R v Afu; R v Caleo (No 6) - [2018] NSWSC 185

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 6) [2018] NSWSC 185
Hearing dates: 6 February 2018
Decision date: 07 February 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Evidentiary rulings made

Catchwords:
EVIDENCE – admissibility and relevancy – evidence of representations made by two witnesses who are unavailable – where unavailable witness gave evidence that the deceased had been threatened by the accused – whether necessary that the representation be made as evidence of the truth of the assertion – evidence admissible as evidence of the fact that the statement was made and not that the statement was true – s 65(2)

EVIDENCE – admissibility and relevancy – where witness proposed to give evidence of her opinion on progress of property transaction between accused and victim – whether expression of opinion was inadmissible as opinion evidence – ruled inadmissible

EVIDENCE – admissibility and relevancy – where witness proposed to give evidence that the deceased had indicated that he was going to sue the accused and had been scared of being assaulted or murdered – where evidence of deceased’s fear of being assaulted or murdered did not name the accused – whether the probative value of the evidence was outweighed by the danger of unfair prejudice – evidence ruled admissible
EVIDENCE – admissibility and relevancy –where witness gave evidence that the deceased had been threatened by the accused over property transaction – whether necessary that the representation be made as evidence of the truth of the assertion – evidence admissible as evidence of the fact that the statement was made and not that the statement was true
Legislation Cited: Evidence Act 1995 (NSW) cl 4 Pt 2, s 67
Cases Cited: R v Afu; R v Caleo [2017] NSWSC 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 (Caleo)
Solicitors:
Solicitor for Public Prosecutions
William O’Brien & Ross Hudson Solicitors

File Number(s): 2015/34389

Judgment

HIS HONOUR: The Crown has given notice pursuant to s 67 of the Evidence Act 1995 (NSW) that it intends to adduce evidence of previous representations made by two witnesses who are not available to give evidence. An objection was taken by counsel for Mr Caleo to the admissibility of the evidence of representations made by one of those witnesses, the late Mr Peter Henderson, and that is a subject dealt with in this judgment. The Crown is yet to determine whether it will rely upon the representations made by the other witness so that issue (if it be one) was left in abeyance.
No issue was taken on behalf of Mr Caleo as to the notice requirement or that Mr Henderson is deceased and is therefore “not available" within the meaning of that term in the Dictionary (cl 4 of Pt 2) to the Evidence Act.
Counsel for Mr Caleo also objected to the admissibility of certain…

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 185
Decision Date: 07 February 2018

CaseChat Overview and Summary

In the matter of R v Afu; R v Caleo (No 6), the court was required to determine the admissibility of various pieces of evidence in a criminal trial. The accused, Afu and Caleo, faced charges related to the death of a deceased individual, and the case involved complex issues regarding the admissibility and relevance of statements made by witnesses who were unavailable to testify. The legal issues that the court needed to address included whether evidence of statements made by the deceased regarding threats from the accused could be admitted under section 65(2) of the Evidence Act, the admissibility of opinion evidence regarding the progress of a property transaction, and the relevance of evidence suggesting the deceased was fearful of assault or murder, which did not directly implicate the accused.

The court held that evidence of the deceased making a statement about threats from the accused could be admitted, but not necessarily as evidence of the truth of the statement. Instead, it could be admitted as evidence that the statement was made. Regarding opinion evidence, the court ruled that a witness's opinion on the progress of the property transaction was inadmissible. The court also considered whether the probative value of evidence indicating the deceased's fear of assault or murder was outweighed by the danger of unfair prejudice. The court ruled that such evidence was admissible, even though it did not directly implicate the accused.

The court's reasoning was grounded in the principles of the Evidence Act, balancing the relevance and probative value of the evidence against the potential for prejudice or confusion. The court held that the statements made by the deceased about threats from the accused were admissible as evidence that the statement was made, but not necessarily as evidence of the truth of the statement. The court also clarified that opinion evidence regarding the progress of the property transaction was inadmissible, while evidence of the deceased's fear of assault or murder was deemed admissible due to its relevance, despite the lack of direct reference to the accused. The court's decision was focused on ensuring that the evidence presented was both relevant and fair to the accused.

The final orders of the court were to admit the evidence of the deceased's statements about threats from the accused as evidence that the statement was made, to exclude the opinion evidence regarding the property transaction, and to admit the evidence of the deceased's fear of assault or murder as relevant evidence. The court's decision provided clarity on the admissibility of complex evidence in criminal trials, ensuring that the proceedings were fair and just.

Orders