejudice (at [143]-[144]).
Orders Made
- Admissibility of hearsay evidence determined item by item, as set out in the schedule annexed to the judgment
- Evidence concerning the accused's statements to her colleague (the hypothetical scenario) is excluded
Key Takeaways
- Each hearsay representation must be assessed individually under Part 3.2 of the Evidence Act 1995 (NSW): a compendious approach is impermissible where representations were made to different people in different circumstances (at [54]).
- Under s 66A, a representation about a deceased person's feelings, intentions, or state of mind is admissible only where it was made contemporaneously with holding that state of mind, and only where the deceased had personal knowledge of the asserted fact under s 62. Representations about facts the deceased learned from third parties cannot satisfy the first-hand hearsay requirement (at [83]).
- The phrase "shortly after" in s 65(2)(b) remains unsettled in the authorities. Wilson J treated the requirement as most likely referring to hours rather than days or weeks, and admitted representations only where the language used conveyed sufficient immediacy (at [15], [64]).
- A representation that is technically admissible under s 66A may still be excluded under s 135(b) where, without inadmissible accompanying context, it would be likely to confuse the jury and its probative value is substantially outweighed by that danger (at [84], [93]).
- Section 137 exclusion, while a high threshold, was applied to evidence carrying a risk of irrational juror prejudice that the court assessed as not reliably curable by directions. Wilson J described that outcome as one of "the very rare" situations justifying exclusion on that basis (at [143]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Azizi v The Queen [2012] VSCA 205
- Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454
- Prasad v R [2020] NSWCCA 349
- R v BD (1997) 94 A Crim R 131
- R v Camelo-Gomez [2022] NSWSC 136
- R v Grogan & Slacke (No 1) [2013] NSWSC 1191
- R v Kuzmanovic [2005] NSWSC 771
- R v Ryan [2020] NSWSC 1394
- R v Singh (No 4) [2021] NSWSC 75
- R v Tarantino [2019] NSWSC 939
- R v Toki (No. 3) [2000] NSWSC 999
- Sio v The Queen [2016] HCA 32; 259 CLR 47
- Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490