Citation: R v Camelo-Gomez (No 3) [2022] NSWSC 257
Court: Supreme Court of New South Wales
Date: 14 March 2022
Judge(s): Wilson J
Background
The accused faced trial for murder under s 18(1)(a) of the Crimes Act 1900 (NSW). The Crown alleged she killed her mother, the deceased, motivated in part by the deceased's opposition to the accused's close relationship with a man named Carlos Camelo. The deceased had allegedly threatened to change her will and disinherit the accused if that relationship continued.
Before trial commenced, the court conducted a series of pre-trial hearings on disputed evidentiary matters. This judgment, the third in that series, resolved two remaining admissibility questions that had been reserved from an earlier hearing on 3 March 2022.
The two questions were: first, whether records of telephone calls and SMS messages made from the accused's mobile phone service in the early hours of 2 November 2001 were admissible; and second, whether expert evidence from a forensic medical officer about injuries typical of ligature strangulation was admissible.
Legal Issues
- Whether records of telephone calls and SMS messages from the accused's mobile service to Camelo's service, and a related call to police, were relevant and had sufficient probative value to be admitted into evidence
- Whether the admission of the telephone evidence would occasion unfair prejudice to the accused, having regard to gaps in the evidence and her inability to call Camelo as a witness
- Whether expert evidence about injuries commonly caused by ligature strangulation was based on specialised knowledge within the meaning of the Evidence Act 1995 (NSW)
- Whether the probative value of the expert strangulation evidence was outweighed by its prejudicial effect, warranting discretionary or mandatory exclusion under ss 135 or 137 of the Evidence Act
Decision
Telephone call evidence
The call records showed a pattern of SMS messages and short voice calls from the accused's service to Camelo's service between late on 1 November 2001 and the early hours of 2 November 2001, during which time Camelo received no response. In between, a call was made from the accused's service to Parramatta Police Station. That call corresponded with a report made by a female caller who gave a false name and alerted police to a vehicle with cancelled registration plates, in which Camelo's flatmate Nicholas Soucoff was later found to be the driver.
The court found this evidence was rationally capable of affecting the assessment of the key fact in issue: the nature and intensity of the accused's relationship with Camelo. The frequency and timing of the communications, and the circumstances of the police call, were capable of supporting the Crown's case that the relationship was close and obsessive rather than merely that of relatives by marriage. The court rejected the argument that the evidence was too speculative to be admitted, finding that the gaps in the evidence went to weight rather than admissibility, and that any prejudice from the admission did not outweigh the probative value.
Expert strangulation evidence
The Crown sought to rely on evidence from a forensic medical officer, Dr van Diemen, concerning the typical injuries caused by ligature strangulation, including evidence that such injuries are not always visible and can vary between individuals. The accused challenged whether this evidence rested on specialised knowledge and whether its admission was unfairly prejudicial.
The court was satisfied that Dr van Diemen's opinions were firmly grounded in her extensive experience as a forensic medical officer, including significant exposure to strangulation injury and death. The evidence was relevant to assess the accused's own account of an alleged assault upon her, and was capable of assisting the jury's understanding of injury mechanisms. The court found no basis to exclude the evidence under either s 135 or s 137 of the Evidence Act, noting that the prejudice arising from evidence that supported the Crown's case was not the kind of prejudice those provisions were designed to address. Any issues about the weight of the doctor's evidence could be explored in cross-examination and addressed in submissions to the jury.
Orders Made
• The evidence of Dr Van Diemen is admissible, as the Court ordered on 3 March 2003.
Key Takeaways
- Evidence of telephone calls and SMS messages can be admissible to prove the nature of a relationship between an accused and another person, even where there are gaps in the evidence about who specifically made those communications, provided the evidence is rationally capable of affecting assessment of a fact in issue.
- Unfair prejudice under ss 135 and 137 of the Evidence Act 1995 (NSW) does not encompass the ordinary forensic disadvantage of evidence that tends to support the prosecution case; something more is required before exclusion is warranted.
- Expert evidence about common or typical injury patterns in strangulation cases is capable of constituting specialised knowledge for the purposes of the Evidence Act, where it is grounded in the expert's clinical and forensic experience.
- Where an accused contends that evidence is too speculative or that gaps exist in the inferential chain, that consideration ordinarily goes to weight rather than admissibility.
- The absence of a potential witness (here, Camelo) who might have given evidence favourable to the accused did not, of itself, render otherwise admissible evidence inadmissible or require its exclusion on grounds of prejudice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), ss 135, 137
Cases
- R v Camelo-Gomez [2022] NSWSC 136
- R v Camelo-Gomez (No 2) [2022] NSWSC 211