R v Camelo-Gomez (No 4)

[2022] NSWSC 309

Supreme Court

New South Wales

Medium Neutral Citation:	R v Camelo-Gomez (No 4) [2022] NSWSC 309
Hearing dates:	21 March 2022
Date of orders:	21 March 2022
Decision date:	21 March 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	See [18]
Catchwords:	CRIME – TRIAL – murder – hearsay evidence – non-hearsay purpose - question of admissibility of evidence of portions of an interview of a witness – lies – consciousness of guilt - question of prejudice to the accused - whether probative value outweighed by prejudicial effect
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Eastman v The Queen (1997) 76 FCR; 158 ALR 107
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):	2019/298978
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. An issue has arisen in the course of the trial of the accused which was addressed this morning as to the admissibility of portions of an interview conducted on 3 November 2001 between investigating police officers and Carlos Camelo. Mr Camelo is the person that the Crown alleges was involved in an intimate relationship with the accused and it is substantially for his benefit that the Crown alleges that the accused murdered her mother, to gain access to her mother's estate and thereby financially support and assist Camelo. When Mr Camelo was interviewed on 3 November 2001, he was interviewed as a witness, although he was asked about his relationship with the accused at that early stage.

2. The parties have, commendably, agreed upon almost all the portions of the interview of 3 November and a second interview from 29 November 2001 that are to be tendered before the jury. There are only two discrete portions where there is a dispute and which this Court is asked to rule upon. Both portions appear in the first interview. They are questions and answers 35 through 42, appearing on pages 4 and 5 of the transcript, and questions and answers 42 through 47, appearing on pages 31 and 32 of the transcript. The enumeration of the questions and answers has gone awry in the interview and some numbers appear twice. It is the second appearance of those numbered questions and answers which is in dispute.

3. The accused wishes to adduce evidence in portions of this interview that go to establish what Camelo said about his whereabouts and movements on the night of 2 November 2001. It is the accused's case that what Mr Camelo said in those questions and answers was a lie, and it will ultimately be submitted to the jury that Mr Camelo lied to the police because he was conscious of his own guilt of the murder of Mrs Jones and wished to throw police off his trail.

4. The Crown seeks to rely upon section 65(9) of the Evidence Act 1995 (NSW) with respect to two aspects of the interview to address the matters raised.

5. Starting firstly with questions and answers 35 to 42, on pages 4 and 5, those portions of the interview which the accused seeks to admit under the hearsay provisions of section 65, are those in which Mr Camelo asserts that he and the accused were good friends and relatives through the accused's marriage to Mr Camelo's brother. He gives an account of having stayed at the accused's home and, importantly from the accused's perspective, is his account of having just moved out recently from the accused's home, which is part of the answer to question 42. The accused relies upon that evidence to answer forensic evidence available to the Crown in the trial which is capable of placing Mr Camelo in the Jones household shortly before or about the time of Mrs Jones' murder and, because of the nature of some of the forensic evidence, in a sexual relationship with the accused. On the Crown case the forensic evidence goes to bolster the issue of motive and why the accused would murder her mother.

6. The Crown seeks to address or respond to the portion of the interview that the accused seeks to have admitted with a rather more extensive portion in which Mr Camelo gives an account of having lived at the Jones house for a period of some 18 or so months. There is other evidence to inform the accuracy of that comment and I think it is fairly clear from the balance of this interview and the interview of 29 November 2001, that Mr Camelo is not suggesting by the impugned answers that he lived continuously at the Jones household for 18 months but, rather, that he lived at the household for shorter periods within that over-arching time frame.

7. The dispute is, therefore, whether the Crown should be permitted to lead, pursuant to s 65(9), the evidence which goes to establish the whole of what Mr Camelo said on this point, including the longer period over which he says he lived at the premises, going, the Crown says, to supporting its case that the accused was in a much closer relationship with Mr Camelo than that of friends, or brother-in-law and sister-in-law.

8. The accused submits that the evidence that the Crown seeks to lead under section 65(9) is misleading, confusing to the jury and prejudicial to the accused. The evidence could be, it is submitted, misleading and confusing because of other evidence to be adduced in the trial outlined in the document admitted as exhibit voir dire 1 which contains a summary of accounts of other witnesses of observations of Mr Camelo's residence at the Jones household, that being for a much shorter period than the roughly 18 months that Camelo refers to in the impugned passages of his interview. It is submitted that it is prejudicial because, given that Mr Camelo will not appear as a witness, the accused has no way to test the account of his residence at the Jones house and no way to establish through cross-examination that his account is either a lie or inaccurate.

9. The accused submits that the Crown does not need this evidence in any event because there is other evidence going to the length of stay of Mr Camelo at the Jones household and the disputed evidence does not in truth answer the portion of the interview that the accused seeks to have admitted.

10. The question that the Court must address is whether s 65(9) applies to the evidence that the Crown would seek to adduce, that is whether it is evidence of another representation about the matter that the accused is to lead evidence of. It seems to me it clearly is. If the “matter” is the residence at the Jones household of Mr Camelo, then Mr Camelo's additional comments in the record of interview that the Crown seeks to lead are clearly on that same matter.

11. The terms of 65(9) having been met, it is then a question of whether the Court would exclude the evidence of question and answers 35 through 42 on the basis of one of the discretionary or mandatory bases for the exclusion of evidence pursuant to section 135 or 137 of the Evidence Act.

12. I accept that the accused will be affected because Mr Camelo is not present and cannot be cross-examined about specifically what he said to the police. However, in circumstances where there is both other evidence that goes to his residence at the Jones house and evidence which makes clear that his comment about his residence being something like a year and a half means intermittently over that period, and not continuously, I find it difficult to see that there is anything like the sort of prejudice that would require this evidence to be excluded. That is particularly so given that both parties make the case that Mr Camelo is someone whose honesty cannot be relied upon. The accused will suggest that he is, additionally to being a dishonest person, a murderer and, whilst the Crown's case on that point is a secondary argument, the Crown also has an argument before the jury that if the accused did not act alone in killing her mother, Mr Camelo is the likely person who assisted her as a principal.

13. Given that that is the position of both parties, if either wished to impugn the honesty of the disputed answers, it seems to me that is an approach which is readily open and which the jury would be quite likely to accept. Indeed, if one says that portions of his interviews are lies, there is really little basis to distinguish between those portions and others on the same issue of his residency at the Jones house.

14. I am not persuaded that there is prejudice such that this evidence should be excluded. I think it does come within the provisions of s 65(9) and, therefore, I would admit the portion of the interview on pages 4 and 5.

15. The disputed portion on pages 31 and 32 the Crown seeks to admit to answer portions of the interview that the accused relies upon to suggest to the jury that Mr Camelo is a liar. The accused disputes the admissibility of the evidence and argues that it does not come within section 65(9) because, whilst the accused has certainly sought to adduce evidence of things said by Mr Camelo which it will be contended are lies, that does not, in the accused's submission, open up the whole of the evidence to permit the Crown to adduce evidence of any matter which also can be said to be a lie.

16. The Crown argues that the matter that the accused has adduced goes to the whereabouts of Mr Camelo on this night to permit the accused to argue that it was in fact Mr Camelo who was or may have been a murderer. The Crown says that the lies told by him are admissible, rendered admissible through section 65(9), a section being triggered by that evidence that the accused relies upon as lies.

17. The Crown says that it is entitled under the retaliatory provisions of s 65 to adduce the evidence of Mr Camelo's asserted shock at hearing of the death of Mrs Jones, the inference being that he knew nothing about that death to be in a state of shock. The Crown relies upon the decision of Eastman v The Queen (1997) 76 FCR at [9] and specifically some comments at pages 80 to 81 of the judgment of the Court in the Australian Capital Territory. It is conceded that those comments are obiter and there does not appear to be anything to the same effect in New South Wales, but it is argued that the retaliatory provisions are wide enough to encompass the present situation, permitting the Court to admit the evidence the Crown seeks to lead. The portion at the top of page 81 of Eastman is specifically pointed to in support of that contention.

18. With respect to the second section of disputed questions and answers, I accept the submission of the accused that those matters which the Crown seeks to lead do not fall within section 65(9). It seems to me that section 65(9), whilst broad, is not so broad that it would permit evidence of these questions and answers to be led. In some ways the evidence in any event traverses at least the secondary argument that the Crown would put to the jury and there would arguably be some confusion to the jury if the evidence were permitted, but that would go to discretionary exclusion and the Court does not need to turn to that because I am not satisfied that the evidence set out on pages 31 and 32 of the interview is encompassed by s 65(9) and, accordingly, I would not permit that evidence to be led.

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Decision last updated: 16 December 2022