R v Afu; R v Caleo (No 15) - [2018] NSWSC 245

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 15) [2018] NSWSC 245
Hearing dates: 27 February 2018
Decision date: 05 March 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Evidence inadmissible

Catchwords:
EVIDENCE – discretions – exclusions of evidence – exception to hearsay rule – where maker unavailable – where witness gave evidence of various conversations with victim up to six months prior to statement being made – where representation made by intimate friend of deceased victim – whether representations were made shortly after asserted fact occurred – shortly after must mean period that is relatively minimal – evidence excluded
EVIDENCE – discretions – exclusions of evidence – exception to hearsay rule – where maker unavailable – where witness gave evidence of various conversations with victim at least six months prior to statement being made – where statement made at Australian High Commission by close friend of victim – where no evidence as to manner in which statement taken – whether representations were made in circumstances that make it highly probable that the representation is reliable – circumstances in which statement was made is issue not general reliability – evidence excluded
Legislation Cited: Evidence Act 1995 (NSW) ss 59, 62, 65
Cases Cited: Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Texts Cited: Odgers, Uniform Evidence Law (12th ed, 2016, Lawbook Co)
Category: Procedural and other rulings
Parties: Regina
Alani Afu
Mark Richard Caleo
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr R Wilson (Afu)
Mr G Brady SC with Ms R Khalilizadeh (Caleo)
Solicitors:
Solicitor for Public Prosecutions
Katsoolis & Co
William O’Brien & Ross Hudson Solicitors

File Number(s): 2014/321700; 2015/34389

Judgment

HIS HONOUR: Ms Angela Cheah is a witness the Crown had proposed to call. She made a statement to police dated 21 November 1990. However, Ms Cheah is a resident of Malaysia and has indicated a reluctance to co-operate. She has even avoided attempts to make contact with her.
Mr Brady SC on behalf of the accused Mark Caleo indicated that it is not contested that Ms Cheah is "unavailable" within the meaning of that term in the Dictionary to the Evidence Act 1995 (NSW). Mr Wilson, counsel for the co-accused Alani Afu, was neutral on the subject as the evidence of Ms Cheah does not affect his client.
I accept that Ms Cheah is not available to give evidence.

The evidence

The essential parts of Ms Cheah's statement of 21 November 1990 that the Crown seeks to adduce concern conversations Ms Cheah said that she had with Ms Rita Caleo which are set out in the statement as follows.
Ms Cheah said that she had the following conversation with Ms Caleo between August and September 1989 in Kuala Lumpur:

"I asked her had the sale of the house been settled. She said, 'Yes but I will tell you something, but don't tell anyone, Mark borrowed the money from a loan shark at 20%'.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 245
Decision Date: 05 March 2018

CaseChat Overview and Summary

The case of R v Afu; R v Caleo (No 15) involved two defendants, Afu and Caleo, who were facing criminal charges. The primary dispute was centred on the admissibility of certain hearsay statements made by a victim, who was unavailable to testify. The case was heard in the High Court of Australia. The central legal issues revolved around whether these hearsay statements could be admitted under exceptions to the hearsay rule, specifically where the declarant is unavailable and the statement was made by an intimate friend of the victim, as well as the circumstances under which the statements were made.

The court had to determine whether the hearsay statements made by the victim's intimate friend and a close friend were admissible under the exceptions to the hearsay rule. This involved examining the timeliness of the statements and whether they were made shortly after the events they described, as well as the circumstances in which they were made. The court found that the statements made by the intimate friend were not admissible because they were not made shortly after the events they described. Similarly, the statement made by the close friend at the Australian High Commission was excluded because there was no evidence regarding the manner in which it was taken, and the circumstances did not make it highly probable that the statement was reliable.

The High Court held that the hearsay statements in question were not admissible because they did not meet the criteria for the exceptions to the hearsay rule. Specifically, the statements were either not made shortly after the events they described or were made under circumstances that did not ensure their reliability. Consequently, the evidence was excluded from the trial. The court emphasised that the timeliness of the statements and the reliability of the circumstances under which they were made are crucial factors in determining the admissibility of hearsay evidence under these exceptions.

Orders