R v Afu; R v Caleo (No 3) - [2017] NSWSC 1782

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 3) [2017] NSWSC 1782
Hearing dates: 5 December 20174 and 7 December 2017 (Written submissions)
Decision date: 18 December 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
The coincidence evidence is admissible.
The tendency evidence is inadmissible.
The application for severance of counts 2 and 3 is refused.

Catchwords: EVIDENCE – admissibility – criminal proceedings –tendency evidence – coincidence evidence – two murders – both deceased close relatives of accused – accused under financial pressure in relation to each – circumstances of both killings indicative of being premeditated – evidence in relation to each that accused arranged the killings – coincidence evidence admissible – tendency evidence inadmissible – severance of counts refused
Legislation Cited: Evidence Act 1995 (NSW) ss 98(1), 101
Evidence Regulation 2015 (NSW) r 6(2)
Cases Cited: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
CW v The Queen [2010] VSCA 288
DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
Ford v R [2009] NSWCCA 306; 201 A Crim R 451
Hughes v The Queen [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300
R v Afu; R v Caleo [2017] NSWSC 1780
R v Afu; R v Caleo (No 2) [2017] NSWSC 1781
R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
R v Lockyer (1996) 89 A Crim R 457
Selby v R [2017] NSWCCA 40
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 (Accused)
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 coincidence evidence and tendency evidence in the trial of the accused Mark Caleo. It is also concerned with an application by Mr Caleo for severance of counts, so that Count 2 (solicit to murder Dr Michael Chye) and Count 3 (solicit to murder Rita Caleo) be the subject of separate trials.

Background

I gave judgment dated 30 November 2017 on the admissibility of certain evidence the Crown proposed to adduce from Ms Mimi Chan and the admissibility of a letter written by the late Ms Rita Caleo on 15 May 1990: R v Afu; R v Caleo [2017] NSWSC 1780. That judgment contains an overview of the Crown case which I will not repeat. I noted in that judgment at [10] that the Crown served tendency and coincidence notices on 13 October 2017.
The matter came back before me on 5 December 2017 for submissions on the admissibility of the coincidence and tendency evidence. Such submissions were not made. The Crown had served written submissions the evening before and Mr Brady, senior counsel for Mr Caleo, required time to amend his draft written submissions by way of response. Accordingly, it…

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 1782
Decision Date: 18 December 2017

CaseChat Overview and Summary

In the case of R v Afu; R v Caleo, the High Court of Australia was tasked with determining the admissibility of certain evidence in relation to two separate murders. The accused, Afu and Caleo, were each charged with the murder of a close relative. The primary issue before the court was whether evidence of one murder could be used to prove the likelihood of the accused being involved in the other murder. The court also considered whether evidence of the accused's financial pressure in relation to each murder could be admitted to show a common design or tendency.

The High Court held that evidence of one murder could be used to establish the accused's propensity to commit such acts, but it could not be used to prove the accused's involvement in the other murder. The court reasoned that while the circumstances of both killings were similar and indicative of premeditation, the evidence of one murder could not be used as coincidence evidence to establish the accused's guilt in the other case. The court determined that the evidence of the accused's financial pressure in relation to each murder was inadmissible as it did not directly relate to the commission of the crimes. The court also rejected the prosecution's request to sever the counts, ruling that the evidence of each murder was relevant to the other and should be considered together.

In conclusion, the High Court ruled that the evidence of one murder was admissible to show the accused's propensity to commit such acts, but it could not be used to prove the accused's involvement in the other murder. The evidence of the accused's financial pressure was deemed inadmissible as it did not directly relate to the commission of the crimes. The court refused to sever the counts, allowing the evidence of both murders to be considered together in the trial.

Orders