R v Camelo-Gomez (No 2) - [2022] NSWSC 211

Supreme Court

New South Wales

Medium Neutral Citation: R v Camelo-Gomez (No 2) [2022] NSWSC 211
Hearing dates: 28 February 2022, 1 and 2 March 2022
Date of orders: 3 March 2022
Decision date: 03 March 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. See reasons, and the schedule annexed to this judgment as to admissibility of hearsay evidence
2. Evidence as to [redacted] is excluded

Catchwords:
CRIME – trial – pre-trial hearing to determine admissibility of disputed evidence – hearsay evidence

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Azizi v The Queen [2012] VSCA 205
Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454
Prasad v R [2020] NSWCCA 349
R v BD (1997) 94 A Crim R 131
R v Camelo-Gomez [2022] NSWSC 136
R v Grogan & Slacke (No 1) [2013] NSWSC 1191
R v Kuzmanovic [2005] NSWSC 771
R v Ryan [2020] NSWSC 1394
R v Singh (No 4) [2021] NSWSC 75
R v Tarantino [2019] NSWSC 939
R v Toki (No. 3) [2000] NSWSC 999
Sio v The Queen [2016] HCA 32; 259 CLR 47
Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490

Category: Procedural rulings
Parties: Regina
Isabela Carolina Camelo-Gomez
Representation:
Counsel:
D Scully & G Steedman (Crown)
B Rigg SC & C Wasley (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2019/298987
Publication restriction: Nil.

Judgment

HER HONOUR: The accused, Isabela Camelo-Gomez, born Megan Jones, was arraigned before me on 14 February 2022 on an indictment charging her with a single count of murder contrary to s 18(1) of the Crimes Act 1900 (NSW). Prior to the commencement of her trial for that charge, the Court is asked to determine the question of the admissibility of a number of pieces of disputed evidence.
The general background and history of these proceedings can be found in R v Camelo-Gomez [2022] NSWSC 136, a decision dealing with an application for a permanent stay of the prosecution. It is not proposed to repeat the detail here given of the case alleged against the accused.
In this judgment, consideration is given, and rulings made, with respect to two of the four discrete issues over which the parties are in dispute. They are:

The admissibility of hearsay statements; and

The admissibility of evidence of [redacted] in September 2001.

The remaining matters in dispute will be dealt with in separate reasons. They are:

The admissibility of evidence of telephone calls made by the accused; and

The admissibility of expert evidence as to injuries sustained by the accused in November 2001.

The Crown Case Broadly

Mrs Irene Jones was murdered by ligature strangulation and stabbing on the late evening of 2 November 2001, at her home in Lansvale. The Crown alleges that the accused, the only child of Mrs Jones, is her murderer.
The Crown case is that the accused was involved in a sexual relationship with Carlos Camelo in the period prior to the death of Mrs Jones and, on his behalf, was pressuring the deceased to provide a substantial sum of money to be used for his benefit. With the deceased refusing to provide the funds demanded of her and signalling her intention to change her will to ensure that her property was left to charity rather than to the accused, the accused murdered her. Thereafter, she staged the crime scene to make it appear that a home invasion had occurred. She complained of having been the victim of an assault by an intruder to the family home, the intruder being the true murderer.
The Crown alleges that the accused killed her mother either acting alone, or in a joint criminal enterprise with Camelo, motivated by a desire to inherit the deceased’s estate. Camelo has not been charged with any offence. He was involved in a very serious car crash in 2013 and was left with a severe and permanent brain injury. He will not be a witness or otherwise participate in the forthcoming trial.

Hearsay Evidence

Prior to her death Mrs Jones spoke to friends, neighbours, colleagues, and relatives about her deteriorating relationship with the accused, and her concerns about the accused’s involvement with Camelo. The Crown seeks to lead this evidence pursuant to either, or both, s 65(2) and s 66A of the Evidence Act 1995 (NSW) (“the Act”) and rely upon it as evidence of the truth of the fact(s) asserted by Mrs Jones. The accused objects to the admission of the evidence.

The Law

Section 59 of the Act excludes the admission of hearsay evidence. It is, relevantly, in these terms:

59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
[….]

Hearsay evidence may be admitted if it falls within one of the exceptions to the rule provided for in the Act. For the purposes of Division 2 of Part 3.2 of the Act, the exceptions to the rule will only apply if the previous representation is one that was made by a person with personal knowledge of the asserted fact, a concept generally referred to as “first-hand hearsay”: s 62.
The exceptions that the Crown relies on are those contained in s 65(2)(b) and (c) and s 66A. Those provisions are as follows:

65   Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)  was made under a duty to make that representation or to make representations of that kind, or
(b)  was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication,
[….].

66A Exception: contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

Both provisions must be read in the light of s 62 of the Act, which is in these terms:

62 Restriction to “first-hand” hearsay
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.

Section 67 of the Act imposes a requirement to give notice of an intention to adduce hearsay evidence. There is no issue in these proceedings as to the provision of reasonable notice.
There is now an abundance of jurisprudence concerning the operation of Part 3.2 of the Act. It is not necessary, or necessarily helpful, to greatly add here to the existing body of case law. A discussion of the law which is most helpful can be found in R v Singh (No 4) [2021] NSWSC 75, wherein N Adams J set out and considered the relevant statutory provisions and authorities, at [22] – [49]. For ease of reference the discussion at [23] – [47], but not the statutory provisions there quoted, is extracted below:

“The effect of s 59 is that hearsay evidence is inadmissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. There was no issue taken that all of the representations were relied upon by the Crown for a hearsay purpose.
The statutory exception to the hearsay rule where the maker is unavailable (as in this case because she is deceased) is s 65(2) of the Evidence Act which is in these terms:
[…]

The Crown relies on either s 65(2)(b) and/or (c) in relation to the hearsay representations. The Crown must therefore show, in relation to each representation, either that the circumstances were such that it is unlikely that the representation was a fabrication (if the representation was made when or shortly after the asserted fact occurred – subs (b)), or that the representation was made in circumstances that make it highly probable that the representation is reliable (subs (c)).
The High Court (French CJ, Bell, Gageler, Keane and Gordon JJ) considered the application of s 65(2) in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (“Sio”). That case concerned s 65(2)(d) of the Evidence Act but the principles are the same. The proper approach to apply s 65(2) is as follows:
“[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
[58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.”
[emphasis added]

The High Court went on in Sio v The Queen to observe at [69]-[70]:
“The provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:
‘evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.’ [R v Ambrosoli (2002) 55 NSWLR 603 at 615; [2002] NSWCCA 386]

That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.” (footnotes omitted) [emphasis added].

Thus, the focus is not on whether the representations themselves are likely to be reliable but on the circumstances in which they were made. Objective circumstances that may preclude a finding of likely reliability include “a specific retraction of the assertion of the relevant fact” or “[s]statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous” (Sio at [71]). In assessing the circumstances in which the representation was made, the Court is not to undertake a general assessment of whether the representor is a reliable witness: Sio at [72].
In Sio, the High Court was considering s 65(2)(d) of the Evidence Act and the admissibility of hearsay statements made by a co-offender. It is apparent why the High Court held that taking a compendious approach in those circumstances was not appropriate. The co-offender (Mr Filihia) made a statement implicating himself but when he spoke of Mr Sio’s involvement he had a motive to minimise his own criminality and maximise Mr Sio’s. That is why careful regard had to be made to each of his separate assertions to police.
The application by the Crown in this case concerns s 65(2)(b) and/or (c). The threshold of reliability under subs (b) is lower for the Crown than it is under subs (c) but it only relates to representations made “when or shortly after the asserted fact occurred”.
The authorities considering what is meant by the phrase “when or shortly after the asserted fact occurred” in s 65(2)(b) were discussed by Beech-Jones J in R v Tarantino [2019] NSWSC 939 at [25]-[27]. Given their significance to a number of the rulings I am required to make I propose to set those paragraphs out in full as follows:
“In Regina v Mankotia [1998] NSWSC 295 (‘Mankotia’), Sperling J observed that the quote ‘shortly after’ requires a ‘normative judgment … to be made dependent on the circumstances of the case’. In Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 (‘Williams’), the Full Court of the Federal Court observed (at [48]):
‘The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway [Conway v R (2000) 172 ALR 185; [2000] FCA 461] the statement in question was made by a murder victim who said, while observed to be looking 'terrible', that she had been drugged and had been 'off her face for about three or four hours'. The comments of the Court in Conway regarding the meaning of 'shortly after' should be understood accordingly.’

Consistent with the emphasis upon a statement being made under the proximate pressure of the occurrence of the asserted fact, typically passages of time of seconds or hours have been held to satisfy the test of 'shortly after' (see, for example, R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875 at [19] ('Dacey') and R v Afu; R v Caleo (No 15) [2018] NSWSC 245 at [24]). However, periods of many days and months generally have not (see R v Maglovski [2012] NSWSC 1378 at [13], concerning a period of three months; Williams at [49], concerning a period of five days).
It seems that periods of time longer than a day but shorter than a number of days are the most problematic. In Dacey at [50], Button J held that a 30-hour lapse was not sufficient to make the representation 'shortly after' the asserted fact. I made a finding to the same effect in R v Bryce (No 1) [2014] NSWSC 495 at [25] to [32] ('Bryce'). However, in R v Toki (No 3) [2000] NSWSC 999 at [92] ('Toki'), Howie J held that a delay of one day between the asserted fact and the making of a representation nevertheless meant that the representation was made shortly after the asserted fact.”

Decisions as to “circumstances”
Given that both 65(2)(b) and (c) require a consideration of the relevant “circumstances" in which the representations were made, it is helpful to have regard to what the authorities have held are sufficient circumstances to warrant the admission of hearsay representations under this statutory provision.
In Clarke (a pseudonym) v The Queen [2017] VSCA 115 the trial judge erred in admitting hearsay evidence under s 65(2)(c) after taking into account the fact that the hearsay representations were corroborated by the evidence of another witness. The Court held that this approach was erroneous as, in considering the circumstances in which a representation was made, “a court [is not permitted] to take into account other evidence which tends only to address the asserted fact”: (at [80] per Redlich JA and Beale AJA). That is consistent with the statement of Mason P (Hulme and Simpson JJ agreeing) in R v Ambrosoli (2002) 55 NSWLR 603 at 616; [2002] NSWCCA 386 at [34]-[35]: the Court should “exclud[e] [from its consideration of the circumstances] evidence tending only to prove the asserted fact”.
In Prasad v R [2020] NSWCCA 349, the deceased complainant represented in a statement to police that she had not consented to certain sexual acts and had manifested her lack of consent by words or actions (at [91]). In relation to one of the counts, the deceased had separately represented to her carer that she had “had the best night of [her] life” (at [99]). To the extent that any of the representations in the police statement asserted that the complainant had not consented to this count, the representations were inadmissible under s 65(2)(c) to prove this fact as the circumstances could not be considered “highly probably reliable” (at [100] per Macfarlan JA, Wilson J and I in agreement).
In Harris v R [2005] NSWCCA 432 (at [44]-[46]), the representation was made in a formal statement to police acknowledging potential criminal liability for false statements. The representations in Harrisv R were admitted under s 65(2)(b) as they were made in a formal statement to police, were not inherently unlikely, and were capable of verification by other witnesses (at [44]-[46] per Studdert J, Grove and Whealy JJ agreeing).
In Youkhana v R [2013] NSWCCA 85 (at [52]-[54]) the representor gave evidence to the Crime Commission “in the knowledge that the contents of such statement could, and would, be checked by the Commission” (at [52]). The representor’s awareness that the representations would be independently verified was a circumstance of reliability and it was held to be open to the trial judge to admit the representations under s 65(2)(b) (at [52]-[54] per Bellew J, Hoeben CJ at CL and Slattery J agreeing).
In Williams v The Queen [2000] FCA 1868 at [56]-[58] the Federal Court (Whitlam, Madgwick and Weinberg JJ) considered the admissibility of statements made by a representor who was under caution for a serious offence, the police recently having discovered a firearm buried in his garden. Because the representor was a suspected accomplice with “a variety of reasons to tell the police what… they wanted to hear”, the representations were held not to be admissible under subs (b) or (c).
Whether or not the representor had a motive for fabrication was also considered relevant in R v Kuzmanovic [2005] NSWSC 771 at [19].
In Munro v The Queen [2014] ACTCA 11 at [16], the representor was a cleaner recounting his system of work. The court held that it was open to the trial judge to admit the representations under s 65(2)(c) as the system of work was likely to be well-remembered, the representor had no personal interest in the subject matter or outcome of the trial, and any motivation to exaggerate would be outweighed by the inclination to avoid prosecution (as the evidence could to some extent be verified with his former employer) (at [16] per Refshauge ACJ and Penfold J; at [79] per Burns J).
In Chidiac v The Queen (No 2) [2016] NSWCCA 120 the representor recanted evidence that he had previously given under oath. At the time of recanting, the representor “had secured his release”, was overseas, and “may have considered that he was not at risk of any further action by authorities against him if he should falsely recant” (at [152] per Bathurst CJ, Button and Fagan JJ). As the representor was not at any risk of prosecution for making a false statement, the representations were found to be inadmissible under s 65(2)(d).

In Azizi v The Queen [2012] VSCA 205. the representations were made to a social worker from whom the representor was seeking help. The representor repeatedly described the events of the night before, including having unsuccessfully sought assistance from the police. The circumstances were held to be such that the representations were unlikely to be a fabrication (at [78]-[79] per Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).
More recently, representations made to a sibling were considered by Button J in R v Ryan [2020] NSWSC 1394 at [12]-[14]. In Ryan, statements made by the deceased to her sister regarding her relationship with the accused (the deceased’s husband) were not admissible under ss 65(2)(b) or (c). Statements made “in close relationships… about private matters” could be reliable or not reliable, fabricated or not fabricated, and therefore the overall circumstances were “neutral” such that the preconditions to admissibility were not positively satisfied. After referring to the decision in Sio his Honour stated the following:
“The High Court at [60] emphasised the strictness with which the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross-examine the maker of the statement if it is inculpatory.
I think respectfully, as a matter of common sense, the rule against hearsay is something that has been part of our jurisprudence for hundreds of years, and I believe it is the objective intention of Parliament that exceptions having been carved out by Parliament be approached with a degree of rigour, and with appreciation of the consequences.”

Summarising the above decisions, circumstances which have been held to have favoured reliability include:
If the representations are made in a statement to police acknowledging potential criminal liability for false statements;
Representations made to an investigating authority (e.g. NSWCC) in the knowledge they will be checked for truthfulness;
When an employee who has no personal interest in the subject matter or outcome gives evidence about a work practice;
When representations are made to a social worker in the course of seeking assistance, the representor having unsuccessfully earlier sought help from police.
On the other hand, circumstances which have not favoured reliability include:
Representations made to siblings about a relationship;
When representations are a recanting of evidence given on oath and the representor is not at risk of prosecution for false statements;
Where the representor has a motive for fabrication, for example because they are being investigated for a serious offence; and
If the evidence is directly contradicted by other statements made by the representor.
Further, corroborating evidence from another witness is not relevant to the circumstances in which the representation was made.

Section 66A of the Evidence Act
In relation to some of the representations, the Crown also relied upon s 66A of the Evidence Act as a basis for admissibility. Sections 62 and 66A of the Evidence Act 1995 (NSW) provide as follows:
[….]
This provision was discussed by Brereton J (as his Honour then was) in In the matter of HIH Insurance Limited (In Liquidation) [2015] NSWSC 790 at [67]-[77]:
“There is a long and well established exception to the hearsay rule in respect of statements made by a person as to that person’s state of mind. …
In [Thomas v Connell (1838) 4 M&W 267; [1838] 150 ER 1429], a bankrupt’s statement that he knew he was insolvent was held admissible to prove his knowledge of that fact at the time when he made a payment to the defendant. Although the statement was no evidence of the insolvency, it was evidence of his state of mind or his knowledge of the insolvency, if it be otherwise proved.
However, the statements of the bankrupt held admissible in that case were contemporaneous, in the sense that they were made at or about the time of the insolvent transaction. In the report of R v Kay (1887) 16 Cox CC 292, a footnote records that, while in cross-examination, the mother of a woman who had gone through a form of marriage with the accused stated that her daughter had told her since the marriage that she was aware of the misdescription of her name in the bans, in which case the marriage would have been void. That statement was rejected on the ground that it was not evidence. It may have been different, it seems to me, had the statement to her mother been made before the marriage took place, because that would have demonstrated her state of knowledge contemporaneously or at the relevant time, but what was held in that case, in effect, was that a subsequent statement as to a former state of knowledge was not admissible.
[…]
It has always been considered that such statements are admissible only if they relate to the maker’s contemporaneous state of mind or emotion, so that the statement must be made at or about the time when the relevant event occurred [see, for example, The Queen v Hissey (1973) 6 SASR 280, 294 and Mobil Oil Corporation v Registrar of Trade Marks [1984] VR 25, 27].[…]
There are very good reasons for the requirement of contemporaneity. Essentially, the basis upon which such statements are admissible in exception of the hearsay rule is that they are spontaneous statements as to what a person has in mind at the time that the statement was made, not as admissions against the interests of a non-party.
In any event, whatever might have been the position at common law, the Evidence Act, by s 66A, makes clear the requirement of contemporaneity.””

As can be seen from her Honour’s discussion of the law, and particularly her consideration of what was said by Beech-Jones J (as his Honour then was) in R v Tarantino [2019] NSWSC 939 at [25] – [27] there is some apparent conflict in the authorities in the interpretation of the phrase used in s 65(2)(b) of the Act, “when or shortly after the asserted fact occurred”. In the context in which the phrase is used, “when” must mean at the time the asserted fact occurred. The conundrum is with the meaning of “shortly after”, where the position is not as clear. As R A Hulme J observed in R v Grogan & Slacke (No 1) [2013] NSWSC 1191, after referring to Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454; and R v Kuzmanovic [2005] NSWSC 771, the authorities “do not all speak with one voice; that is, the proper construction of the provisions is not well settled”.
That is particularly problematic in this instance, given the Crown’s reliance upon s 65(2)(b) with respect to a number of the representations made by the deceased, where the precise period of time between the occurrence of the asserted fact and the making of the representation is often difficult to discern.

The Evidence

The Court received Voir Dire Exhibits A, 1, 2 and 3 on this issue, although it was not in the end necessary to consider Exs. VD 1 and 2.
Ex. VD A is a folder of statements made, and in some cases the transcript of evidence given, by witnesses to whom the deceased spoke about her daughter and Camelo prior to her death. It is accompanied by a copy of the Notice given to the accused by the Crown in compliance with s 67, and a helpful table setting out the relevant evidence in summary form, with the basis upon which each representation is said by the Crown to be admissible. (An adaptation of the table noting the rulings made with respect to each representation accompanies these reasons, for ease of reference.)
The hearsay evidence that the Crown seeks to admit falls into three categories, being representations concerning Carlos Camelo; representations about demands by the accused for money from her mother and financial tensions more generally; and representations concerning the deceased’s concerns as to security at her home. Some witnesses could give evidence about representations that fall into more than one category.
Judith Bowerman made three statements to police, on 5 November 2001, 3 December 2018, and 6 January 2022, and gave evidence before the Coronial Inquest on 5 November 2007. Ms Bowerman lived next door to the deceased and was her near neighbour during the whole of the period of the residence of the Jones family, until the death of Mrs Jones. She knew the deceased “fairly well” and would often talk with her “for hours” about “everything and anything” (Ex. VD A.3).
Mrs Bowerman first saw Carlos Camelo at the Jones home about 6 months prior to Mrs Jones’ death. She knew him to live at the Jones home from her observations as well as what she was told. The Crown intends to adduce evidence from Mrs Bowerman that the deceased told her Camelo was “nothing but a problem for Megan” (Ex. VD A.3); that she often argued with the accused about Camelo, telling the accused he was using her for money; that the accused wanted to borrow against Mrs Jones’ house leaving the deceased concerned about the situation; and that Mrs Jones had a strong dislike of Camelo, wanted him to leave, and was glad to hear that he was leaving Australia in October 2001.
Leslie Bowerman, Mrs Bowerman’s husband and the deceased’s close neighbour, made a statement to police on 3 December 2018. He said that, during a conversation with Mrs Jones the deceased said that she “had been asked to take a loan out against the house for Megan and this man to start a business”. She said she would not do it.
Judith Hale made two statements to police, on 8 November 2001 and 14 November 2018, and gave evidence at the Inquest on 6 November 2007. Mrs Hale had met the deceased some 11 years before her death and they became close friends. In the three years prior to Mrs Jones’ death, she and Mrs Hale breakfasted together once weekly and chatted. Mrs Hale said that during the course of 2000, the deceased told her that the accused had met a man called Carlos who was having marital trouble. She told Mrs Hale that Carlos had moved in, and later that the accused and Carlos moved to Merrylands. The deceased said that did not work out, and the two returned to live at the Jones house. Mrs Jones said she didn’t like Carlos living at her house and she argued with the accused about it.
After the accused returned from a trip to Colombia the deceased told Mrs Hale that the accused had been married in Colombia, that she had not known about the marriage, and that she was very upset about it.
Wilhelm Zillken made a statement to police on 9 November 2001 and gave evidence before the coroner on 6 November 2007. Mr Zillken lived in the Lansvale area and regularly walked his dog past the Jones house. He frequently stopped to talk with Mrs Jones, sometimes for as much as three hours. Mrs Jones told Mr Zillken that the accused and Carlos had lived at her home and she had not been happy about it, believing Carlos was using the accused for money. The two moved out, but then moved back, with Mrs Jones telling Mr Zillken that she was unhappy with Carlos living in her home. The arrangement placed financial strain on Mrs Jones and she came to detest Carlos, arguing with the accused about it.
In July or August 2001, Mrs Jones said to Mr Zillken that she had told her daughter that if the accused did not leave Carlos, she would change her will and leave her house to charity. In September 2001 Mrs Jones told Mr Zillken that Carlos was going back to Colombia. She was happy about his departure. When they spoke about 10 days before her death, Mrs Jones reported that Carlos had left three days previously and gone overseas.
Mr Zillken reported an earlier conversation in which Mrs Jones said she had seen the person who had broken into the home of her next door neighbour and was careful to lock her own home.
Margaret Bunter made statements dated 7 November 2001 and 14 March 2019, and gave coronial evidence on 6 November 2007. Mrs Bunter met the deceased through their church about five years before Mrs Jones died; they became close friends and did a great deal of charity work together.
Mrs Jones told Mrs Bunter that Paula, (Paolo Camelo, the estranged wife of Carlos Camelo) had driven past the Jones house looking for the accused and Camelo. Mrs Jones was very frightened of Paula. She hated Carlos Camelo and referred to him as a “conman” (Ex. VD A.13).
In a conversation on the day she died, Mrs Jones told Mrs Bunter that she had given the accused money to pay utility bills and was upset because the bills had not been paid. She said she had not been receiving her bills or other mail for the previous two months. Mrs Jones also said Carlos had left the country; Mrs Jones was “extremely happy” about this, having “written a letter to get him out of the country (Ex VD A.13). Mrs Jones told Mrs Bunter that she was going out for dinner with the accused to celebrate her birthday and noted that Megan was happy about the accused having left the county.
In her Inquest evidence in 2007 Mrs Bunter confirmed that the deceased had told her of her dislike of Camelo and of the accused’s association with him. Mrs Jones had said that the accused and Carlos “wanted “[$20,000] … to start a business” (EX VD A.15). She said that Mrs Jones had hated Carlos.
In her 2019 statement Mrs Bunter said that the deceased often confided in her about the accused and Carlos, and hated Carlos.
Bora Lim was a member of the same church as Mrs Jones and the accused and knew them both in that context. Her statement was made on 21 November 2001. She often spoke by telephone with Mrs Jones, who told her that she did not like Camelo who never contributed to the household, and wanted him to leave. It caused arguments between Mrs Jones and the accused.
Jason Berryman was a missionary with the accused and deceased’s church and became quite close to the family after meeting them in 1996. He regarded Mrs Jones as his “adoptive Aussie mother” (Ex. VD A.17). He stayed at the Jones home for a short period in 1998. His first statement was made on 16 November 2001; his second on 19 November 2018.
On Christmas Day 2000 Mrs Jones told Mr Berryman, who had felt tension at dinner between her and Camelo, that she felt Camelo was using the accused for money and wanted her to sell her house so he could buy a construction business. She said she was going to change her will as she didn’t want to leave her house to the accused if she married Camelo. In later telephone calls after Mr Berryman had moved to England, Mrs Jones repeated her dislike of Camelo.
In his 2018 statement Mr Berryman said he had seen how stressed Mrs Jones had been by the pressure on her to sell her house, despite her determination not to sell. He had a clear memory of Mrs Jones speaking to him privately in the kitchen of her house about being pressured to sell her home to provide money for Carlos to start a construction business. She was “firm in her intention to stand up to Megan on the issue”.
Brenda Scott, who made a statement on 19 November 2001, knew the deceased through their shared voluntary work at a charity shop in south-western Sydney. The deceased told Ms Scott that her daughter lived at home with her, sleeping in the same bedroom as a man from Colombia. Mrs Jones said that she was unhappy about it and did not like the Colombian man or the way that he treated her.
Kay Johnson also knew Mrs Jones through shared voluntary work. They had a casual friendship, speaking to one another over lunch breaks when volunteering. Ms Johnson observed that Mrs Jones frequently came to work upset, saying that the man associated with her daughter Megan was causing trouble at home; he was rude to Mrs Jones and did not pay his way.
Joyce Sheldrick is the deceased’s cousin. In her statement made on 3 November 2001, Mrs Sheldrick said that in the year preceding the death of Mrs Jones she saw her only twice, although they spoke on the telephone every couple of months. Mrs Jones told Mrs Sheldrick that Carlos had moved into her house and it caused problems. Mrs Jones argued with Carlos. Mrs Jones also referred to Camelo’s wife, telling Mrs Sheldrick that his wife had caused trouble for Camelo and Megan. In a conversation on Mrs Jones’ birthday on 31 October 2001, she told Mrs Sheldrick that Carlos had gone back to Colombia.
When giving evidence before the coroner on 5 November 2007, Mrs Sheldrick said that Mrs Jones did not like Carlos very much and didn’t like him being in the house.
Keith Sheldrick was related to the deceased through his wife. He made a statement in 2001 and gave evidence at the Inquest, but only his statement of 6 November 2018 is relied on by the Crown. In that statement Mr Sheldrick said that he was aware that Mrs Jones had moved out of the master bedroom in her home. Mrs Jones told him Carlos stayed at the home overnight on occasions, sleeping with Megan in the master bedroom. Mrs Jones was in tears about this when she reported it to Mr Sheldrick.
Ex. VD 3 is Mrs Sheldrick’s November 2001 statement. He did not refer in his first statement to the conversation detailed by him in his 2018 statement.
Johnny Carling delivered the mail to Mrs Jones’ street at the relevant time. On 2 November 2001, he stopped at her property to deliver the mail and spoke to Mrs Jones. He asked her if her daughter had moved out as there was a mail re-direction in place. He saw that Mrs Jones looked shocked, and had a blank look on her face. She told Mr Carling that there was no re-direction in place, but he told her there was a re-direction, for Camelo-Gomez. She said that she knew nothing about it, but would “fix that up” (Ex. VD A.24).
Two handwritten notes are the final pieces of hearsay evidence to be considered. These notes were written by Mrs Jones. They were found in 2019 during a search of the accused’s home. Neither note is dated; both relate to financial matters. The first refers to the accused being “over limit of $3000” and, following some other notations about monies apparently owing records (as rendered):

“$20,000 HAS HE PUT FORMN’S IN I found SOME to-day with YELLOW Post it notes on foR Him to fill IN
______________________
TAX BISSNESS number who’s on the company you or Both of you”.

The second note records:

“30^th April. Last Payment
MaREE Sydney WatER
13.20.92”.

Submissions

Without wishing to contravene the principle given in Sio v The Queen [2016] HCA 32; 259 CLR 47 (“Sio”)cautioning against “a compendious approach”, as a general statement, the Crown argued that the representations it seeks to tender all relate to facts which will be in dispute at the accused’s trial and are relevant to the determination of those matters. The issues are:

representations concerning Carlos Camelo, including his relationship with the accused, Mrs Jones’ strong disapproval of that relationship, her intention to disinherit the accused if she continued in the relationship, and the accused’s pretence concerning Camelo’s departure from the country;

representations concerning demands from the accused and Camelo of the deceased for money and the deceased’s refusal; and

representations that show the deceased was security conscious at her home, relevant to an inference the Crown will ask the jury to draw, that Mrs Jones would not leave her home unlocked at night.

It is contended that the individual representations all fall within either s 66A or s 65(2)(b) and/or (c). The Court was referred to R v Tarantino [2019] NSWSC 939 and R v Kuzmanovic [2005] NSWSC 771 at [7] – [12] on the meaning of “shortly after” for the purposes of s 65(2)(b); with the latter also of relevance to the question of the unlikelihood of fabrication.
As to whether the evidence should be excluded pursuant to s 135 or s 137 of the Act, the Crown points out that evidence cannot be regarded as unfair prejudice simply because it makes the prospect of the accused’s conviction more likely. Rather, it is necessary to conclude that there is a real risk that the evidence may be used by the jury in an illogical or irrational way: R v BD (1997) 94 A Crim R 131. The Crown points to the availability of directions to the jury, including warnings pursuant to s 165 of the Act, to address any possible issues.

The accused submits that the representations sought to be tendered by the Crown fall foul of the provisions relating to exceptions to the hearsay rule, due to a lack of contemporaneity relevant to s 66A, or the short time period required to meet the test in s 65(2)(b). Detail of the representations is frequently lacking, and it is not possible to say whether the circumstances in which the representations were made are such as to bring the assertions within one of the exceptions. Further, if careful attention is given to the individual facts sought to be proved by the particular assertions, few satisfy the requirement for first-hand hearsay.
It was submitted that there were many inconsistencies in matters said to have been asserted by the deceased, and these inconsistencies militated in favour of a conclusion that those representations said by the Crown to fall within s 65(2) could not be concluded to have been made in circumstances such as to make it unlikely they were fabrications, or highly likely to be reliable.
The accused considered the individual representations, pointing to matters that did not support the Crown’s contention that the representations it seeks to tender fall within the exceptions to the rule.
The Court was referred to Sio, R v Kuzmanovic [2005] NSWSC 771, R v Ryan [2020] NSWSC 1394, Singh (No 4), Azizi v The Queen [2012] VSCA 205; and Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, among other decisions.
The accused referred to the delay in bringing proceedings against her, the lengthy period over which the investigation has been conducted, and the inconsistencies in the sometimes multiple statements made by individual witnesses to argue that, even if some representations were admissible as exceptions to the hearsay rule, the evidence should be excluded as unfairly prejudicial pursuant to s 135 of the Act.

Determination

Although it may be possible in some circumstances to take a more general, if not compendious, approach to the question of the admissibility of the representations, as was observed in Prasad v R [2020] NSWCCA 349 at [89], (per Macfarlan JA, with whom N Adams J and I agreed), such circumstances do not prevail here. The representations were made to different individuals, in different circumstances, and thus it is necessary, in compliance with the dicta in Sio, to consider each representation individually. The process is unavoidable, if laborious and time consuming.
Each representation will be referred to by its exhibit reference and its identifying number in the annexed table (which adds to the table provided by the Crown). The table also sets out the detail of each representation sought to be admitted – which is not always repeated here - and should thus be read in conjunction with what follows.
Alternative bases of admissibility have only been considered where it is concluded that the evidence is inadmissible on the first basis advanced by the Crown.
Ex. VD A.3; No. 1: The Crown relies upon s 66A, arguing that this asserted fact reflects the deceased’s state of mind at the time, which was a feeling of dislike for Carlos Camelo. The difficulty with that submission is that the representation as it is recalled by Mrs Hale could not be said, or at least said with any confidence, to be a representation by the deceased about her own state of mind, as opposed to an assertion about the accused’s state of mind or experience. The deceased could not have had personal knowledge of the latter. The terms of the representation are such that, even assuming the requirement for contemporaneity is met, I cannot conclude that the representation is one as to the deceased’s state of mind. It must be at least equally likely that the representation concerns the deceased’s understanding or opinion of the state of mind or experience of the accused. This evidence must be excluded.
Ex. VD A.3; No. 2: The Crown relies upon s 65(2)(b) and (c), submitting that it can be concluded that the representations were made as regular confidences to Mrs Bowerman, referring to ongoing events, satisfying the temporal requirement of s 65(2)(b). Since these were confidences made to a neighbour with whom the deceased had a long and close association, and did not occur in the context of any situation where the deceased would have felt the need to advocate for a position, the representations are unlikely to be a fabrication and/or, it is highly probable that the representations are reliable.
It is reasonable to conclude that, as neighbours who spoke at times when one saw the other in her respective garden, the deceased’s representations were made at times with some temporal proximity to the occurrence of the asserted fact. However, that is to be distinguished from a positive conclusion that the representation was made “shortly after” the occurrence of the relevant fact. I cannot reach that conclusion on the available evidence and the representation is not admissible pursuant to s 65(2)(b). To be admissible pursuant to s 65(2)(c) it is necessary for the Court to be satisfied that the representation to Mrs Bowerman was made in circumstances that make it highly probable, or very likely, that it is reliable. That is a more onerous test than that set by the phrase used in s 65(2)(b): R v Toki (No. 3) [2000] NSWSC 999, at [94] per Howie J. The requirement for the circumstances to strongly point to reliability is important, because there is no capacity for the accused to test the reliability of the assertion by cross-examination.
There is very little evidence about the circumstances in which the representations were made. I have set out already the nature of the relationship between Mrs Jones and Mrs Bowerman, and their habit of chatting about “everything and anything” when both were in their adjoining gardens, apparently in ordinary conversation. The representations have the air of confidences, and it might be reasonably concluded that an individual confiding personal matters to a close neighbour would be truthful. That is supported to a degree by the close proximity in which the women lived. It can be inferred that there was at least some capacity for Mrs Bowerman to become aware of lies told by Mrs Jones about things that occurred within her house, since she would have been able to see and hear some occurrences on the neighbouring property, or might be given a contradictory account by the accused.
Those circumstances suggest the representation is unlikely to be a fabrication, but I cannot conclude that they are such as to make it highly probable that the representation is reliable. The information about the circumstances in which the representation was made is too sparse to reach that positive view and the evidence must be excluded.
Ex. VD A.3; No. 3: The Crown relies upon s 66A, and s 65(2)(b) and (c). There is no evidence that establishes the origins or basis of Mrs Jones’ knowledge of the purported travel plans of Carlos Camelo and the point made by the accused – that it is not clear that the representation is first-hand hearsay – is well made. On that basis, the representation made by Mrs Jones to the effect that Carlos was returning to Colombia on 15 October 2001 cannot be admitted under either s 66A or s 65(2). The assertion by Mrs Jones that she was happy that Camelo was leaving the county is admissible pursuant to s 66A, since it is a statement of feelings or state of mind made when that feeling or state of mind was extant. That part of the representation is admissible.
Ex. VD A.4; No. 5: The Crown relies upon s 66A and s 65(2)(b) and (c). The representation is as to an argument with the accused and the subject matter of the argument. In the terms the representation is described by Mrs Bowerman, I am not satisfied that the representation concerns Mrs Jones’ “health, feelings, sensations, intention, knowledge or state of mind”. It appears rather to refer to an event and the subject of the event. On that basis I cannot conclude that the evidence is admissible pursuant to s 66A.
The circumstances are such however, to permit a conclusion that the representation was made shortly after the occurrence of the asserted fact, and that it is unlikely to be fabricated. As to the latter, I have referred already to the circumstances that pertain to the making of the representations to Mrs Bowerman, at [58] – [60] above. The circumstances are such as to make it unlikely that Mrs Jones fabricated the substance of the representation. As to whether the representation was made “shortly after” the occurrence of the fact asserted, the language used to describe the making of the representation, in my opinion, gives it the character of immediacy: “Irene said to me once that she was arguing […]”. In my conclusion this language conveys that the representation was made soon after the argument had taken place. The words “was arguing” and “arguing” being in the present tense, suggest that the representation was made within a very short time, likely minutes or hours, after the argument was had. The evidence is thus admissible pursuant to s 65(2)(b) of the Act.
Ex. VD A.6; No. 6: The Crown relies upon s 66A to adduce evidence of a representation that the deceased did not like Carlos Camelo and the evidence is admissible on that basis in my view. The representation concerns the feelings of the deceased, expressed at a time when Camelo was involved with the Jones family, and the feeling was held by Mrs Jones. In that sense it is contemporaneous, or existing or occurring in the same period of time.
Ex. VD A.7; No. 7: The Crown relies upon s 66A and s 65(2)(b) and (c) to admit evidence of Mrs Jones’ asserted intention not to sell her house to provide money for Megan and Carlos to start a business. This representation is about the deceased’s intention and to that extent it is encompassed by s 66A. I have concluded that the representation was contemporaneous to the forming or holding of the intention, because of the terms in which it was expressed, being in the present tense: “I’m not selling that house”. The evidence is admissible pursuant to s 66A.
Ex. VD A.8; No. 8A: The Crown relies upon s 65(2)(b) and (c) and s 66A to admit evidence of what was described as a narration of events as they occurred by the deceased. The representation, reflecting the deceased’s knowledge, was made to Mrs Hale, a close friend of the deceased for many years prior to her death. Dealing with the admissibility of the representation, firstly pursuant to s 66A, I am not able to conclude that the whole of it can be entirely regarded as first-hand hearsay. Some parts of the representation – as to the decision taken by the deceased to allow Camelo to move into her home; Camelo moving in; where he slept; Camelo moving out at the same time as the accused; and their later return – may be accepted to be assertions about which Mrs Jones had personal knowledge. Other parts – that Camelo was having trouble with his wife and had no home to go to; and that things didn’t work out at Merrylands – do not appear to be matters of which she could have had personal knowledge.
For those parts of the representation with respect to which I have concluded Mrs Jones had personal knowledge, there is evidence that permits a conclusion that they were made contemporaneously. Mrs Hale states that in the three years prior to Mrs Jones’ death, which encompasses the period of Camelo’s interaction with the Jones family, the two women “spent a lot more time together”, having breakfast or lunch once a week. It is thus reasonable to conclude that the representation was made within a week or so of the occurrence of the fact asserted. That is a sufficiently proximate period as to be contemporaneous to the matters the subject of the representation. The parts of the evidence that I have identified as first-hand hearsay are admissible pursuant to s 66A.
The accused points to inconsistencies between the substance of the statements and other evidence to argue for the exclusion of the evidence. Reliability is not part of the statutory test at s 66A and will be a matter for the jury. The accused will be able to point out any inconsistencies in cross-examination of relevant witnesses and in address, and I am not persuaded that the probative value of the evidence is outweighed by the danger of unfair prejudice.
Mrs Hales’ assertion about Mrs Jones state of happiness (in [6] of her statement) is expressed as an observation by the witness, in the context of the representation made about living arrangements, rather than something asserted by Mrs Jones. It is admissible as evidence from a witness who made a relevant observation, in the context of a representation made to her.
Ex. VD A.8; No. 10: For the same reasons given above with respect to item 8A, the representations as to Mrs Jones’ feelings (dislike of Carlos living in the house) and knowledge (of Carlos’s failure to contribute to the household and his rudeness) are admissible pursuant to s 66A. Mrs Hale’s assertion that she knew the accused and Mrs Jones were having disagreements about the accused is not admissible as an exception to the hearsay rule. This seems to be an assertion of Mrs Hale’s knowledge, the basis of which is not established.
Ex. VD A.10; No 16: The Crown relies upon s 66A to admit evidence of Mrs Jones’ state of distress at the marriage of the accused in Colombia without her knowledge. The fact asserted is as to the deceased’s feelings – that she was upset on learning after the event that the accused married in Colombia, a matter encompassed by s 66A. Having regard to the overall context of the account given by Mrs Hale of the representation, it is reasonable to conclude that the representation was made at a time contemporaneous with Mrs Jones experiencing the feeling of distress. As noted above, Mrs Hale and Mrs Jones were close, and saw each other weekly for breakfast or lunch. The irresistible conclusion is that Mrs Jones made the representation about her feelings soon after learning of the source of her distress, at least within a week of the occurrence, and at a time when she continued to be in a state of upset. The evidence is admissible pursuant to s 66A.
Ex VD A.11; No. 17: The Crown relies upon both s 66A and s 65(2)(b) and (c). Even on the broader period of time contemplated by s 66A, it is difficult to conclude that the representation that the accused and Carlos had “previously” been living with her, and had at “sometime” moved to Carlingford, was made at a time contemporaneously with the fact of the asserted living arrangements. That being the case, the evidence is not admissible pursuant to s 66A. If the evidence does not meet the test of contemporaneity it cannot meet the narrower time period referred to in s 65(2)(b) of “shortly before”, bearing in mind that this phrase is unlikely to or does not extend to a period of weeks or months.
Turning to consider whether the evidence is admissible pursuant to s 65(2)(c), Mr Zillken appears to have had a friendly and amiable association with Mrs Jones, and the two enjoyed sometimes lengthy chats together. The subject matter of the representation is not concerning something which Mrs Jones might have a reason to lie. However, although there is no real reason to think that the representation was false, neither is there any evidence that would permit the Court to conclude that the circumstances in which it was made are such as to make it highly probable that it is reliable. There is very little detail in Mr Zillken’s statement as to the circumstances in which the particular representation was made, and the Court can know nothing of how Mrs Jones viewed her acquaintance with Mr Zillken, or her purpose in confiding personal matters to him. It may be that she gave an entirely reliable account of events to Mr Zillken, but I cannot make a positive finding to that effect. This evidence is excluded.
Ex VD A.11; No. 18: Although the Crown referred in its table to reliance being placed upon s 65(2)(b) and (c) to admit this evidence, in oral argument the position was amended, with the Crown indicating it sought only to lead the evidence as a representation as to Mrs Jones’ state of mind, being her dislike of Carlos Camelo. Accepting for present purposes that the representation was made contemporaneously with the occurrence of the asserted fact, I am unable to conclude that the evidence properly goes to the state of mind contended for. The representations are about events that occurred, rather than about how Mrs Jones thought or felt about those events. Section 66A does not provide a basis upon which to admit this evidence. Had I proceeded to consider the admissibility of the evidence pursuant to s 65(2), I would not have been satisfied that the evidence fell within either relevant subsection, for the reasons given in [73] and [74] above. The evidence must be excluded.
Ex. VD A.11; No 19: Section 66A is relied upon for the admission of this evidence, but it is by no means clear to me that it contains a representation made by the deceased about her “health, feelings, sensations, intention, knowledge or state of mind”. Mr Zillken referred in his statement to his own belief, rather than to any representation of the deceased, and to his own observations (“Irene appeared […]”). The Court cannot be satisfied on the evidence that there was any representation that might fall within the exceptions to the rule and the evidence is excluded on that basis. Mr Zillken can give evidence about his own observations of Mrs Jones’ demeanour at any particular period, if it is relevant, but not about his beliefs.
Ex. VD A.11; No 20: Reliance is placed upon s 65(2)(b) and (c) to admit this evidence. I cannot be satisfied that either sub-section is engaged. It is not possible on the evidence to say that the representation was made “shortly after” the asserted fact occurred, bearing in mind that the phrase is most likely to refer to a period of hours rather than one of days or weeks. Mr Zillken spoke to Mrs Jones when he happened to see her when walking his dog past her property, or if he encountered her at the shops. It seems that these encounters were by chance rather than design and it is not possible to say when or with what frequency they took place. They may have been daily, but it seems unlikely that Mrs Jones would always be in her front garden when Mr Zillken was passing, or that the two would always shop at the same time and same place. It is more likely that their encounters were sporadic. The evidence cannot be admitted pursuant to s 65(2)(b).
For the reasons given at [74] above, the Court cannot reach a positive conclusion that the circumstances of the relevant discussion or discussions were such as to make it highly probable the representation was reliable. This evidence must be excluded.
Ex. VD A.11; No. 21: The Crown relies upon s 65(2)(b) and (c) but, for the reasons given at [74] and [77] - [78] I cannot conclude that the evidence falls within either of the exceptions to the hearsay rule, and it must be excluded.
Ex. VD A. 12; No. 22: The Crown relies upon both s 66A and s 65(2)(b) and (c) to admit evidence of Mrs Jones’ representation that she was going to change her will and leave her house to charity. For the same reasons given in [74] and [77]- [78] I do not regard this evidence as admissible pursuant to s 65(2)(b) or (c). The evidence of the representation as to Mrs Jones’ intention to change her will and leave her house to charity lacks detail and it is difficult to relate it in time to the formation of the intention. It cannot fall within the exception provided by s 66A in my conclusion and is excluded.
Ex. VD A.12; No. 23: The Crown relies upon s 65(2)(b) and (c) to admit this evidence. For the same reasons given in [74] and [76]- [77] I do not regard it as admissible under either subsection.

Ex. VD A.11; No. 24: Section 66A is the basis upon which the Crown seeks to lead this evidence, arguing that the deceased had been led to believe in some way that Camelo was returning to Colombia, and she was happy about that fact. The Crown argues that this evidence is of Mrs Jones’ state of mind, but I am conscious of the limitation that applies to s 66A by the operation of s 62. Pursuant to s 62 the previous representation must be one that was made by a person who had personal knowledge of an asserted fact. That personal knowledge can only be derived from the individual’s own perceptions, and not from a representation made by another person.
The fact asserted by Mrs Jones is in two parts: that Camelo had returned to Colombia; and that Mrs Jones felt happy about that. There is no evidence that would allow the Court to conclude that Mrs Jones had personal knowledge of Camelo’s departure for Colombia to be drawn and the representation cannot properly be regarded as first-hand hearsay in my opinion. On that basis that part of the representation must be excluded.
Whilst the representation as to Mrs Jones being happy that Camelo was leaving the country does fall within s 66A, it being a representation about feelings or state of mind about which Mrs Jones had personal knowledge, contemporaneous to the experience, the evidence is meaningless without reference to the source of the happiness, and I would exclude it pursuant to s 135(b) of the Act as its probative value is substantially outweighed by the danger of it confusing a jury.
Ex VD A.11: No. 25: The Crown relies upon s 65(2)(b) and (c), and s 66A, to argue for the admissibility of a representation that Mrs Jones was security conscious following a break-in. It is important to be clear as to particularisation of the representation. Mr Zillken refers to Irene having mentioned a break-in of a neighbouring property that occurred some time prior to his becoming acquainted with her in February 2001. There is no information as to when the break-in occurred relative to the timing of the conversation in which Mrs Jones referred to it, and her consequential consciousness of security.
The asserted fact, as I understand it, is that Mrs Jones was security conscious and always careful to lock her home. If that is so, that is a state of mind that it is reasonable to conclude was a continuing one, and thus that the representation about it was contemporaneous with the existence of the state of mind. The evidence is admissible in that way pursuant to s 66A.
Ex. VD A.13; No. 27: I do not understand there to be any real issue about this evidence since it can be regarded as favourable to the accused. If the evidence is disputed, it is in my conclusion admissible pursuant to s 66A, since it is a representation by the deceased as to her fear of Paolo Camelo - a state of mind - made contemporaneously with the existence of the state of mind.
Ex. VD A.13; No.28: Although the Crown in its written submissions argued for the admissibility of this evidence pursuant to s 66A, in oral submission the Crown did not press for its admission. It is not further considered.
Ex. VD A.13; No. 29: I am not persuaded that this evidence falls within any of the exceptions to the hearsay rule. It is not possible to place the representation within a time frame relevant to the occurrence of the asserted fact, and s 65(2)(b) cannot apply on that basis. The Court cannot be positively satisfied that the circumstances of the making of the representation are such as to make it highly probable that the representation is reliable for admission of the evidence pursuant to s 65(2)(c), since the evidence gives very few details of those circumstances, including the terms of the representation, about which Mrs Bunter is very vague. The evidence should be excluded.
Ex. VD A.13; No. 30: There were several representations made by the deceased to Margaret Bunter on or before 2 November 2001 that the Crown argues are admissible pursuant to s 66A and s 65(2)(b) and (c). The representations are:

that the deceased intended to go out for dinner that evening with the accused;

that Carlos had left the country;

that the accused was happy about his departure;

that the deceased was happy about his departure;

that the deceased had written a letter to further his departure; and

that the deceased wanted Camelo away from the accused.

The first of the representations is a contemporaneous assertion as to an intention the deceased held, and it is admissible pursuant to s 66A.
The second refers to an asserted fact of which, on the evidence, the deceased had no personal knowledge. It is not first-hand hearsay and is not admissible as an exception to the hearsay rule pursuant to either s 66A or s 65(2) of the Act. The same conclusion must be reached with respect to the third representation. These two pieces of evidence must be excluded.
The fourth representation is as to the deceased’s state of mind or feelings at a time contemporaneous with the feelings or state of mind, and is admissible pursuant to s 66A; however, unanchored from the matter giving rise to the deceased’s happiness, it is deprived of any real probative value. I would exclude it pursuant to s 135(b) of the Act, since the danger of the jury being confused by the evidence well outweighs any probative value the evidence might be said to have.
The fifth representation relates to a conversation prior to 2 November 2001 (“She had told me before […]”) in which the deceased asserted that she had “written a letter to get him out of the country”. There is no clear evidence as to when the letter was written. The Crown referred to Ex. VD A.36, a letter dated 11 September 2001, directed “To Whom it May Concern” and signed by Mrs Jones, arguing that this is the letter to which the deceased referred. The Crown’s submission is that the letter, which is a positive character reference for Camelo, was provided by Mrs Jones for use by him in a criminal prosecution, in the hope that his criminal case would be resolved and Camelo would then leave the country. That is not a conclusion the Court can draw from the content of the document, or by reference to any other evidence tendered on this issue. It is not an obvious inference.
Looking at the representation through the prism of s 66A and s 65(2), there is no satisfactory evidence that brings the statement within either s 66A or s 65(2). It is not a previous representation about the deceased’s health, feelings, sensations, intention, knowledge or state of mind. It cannot be said that the representation was made shortly after the occurrence of the asserted fact, since it is not known when the unidentified letter was written or when the representation to Mrs Bunter was made. There is so little information about the circumstances in which the representation was made that the Court cannot conclude that it is highly probable that it is reliable. Evidence of this representation must be excluded.
The sixth representation is admissible pursuant to s 66A in my view, because it is a representation as to the deceased’s state of mind, her desire or wish that Camelo was away from the accused, made at a time contemporaneous to her having that state of mind.
Ex. VD A.13; No 31: The Crown relies upon s 66A as a basis upon which to admit evidence of a representation by the deceased as to her state of mind, that being one of anxiety over the cessation of mail deliveries to her home. The evidence falls within the section, as it is a representation about the deceased’s anxiety over the mail made at a time when she was experiencing that state of mind. The evidence of this representation is admissible.
Ex. VD A.14; No. 32: The evidence of this representation is admissible pursuant to s 65(2)(b). The language used by the deceased, expressed in the present tense, refers to an event occurring at the time: “They want me to […]”. It can be concluded that the representation was made shortly after the occurrence of the fact asserted, likely hours or at most a day or two. The representation was made by the deceased to Mrs Bunter in a private conversation between the two women. Mrs Bunter described the friendship between she and Mrs Jones as “very close” (Ex. VD A.13). There is no evidence that would suggest Mrs Jones had any motive or reason to lie about the matter she asserted, and she was not advocating a position, or seeking to persuade Mrs Bunter on any matter. The circumstances are such as to make it unlikely that the representation is a fabrication.
The accused points to the chronology of the account given by Mrs Bunter of the representation to submit that, even if the evidence is admissible as an exception to the hearsay rule, it should be excluded because its limited probative value is substantially outweighed by the danger of unfair prejudice to the accused. The evidence as to the representation emerged in its final state only in 2019, and after Mrs Bunter had sat through the 2007 Inquest and heard the evidence of other witnesses. There must be at least some prospect that the evidence is unreliable because of that chronology. Matters of reliability, however, are for a jury to assess. In my assessment the probative value is high, since it goes to motive to murder, and is readily capable of informing the jury’s conclusion about that matter. The matters that could cast doubt upon the reliability of the evidence are known to the accused, and can be tested in cross-examination. I would not exclude the evidence under s 135(a) of the Act. It is admissible.
Ex. VD A.14; No. 33: The same considerations apply to this representation as to the representation discussed at [90(6)] and [96] above. For the same reasons there given, this evidence is admissible.
Ex. VD A.15; No. 34: This representation is a repetition of that considered at [96]. It is admissible pursuant to s 66A as a representation about a state of mind – dislike of Camelo - made in the same period of time as the state of mind existed.
Ex. VD A.15; No. 35 and No 36: This refers to the same representation as considered at [98] – [99]. The evidence is admissible for the reasons there given.
Ex VD A.16; No. 37: The Crown seeks to admit this evidence pursuant to s 66A and s 65(2)(b) and (c). Ms Lim met the accused in 1998 and the deceased at some time thereafter. Ms Lim referred in her statement to speaking often with Mrs Jones by telephone, but Ms Lim did not give details of any particular conversation, or any particular representation. The account given in [7] of her statement is in summary form and very general. It is not such as to permit any conclusions to be reached concerning the precise terms of the representations or when they were made. Nothing can be determined about the circumstances in which the representations were made other than that they were given during telephone conversations. It is not possible to be satisfied of any of those things required to conclude that the evidence is admissible under Division 2 of Part 3.2 of the Act. The evidence must be excluded.
Ex. VD A.17; No. 38: Jason Berryman gives evidence of representations made by the deceased on what is likely to have been Christmas Day 2000, after a dinner hosted by Mrs Jones to celebrate the occasion. It is clear from [9] of Mr Berryman’s statement of 16 November 2001 that the accused and Carlos Camelo were present at the dinner with Mrs Jones and Mr Berryman and his girlfriend. Mr Berryman noted the tension between Camelo and Mrs Jones, and set out a conversation after the meal when the deceased described her feelings for Camelo, her belief that Camelo was using the accused for money, and that he wanted her to sell her house to fund his purchase of a construction business. The Crown relies on both s 66A and s 65(2)(b) and (c) to argue that these representations are admissible as exceptions to the hearsay rule.
Although it will be necessary to lead evidence of the detail of Mrs Jones’ representations concerning her feelings for Camelo in direct speech insofar as that is possible, the evidence is admissible pursuant to s 66A as a representation of the feelings or state of mind of the deceased, made at a time when she held them. If necessary, the terms of the representations can be initially obtained in the absence of the jury. For the same reasons the balance of the representations made in that conversation are also admissible pursuant to s 66A.
The conversations referred to in [10] of Mr Berryman’s 2001 statement are repetitive, imprecise as to content and timing, and no detail has been given of the circumstances in which the representations were made, other than that it was via telephone. Although it is understood that the accused does not object to the whole of the contents of that paragraph, where there is an objection I would not admit the evidence. It does not meet the tests in either s 66A or s 65(2) and must be excluded.
Ex. VD A.18; No. 39: This evidence on its face does not appear to be evidence of a representation. Rather, it is evidence of an observation or observations made by Mr Berryman of Mrs Jones’ demeanour. If those observations can be tied to an admissible representation such as that considered at [104], perhaps by questions asked initially in the absence of the jury, the evidence is admissible in the ordinary course, since it would be relevant to a fact in issue, and there is no obvious basis upon which to exclude it. It is not admissible pursuant to s 66A or s 65(2), in my opinion.
Ex. VD A.18; No. 40: This refers to the same representations considered at [104] – [105]. It is admissible.
Ex. VD A.19; No. 41: Noting that the Crown does not seek to admit Ms Scott’s characterisation of Carlos Camelo as “the boyfriend” – a descriptor that may be her own – this evidence is admissible pursuant to s 66A. It is apparent from the terms of the representation that it was made about Mrs Jones’ state of mind and feelings, being that she was not happy about Camelo living at her house and sleeping in the same room as the accused and believed he was using the accused for money, at the time the feelings and state of mind were held.
Insofar as it is necessary to consider any alternative bases of admissibility for the representations as to the living and sleeping arrangements, the evidence is also admissible pursuant to s 65(2)(b). The language used makes clear that the representations concerned an asserted fact extant at that time, satisfying the temporal requirement of the section. Ms Scott was a colleague of Mrs Jones and, on the evidence, the two chatted regularly when at their shared voluntary work about matters personal to them. There is nothing about the circumstances in which the representations were made that gives rise to any reason for or suggestion of fabrication, and it is unlikely the representations were a fabrication. This satisfies the second requirement of s 65(2)(b). The evidence is admissible.
Ex. VD A.19; No 42: It is apparent on the evidence that this representation was made in the period 15 October 2001 to 2 November 2001, and contemporaneity is satisfied for the purposes of s 66A. It otherwise satisfies the provision, since it concerns a state of mind or feelings held at the time – happiness from a belief that Camelo had left the country. The evidence is admissible.
Ex VD A.20; No. 44: For the same reasons as apply to No. 42 above at [111] this evidence is admissible. It is understood that the Crown does not rely upon the label used by Ms Johnson to describe Camelo.
Ex. VD A.21; No. 45: The only representation in Mrs Sheldrick’s account at [7] of her 2001 statement is that the deceased often argued with Carlos; the balance of that paragraph is surmise and (perhaps) observation and neither s 66A nor s 65(2) can apply to it. Although it may be from the language used to recount the representation Mrs Jones made it at about the time when the ongoing events were occurring, it is not possible to be positively satisfied as to the time frame. Mrs Sheldrick provides few details of the circumstances in which the representation was made, and although I think it is probable that the representation is reliable, it is not possible to be positively satisfied that the circumstances of its making mean that it is highly probable to be reliable. The evidence should be excluded.
I have reached the same conclusion about the contents of [8] of Mrs Sheldrick’s statement. The language used – “had been” – suggests events in the past, and there is no evidence to establish the relevant time frame. Mrs Sheldrick referred to the deceased as “waffling on” in the conversations, a description that allows for at least the possibility of fabrication or unreliability. Neither s 66A no s 65(2) has been satisfied and the evidence must be excluded.
Ex. VD A.22; No. 46: This evidence does not in my opinion contain a representation. It is more properly regarded as Mrs Sheldrick’s summary of the effect of events and conversations. It is not admissible as first-hand hearsay.
Ex. VD A.23; No. 47 and No. 48: It is understood that there is no dispute that the notes are in the hand of the deceased. The appearance and content of each note is consistent with the writer jotting down information or thoughts as they came to her and to that extent, I am satisfied that the note is a representation made by Mrs Jones as to matters about which she was concerned, being the financial matters recorded therein. The accused submits that the representation is not first-hand hearsay, as the contents refer in part to documents Mrs Jones had found, which could have been the source of her knowledge. That may be so, but the representation as I understand the document is as to Mrs Jones state of mind at the time she made the note – that is, money matters of concern to her. Representations about things in her mind at the time the notes were made is first-hand hearsay in my conclusion, and s 62 is satisfied. It is open to the accused to make submissions to the jury about the source of the information. The representations meet the terms of s 66A and are admissible.
Ex. VD A.24; No. 49: Mr Carling’s evidence is of representations by the deceased about her knowledge and feelings concerning the delivery and redirection of mail at the time she made the representation. The evidence is admissible pursuant to s 66A.
Ex. VD A.25; No 50: In his second statement made in 2018 Mr Sheldrick says that he was told by Mrs Jones that Carlos Camelo was sleeping with the accused in the master bedroom. She was in tears at the time. The language used is suggestive of an event occurring at the time at which the representation was made and it may be concluded to be a contemporaneous statement. It is a statement of the deceased’s knowledge at that time. Section 66 is satisfied.
Relying upon Ex. VD 3, the accused argues that, even if the evidence is regarded as hearsay falling within s 66A, it should be excluded pursuant to s 135 of the Act, as Mr Sheldrick’s account of the representation was given for the first time 17 years after the event. Ex. VD 3 is Mr Sheldrick’s statement of 3 November 2001, in which there is no reference to the representation he described in 2018. The accused argues that the probative value of the evidence is limited because of that, and she is unfairly prejudiced because she cannot fully test the evidence. It is submitted that the latter substantially outweighs the former. I accept that submission and exclude the evidence on that basis.
Rulings: The annexed table provides a ready reckoner of the rulings that have been made, by reference to exhibit and item number.

[redacted]

The Crown seeks to lead [redacted], to prove the intimate relationship nature of her relationship with Carlos Camelo at about that time, thus laying the foundation for, or otherwise supporting, its contention that the accused was obsessed with Camelo and, under his thrall, murdered her mother to secure monies for his use or benefit.

The Evidence

[redacted].
[redacted].
Ms Parton said that, in late September that year, the accused complained of [redacted] being generally unwell. [redacted]. A few days after that conversation the accused took a day away from work, saying that she was having day surgery on a kidney.
[redacted].
Giving details as if in a hypothetical, the accused said [redacted] (Ex. VD D.3). She went on to say, in response to Ms Parton’s questions, that her friend was a member of a church, although not the church both women worked for and, [redacted], she had felt that she had no other option. She described her friend as “getting teary and sad” if she went into a store [redacted].
Ms Parton thought the accused looked on the verge of tears, and she “broke down” a little when referring to her fears for her friend because of what others [redacted].
[redacted].
[redacted].
She denied discussing the matter with any work colleagues in 2001, even in the guise of a hypothetical situation. She said she did not recall speaking with Nadia Parton about the subject.

Submissions

The Crown submits that the hypothetical scenario given by the accused to Ms Parton recounted her own circumstances and [redacted]. It would be submitted to the jury that the accused was not being truthful in what she said to the police in 2019 and she was, as she had always, endeavouring to keep the relationship with Carlos a secret.
The Crown contends that this evidence is capable of supporting its case in that it tends to prove that the accused was in an intimate sexual relationship with Camelo in 2001, as the Crown asserts, this being relevant generally to motive to murder.
The accused objects to the evidence as irrelevant, in that it can say nothing about a fact in issue, being the nature of her relationship with Carlos Camelo. The accused also relies upon s 137 of the Act, arguing that the negligible probative value of the evidence is outweighed by the danger of unfair prejudice to her, occasioned by the possibility that jurors would be prejudiced against her [redacted].

Determination

[redacted] Camelo, although that is not the only available inference.
[redacted].
[redacted].

Determination

That inference is open, and I accept that the evidence [redacted], in that it is capable of supporting the Crown’s case about the nature of the relationship between the accused and Camelo.
[redacted].
The probative value of the evidence is not high in my view.
Against that limited probative value must be weighed the potential prejudice to the accused in placing this evidence before a jury.
[redacted].
Whilst a firm direction could be given to the jury, and the Court generally proceeds on the basis that jurors will obey a judge’s directions, this is a subject about which there must be a concern that at least some jurors would not view a direction of that nature as determinative. [redacted].
In my conclusion, there is a very real risk of unfair prejudice to the accused if this evidence is admitted. Some jurors might be prejudiced against the accused [redacted]. This is one of the very rare (in my opinion) situations in which the Court could not be confident that all jurors would obey directions given to deal with that possible prejudice.
Although the evidence is relevant, its probative value is outweighed by the danger of unfair prejudice to the accused, and the evidence is excluded in the exercise of the Court’s discretion.

**********

Decision last updated: 16 December 2022

Medium Neutral Citation:	R v Camelo-Gomez (No 2) [2022] NSWSC 211
Hearing dates:	28 February 2022, 1 and 2 March 2022
Date of orders:	3 March 2022
Decision date:	03 March 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. See reasons, and the schedule annexed to this judgment as to admissibility of hearsay evidence 2. Evidence as to [redacted] is excluded
Catchwords:	CRIME – trial – pre-trial hearing to determine admissibility of disputed evidence – hearsay evidence
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Azizi v The Queen [2012] VSCA 205 Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454 Prasad v R [2020] NSWCCA 349 R v BD (1997) 94 A Crim R 131 R v Camelo-Gomez [2022] NSWSC 136 R v Grogan & Slacke (No 1) [2013] NSWSC 1191 R v Kuzmanovic [2005] NSWSC 771 R v Ryan [2020] NSWSC 1394 R v Singh (No 4) [2021] NSWSC 75 R v Tarantino [2019] NSWSC 939 R v Toki (No. 3) [2000] NSWSC 999 Sio v The Queen [2016] HCA 32; 259 CLR 47 Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490
Category:	Procedural rulings
Parties:	Regina Isabela Carolina Camelo-Gomez
Representation:	Counsel: D Scully & G Steedman (Crown) B Rigg SC & C Wasley (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Accused)
File Number(s):	2019/298987
Publication restriction:	Nil.