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

1. 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.

2. 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.

3. 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".

4. 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

5. These are formal, obligatory and presently irrelevant.

Paragraphs 3 to 5

6. 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, I consider them to be relevant and admissible in relation to both murders.

Paragraph 6

7. Sentences 3-7 are not pressed by the Crown.

8. Sentences 1-2 and 8-9 are said by the Crown to "appear to be unobjectionable". Nothing else is said in support of admissibility.

9. Counsel for Mr Caleo conceded admissibility in respect of the first murder but objected in relation to the second murder on the basis of relevance.

10. The sentences in question state:

"Early December, about the 4th or 5th 1988 I went to Australia and stayed with Rita for a week. Rita and Mark were living in Gleneagles Avenue, Killara. … When I was in Australia Rita took me to Michael's house at Blakehurst. I also went to Mark's parents' house."

11. In my view, this is further introductory background that is relevant in a general sense to both murders and is admissible as such.

Paragraph 7

12. Counsel for Mr Caleo submitted that the content of this paragraph is relevant only to the first murder. It is concerned with the purchase of a property at Blakehurst from Dr Michael Chye.

13. Objection is taken to the 4th to 7th sentences. They set out a discussion between Ms Cheah and Ms Caleo about the purchase price of the property and their opinions as to whether it represented good value or otherwise. The Crown says that this is admissible pursuant to s 65(2)(b) & (c) of the Evidence Act 1995 (NSW) as "it is relevant to the property transaction between the accused and the deceased, Dr Michael Chye, which was a cause of dissension between them at the time that Dr Chye was murdered".

14. In my view, the evidence is not relevant and therefore not admissible. Whether the purchase price represented good value or otherwise was not the cause of the dissension between Mr Caleo and Dr Chye; the problem was the ability to raise finance to fund the purchase and the pressure Dr Chye applied to bringing the transaction to settlement.

Paragraph 8

15. An objection is taken to the 1st and 2nd sentences which set out a conversation in which Ms Caleo told Ms Cheah of her and her husband being chased by Dr Chye for the deposit and that she and her husband were trying to get the money from the bank.

16. On behalf of Mr Caleo it is contended that this is second-hand hearsay, or worse, as "it must be relating something that [Ms Caleo] was told". Further, s 65(2)(b) and (c) do not apply.

17. In my view it may be inferred that Ms Caleo was speaking from her personal knowledge contemporaneously with the events and they are unlikely to be a fabrication: s 65(2)(b).

18. An objection is taken to the 3rd sentence which describes Ms Caleo as being upset by Dr Chye chasing her for the money. On behalf of Mr Caleo it is asserted that this is vague and is based upon second-hand hearsay.

19. In my view, it is admissible on the same basis as the 1st and 2nd sentences. Further, it is particularly relevant as to there being some disharmony and angst between the parties to the property transaction.

20. An objection is taken to the 4th and 5th sentences which include that Ms Caleo one day told Ms Cheah that, "Mark is going to fix Michael up". The Crown says that this is not an admission. It is admissible pursuant to s 65(2)(b). It is a representation of something Ms Caleo was clearly aware of. It was supported by evidence of Mr Stambolis who will say that Mr Caleo made a similar statement to him.

21. There is no basis apparent for Ms Caleo making this representation. Moreover, assuming that it is based upon something that Mr Caleo said to Ms Caleo, the evidence involves Ms Cheah saying what Ms Caleo said that Mr Caleo said. It is therefore second-hand hearsay. It is not admissible.

Paragraph 9

22. An objection is taken to the 2nd to 8th sentences. They refer to a discussion involving the property purchase with Ms Caleo having said that there had been a settlement but that Mr Caleo had to borrow money at a high interest rate from a loan shark. There was sundry conversation on that subject.

23. Counsel for Mr Caleo submit that this is second-hand hearsay and that it is not admissible as an admission because of the provisions of s 82 of the Evidence Act.

24. In my view, it may be inferred that Ms Caleo was speaking from personal knowledge of the financial arrangements in relation to the property purchase. It is relevant to the Crown's assertion that there was anger about the difficulties Mr Caleo faced in relation to that purchase. It is admissible pursuant to s 65(2)(b).

Paragraph 10

25. An objection is taken to the 9th and 10th sentences. They involve a conversation in which Ms Cheah suggested to Ms Caleo that if she wanted to find her brother's killer she should post a reward. Ms Caleo is said to have replied, "I don't want to be shot for nothing".

26. Counsel for Mr Caleo submit that this is not admissible pursuant to s 66A. It was not a representation about Ms Caleo's knowledge or state of mind. There was no explanation or detail as to the basis for the representation. It said nothing about the state of mind of Mr Caleo as opposed to Ms Caleo speaking generally as to what might occur if a reward was offered.

27. Alternatively, it was contended that the evidence should be excluded pursuant to s 137 of the Evidence Act because it had limited probative value in relation to the second murder (because there was no basis for the assertion and it was not linked to Mr Caleo; it was just speculation). The prejudicial effect was the potential for the jury to misuse the evidence by regarding it as a prediction that Mr Caleo would have Ms Caleo killed.

28. The statement is capable of being regarded as reflecting Ms Caleo's state of mind, or her feelings, that she feared reprisal if she did something that might lead to the identification of person(s) responsible for the death of Dr Chye. In that sense, it supports there being a link between the two murders. It is relevant and I consider it to be admissible pursuant to s 66A. The jury could be warned not to give the jury more weight than it deserves. (That is a matter for counsel to raise if, in the context of all of the evidence in the trial, it is considered necessary to so direct the jury.)

Paragraph 11

29. An objection is taken to the 5th and 6th (the last two) sentences where Ms Cheah says, in effect, that in March 1990 when Ms Caleo was in Kuala Lumpur she (Ms Cheah) noticed that Ms Caleo was "different" and that she had "something on her mind"; she had "changed".

30. Counsel for Mr Caleo submit that this is not relevant. They are assertions, not observations, and there is no rational basis for them. Further, there is nothing to demonstrate any link between those assertions and the relationship between Mr Caleo and Ms Caleo.

31. The fact that Ms Caleo appeared to be troubled, her demeanour was different, and she seemed troubled is permissible evidence for Ms Cheah to give. This is particularly so given the time Ms Cheah had known Ms Caleo and their apparently close relationship. The fact that Ms Caleo appeared in this way between the first and second murders is relevant. A warning could be given to the jury if sought (for example, as to the need for care in drawing inferences from this evidence).

Paragraph 12

32. An objection is taken to the entirety of this paragraph which involves Ms Cheah relating what Ms Caleo said about a Mr Yap who was repeatedly calling her; he would speak to the maid but he would not leave his number.

33. The Crown says that this is admissible pursuant to s 65(2)(b). It is evidence of an asserted fact, that Mr Yap was calling her. It was said that this was significant in the context of the Crown's assertion that Mr Caleo was having an affair with Ms Janice Yap. It was also relevant in showing the duration of the relationship between Mr Caleo and Ms Yap which was relevant to the second murder.

34. The fact that Mr Yap was calling appears to have been derived from Ms Caleo hearing about it from the maid. Accordingly it seems to be second-hand hearsay. More fundamentally, and assuming that it may be inferred that "Mr Yap" is in fact the husband of Janice Yap, I apprehend there is other evidence that Ms Caleo thought that Mr Caleo was having an affair with Janice Yap.

35. The content of this paragraph is inadmissible.

Paragraph 13

36. The Crown does not press the 11th to 17th sentences.

37. Counsel for Mr Caleo accept that the evidence in the 3rd to 8th, 10th, and final two sentences (the parties disagree on numbering) are admissible pursuant to s 66A, although it is contended that the final two sentences are not admissible as to the truth of the assertion (that Mr Caleo was having an affair with Ms Yap).

38. The only matter to resolve is the latter contention. I am presently unaware whether it will be disputed that Mr Caleo was having an affair with Janice Yap. This can await resolution at the trial.

Paragraph 14

39. An objection is taken to the entirety of this paragraph in which Ms Cheah speaks of a trip with Ms Caleo to Hong Kong. Ms Caleo is described as being very sad and unhappy; she said that Mr Caleo had stopped her use of credit cards; she contacted her husband a number of times; and just before they left Hong Kong, Ms Caleo's use of her credit cards was restored.

40. Counsel for Mr Caleo contend that these statements are conclusions with no stated basis.

41. The fact that Ms Caleo said these things, regardless of the truth of the assertions, is relevant to an assessment of the state of the relationship with her husband. The evidence is admissible pursuant to s 66A.

Paragraph 15

42. Counsel for Mr Caleo object to certain sentences in this paragraph and it will be necessary for me to refer to them more explicitly because of the inconsistency in numbering of sentences as between the written submissions.

"Rita said, 'Angie, Mark will never leave me, he will never divorce me. I have something in hand that will tie him to me'."

43. It was contended that this is the expression of an opinion by Ms Caleo about Mr Caleo's state of mind.

44. In my view, this is relevant to the state of Ms Caleo's relationship with her husband, regardless of the truth of the assertions. (The jury could be directed as to the limited relevance of this, if requested.)

"She said she had made Mark sign some papers and an agreement."

45. There is no objection to this sentence but I mention it link the preceding sentences to the next.

"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."

46. Counsel for Mr Caleo submitted that this should be excluded pursuant to s 137. It was of low probative value and there was a danger of misuse as some sort of prediction.

47. The Crown submitted that the evidence concerning Mr Caleo signing some papers and he being unhappy about it is relevant to the state of the relationship. This was three months before the second murder and it was admissible pursuant to s 65(2)(b).

48. As to the statement including "shoot me", the Crown says that it is admissible pursuant to s 65(2)(b) but does not explain how it is relevant, and does not address s 137.

49. The first part about Mr Caleo not being happy about having to sign some papers and an agreement is relevant as the Crown submitted. It is admissible.

50. However, the statement "get someone to shoot me" is based upon something for which no basis is disclosed. If Ms Caleo was thinking about Mr Caleo being responsible for the shooting of Dr Chye, it is unknown whether such thought derived from actual knowledge, an admission, or merely suspicion or speculation. This evidence is likely to give rise to impermissible speculation by the jury. The probative value of this evidence is outweighed by the danger of unfair prejudice to the accused: s 137.

"She said, 'Mark is capable of this'."

51. This follows the statement, "get someone to shoot me". It is also inadmissible.

Paragraph 16

52. This is the final paragraph of the statement and there is no objection to it.

Admissibility as between the first and second murders

53. I have not dealt with the various assertions in the written submissions for Mr Caleo that evidence is relevant to one or the other but not both murders. That will largely depend upon the admissibility or otherwise of the tendency and coincidence evidence relied upon by the Crown which is the subject of a separate judgment.

Summary of rulings

54. To summarise, I rule inadmissible the following in the statement of Ms Angela Cheah:

The 4th to 7th sentence of paragraph 7.

The 4th and 5th sentences of paragraph 8.

Paragraph 12 in its entirety.

Paragraph 15 – the statements "get someone to shoot me" and "Mark is capable of this".

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Decision last updated: 19 April 2018