R v Afu; R v Caleo

[2017] NSWSC 1780

Supreme Court

New South Wales

Medium Neutral Citation:	R v Afu; R v Caleo [2017] NSWSC 1780
Hearing dates:	6 October 2017
Decision date:	30 November 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Evidentiary rulings made
Catchwords:	EVIDENCE – admissibility – criminal proceedings – two murders – hearsay – maker unavailable – representations to a friend – letter written by deceased to be opened if her death is deemed unnatural – representations by deceased about relationship with accused – representations by deceased implicating accused in other murder and her own possible future murder – some assertions based upon admissions – unfair prejudice – some statements admissible under s 66A Evidence Act 1995 (NSW) – relevance to one murder but not other – letter excluded in entirety
Cases Cited:	Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 R v Clark [2001] NSWCCA 494; 123 A Crim R 506
Category:	Procedural and other rulings
Parties:	Regina Alani Afu (Accused) Mark Richard Caleo (Accused)
Representation:	Counsel: Ms M Cunneen SC with Mr E Anderson (Crown) Mr R Wilson (Afu) Mr G Brady SC (Caleo)   Solicitors: Solicitor for Public Prosecutions Katsoolis & Co (Afu) William O’Brien & Ross Hudson Solicitors (Caleo)
File Number(s):	2014/321700; 2015/34389

Judgment

Afu & Caleo

1. Alani Afu and Mark Caleo were arraigned in this Court on 5 May 2017 and pleaded not guilty to:

Caleo:   Murder, alternatively solicit to murder, Michael Chye at Woollahra on 16 October 1989 (Counts 1 and 2)

Murder, alternatively solicit to murder, Rita Caleo at Double Bay on 10 August 1990 (Counts 3 and 4)

Afu:   Murder Rita Caleo at Double Bay on 10 August 1990 (Count 3)

2. The matter was listed for trial on 5 February 2018 with an estimate of 8 weeks.

3. I note that the Crown has since indicated that in relation to the accused Mr Caleo it is proposed to amend the indictment so as to delete the charge of murder and proceed only on the charges of solicit to murder. Such amended indictment has not yet been filed but I proceed on the basis that it will be.

The applications

4. By a notice of motion filed on 30 May 2017 the accused Caleo sought the following order:

"Pursuant to s 21(2) Criminal Procedure Act the Indictment with respect to Mark Richard Caleo be severed and separate Trials ordered concerning counts 1 & 2 and 3 & 4."

5. The application was supported by an affidavit of Mr Caleo's solicitor affirmed on 29 May 2017. It annexes copies of the Crown Case Statement and a transcript of the committal proceedings.

6. On 2 June 2017, Johnson J set the matter down for hearing on 6 October 2017.

7. At the outset of the hearing on 6 October 2017, counsel for the accused Mr Afu sought and was granted leave to file in court a notice of motion seeking the following orders:

"1   That the accused Alani Afu be tried separately from the co-accused Mark Richard Caleo.

2   In the alternative, that the two accused be tried jointly only in relation to the alleged murder of Rita Caleo (Counts 3 and 4)."

8. That application was supported by an affidavit of Mr Afu's solicitor dated 5 October 2017, the content of which was largely confined to submissions in support of the application.

A complication

9. The hearing on 6 October 2017 was incomplete when it emerged that in large part the application by the accused Caleo was dependent upon rulings as to the admissibility of certain evidence, namely that of a witness, Mimi Chan, and of a document, namely a letter written by the deceased and left with her solicitor alongside her will on 15 May 1990. The Crown was not prepared to make detailed submissions as to the admissibility issues. For that reason it was resolved that further written submissions by the Crown Prosecutor and Mr Brady, senior counsel for Mr Caleo, would be provided.

10. The further written submissions by the Crown (“FCWS”) are dated 13 October 2017. They refer to the Crown having that day served tendency and coincidence notices against Mr Caleo. The further written submissions for Mr Caleo (“FAWS”) are dated 20 October 2017. They submit that the issue of the admissibility of the proposed tendency and coincidence evidence should be resolved prior to determination of the separate trial application.

11. This late change in the Crown’s position is regrettable. In the circumstances I considered it appropriate that I should deal with the admissibility issues ventilated at the hearing on 6 October 2017 and in the subsequent written submissions. That will clear the way for the tendency and coincidence issues to be debated and determined, before ultimately determining the separate trial issue.

12. The accused Mr Afu’s application for a trial separate from Mr Caleo’s trial (alternatively, that the trials for the two murders be separated) depends in part upon a comparison of the relative strengths of the respective cases. My determination of the admissibility issues (Ms Chan’s evidence and the letter) will impact upon this. Accordingly I have deferred the resolution of that application until the parties have my evidence rulings. Further submissions may be considered necessary by either the Crown, or Mr Afu, or both, in light of those rulings.

13. For these reasons, this judgment is confined to the admissibility of the evidence of Ms Chan and the letter written by Ms Caleo.

Overview of Crown case

14. The following overview of the Crown case, unless otherwise indicated, is taken from the Crown Case Statement dated 2 May 2017 (Exhibit A, Tab 2).

15. Dr Michael Chye and Rita Caleo, the two victims of the murders, were brother and sister. The accused Caleo was married to Ms Caleo.

16. Dr Chye was fatally shot in his car which he had just parked in the garage of his home in Attunga Street, Woollahra on 16 October 1989.

17. The body of Ms Caleo was found in the en-suite bathroom in her home at Bay Street, Double Bay on 10 August 1990. She died from multiple stab wounds.

18. It is the Crown case that the accused Caleo organised and financed both of the murders.

19. Mr and Ms Caleo owned a company through which they operated various restaurants including Caleo's Italian Restaurant in the Queen Victoria Building in Sydney ("the QVB"), Brannigan's Brewery and Caleo's Ristorante, both at Brighton-Le-Sands, and Caleo's of Sydney in Malaysia.

Murder of Dr Michael Chye

20. On 15 December 1987 Dr Chye purchased two adjoining properties with separate titles at 14 and 16 Pleasant Way, Blakehurst. The vendor had financial difficulties and agreed to sell the properties on the understanding that once his financial difficulties ceased the title to No 14 would be returned to him. The vendor’s financial difficulties did cease and he asked Dr Chye for the title to be transferred back to him. Dr Chye refused. As a result, the vendor placed a caveat on both properties, thereby placing restrictions on Dr Chye’s ability to sell the properties.

21. In the meantime, Mr Caleo expressed an interest in purchasing No 16 from Dr Chye. This was at a time when Dr Chye wanted to purchase another property, 5 Attunga Street, Woollahra. The sale of the Blakehurst property was necessary to assist him to finance the Woollahra purchase.

22. On 17 June 1989 Mr Caleo entered into a contract to purchase 16 Pleasant Way from Dr Chye for $3,475,000. However, Mr Caleo failed to secure the necessary finance thereby placing himself in an adverse financial position. He paid the 10 per cent deposit of $347,500 using borrowed funds. However, after discovering the existence of the caveat he stopped payment of the cheque. This constituted a termination of the contract.

23. On 6 July 1989, Mr Caleo's solicitor, John Morrissey advised Mr Caleo that the effect of cancelling payment of the deposit was to entitle Dr Chye to sue for the amount of the deposit as well as any associated loss from the termination of the contract for sale.

24. On 11 July 1989, Mr Caleo informed Mr Morrissey that he did not wish to proceed with the purchase but after receiving advice he decided to commit to the purchase.

25. On 19 July 1989, Dr Chye's solicitor successfully removed the caveat attaching to the properties.

26. On 5 October 1989 Dr Chye again agreed to sell the property at 16 Pleasant Way, Blakehurst to Mr Caleo; this time for $3,625,000. The Crown Case Statement says that the deposit from the initial contract for sale was transferred to the second contract, but how this occurred after payment of the deposit cheque had been stopped is not indicated. Mr Caleo had still not secured finance to settle on the purchase.

27. In the meantime, Dr Chye had used bridging finance to complete the purchase of the Woollahra property and had moved into the property. However, he was growing anxious about Mr Caleo's ability to complete the purchase of the Blakehurst property by the required date. His failure to do so would impact upon Dr Chye's ability to pay the bridging finance on the Woollahra property.

28. Mr Caleo was still unable to secure the required funds and Mr Morrissey advised him that he faced financial ruin if he could not settle on the Blakehurst property. Mr Caleo asked him how he could get out of the contract but Mr Morrissey advised him that he could not.

29. Soon after, Mr Caleo contacted Mr Morrissey and asked him to explain the clause in the contract for sale relating to death and mental illness. He was advised that it was a standard clause that gave either party the right to get out of the contract if one of the parties was to die or become mentally ill with the deposit being refunded.

30. In the days leading up to the murder of Dr Chye on 16 October 1989 Ms Margaret Williams, the receptionist at Dr Chye's surgery, witnessed Mr Caleo attending in an agitated state. According to her, Mr Caleo entered a consultation room where he and Dr Chye had a heated argument. Mr Caleo slammed the surgery door when he left. Dr Chye informed Ms Williams that the argument was in relation to the Blakehurst property sale and told her, "I had the little bastard on his knees. I gave him an extension. If he doesn't pay, I'll sue him for everything he's got".

31. Other witnesses will give evidence of Dr Chye becoming increasingly frustrated with Mr Caleo and threatening to take legal action against him. Dr Chye also informed several witnesses that Mr Caleo had made violent threats towards him and he had fears for his own safety. Dr Chye told Mr James Wilkinson that the accused Caleo had said that if he proceeded with legal action his life would be in danger. Despite these threats, Dr Chye remained intent upon pursuing Mr Caleo through the courts.

32. Dr Geoffrey Thompson stated that Dr Chye told him on 13 October 1989 about threats made by Mr Caleo, including words to the effect of, "If you don't stop pushing, you are going to find yourself dead". Dr Chye told Dr Thompson that Mr Caleo had levelled threats towards him on more than one occasion and after one of these threats, Dr Chye had said to Mr Caleo, "Well I'll get your kids killed".

33. Anthony Stambolis was employed by Mr Caleo at Caleo's Italian Restaurant at the QVB and worked there regularly with either Mr Caleo or his brother, Gerard Caleo. On an occasion before Dr Chye was murdered, Mr Stambolis was in a car with Mr Caleo. They were discussing Dr Chye and as they passed a service station at Woolloomooloo, Mr Caleo pointed at the service station and said words to the effect of, "Somebody working in there by the name of Rick is going to fix Michael". Mr Stambolis asked what he meant by "fix" and Mr Caleo replied, "Finish him off".

34. At about 5.30pm on 16 October 1989, Dr Chye drove his car into the garage of his Woollahra home. He was fatally shot by an unknown offender three times as he was getting out of the car; twice to the head and once to the right shoulder. He died at the scene.

35. In written submissions dated 4 October 2017 (“CWS”), the Crown also referred to evidence of Yuko Shimamoto. She married Mr Caleo in 1995. During an argument over finances in early 1996 Mr Caleo told her of having arranged a hit man to murder Dr Chye because he had threatened to kill Mr Caleo's daughters: CWS at [14].

Murder of Ms Rita Caleo

36. In April 1990 Ms Caleo discovered that her husband was having an affair with her friend, Janice Yap. There were a number of arguments between the pair about their marriage and the affair.

37. Ms Caleo told her friend, Angela Cheah, about the affair and said, "Mark will never leave me, he will never divorce me. I have something in hand that will tie him to me." (In written submissions, the Crown also referred to Ms Cheah's evidence that Ms Caleo said "she had made Mark sign some papers and an agreement".) Ms Caleo told Ms Cheah that she said to her husband, "If you are not happy get someone to shoot me". She also told Ms Cheah, "Mark is capable of this".

38. Ms Caleo told another friend, Mimi Chan, that Mr Caleo had had Dr Chye killed over a property deal that went bad. Ms Caleo said that her husband had told her that he had made arrangements and had got someone who would “fix” Dr Chye up, a South American arranged by someone called "Ric", and that a large amount of money was needed to pay for it.

39. The Crown contends that Ms Caleo was afraid that her knowledge of the murder of Dr Chye implicated her and due to this she was too scared to report it to the police. She told Ms Chan that she had left a letter that was to be opened in the event that she died.

40. On 15 May 1990, Ms Caleo prepared a will in the presence of the solicitor, Mr Morrissey (she had the same solicitor as her husband). She removed Mr Caleo as a beneficiary, saying that she did so because of his ongoing affair with Ms Yap and because he had enough assets on his own. On the same occasion she wrote a letter which was placed in an envelope which she sealed and wrote on the outside, "To my executor, (to be opened only if my death has been deemed unnatural)". She stapled this to her will and handed it to Mr Morrissey who secured it in a safe.

41. Anthony Stambolis used to purchase small quantities of cannabis from someone he knew as the "Tongan male", later identified as the accused, Alani Afu, in the Kings Cross area. Shortly before Ms Caleo's murder, the accused Caleo's brother, Gerard Caleo, asked Mr Stambolis if he knew someone who could "Do something dodgy for him". Mr Stambolis introduced Gerard Caleo to Mr Afu.

42. Subsequently, Mr Stambolis met with Mr Afu and Mr Afu's girlfriend, Cindy (a pseudonym), at Kings Cross. Mr Afu asked Mr Stambolis to take him to where Mr Stambolis' "boss" lived. Mr Afu was taken to the Double Bay home of Mr and Ms Caleo. Mr Stambolis and Mr Afu got out of the car and walked to the rear of the premises where Mr Stambolis pointed out the Caleos’ townhouse. Mr Afu made some observations of the outside of the townhouse complex before being returned to Kings Cross by Mr Stambolis.

43. Cindy will give evidence of this occasion. According to the Crown Case Statement, she will say that Mr Stambolis told Mr Afu and herself that "there would be a nanny and a baby in the house, expensive jewellery would be there to be taken and it was something that the 'husband' wanted to get done. He said that the bedroom window would be left open to access the residence".

44. A few days later Mr Stambolis went to the basement car park of Mr Caleo's restaurant at Brighton Le Sands. He saw Mr Afu waiting in the car park and he later saw Mr Caleo arguing with his brother, Gerard, about the latter having brought Mr Afu to the restaurant.

45. In the week preceding Ms Caleo's murder, Cindy and Mr Afu were met at their Earlwood home by a man who handed Mr Afu $10,000 in $50 and $100 notes. Investigators obtained a National Australia Bank cheque signed by Mr Caleo and dated 31 July 1990. It was for the sum of $15,000, drawn on the account of Lymoy Pty Ltd and was endorsed with the word, "cash". A bank teller had endorsed the rear of the cheque to indicate that the cash provided comprised $50 and $100 notes. Analysis of the banking transactions of Mr Caleo and the company, Lymoy Pty Ltd, showed that cash withdrawals of such a large amount were out of the ordinary.

46. On 8 August 1990 a $50,000 reward was publicly offered by the New South Wales government in relation to any information leading to the prosecution of any person(s) responsible for the murder of Dr Chye. An indemnity was also held out for persons who might come forward with such information.

47. Ms Caleo made plans to host a dinner for four of her friends on 9 August 1990 at her Double Bay home. She arranged to have alcohol from the restaurant (presumably the QVB restaurant) delivered to the home. Mr Stambolis took the alcohol there sometime that day.

48. In an interview conducted on 11 August 1990, Mr Caleo told police that he went to his Double Bay home after 2.00pm on the day of the murder in order to collect some business cards. He said that he was only there for about 15 minutes before travelling to the restaurant at Brighton Le Sands where he remained for the evening. He was there at the time of the murder. Employees described it as highly unusual for him to remain there so late.

49. Ms Caleo held the dinner party with her four friends as planned. The live-in nanny, Lai Chan Chor, looked after her two daughters who were aged 16 months and 4 years. She and the daughters were in bed upstairs in the townhouse by 10.00pm.

50. During the evening, Ms Caleo received two telephone calls from a person who did not speak but hung up after she had answered. (The asserted significance of this is not explained in the Crown Case Statement.)

51. At about 11.30pm, Ms Caleo telephoned her husband to ask why he was so late returning home. The last remaining guest left at about 11.45pm.

52. Mr Stambolis picked up Mr Afu and Cindy from their home at Earlwood and drove them to the vicinity of the Caleo home at Double Bay. Mr Afu got out of the car and walked in the direction of the home while Cindy remained in the car with Mr Stambolis. About 20 minutes later Mr Afu returned. He appeared agitated, he was puffing, and he was yelling, "I stabbed her, I stabbed her" and, "The nanny was there, the nanny saw me". Mr Stambolis told him to calm down and to "shoosh". Mr Afu had a deep laceration to his hand and what appeared to be blood on the white Dunlop Volley shoes that he was wearing.

53. Mr Stambolis drove Mr Afu and Cindy back to their home. There, Cindy saw that Mr Afu was in possession of a black plastic bag that contained a quantity of jewellery. He told her that he had been told exactly where to find the jewellery in Ms Caleo's bedroom. He later gave Cindy two gold rings from this jewellery. Mr Stambolis saw Cindy wearing items of jewellery that he recognised as having belonged to Ms Caleo.

54. Cindy bandaged a deep laceration on Mr Afu's hand. He went almost immediately into the kitchen with his brother-in-law and two other persons and would not allow Cindy to come in. She could hear a grinding noise coming from the kitchen. She never saw the white Dunlop Volley sneakers he had been wearing again.

55. At about 1.30am, Ms Chor had been woken from her sleep. She heard a very faint whining voice that she thought she recognised as belonging to Ms Caleo. She also heard banging on the en-suite bathroom wall. She then heard the front door downstairs slam. She went downstairs and saw blood on the front door handle. She went back upstairs to Ms Caleo's bedroom and discovered her body on the floor of the en-suite bathroom. She immediately went to the nearest neighbour and the police were called.

56. Police arrived at about 1.45am. A forensic examination revealed that Ms Caleo had died as a result of blood loss after receiving 23 stab wounds.

57. Swabs were taken from blood spatter in the en-suite bathroom. Blood groupings were obtained. One of the swabs, taken from the top of the bathroom cabinet, returned a different blood group type to that of Ms Caleo. This swab has since been lost.

58. A shoe impression was taken from the dirt pathway bordering the rear of the townhouse common property. A further similar shoe impression was found in soil in the rear courtyard of the premises. It was found to be consistent with a Dunlop Volley sneaker no more than 29.7 centimetres long, which equates with a US size 11.5.

36. The crime scene examination indicated that entry had been gained via a sliding balcony door that allowed direct access to Ms Caleo's bedroom. There was no sign of anything being disturbed or of the premises having been ransacked.

37. Mr Caleo rang the home phone line at about 1.55am. The call was answered by a police officer. Mr Caleo returned to the home at about 2.10am and spoke further with police. He reported that expensive jewellery and watches and about $15,000 in cash had been stolen. The amount of cash corresponded with the amount withdrawn with the cheque dated 31 July 1990 that Mr Caleo had signed.

38. According to Cindy, on a day soon after the murder two men attended their Earlwood home. One of the men entered their bedroom and handed Mr Afu $10,000 in $100 notes. She said the second man appeared to "freak out" and remained in the corridor outside the room. The other man had a brief conversation with Mr Afu during which he said, "Alan you've done a great job" but also, "They found footprints near a tree". (In written submissions dated 4 October 2017 (at [19]) the Crown asserts that it was Mr Stambolis who paid this cash to Mr Afu.)

39. Investigators obtained another National Australia Bank cheque drawn on the Lymoy Pty Ltd account dated 13 August 1990 and signed by Mr Caleo. It was endorsed with the word "cash" and was made out for $10,000. A bank teller's endorsement on the rear indicated that the withdrawal comprised $100 notes.

40. On 14 August 1990, Mr Afu purchased a car for $10,000 from a used car dealer in Homebush. Cindy was with him and, according to her, Mr Afu used the money he had received when the two men came to their house in the days after the murder.

41. Joseph Pitt Naliva was an associate of Mr Afu. He was approached by Mr Afu around 25 August 1990 in the Kings Cross area. Mr Afu was in possession of a large amount of jewellery and asked Mr Naliva to sell it on his behalf. Mr Afu said that he had "killed a Chinese chick for it" and that the "job" was given to him "by the husband of the Chinese lady". The following day Mr Afu gave Mr Naliva about 20 to 30 items of jewellery. He reiterated to Mr Naliva, "I had to knock a Chinese lady for this" and "The job came from the husband".

42. Ms Caleo's funeral was held on 20 August 1990. One 25 August 1990 Mr Caleo left Sydney and travelled to Kuala Lumpur to continue his relationship with Ms Yap. He lived there with Ms Yap and his two daughters for two to three years until Ms Yap broke off the relationship around 1993.

43. On the day of Ms Caleo's death, the solicitor, Mr Morrissey, contacted police and told them of the envelope attached to her will. Police subsequently opened the envelope in the presence of Mr Morrissey. It contained a letter signed by Ms Caleo and dated 15 May 1990 which stated:

“In the event that my death is unnatural, direct my the investigation to my husband Mark Caleo & Rick Damelian of Rick Damelian Used Cars, P'matta. My Brother's death is also their doing. Mark still owes Rick A$130,000 for that. He gets very desperate when he is squeezed financially like what I'm doing to him as a result of his affair with Janice Yap, daughter of Mr Ong Chin Chye of Kuala Lumpur. This is the absolute truth. Please do not let Mark get away with this. Damelian used someone from South America for the job.”

67. Mr Caleo was a customer and associate of Ricardo "Ric" Damelian at the time of both murders but the Crown does not suggest that he had any involvement in either murder.

68. A joint inquest was held in December 1991 into the deaths of both Dr Chye and Ms Caleo. The Coroner made an open finding and the matter was referred back to the Homicide Squad for further investigation. Following a re-investigation by the Unsolved Homicide Squad, Mr Caleo was arrested and charged in respect of both murders on 4 February 2015. Mr Afu was extradited to Australia from Tonga and was charged with the murder of Ms Caleo on 29 September 2016.

Admissibility of evidence

Crown submissions

69. In the written submissions dated 4 October 2017, the Crown Prosecutor described the letter left by Ms Caleo with her solicitor, Mr Morrissey, as "the centrepiece of the link between the two murders". It was said to be "admissible as a contemporaneous document which elucidates the state of mind of [Ms] Caleo at the relevant time and explains the context of her relationship with the accused [Caleo]": CWS [5]-[6].

70. The Crown contends that Mr Caleo's motive to solicit Mr Afu to murder his wife arose from his fear of being exposed by Ms Caleo as being responsible for arranging the murder of Dr Chye: CWS [7]. The Crown referred to the following items of evidence.

71. The letter included Ms Caleo attributing responsibility for the murder of Dr Chye to her brother. In relation to this, reference was made to the murder of Ms Caleo having occurred the day after the government announced a reward and an indemnity for anyone providing information leading to the prosecution of the person(s) responsible. The Crown also referred to the evidence of Ms Mimi Chan who says that Ms Caleo had spoken of Mr Caleo having arranged the murder of Dr Chye: CWS [8], [10].

72. The letter also referred to Mr Caleo becoming desperate "when he is squeezed financially like what I am doing to him as a result of his affair with Janice Yap". The Crown pointed to evidence that Mr Caleo was financially desperate in relation to the purchase of the Blakehurst property from Dr Chye and that there had been arguments and threats (evidence of Ms Williams, Dr Thompson and Ms Shimamoto). Reference was also made to the evidence of Ms Cheah who said that Ms Caleo had alluded to placing Mr Caleo under some sort of financial pressure: CWS [9], [11], [13]-[14].

73. The Crown contends for admissibility of Ms Chan’s evidence (in [10]-[12] of her statement) and the letter under exceptions to the hearsay rule set out in s 59 of the Act which provides, relevantly:

“59 The hearsay rule—exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made...”

74. There are various exceptions to the hearsay rule. In relation to Ms Chan’s evidence and the letter, the Crown relies upon those in ss 65 and 66A.

75. Section 65 is, relevantly, in the following terms:

“65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: …

(c) was made in circumstances that make it highly probable that the representation is reliable…”

76. Section 66A provides:

“66A Exception: contemporaneous statements about a person’s health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”

77. Mr Brady conceded that some evidence might be admissible pursuant to s 66A. However, if that was the case he submitted that it should be excluded pursuant to s 137 which is in the following terms:

“137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

78. The proposed evidence of Ms Mimi Chan and, to some extent Ms Angela Cheah, will be considered first so as to provide a context for the letter dated 15 May 1990.

Evidence of Ms Mimi Chan (Exh A, Tab 26)

79. Ms Mimi Chan made a statement dated 20 November 1990 (Exh A, Tab 26). She lived in Kuala Lumpur and met Ms Caleo there in 1989. She said that during a visit by Ms Caleo in January 1990 they became very close and Ms Caleo began to confide in her and tell her personal things.

80. In late April 1990 Ms Chan was at Ms Caleo’s apartment in Kuala Lumpur. Ms Caleo received a telephone call. The statement (at [5]) sets out the following to which objection is taken:

“I was with several other friends in the apartment when Rita received a telephone call from her husband, Mark Caleo. … She told me that the person who she spoke to was her husband and she said, ‘Mark wants a divorce as he is having an affair with Janice Yap’. (Or words similar to this.)”

81. Ms Chan said that Ms Caleo was upset and crying. There were further telephone conversations that night between Ms Caleo and her husband with arguments about the affair and one party hanging up on the other. When Ms Caleo returned to Sydney she was upset and confused but told Ms Chan that he had to go back to Sydney to try and sort things out. She left Kuala Lumpur on 3 May 1990.

82. Ms Chan rang Ms Caleo a few days later. Ms Caleo told her that she was trying to fix the marriage up and that Mr Caleo had told her that he was going to finish the affair with Ms Yap.

83. Ms Chan said that around this time she spoke with Ms Yap who was a friend of hers. Ms Yap denied the relationship; said there was nothing physical involved; they were just friends; and she would not leave her husband for Mr Caleo. Ms Chan later told Ms Caleo of this conversation.

84. Ms Chan next saw Ms Caleo in Kuala Lumpur about two weeks later. Objection is taken to most of the following in Ms Chan’s statement (Verbatim; errors uncorrected):

“[10] The next time I saw Rita was in Kuala Lumpur about two weeks later and when I spoke to her she seemed alright. I remember we had a conversation in the Shangri La Hotel, I recall it was about tea time. She told me things about her and a former friend of hers named C H Low, it was just girls talk and I don’t recall all the details. But I recall she was not worried about him. Then she became worried and began talking about Mark. She held my hand and seemed very afraid and she said, “I have no choice about going back to Mark”. Then she told me she wrote a letter that was to be opened in case she died. Then she told me things about the murder of her brother, I can’t recall the exact words, but she said her brother’s death was over a piece of land or property that Mark was buying and that her brother would not let Mark out of the deal. She said Mark was very angry and that he said he had to get rid of her brother. Then Rita said that Mark told her that he made arrangements and had got someone who would ‘fix him up’. Rita said she tried to talk Mark out of it. She said that she questioned Mark about it and he admitted to arranging for a South American, which was organised by a person named Ric and a large amount of money was mentioned to pay for it. She said she kept begging Mark not to do it and at one stage she thought she had changed Mark’s mind.

[11] She then said that when the Police came to her house and told her of her brother’s death, Mark was at home and they looked at each other and she said she knew then that Mark had gone through with it. After the Police she said that Mark admitted to arranging the murder and that he had done it for the good of both of them. He also told her not to say anything to the Police about it. Rita believed that because Mark had told her so much about his arranging the murder that she had become involved and she was scared of Mark and therefore scared of telling the Police.

[12] She also said that just before her brother’s death she was in her restaurant at the QVB and Mark received a telephone call from a person involved in the murder, she said that Mark had a code he used when talking about the murder with this person. She said money was discussed between this person and Mark and she believed this person may have been the murderer. She said there were other coded phone calls between her husband and this person and that the money had to be paid in three instalments, one when the arrangements were made, the second to be paid just before the death and the third immediately after the murder was carried out. Rita also told me the details of these arrangements for him to return to South America and also the amounts of money paid by Mark, I recall she told me the flight number this man used to escape from Australia. At this time I cannot recall the specific details that Rita told, I have tried very hard to remember them as I know it may solve the case, but I am unable to recall the murders name or his flight number and I have tried everything to remember, I would even be prepared to undergo hypnosis to assist. Rita also told me she wrote a letter with these details of her knowledge of the murder but I do not know where this letter is.”

85. Ms Chan’s statement continues by referring to her having next seen Ms Caleo when Ms Chan visited Sydney in June 1990. She stayed with Ms Caleo and Mr Caleo in a city hotel. They were looking for a new apartment and apparently found one in Double Bay. Ms Chan also recalled that during this visit there were arguments between Mr and Ms Caleo. Ms Caleo told her it was mainly over financial problems and his affair with Ms Yap. Mr Caleo spoke with Ms Chan when Ms Caleo was not present and Ms Chan “got the clear impression that he wanted a divorce from Rita and wanted to be with Janice”.

Admissibility of evidence of Ms Chan

Mr Caleo wanting a divorce as he was having an affair

86. There is an objection to the statement in the first paragraph quoted above (at [80]) that Ms Caleo said she had spoken to her husband who wanted a divorce as he was having an affair. The Crown contends this is admissible pursuant to s 66A of the Act as it was “a representation of Ms Caleo’s feelings and state of mind at the time of the conversation”. It was submitted that “it is evidence about the state of her marriage with the accused”.

87. Mr Brady submitted that the evidence was not relevant (s 55) in relation to the first murder. It was not admissible under s 66A in relation to the second murder as it was not a statement of Ms Caleo’s state of mind but rather a repetition of what she said she was told by Mr Caleo.

88. I agree that the statement is not relevant to the murder of Dr Chye. The state of the marriage of Mr and Ms Caleo is relevant to the second murder. Ms Caleo’s knowledge that her husband had made statements about wanting a divorce and that he was having an affair is in turn relevant to that.

89. The evidence should not be excluded pursuant to s 137. The bases advanced in the written submissions for exclusion under this provision are not pertinent to this representation.

Ms Caleo not being worried about C H Low

90. According to the FCWS, C H Low was a person about whom Ms Caleo had previously been called to give evidence in the Hong Kong Independent Commission Against Corruption. The Crown contended that this was admissible under s 66A, it being evidence of Ms Caleo’s state of mind that she was not fearful of this person.

91. Mr Brady submitted that this evidence was not relevant to the first murder but may be admissible pursuant to s 66A in relation to the second. I agree and consider that it is admissible in relation only to the second murder. The bases advanced for exclusion of evidence of Ms Chan pursuant to s 137 are not pertinent.

Ms Caleo became worried and spoke of having no choice about going back to Mr Caleo

92. Mr Brady made the same submission; this was not relevant to the first murder but may be admissible pursuant to s 66A in relation to the second. The Crown contended that it was evidence of Ms Caleo’s feelings, intention, knowledge and state of mind at the time of the conversation. On the basis that the state of the marriage is a relevant issue, I agree that it is admissible in relation to the second murder, but not the first. For the same reasons as indicated above (at [89] and [91]), it should not be excluded pursuant to s 137.

Ms Caleo said she had written a letter which was to be opened in case she died

93. The Crown contended that this was admissible under s 66A as it was a representation about Ms Caleo’s feelings or state of mind that she (although a young woman in good health) may die in the near future.

94. The same submission by Mr Brady applies, which I accept. The evidence is irrelevant to the first murder but admissible under s 66A in relation to the second.

95. However, having regard to my ruling in relation to the letter (addressed later), this evidence is of reduced probative value. It should be excluded pursuant to s 137. For the jury to hear evidence of this representation but not of the content of the letter itself would invite speculation; there is a potential for the evidence to be misused.

Representations by Ms Caleo about the involvement of Mr Caleo in the murder of Dr Chye

96. Ms Chan’s evidence of representations made by Ms Caleo about the involvement of Mr Caleo in the murder of Dr Chye are set out in [10]-[11] of her statement (quoted at [84] above). Submissions from the parties did not address this section of the evidence with precision as to how specific sentences were to be dealt with. However, I understand the evidence to fall into two categories. Most of the representations concern what Ms Caleo claimed she had been told by Mr Caleo, which can be categorised as admissions. The rest are not admissions; their source is unclear but they appear to be based on Ms Caleo’s own knowledge or beliefs.

97. Mr Brady contends that each assertion consists of either an admission, or an assertion that is based upon an admission. Accordingly, all of this is inadmissible pursuant to s 82 on the basis of second-hand hearsay.

98. The Crown accepted that the first category were admissions. The representations based on what Ms Caleo claimed to have been told by Mr Caleo included that Mr Caleo said he had to get rid of Dr Chye, that he told her that he made arrangements and had got someone to “fix him up”, and that he admitted to arranging the murder and had done it for the good of both of them. These are not pressed as the Crown accepts they are inadmissible pursuant to s 82.

99. The balance of the representations was pressed. The Crown contends that the passage concerned with Dr Chye’s death being over a piece of land or property that Mr Caleo was buying, that Dr Chye was not letting him out of the deal, and that Mr Caleo was very angry as a result is admissible pursuant to s 66A. It was said to be evidence of Ms Caleo’s knowledge of the property transaction, of her knowledge of the stance taken by her brother, and of her husband’s response to it.

100. Given the representations which constitute admissions are to be excluded, the jury would be left with speculation about the basis of these other assertions. Those representations must therefore also be excluded: s 137.

Ms Caleo was scared of Mr Caleo and therefore scared of telling the police

101. The Crown accepts that the representation that “because Mark had told her so much about his arranging the murder that she had become involved” is not admissible: s 82. However, it contends that the representation that “she was scared of Mark and therefore scared of telling the Police” is admissible pursuant to s 66A. It was submitted that “it is a representation of [Ms Caleo’s] state of mind … and hence one aspect of her relationship with the accused”. Reference was made to R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [159]. It “explains why Ms Caleo did not communicate her fears to the police which in turn demonstrated the extent of her fears”: FCWS [28].

101. This sentence was encompassed in Mr Brady’s objection based on s 82 to the second to fourth sentences of [11] of the statement.

102. In R v Clark evidence that the deceased spoke of being scared of the appellant was held to be admissible pursuant to the equivalent of s 66A (the former s 72). Heydon JA described it (at [159]) as “admissible evidence of her feelings and state of mind … and hence of one aspect of her relationship with the appellant”. The point of distinction with the present case, however, is that in R v Clark there was a lot more evidence about the relationship and much of it was not objected to. Heydon JA described (at [144]) the evidence to which there was no objection as being “relevant for the jury to infer … that the relationship of the couple was not cordial and that the tensions in it were likely to cause the deceased to be scared”. He said (also at [144]) that “[t]he impugned evidence was relevant because, in the light of the other evidence, it could rationally affect the assessment of the probability of the existence of a fact in issue” (namely, whether the appellant killed the deceased) (emphasis added).

103. The “other evidence” to which he referred (that to which was conceded to be admissible) included that the appellant had hit the deceased at least once on the face and at least once on the body and arms sufficiently hard to cause bruising. There were difficulties in the deceased’s business dealings which caused difficulties for the appellant and troubles he had in getting the deceased to leave the house (where she was living with the appellant’s mother). The deceased had threatened to damage his property and to harass him. The appellant had seen the deceased in bed with his mother in circumstances consistent with an actual or desired sexual relationship and the appellant resented this. The deceased had admitted to such a relationship and this made it likely that her ejection from the mother’s house would be displeasing to her. After referring to this evidence, Heydon JA said of the impugned evidence (at [143]):

“Expressions of fear which were explicitly linked with the appellant by the deceased or were capable of being linked with the appellant by the jury were not, in point of relevance, in a sharply different category from the relationship evidence which the appellant did not complain about.”

105. The present case is quite different in that, if the Crown’s submission is accepted, the representation that Ms Caleo was scared of her husband will stand alone and will have no explanation. However, it is a statement that is capable of reflecting Ms Caleo’s state of mind which is, in turn, relevant to the state of her relationship with her husband. If it is thought that the evidence may be misused by the jury in some way, perhaps by way of speculation, an appropriate direction should be sufficient to counter such concern. It should therefore be admitted.

Ms Caleo overheard Mr Caleo discussing the murder and told Ms Chan various details of what Mr Caleo had said

106. It seems to be the case that the matters related by Ms Caleo to Ms Chan set out in Ms Chan’s statement at [12] were all things that she overheard Mr Caleo speaking about in telephone conversations with some other person.

107. Mr Brady objected to the entirety of this evidence on the basis of s 82 (second-hand hearsay).

108. The FCWS did not address these representations in terms of justifying admissibility. The only reference made to them was in support of admissibility of the second representation made in the letter of 15 May 1990 (see below – “My Brother’s death is also their doing”).

109. This is evidence of Ms Chan saying what Ms Caleo said that Mr Caleo said. It is inadmissible as second-hand hearsay, regardless of whether it may be characterised as “admissions” or as evidence of the commission of an offence, or of a circumstance from which an inference of guilt may be drawn.

Evidence of Angela Cheah (Exh A, Tab 29)

110. Ms Angela Cheah made a statement dated 21 November 1990 (Exh A, Tab 29). She lived in Kuala Lumpur. She first met Ms Caleo when they were at school and re-established contact when Ms Caleo and Mr Caleo came to Kuala Lumpur in mid-1988.

111. On a visit to Australia in early December 1988 Ms Cheah was told by Ms Caleo about Mr Caleo having an affair. In mid-1989 Ms Caleo spoke of the proposed purchase of a house belonging to her brother. Subsequently, Ms Caleo told Ms Cheah:

“[T]hat her brother was chasing her and Mark for the money for the sale of the house. She said her brother was chasing her for the deposit and that she and Mark were trying to get the money from the bank. Rita was very upset by her brother chasing her for the money. One day I was with Rita in her room at the Shangri La when Rita said, ‘Mark is going to fix Michael up’. Rita wouldn’t say how and I didn’t ask.”

112. Subsequently Ms Caleo told Ms Cheah about the purchase of the property having been settled and she spoke of Mr Caleo having had to resort to finance at an exorbitant interest rate.

113. In December 1989 Ms Cheah asked Ms Caleo about the progress of the police investigation into Dr Chye’s murder. She suggested, “If you want to find the killer, why don’t you post a reward” and Ms Caleo replied, “Angie, I don’t want to be shot for nothing”.

114. In April 1990 in Kuala Lumpur there was conversation with Ms Caleo about problems in her marriage and Mr Caleo being unfaithful. Ms Cheah said in her statement that “Rita was hurt and crying and very upset”. Ms Caleo said her husband was coming to Kuala Lumpur “to work out a settlement for a divorce”. Ms Cheah said that Ms Caleo returned to Australia on 3 May 1990. Ms Cheah’s statement records (at [15]):

“Before Rita left she said, ‘Angie I can’t take everything away from him (meaning Mark) I must leave him something or he will go crazy’. I did not say anything. Rita returned to Australia for about two weeks. When she returned to K.L. I met her and I asked her ‘How did it all go’. Rita said, ‘Angie, Mark will never leave me, he will never divorce me. I have something in hand that will tie him to me’. She said she had made Mark sign some papers and an agreement. She said Mark was not very happy about this but she said, ‘If you are not happy get someone to shoot me’. I did not ask her what she meant. She said, ‘Mark is capable of this’. I did not question her about this but she told me not to tell anyone.”

115. Objection is not taken to this evidence. It is outlined by way of background for consideration of the letter.

The letter of 15 May 1990

116. Generally in relation to the letter, the Crown submitted that it was significant that Ms Caleo only intended that her representations in it be made known after her death and only if her death "has been deemed unnatural". The fact that she had not destroyed the letter in the 12 weeks between when she wrote it and when she was murdered could be taken to indicate that the representations remained current and reflected her knowledge and state of mind at the time she died.

117. The letter contains a number of representations which the parties addressed in turn. It is appropriate to do so, but only whilst ensuring that each representation be considered in context.

“In the event that my death is unnatural, my direct the investigation to my husband Mark Caleo & Rick Damelian of Rick Damelian Used Cars, P’matta.”

118. The Crown contended that this representation was admissible pursuant to s 65(2)(c) "through the intended recipient of the representation, Mr Morrissey, who 'otherwise perceived the representation being made' namely, by reading it from the letter, the representation having been made in circumstances that make it highly probable that the representation is reliable": FCWS [9].

119. On its face, this would appear to suggest that the evidence of Ms Caleo's representation would be given by way of Mr Morrissey giving evidence of what he read in the letter. Quite clearly that would not be first-hand hearsay. I will proceed on the assumption that the Crown intends to tender the letter itself.

120. The Crown submitted that the representation was made in circumstances that make it highly probable that it is reliable (s 65(2)(c)) because it was made on the day Ms Caleo was removing Mr Caleo as a beneficiary in her will and anticipating her unnatural death. It was said to be akin to a “dying declaration” under the common law; unlikely to be the product of fabrication: FCWS [8].

121. In contending for admissibility pursuant to s 65, aside from submissions as to the reliability of the representation, the Crown did not submit what fact this representation asserted. In my view, it is incapable of proving the existence of a fact simply because it cannot reasonably be supposed that Ms Caleo intended to assert a fact (aside from asserting something as to her state of mind, perhaps concern that her husband may bring about her unnatural death).

122. The hearsay rule in s 59 does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact: s 60. However, the Crown did not contend for admissibility under this provision.

123. The Crown submitted that this representation would also be admissible pursuant to s 66A as a representation about Ms Caleo’s feelings (of fear for her life) and knowledge (that her anticipated murder was arranged by her husband). Reference was made to R v Clark at [160]-[172].

124. The Crown also submitted that it was pertinent that there is evidence that Ms Caleo said to Angela Cheah in early May 1990 that she had said to the accused Caleo, “If you are not happy, get someone to shoot me” and then observed to Ms Cheah, “Mark is capable of this”.

125. Mr Brady submitted that this representation was not relevant (s 55) in relation to the first murder but may be relevant to the second. However, in either case, it was not a representation about any of the six matters listed in s 66A pertaining to Ms Caleo: FAWS [21]-[22].

126. This representation may be taken as a concern by Ms Caleo that her husband might bring about her death. It may be regarded as a representation about her state of mind. It is potentially admissible under s 66A but not s 65(2)(c).

127. However, the other evidence available to the Crown will not enable the jury to assess at all whether there was a legitimate and rational foundation for such fear. It might be otherwise if, for example, there was evidence of prior violence initiated by Mr Caleo or the threat of same (as was the case in R v Clark). Ms Caleo’s next representation as to her belief that her husband (in some unspecified way) caused the death of her brother might be seen as the foundation. But there is nothing by way of admissible evidence to enable the jury to assess whether there is a legitimate and rational foundation for that assertion either (see below).

128. The evidence of Ms Cheah that Ms Caleo said to her husband, “If you are not happy, get someone to shoot me” and that she told Ms Cheah that “Mark is capable of this” does not support admissibility. It may derive from a belief that her husband caused the shooting of her brother, but again there is nothing by way of admissible evidence to indicate a legitimate, logical and rational basis for her having such a belief.

129. There is a real danger that the jury could give this evidence more weight than it deserves. The only direction that could be given to overcome this would be to the effect that there is no way of knowing whether there was a proper basis for Ms Caleo to hold this belief and accordingly it should be put aside. This representation must be excluded pursuant to s 137.

“My brother’s death is also their doing”

130. The Crown submitted that this representation was admissible pursuant to s 66A as a contemporaneous statement of Ms Caleo’s knowledge. It was not a representation of an admission so it was not excluded pursuant to s 82. The “knowledge” was said to have come from Ms Caleo overhearing phone calls around the time of Dr Chye’s death in which her husband was using a “code” with someone involved the murder and was discussing money to be paid in three instalments before and after the murder. She also overheard arrangements for the murderer to escape Australia with mention of a flight number to South America: statement of Mimi Chan at [12].

131. Mr Brady submitted that this representation was not admissible in respect of either murder. It was nothing more than a hearsay expression of an opinion which was not rendered admissible by s 66A. It was excluded pursuant to the opinion rule in s 76.

132. I have previously indicated my view that what Ms Caleo told Ms Chan about what she had heard Mr Caleo saying ([12] of Ms Chan’s statement) is inadmissible second-hand hearsay. It would appear to be the basis for Ms Caleo’s assertion about her brother’s death being the “doing” of Mr Caleo (and Rick Damelian). It would not be possible for the jury to make an assessment of her “knowledge” of this without any evidence of the basis for the assertion. This representation is inadmissible for essentially the same reasons as the first representation is inadmissible.

“Mark still owes Rick A$130,000 for that”

133. The Crown does not contend that this representation is admissible: FCWS [11].

“He gets very desperate when he is squeezed financially like what I’m doing to him as a result of his affair with Janice Yap, daughter of Mr Ong Chin Chye of Kuala Lumpur”

134. The Crown contends that this representation is admissible pursuant to s 97 as evidence of a tendency on Mr Caleo’s part to become desperate, inferentially to the point of soliciting murder, when “squeezed” financially. It was submitted that it is also relevant pursuant to s 98 as a circumstance common to both murders tending to support the improbability of them occurring coincidentally. There was said to be ample evidence of Dr Chye having “squeezed” Mr Caleo financially.

135. The Crown also submitted that this representation was admissible pursuant to s 66A as being a contemporaneous representation of Ms Caleo’s “intention” to “squeeze” Mr Caleo financially because of his affair with Ms Yap. It was also said to be a representation as to her “knowledge” of her husband’s reaction when he is “squeezed financially” and of her “knowledge” of his affair with Ms Yap. It also provided evidence relevant to the relationship between Ms Caleo and her husband.

136. Mr Brady submitted that Ms Caleo “squeezing” Mr Caleo financially was not relevant to the first murder: s 55. It was accepted that it may be relevant to the second murder pursuant to s 66A as to Ms Caleo’s “intention”. But in relation to both murders, it was submitted that the assertion that Mr Caleo “gets very desperate when he is squeezed financially” is a hearsay expression of opinion which is not admissible under s 66A and should be excluded pursuant to s 76 (the “opinion rule”).

137. Evidence that is admissible pursuant to ss 97 and 98 must be in an otherwise admissible form. Simply because it is relevant to one of those purposes does not render it admissible. To take a trite example, an assertion that “I am of the opinion that Smith is a dishonest person” could never be admissible simply because a party asserts that Smith has a tendency to be dishonest. However, this is the type of reasoning that underpins the Crown’s first submission.

138. The representation, “He gets very desperate when he is squeezed financially”, is an expression of Ms Caleo’s opinion. It is not admissible to establish the fact asserted: s 76. The fact that it is hearsay evidence of an opinion does not change that: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at 363 [19]. Excising that expression of opinion, the remainder of the representation (“like what I’m doing to him as a result of his affair with Janice Yap”) is rendered meaningless.

139. This representation must be excluded.

“This is the absolute truth”

140. Nothing is said in the FCWS in support of admissibility of this representation and the FAWS does not express any objection. I assume it is agreed that it is not admissible on the basis that it is not relevant: s 55(1).

“Please do not let Mark get away with this”

141. The Crown contends that this is admissible pursuant to s 66A as a representation about Ms Caleo’s “feelings” and “state of mind”. She was imploring her executor to do something to bring her husband to justice for the murders: FCWS [14].

142. Mr Brady submitted that this representation did not fit squarely within any of the categories of representations in s 66A.

143. This representation is along the lines of the first representation in the letter (“In the event that my death is unnatural...”). It is inadmissible for the same reasons.

“Damelian used someone from South America for the job”

144. This representation is not pressed by the Crown: FCWS [15].

Conclusion

145. I have considered and discussed the representations individually in accordance with the approach taken by the parties. However, I reiterate that I have considered them each in the context in which they were made.

146. My conclusion is that the letter in its entirety must be excluded.

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Decision last updated: 19 April 2018