Supreme Court New South Wales Medium Neutral Citation: R v Afu; R v Caleo (No 13) [2018] NSWSC 222 Hearing dates: 27 February 2018 Decision date: 27 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence excluded Catchwords: EVIDENCE – discretions – exclusion of evidence – where potential witness said to have been told by accused that accused paid money to ex-girlfriend "because she knew too much" – where Crown submits that conversation could give rise to inference that accused had disclosed to ex-girlfriend of his involvement in death of victim – whether link between conversation and the murder could be inferred – little or nothing to link conversation to murder – whether danger of jury misusing evidence outweighs probative value – evidence excluded Category: Procedural and other rulings Parties: Regina Mark Richard Caleo Representation: Counsel: Ms M Cunneen SC (Crown) Mr G Brady SC with Ms R Khalilizadeh (Accused) Solicitors: Solicitor for Public Prosecutions William O'Brien & Ross Hudson Solicitors File Number(s): 2015/34389 Judgment 1. HIS HONOUR: A potential witness, Ms Theresa Bernstein, in a statement dated 25 September 2014, asserts that she had a conversation with Mr Caleo in 1995. 2. Ms Bernstein claims to have been aware that Mr Caleo had lost money. She asked Mr Caleo how he could have lost it and he is said to have replied, "I had to give it all to Janice because she knew too much." The conversation proceeds from there to the effect that Mr Caleo would never tell anyone be they either a girlfriend or a wife. Ms Bernstein pressed him and he said that he would not tell her either. 3. It seems to be common ground that the reference to "Janice" in this evidence is to Ms Janice Yap. She is not a witness in the trial. There is evidence in the trial to the effect that Mr Caleo had an affair with Ms Yap in 1990 prior to the death of his wife, Ms Rita Caleo, in August 1990 and that he was in a relationship with Ms Yap afterwards. 4. The Crown submits that the conversation set out above could give rise to an inference that Mr Caleo had disclosed to Ms Yap, or he was aware that she had become aware of, his involvement in the death of Ms Rita Caleo. 5. I am concerned that there is little or nothing to link the conversation to either of those subjects. It is equally possible to infer that there was something else personal to Mr Caleo that he was reluctant to have exposed. The flavour of it is that it was something criminal, but there is a danger that the jury might assume or speculate it had something to do with the death of Ms Caleo. The danger of the jury misusing the evidence by way of assuming or speculating without any evidence to directly tie the conversation to the death of Ms Caleo gives rise to an unfair prejudice that outweighs any probative value. 6. The evidence is excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2018