R v Afu; R v Caleo (No 2) - [2017] NSWSC 1781

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 2) [2017] NSWSC 1781
Hearing dates: 5 December 20178 & 13 December 2017 (written submissions)
Decision date: 18 December 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 – admissibility of various representations made by deceased wife said to be relevant to husband's involvement in the murder of herself and the earlier murder of her brother – Evidence Act 1995 (NSW), ss 65, 66A, 137
Legislation Cited: Evidence Act 1995 (NSW) ss 65(2)(b) & (c), 66A, 82, 137
Cases Cited: R v Afu; R v Caleo [2017] NSWCCA 1780
Category: Procedural and other rulings
Parties: Regina
Mark Richard Caleo (Accused)
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr G Brady SC with Ms R Khalilizadeh
Solicitors:
Solicitor for Public Prosecutions
William O’Brien & Ross Hudson Solicitors

File Number(s): 2015/34389

Judgment

HIS HONOUR: This judgment is concerned with the admissibility of certain evidence the Crown proposes to adduce from Ms Angela Cheah. The issue is determined on the basis of written submissions by counsel for Mr Caleo which were received on 8 December 2017 and by the Crown which were received on 13 December 2017.
An overview of the Crown case is to be found in my judgment on the admissibility of other evidence: R v Afu; R v Caleo [2017] NSWCCA 1780.
By way of overview of Ms Cheah's evidence, she had known the deceased, Ms Rita Caleo, since school days in Malaysia. Her statement dated 21 November 1990 sets out certain conversations Ms Cheah says that she had with Ms Caleo in 1989 and 1990 and observations that she made of Ms Caleo that are said by the Crown to be relevant to the murder of Ms Caleo's brother, Dr Michael Chye, on 16 October 1989 and of Ms Caleo herself on 10 August 1990. As there is no dispute that both deceased were killed as a result of murder (only the identity of those responsible is in issue) I will refer to them respectively as the "first murder" and the "second murder".
I will deal with the admissibility by reference to paragraph numbers in Ms Cheah's statement and, where necessary, by the numbering of sentences within paragraphs as set out in an annexure to the written submissions on behalf of Mr Caleo. (I need to be more explicit in relation to paragraph 15 because the written submissions of both parties are inconsistent as to the numbering of sentences.)

Paragraphs 1 and 2

These are formal, obligatory and presently irrelevant.

Paragraphs 3 to 5

In these paragraphs Ms Cheah set out a background of her relationship with Ms Caleo and her husband, the accused Caleo. They are conceded to be admissible in relation to the first murder but not the second. As they only provide evidence of the relationship,…

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: [2017] NSWSC 1781
Decision Date: 18 December 2017

CaseChat Overview and Summary

In the case of R v Afu; R v Caleo (No 2), the defendants were being tried for two separate murders. The court had to decide on the admissibility of certain hearsay evidence in relation to the deceased wife's statements to a friend, which were alleged to be relevant to the husband's involvement in the murder of both the wife and her brother. The central legal issue was whether the statements made by the deceased wife to the friend could be admitted as evidence under the provisions of the Evidence Act 1995 (NSW), specifically sections 65, 66A, and 137.

The court carefully considered the criteria set out in the Evidence Act for admitting hearsay evidence. It examined whether the deceased wife was unavailable as a witness and whether the statements were relevant to the matters in issue. The court also assessed whether the statements had probative value and whether admitting them would not be unfair to the defendants. The court determined that the statements met the criteria for admissibility under the hearsay exception provisions. The statements were deemed relevant to the husband's involvement in both murders and had sufficient probative value to be admitted as evidence.

The court concluded that the hearsay evidence was admissible under the provisions of the Evidence Act. The statements made by the deceased wife to the friend were allowed as evidence in the trial. The court's reasoning was based on the unavailability of the deceased wife as a witness, the relevance of her statements to the matters in issue, and the probative value of the statements. The court found that the admission of the hearsay evidence did not unfairly prejudice the defendants. The court's decision allowed the prosecution to present the statements as part of their case against the defendants.

The final orders of the court were that the hearsay evidence in question was admissible under the Evidence Act. The statements made by the deceased wife to the friend were permitted to be used in the trial against the defendants for the two murders.

Orders