R v Afu; R v Caleo (No 6)

1. [1]

   HIS HONOUR: The Crown has given notice pursuant to s 67 of the Evidence Act 1995 (NSW) that it intends to adduce evidence of previous representations made by two witnesses who are not available to give evidence. An objection was taken by counsel for Mr Caleo to the admissibility of the evidence of representations made by one of those witnesses, the late Mr Peter Henderson, and that is a subject dealt with in this judgment. The Crown is yet to determine whether it will rely upon the representations made by the other witness so that issue (if it be one) was left in abeyance.

2. [2]

   No issue was taken on behalf of Mr Caleo as to the notice requirement or that Mr Henderson is deceased and is therefore “not available" within the meaning of that term in the Dictionary (cl 4 of Pt 2) to the Evidence Act.

3. [3]

   Counsel for Mr Caleo also objected to the admissibility of certain assertions made by a number of witnesses who are available to give evidence and this judgment deals with those objections as well.

4. [4]

   An overview of the Crown case is to be found in R v Afu; R v Caleo [2017] NSWSC 1780. It is convenient to restate that Mr Afu is charged with the murder of Ms Rita Caleo at Double Bay on 10 August 1990 and Mr Caleo is charged with soliciting the murders of Dr Michael Chye at Woollahra on 16 October 1989 and Ms Caleo on 10 August 1990.

Representations of the late Peter William Robert Henderson (statement 8 December 1989)

1. [5]

   Mr Peter Henderson is deceased and the Crown seeks to adduce certain representations contained in a statement he made on 8 December 1989.

2. [6]

   The Crown seeks to adduce evidence of the following in [5] and [7] of the statement respectively:

3. [7]

   The Crown submitted that the evidence was admissible pursuant to s 65(2). The Crown referred to evidence from other sources (e.g. Ms Margaret Williams) which was to the same effect, namely that Dr Chye had referred to Mr Caleo as "a bastard" and that he had said that his brother-in-law's cheque had "bounced" (e.g. Mr James Wilkinson).

4. [8]

   The Crown submitted that the representations were made at a time when it was likely to be true (s 65(2)(b)). If Mr Henderson was alive he would have been able to give evidence of what Dr Chye had said to him. The Crown Prosecutor at first said that there was no need for me to be concerned with the truth of the representation, but then agreed that the jury would be asked to accept that it was the truth by reason of the fact that it was consistent with the evidence of other witnesses.

5. [9]

   The Crown Prosecutor accepted that the evidence would be admissible as evidence of the truth of what Mr Henderson had asserted, namely that Dr Chye had said what Mr Henderson claims, but that it would not be evidence of the truth of what Dr Chye asserted.

6. [10]

   Mr Brady SC submitted that the second passage quoted above (from [7] of the statement) was second-hand hearsay in that the jury would be asked by the Crown to accept the truth of the asserted representation made by Dr Chye to Mr Henderson. This required reliance upon Dr Chye having told the truth to Mr Henderson. He submitted that the fact that there was evidence available from other witnesses was irrelevant.

7. [11]

   Mr Brady accepted for the purposes of dealing with this issue that the other witnesses would give evidence of Dr Chye making similar representations to them. He also accepted that such evidence would be available as evidence of the truth of what Dr Chye asserted. However, Mr Brady contended that the evidence that Mr Henderson had said that Dr Chye had made similar representations to him could only be used as supporting the evidence of the other witnesses if it was used as evidence of the truth of what Dr Chye had asserted to Mr Henderson.

8. [12]

   The evidence of the representations made by Mr Henderson as to what Dr Chye had said to him is admissible.

9. [13]

   The fact that Dr Chye said what appears in [7] is relevant to there being disharmony and angst between the parties in relation to the property transaction. This may be derived from the fact that Dr Chye made the representation to Mr Henderson as his statement asserts. It is not admissible solely as evidence of the truth of the fact said to have been asserted by Dr Chye. Moreover, the evidence that Dr Chye made the statements that Mr Henderson set out in his statement is capable of confirming the evidence of the other witnesses who are expected to say that Dr Chye made the same types of representations to them. In other words, it is more likely that he made the representations to the other witnesses if he also made similar representations to Mr Henderson.

10. [14]

    No specific submission was made by Mr Brady in relation to what appears in [5] of Mr Henderson's statement but it is admissible on the same basis.

Evidence of Dr Geoffrey Thompson (statement 22 January 2015)

1. [15]

   The Crown relies upon the following paragraphs of Dr Geoffrey Thompson's statement of 22 January 2015:

2. [16]

   Mr Brady did not articulate any objection to the evidence in [22]-[23], [27] or [42]. In relation to the evidence in [47], the Crown Prosecutor indicated that it was "a small piece of evidence"; she would not open on it; and that if she intended to rely upon it the issue could be resolved at the time Dr Thompson was called. Accordingly, the only objection to be determined is that relating to the evidence in [25].

3. [17]

   In relation to what appears in [25] of the statement, Mr Brady contended that for it to be admissible this has to be evidence of the truth that Mr Caleo intended to kill Dr Chye. If it was not used as evidence of the truth it had no probative value.

4. [18]

   The Crown Prosecutor submitted that it was the fact that Mr Caleo made the representation by itself that had probative value as it amounted to a threat. It was not a matter of adducing evidence of the representation in order to establish its truth.

5. [19]

   The Crown is not attempting to establish the truth of a fact asserted by Mr Caleo but simply that he said what Mr Henderson said that he said. It is evidence of Mr Caleo making a threat. It has probative value in that the jury could regard it as rationally affecting the assessment of the probability of the existence of a fact in issue in the proceeding, namely whether Mr Caleo solicited the murder of Dr Chye. No submission was made that the evidence should be excluded pursuant to s 135 or s 137 of the Evidence Act.

6. [20]

   The evidence of the representation made by Dr Thompson in [25] of his statement is admissible.

Evidence of Ms Susan Thompson (statement 11 December 1989)

1. [21]

   Ms Susan Thompson was a lawyer and the sister of Dr Geoffrey Thompson and, through him, came to be a friend of Dr Chye.

2. [22]

   The Crown indicated reliance upon the majority of what appears in [5] and [7] of Ms Thompson's statement of 11 December 1989. The portions of [5] that are pressed by the Crown may be summarised as follows.

3. [23]

   The Crown also pressed for the admissibility of what appears in [7] which may be summarised:

4. [24]

   Mr Brady specifically objected to the comment by Ms Thompson to Dr Chye that Mr and Ms Caleo had no choice but to proceed with the purchase etcetera. It was simply an expression of her opinion.

5. [25]

   Mr Brady also referred to the representations said by Ms Thompson to have been made by Dr Chye about being "scared of being assaulted or murdered" and the like. He accepted that they may be admissible pursuant to s 66A but submitted they should be excluded pursuant to s 137 "because there is nothing … that points to any direct fear in relation to Mr Caleo". The unfair prejudice was that the jury may reason from the fact that Dr Chye made such a generalised statement and from the fact that he was subsequently murdered that "it must have been Mr Caleo". Nothing in this evidence pointed to Dr Chye being in fear of Mr Caleo.

6. [26]

   As to the content of [7] that the Crown seeks to rely upon, Mr Brady simply submitted that "if the Crown want to lead it and show there is some relevance, then I don't have a difficulty with it".

7. [27]

   The Crown Prosecutor submitted, in effect, that the evidence in [5] must be seen in the context of Dr Chye in this period of time expressing concern over the problems with the property transaction with Mr and Ms Caleo; his stated intention to sue them; and the threat Dr Thompson will give evidence about, Dr Chye having said that Mr Caleo threatened, "If you don't stop pushing, you are going to find yourself dead" (which I have held is admissible).

8. [28]

   The comments made by Ms Thompson which amounted to an expression of her opinion about the progress of the property transaction between Dr Chye and Mr and Ms Caleo are not relevant and therefore not admissible.

9. [29]

   Otherwise as to the content of [5] of Mr Thompson’s statement that is pressed by the Crown, I am satisfied that it is admissible. I have held that evidence of Dr Thompson that Dr Chye said he had been threatened with death by Mr Caleo is admissible. Evidence that Dr Chye expressed fear to Ms Thompson of being assaulted or murdered supports Dr Thompson’s evidence in that respect.

Evidence of Ms Denise Gardner (statement 27 January 2015)

1. [30]

   Ms Gardner was the wife of Dr Thompson. The Crown specifically pressed for the admission of the following evidence:

2. [31]

   Mr Brady objected to the evidence in [21] that Dr Chye had said that “they were upset because they were family and [Dr Chye] was treating it as a legally binding contract”. It was submitted that for this to be admissible it would have to be evidence of the truth of the fact asserted and it could not be. The same submission was made with respect of [22]-[24].

3. [32]

   Objection was also taken to [31] and [34]-[35] pursuant to s 137.

4. [33]

   The evidence in [21] to which objection was taken is admissible on the basis that the fact that Dr Chye said this (aside from the truth of it) is relevant to the overall disharmony and angst between Dr Chye and Mr and Mrs Caleo in relation to the property transaction.

5. [34]

   Evidence of Dr Chye’s assertions that threats were being made by Mr Caleo and vice versa ([22]-[24]) are relevant on the same basis and generally. It is not evidence as to the truth of the assertions by Mr Caleo, as Mr Brady seemed to contend, but simply of the fact that such things were said by Mr Caleo.

6. [35]

   The evidence in [31] is of marginal significance in that it tends to confirm the disharmony between Dr Chye and Mr and Ms Caleo in the time leading up to Dr Chye’s death. I do not see any unfair prejudice so it is admissible.

7. [36]

   The evidence in [34]-[35] is admissible (with the removal of the sentence commencing "I felt relieved" and of the words "In my mind" that the Crown Prosecutor said she would not adduce). The balance is relevant, capable of confirmation in other evidence I would expect, and accordingly uncontroversial. Again, I do not see any unfair prejudice arising.

Evidence of Mr James Wilkinson (statement 13 April 1990)

1. [37]

   Mr Wilkinson was a friend of Dr Chye and through him he had met Mr and Ms Caleo. He was aware of the purchase by Dr Chye of the Blakehurst property and the subsequent sale of part of it to Mr and Ms Caleo.

2. [38]

   Mr Brady objected to the following portions of Mr Wilkinson’s statement:

3. [39]

   Mr Brady said that the same arguments applied to this evidence as to other evidence of threats said by Dr Chye to have been made by Mr Caleo.

4. [40]

   For the same reasons as I have held that evidence of other witnesses as to threats Dr Chye said had been made by Mr Caleo, this evidence is admissible.