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Supreme Court 21 March 2022

R v Camelo-Gomez (No 4)

[2022] NSWSC 309

Homicide
CRIME TRIAL MURDER HEARSAY EVIDENCE NON HEARSAY PURPOSE

Citation: R v Camelo-Gomez (No 4) [2022] NSWSC 309
Court: Supreme Court of New South Wales
Date: 21 March 2022
Judge: Wilson J

Background

The accused stood trial for the murder of her mother. The Crown alleged that she committed the murder to gain access to her mother's estate, primarily to financially benefit a man with whom she was in an intimate relationship. That man, Carlos Camelo, was not a co-accused but featured centrally in the evidence.

Camelo had been interviewed by police twice in late 2001, first as a witness. He did not give evidence at trial. Both the Crown and the accused sought to rely on portions of those police interviews, with the parties reaching agreement on most of the material. Two discrete portions of the first interview remained in dispute, requiring the court to rule on admissibility.

The accused sought to use parts of the interview to argue that Camelo had lied to police about his whereabouts and his living arrangements, pointing to him as a possible perpetrator. The Crown sought to respond by tendering additional portions of the same interview under the retaliatory provisions of section 65(9) of the Evidence Act 1995 (NSW).

  • Whether the two disputed portions of Camelo's police interview were admissible under section 65(9) of the Evidence Act 1995 (NSW), which allows a party to adduce further representations about the same matter where the other party has led hearsay evidence on that matter.
  • Whether, even if section 65(9) was satisfied, the evidence should be excluded under the discretionary exclusion in section 135 or the mandatory exclusion in section 137 of the Evidence Act, on the basis that its prejudicial effect outweighed its probative value.
  • Whether Camelo's alleged expressions of shock at hearing of the deceased's death were admissible under section 65(9) as a retaliatory response to the accused's lies evidence.

Decision

First disputed portion (pages 4 to 5 of the interview, Q&A 35 to 42): The accused sought to admit Camelo's statement that he had recently moved out of the family home. The Crown sought to lead additional parts of the same interview in which Camelo described living at the premises for approximately 18 months, arguing this supported a closer and more intimate relationship between him and the accused. Wilson J held that the "matter" in question was Camelo's residence at the Jones household, and that the Crown's additional material clearly addressed the same matter. Section 65(9) was therefore satisfied.

On the question of prejudice, the judge acknowledged that Camelo was unavailable for cross-examination. However, the court found that other evidence already addressed the duration of his residence, and that the broader context of the interview clarified the 18-month reference as intermittent rather than continuous. Significantly, both parties had already framed Camelo as dishonest, meaning either side could challenge the reliability of his statements. The court was not persuaded that prejudice rose to the level requiring exclusion, and admitted this portion.

Second disputed portion (pages 31 to 32 of the interview, Q&A 42 to 47): Here the Crown sought to admit Camelo's apparent expressions of shock at hearing of the deceased's death, arguing these were rendered admissible by the accused's reliance on other parts of the interview as evidence of lies. The Crown relied on obiter observations in Eastman v The Queen (1997) 76 FCR for a broad reading of the retaliatory provisions. Wilson J accepted that those comments were obiter and noted there was no equivalent authority in New South Wales.

The court held that section 65(9), while broad, did not extend so far as to permit the Crown to lead Camelo's shock reaction simply because the accused had tendered other statements as lies. The two matters were not sufficiently connected to engage the retaliatory mechanism. The court declined to admit this portion, making it unnecessary to consider discretionary exclusion.

Orders Made

• Admit the portion of the interview on pages 4 and 5
• Reject the admission of the disputed portion on pages 31 and 32 of the interview

Key Takeaways

  • Section 65(9) of the Evidence Act 1995 (NSW) operates as a retaliatory provision: where one party leads hearsay evidence on a matter, the other party may adduce further representations addressing that same matter, but the additional material must genuinely concern the same "matter" in substance.

  • A court will not exclude section 65(9) evidence on prejudice grounds merely because the declarant is unavailable for cross-examination, particularly where other evidence addresses the same topic and both parties have already put the declarant's credibility in issue.

  • The retaliatory scope of section 65(9) has limits. The Supreme Court declined to extend it to cover a declarant's expressions of shock at a victim's death simply because other portions of the declarant's interview had been tendered as evidence of lies, finding the connection too indirect.

  • Obiter observations from Eastman v The Queen (1997) 76 FCR were considered but not followed, with Wilson J noting the absence of equivalent New South Wales authority supporting a broad reading of the retaliatory provisions.

  • Where both the Crown and the accused characterise a non-testifying witness as dishonest, that shared position weighs against a finding of significant prejudice, since either party retains the ability to challenge the reliability of the witness's statements to the jury.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 65(9), 135, 137

Cases:
- Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107