R v Afu; R v Caleo (No 2) [2017] NSWSC 1781

Supreme Court New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 2) [2017] NSWSC 1781 Hearing dates: 5 December 20178 & 13 December 2017 (written submissions) Decision date: 18 December 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidentiary rulings made Catchwords: EVIDENCE – admissibility – criminal proceedings – two murders – hearsay – maker unavailable – representations to a friend – admissibility of various representations made by deceased wife said to be relevant to husband's involvement in the murder of herself and the earlier murder of her brother – Evidence Act 1995 (NSW), ss 65, 66A, 137 Legislation Cited: Evidence Act 1995 (NSW) ss 65(2)(b) & (c), 66A, 82, 137 Cases Cited: R v Afu; R v Caleo [2017] NSWCCA 1780 Category: Procedural and other rulings Parties: Regina Mark Richard Caleo (Accused) Representation: Counsel: Ms M Cunneen SC (Crown) Mr G Brady SC with Ms R Khalilizadeh

Solicitors: Solicitor for Public Prosecutions William O'Brien & Ross Hudson Solicitors File Number(s): 2015/34389

Judgment 1. HIS HONOUR: This judgment is concerned with the admissibility of certain evidence the Crown proposes to adduce from Ms Angela Cheah. The issue is determined on the basis of written submissions by counsel for Mr Caleo which were received on 8 December 2017 and by the Crown which were received on 13 December 2017. 2. An overview of the Crown case is to be found in my judgment on the admissibility of other evidence: R v Afu; R v Caleo [2017] NSWCCA 1780. 3. By way of overview of Ms Cheah's evidence, she had known the deceased, Ms Rita Caleo, since school days in Malaysia. Her statement dated 21 November 1990 sets out certain conversations Ms Cheah says that she had with Ms Caleo in 1989 and 1990 and observations that she made of Ms Caleo that are said by the Crown to be relevant to the murder of Ms Caleo's brother, Dr Michael Chye, on 16 October 1989 and of Ms Caleo herself on 10 August 1990. As there is no dispute that both deceased were killed as a result of murder (only the identity of those responsible is in issue) I will refer to them respectively as the "first murder" and the "second murder". 4. I will deal with the admissibility by reference to paragraph numbers in Ms Cheah's statement and, where necessary, by the numbering of sentences within paragraphs as set out in an annexure to the written submissions on behalf of Mr Caleo. (I need to be more explicit in relation to paragraph 15 because the written submissions of both parties are inconsistent as to the numbering of sentences.)