Supreme Court New South Wales Medium Neutral Citation: R v Afu; R v Caleo (No 14) [2018] NSWSC 224 Hearing dates: 27 February 2018 Decision date: 28 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence inadmissible Catchwords: EVIDENCE – discretions – exclusions of evidence – where accused told former wife he had "open relationship" with friend of deceased ex-wife – where Crown contended evidence relevant as evidence of affair and motive – where asserted lie that relationship was "open relationship" also proposed to be used as credibility evidence – whether possibility of evidence of lie being used in relation to credit would give rise to risk of unfair prejudice that outweighed probative value – evidence significant to motive – asserted lie would not be admissible solely for credibility purpose – evidence admitted EVIDENCE – discretions – exclusions of evidence – where accused lied by saying murdered wife had died of cancer – where Crown proposed to lead evidence as relevant to credit – whether jury might give evidence undue weight or see it as evidence of bad character – lie not substantial enough to impact credibility – lie of minimal probative value – danger of misuse by jury despite directions – evidence excluded Legislation Cited: Evidence Act 1995 (NSW) s 137 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: Objection is taken to two aspects of the evidence the Crown proposes to adduce from Ms Maria Caleo. Admission of affair between Mr Caleo and Ms Janice Yap prior to the death of Ms Rita Caleo 1. Ms Caleo's statement dated 10 September 2014 includes that she met the accused Mark Caleo in 2002 when he was a used car salesman and she was a customer. He contacted her after she purchased a car from him and they began courting. They were married in 2003. 2. Objection is taken to the following evidence in paragraph 7 of Ms Caleo's statement: "While we were courting, Mark and I spoke about our past relationships. Mark told me that he was once married to Rita CALEO and another Japanese lady named Yuko. Mark told me that while he was married to Rita, he was seeing a lady named Janice. Mark told me that he and Rita had an open relationship and that Rita knew about it. Mark told me that Rita and Janice knew each other." 1. There is already evidence in the trial to the effect that Mr Caleo was having an affair with Ms Janice Yap in 1990 prior to the murder of his wife, Ms Rita Caleo, on 10 August 1990. There is also evidence that subsequently he was in a relationship with Ms Yap. I understand the former to be disputed but the latter acknowledged. There is also evidence that Ms Rita Caleo came to hear of her husband's infidelity with Ms Yap and was distressed about it. Submissions 1. The Crown Prosecutor said (T1146.11): "The point about that is the Crown will say that it wasn't an open relationship and so he is being dishonest about that, but it is an admission that he was seeing the lady named Janice during the life of the marriage." 1. The Crown submitted that the evidence of the affair was relevant to a motive in Mr Caleo to have his wife killed (T1147.41). 2. A basis of the objection to this evidence was that the Crown would rely upon it as evincing a consciousness of guilt. That was disavowed by the Crown Prosecutor but she immediately said that it was relevant to Mr Caleo's credit (T1147.47). That simply strengthened the basis for the objection in the submission of Mr Brady SC. 3. Mr Brady accepted that the evidence was relevant to the question of whether Mr Caleo was having an affair with Ms Yap. But the possibility of the evidence of a lie having been told by Mr Caleo being used in relation to his credit was submitted to amount to unfair prejudice that outrweighed its probative value (T1148). 4. In reply, Ms Crown submitted that the probative value of this evidence was elevated beyond that which has emanated from witnesses who had given evidence of having observed things from which it might be concluded there was an affair between Mr Caleo and Ms Yap prior to the death of Ms Rita Caleo. This was evidence of an admission by Mr Caleo himself, one of the participants in the affair (T1149.45). Ms Crown disavowed that the evidence was to be adduced solely on the basis it was relevant to Mr Caleo's credit (T1150.5). Determination 1. It seems to me that the claim by Ms Maria Caleo that the accused Mark Caleo said that while he was married to Rita Caleo "he was seeing a lady named Janice" is an allusion to an affair but is fairly vague about it. The accused's relationship with Ms Yap could appear to the jury to be a more significant one if they were to hear evidence that Mr Caleo had described his relationship with his then wife as an "open" one, connoting that it was a relationship that allowed for intimate emotional and sexual relationships with other persons. 2. I am satisfied that it would be open to the jury to regard the evidence in this way. On the assumption that it was viewed in that way, this is of significance in relation to the Crown's theory of motive. 3. As a general proposition, it is open to the Crown to lead evidence of a lie told by an accused that is relevant to the accused's credibility although not being a basis to infer that it evinces a consciousness of guilt. In this case there is already before the jury various claims by Mr Caleo that he had no involvement in the deaths of Dr Michael Chye and Ms Rita Caleo. The Crown is entitled to challenge the credibility of those assertions by leading evidence of lies told by the accused. However, I am doubtful that the asserted lie in this instance (that there was an "open relationship") would be admissible solely for that reason. The disavowal by the Crown Prosecutor of that intention but her reliance upon the evidence to strengthen the motive theory means that such doubts may be put aside. 4. I indicated at the conclusion of submissions that I would allow this evidence. That was on the basis that I was satisfied that the probative value of the evidence was not outweighed by a danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW). Lie told by Mr Caleo that Ms Rita Caleo died of cancer 1. Ms Maria Caleo said in paragraph 9 of her statement: "In relation to Rita, Mark told me that she had died of cancer. Being in the medical field, I knew that once someone was diagnosed with cancer, it was a horrible situation; I sympathised with him and didn't ask any more questions about Rita's death." 1. It is relevant to mention what occurred subsequently in relation to this. In paragraphs 15 to 17 of Ms Maria Caleo's statement she said: "It was around this time in 2004, I remember being in the garage of our Prestons home. I found a piece of paper on the garage floor directly next to a door that lead into the house. The paper was completely blank other than some handwritten words. I can't remember exactly what the words were but I'm sure it had something to do with Rita being killed. It was A4 size and folded over a number of times. I immediately went inside the house and accessed Google where I discovered that Rita CALEO was actually murdered. I almost died and freaked out. I started fearing for my life. I feared that if Mark had lied to me about Rita CALEO's death then I was at risk of being killed. On this same day, Mark came home at night from work. I showed him the piece of paper. Before I could say anything, Mark snatched the paper from me. I said words similar to, "What can you tell me about that? You told me your wife died of cancer and that's not the case. She was killed at your house at Double Bay. Did you kill her?" Mark said, "Don't be ridiculous." I said, "If you didn't kill her, why did you tell me that she died of cancer and you didn't tell me that she was murdered at your place?" Mark didn't reply and I walked away from him. I remember becoming really scared of Mark. I didn't know what to do. I was financially committed to him." 1. During the course of submissions, the Crown Prosecutor accepted that there was such prejudice in the evidence in paragraphs 15-17 that she would not press for its admission, but would press for the admission of the evidence contained in paragraph 9. Submissions 1. Mr Brady SC submitted that the evidence of Mr Caleo telling Maria Caleo that Rita Caleo died of cancer could not be used as evidence of Mr Caleo having a consciousness of guilt (T1146.37). Even if it could, the probative value would be outweighed by the danger of unfair prejudice: s 137 of the Evidence Act. That prejudice was said to be that the jury might consider that Mr Caleo was attempting to garner sympathy from Ms Maria Caleo at an early stage of their relationship. The jury might give the evidence too much significance or see it as evidence of bad character on Mr Caleo's part (T1146.45). 2. The Crown Prosecutor submitted that she was not proposing to lead the evidence in paragraph 9 as evidence of consciousness of guilt but only because it went to Mr Caleo's credit (T1147.47). Determination 1. The evidence in question is to the effect that Mr Caleo told a girlfriend in about 2002 that one of his former wives died 12 years earlier of cancer. The undeniable truth was that Ms Rita Caleo had been murdered. That is a significant circumstance connected with the alleged offence but telling the truth (i.e. that Ms Caleo's cause of death was an act of murder rather than illness) would not implicate Mr Caleo in the offence with which he is charged. Accordingly, the Crown Prosecutor was correct, with respect, to recognise that this evidence was not capable of supporting an inference of consciousness of guilt. 2. Leading the evidence solely on the basis that it is relevant to Mr Caleo's credit is problematic. There is no doubt that the statement to Maria Caleo amounted to a lie. However, it is not one of such significance that it could have any weighty impact upon Mr Caleo's credibility. It was a single statement; it was made about 12 years after Ms Rita Caleo's death; it is difficult to conceive of a purpose in telling the lie aside, perhaps, from the suggestion that it was to garner some sympathy from Ms Maria Caleo; and it was a matter about which the truth as to the cause of death could not be regarded as harmful to Mr Caleo in terms of his relationship with Ms Maria Caleo. In short, although it was a lie, it was quite a silly one. 3. In my assessment, the probative value of the evidence is negligible. I accept that there is a danger that the jury could misuse it despite directions to the contrary. The evidence is inadmissible. ********** 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