R v Afu; R v Caleo (No 3)

1. [1]

   HIS HONOUR: This judgment is concerned with the admissibility of coincidence evidence and tendency evidence in the trial of the accused Mark Caleo. It is also concerned with an application by Mr Caleo for severance of counts, so that Count 2 (solicit to murder Dr Michael Chye) and Count 3 (solicit to murder Rita Caleo) be the subject of separate trials.

Background

1. [2]

   I gave judgment dated 30 November 2017 on the admissibility of certain evidence the Crown proposed to adduce from Ms Mimi Chan and the admissibility of a letter written by the late Ms Rita Caleo on 15 May 1990: R v Afu; R v Caleo [2017] NSWSC 1780. That judgment contains an overview of the Crown case which I will not repeat. I noted in that judgment at [10] that the Crown served tendency and coincidence notices on 13 October 2017.

2. [3]

   The matter came back before me on 5 December 2017 for submissions on the admissibility of the coincidence and tendency evidence. Such submissions were not made. The Crown had served written submissions the evening before and Mr Brady, senior counsel for Mr Caleo, required time to amend his draft written submissions by way of response. Accordingly, it was agreed that oral submissions would not proceed but that the matter could be dealt with by way of the written submissions by both parties. I now have submissions by the Crown dated 4 December 2017 and those provided by counsel for Mr Caleo which are undated but which were sent to my Associate by email on 7 December 2017.

3. [4]

   Resolution of the present issue was delayed because of the need to also deal with the objection on behalf of Mr Caleo to certain evidence the Crown proposes to adduce from Ms Angela Cheah. Written submissions were received on behalf of Mr Caleo on 8 December 2017 and by the Crown on 13 December 2017. I deal with that issue in a separate judgment: R v Afu; R v Caleo (No 2) [2017] NSWSC 1781.

Coincidence evidence

1. [5]

   The coincidence rule is stated in s 98(1) of the Evidence Act 1995 (NSW) as follows:

Coincidence Notice

1. [6]

   The Coincidence Notice served by the Crown (amended following R v Afu; R v Caleo [2017] NSWSC 1780) is in the following terms:

2. [7]

   As it is expressed, the effect of the Coincidence Notice is to indicate an intention to adduce evidence that the murders of both Dr Michael Chye and Ms Rita Caleo occurred and this is intended to be done in order to prove that, because of the improbability of those murders occurring coincidentally, the accused Caleo did a particular act, namely arrange for the murders of both Dr Chye and Ms Caleo.

3. [8]

   It is a requirement for admissibility of coincidence evidence in s 98(1)(a) that "the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence". Section 99 provides that notices under s 98 (and s 97) are to be given in accordance with any regulations or rules of court made for the purposes of this section. The Evidence Regulation 2015 (NSW) provides in r 6(2) (relevantly):

4. [9]

   Counsel for Mr Caleo complained that the evidence listed in paragraph 5 of the Coincidence Notice only goes to a portion of the circumstances listed in paragraph 4 of the Coincidence Notice. It was submitted that an accused should not be required to hypothesise as to the exact evidence upon which the Crown relies for a coincidence purpose; the accused is entitled to know the evidence upon which the Crown relies for the application and the intended purpose so as to not have to guess or be taken by surprise at trial.

5. [10]

   There is some merit in this complaint. It largely derives from the pro forma approach which, in my experience, is routinely taken by the Office of the Director of Public Prosecutions in drafting tendency and coincidence notices. Following the pro forma approach, the requirement to state "the substance of the evidence" is typically done by providing a list of witness statements with reference to the numbers of certain paragraphs within them, leaving it up to the accused (and trial judges) to work out what the Crown contends is the substance of the evidence it is relying upon.

6. [11]

   Notwithstanding this complaint, counsel for Mr Caleo sought to respond to each of the items of evidence listed, as well as what the Crown says is the "crucial circumstance common to both" murders.

Assessment of admissibility

1. [12]

   The submissions of both parties followed the steps suggested by Simpson J (as her Honour then was) in R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [34] for the determination of the admission of coincidence evidence.

2. [13]

   The first two steps may be addressed briefly. The Crown submitted that the act of Mr Caleo it is seeking to prove is that he is the person responsible for soliciting each of the two murders. It says that the "two or more events" from the occurrence of which it seeks to prove this are the two murders. (CWS [12]-[15]) I assume it is meant the circumstances surrounding the two murders give rise to proof that Mr Caleo was responsible for soliciting their commission.

Similarities

1. [14]

   The third step involves identification of the similarities in the events and/or the circumstances in which the events occurred by which the Crown asserts the improbability of coincidental occurrence of the events.

2. [15]

   As to the similarities in the "events", the Crown relies upon (CWS [18]):

3. [16]

   The Crown also submits that the circumstances in which the two events occurred are "substantially and relevantly similar". It points to the following "similarities" (CWS [19]):

4. [17]

   A discussion of the asserted similarities appears below in the context of the assessment of whether the evidence has significant probative value.

Reasonable notice

1. [18]

   The fourth step described in R v Gale; R v Duckworth is to determine whether "reasonable notice" has been given of the intention to adduce the evidence. While there was a complaint about this aspect (see above at [9]) I do not understand it to have been submitted that this was a basis to exclude the evidence.

Significant probative value

1. [19]

   The fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value". In relation to this the Crown referred (at CWS [22]) to some, but not all, of the evidence obliquely alluded to in paragraph 5 of the Coincidence Notice and to some other evidence. Rather than going through the various paragraphs of the various statements listed in that paragraph of the Coincidence Notice in order to try and discern what it is that the Crown is relying upon as "the substance of the evidence of the occurrence of the events", I will confine myself to the summary provided in the Crown's written submissions as being the "the evidence" and the "other evidence already given or anticipated".

2. [20]

   The evidence relied upon by the Crown is as follows:

3. [21]

   The Crown's submissions proceed to refer to some relevant principles concerned with the admissibility of coincidence evidence (CWS [23]-[24](j)). These are followed by the following submissions (with my comments interpolated):

4. [22]

   The Crown then refers to CW v The Queen [2010] VSCA 288 as illustrative of the Crown's contention in the present case. In that case there were three deliberately lit fires at three different commercial premises on the same evening. Each of the fires caused, or was intended to cause, harm to a business associate of the applicant with whom he was in dispute. It was argued on appeal that the mere fact that all three victims were members of a class did not give the evidence any particular probative force. To the contrary, the Court (Maxwell P, Buchanan and Neave JJA) held that the evidence did have significant probative value (at [19]):

5. [23]

   I acknowledge that the Crown's reliance upon this case was simply to illustrate its argument in the present case. However, it is worth noting nonetheless that in CW there was the additional feature, and I would think in the circumstances a powerful one, that the three fires all occurred in the one town (Rosebud) on the one night (within four hours of each other). The Court observed (at [24]) that "the close proximity of time is of more significance [than similarities of the fires being lit with use of an accelerant and at the front door of commercial premises], at least in pointing to the improbability of there having been more than one arsonist active on this particular night".

6. [24]

   Finally in relation to the asserted "significant probative value" of the evidence, the Crown referred to DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 and the discussion of the significance of there being other alternative inferences arising from the evidence. The Crown submitted, "In the present case, the Crown submits that no alternative inferences undermine the otherwise probative value of the coincidence evidence".

7. [25]

   It is appropriate to make some observations about some of the points relied upon by the Crown in the Coincidence Notice as the "crucial circumstance common to both" murders.

8. [26]

   Reference is made to the murders occurring, inter alia, in "the exclusive Sydney suburbs of Woollahra and Double Bay". The relevance of the exclusivity of the suburbs in which the deceased lived is not apparent. The significance of the deceased living in relative proximity to each other is not apparent either. I doubt the Crown's argument would be any different if, for example, one lived in Hornsby and the other lived in Cronulla.

9. [27]

   Reference is made to Dr Chye intending to "embarrass and expose [Mr Caleo] as a failure" in addition to suing him and crippling him financially. I am unaware of evidence that Dr Chye was motivated to embarrass and expose Mr Caleo.

10. [28]

    In the sixth bullet point, the reference to Ms Caleo's "financial dealings with the accused which threatened financial ruin to [Mr Caleo]" appears to be, on the evidence I have been referred to, an overstatement. In any event, this sixth bullet point seems repetitive of the fourth bullet point and adds nothing aside from mention of the murders occurring within a period of 10 months. The 10 month period does not appear to have any significance either. Having regard to the Crown's reliance more upon the relationship between the accused and the deceased and the asserted financial motive for both murders, I doubt the Crown's argument would be any different if the period was much shorter or much longer.

11. [29]

    The final two bullet points are not supported by any evidence to which I was referred. There was evidence in the form of a statement listed in paragraph 5 of the Coincidence Notice by a person identified as A B Bremner which indicates that Ms Caleo and Dr Chye were potential witnesses in a fraud matter in Hong Kong. There is no mention in the statement of it concerning "billions of dollars", and there is no evidence (tendered) that Mr Caleo thought it did. Nor was there any evidence (tendered) of the deceased being the children of a police officer who targeted Malaysian organised crime figures for the majority of his career, or that Mr Caleo was aware of it. In relation to both matters, I was not referred to any evidence of Mr Caleo hypothesising anything in relation to these matters.

12. [30]

    In the written submissions, the Crown listed five matters as being the "similarities in the murders".

13. [31]

    The Crown contends that "murder by a person unknown to the deceased was, and remains, extremely rare" in "exclusive Eastern suburbs of Sydney". I was not referred to any evidence to support that proposition. And, again, the fact that the two murders occurred in the deceased's home in the Eastern Suburbs does not appear to me to be of any particular significance in all the circumstances.

14. [32]

    The assertion of the deceased being "vulnerable in that they were alone and taken by surprise at night" is simply a reference to attributes of the fact that the murders were perpetrated by an intruder into the homes of the deceased.

15. [33]

    The two deceased being siblings of each other is a matter of some substance. They were members of what was described in CW v The Queen as a "circle of persons" associated with the accused; significantly, they were both close relatives of the accused Caleo.

16. [34]

    The 10 month period between the two murders, as noted above, does not appear to be of any significance.

17. [35]

    Finally, the fact that both murders were, on the Crown case, arranged is capable of being regarded by a jury as being of significance as well. Evidence supporting this proposition in relation to the murder of Dr Chye is the evidence of Mr Stambolis that Mr Caleo said someone was "going to fix Michael … finish him off", and the admission said to have been made to Ms Okamato by Mr Caleo to the effect that he had engaged a "hitman". Moreover, the circumstances in which the murder was carried out are consistent with a “hitman” being the perpetrator. The evidence of Mr Stambolis and Cindy, together with the asserted link with banking transactions by Mr Caleo, supports this proposition in relation to the murder of Ms Caleo.

18. [36]

    The written submissions for the Crown listed five circumstances in which the murders are said to be "substantially and relevantly similar". Two are concerned with the overseas fraud and the father of the deceased's work investigating organised crime (the final two bullet points in paragraph 5 of the Coincidence Notice). I have indicated above that am unaware of the evidence that provides a foundation for these matters.

19. [37]

    The other three circumstances can be distilled to two propositions: Mr Caleo had a financial motive in relation to each murder and each deceased was in fear of being killed by him.

20. [38]

    I accept that there is evidence capable of acceptance by a jury that Mr Caleo had a lot to gain financially if Dr Chye was no longer around to pursue him in relation to the property transaction. The evidence is less clear in relation to Ms Caleo. There is evidence that he was unhappy about being forced to sign some papers and an agreement, by inference in relation to a property settlement related to a divorce, and that he was unhappy about this. However, there is no (admissible) evidence that each deceased "had expressed a fear of being killed by him to associates".

21. [39]

    The submissions by counsel for Mr Caleo refer to a number of "dissimilarities" that are said to "undercut the improbability of the coincidences relied upon by the Crown" (AWS [20]). However, the Crown does not rely upon striking similarities in the manner in which each deceased was killed. In any event, the existence of dissimilarities is expected and the focus must be upon the mode of reasoning based on the improbability that something was a coincidence and whether that improbability is undercut by the dissimilarities: Selby v R [2017] NSWCCA 40 at [24].

22. [40]

    Whatever be the strength of the improbability of explanation by way of coincidence, the dissimilarities identified are largely insignificant. Nothing turns on the fact that one murder occurred in a garage while the other occurred inside a house; that one occurred at 5.30pm and the other late at night; that one occurred as the victim was arriving home while the other occurred after the victim had been home all night; that one occurred when no-one else was in the home while the other did; that one involved the victim being shot three times while the other involved the victim being stabbed 23 times; that one indicated a level of professionalism while the other did not; that one only involved a killing while the other also involved a theft of property; or that a different person committed each murder.

23. [41]

    The submissions by counsel for Mr Caleo placed much emphasis on dissimilarities between the two murders (which I have discussed above) and on downplaying (at least) the significance of individual items of evidence. However, it is the cumulative effect of the evidence that must be the focus. It was also contended that there were alternative explanations for each of the murders which are inconsistent with the Crown's case theory. I acknowledge that this is a possibility.

24. [42]

    In my view, the strength of the evidence which points to the improbability of coincidence appears to arise from the following:

25. [43]

    Having regard to these features, it would be open to a jury to regard it as extraordinary (improbable) that the murder of two people closely related to Mr Caleo could be explained as a coincidence. In more formal terms, it could rationally affect the probability that Mr Caleo arranged both murders. Because that is the ultimate and crucial fact for the Crown to establish, I am satisfied that the evidence has significant probative value in the sense described by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457 at 459 ("important" or "of consequence") and by the plurality in IMM v The Queen (2016) 257 CLR 300 at 314 (46); [2016] HCA 14 ("influential in the context of fact-finding").

26. [44]

    The possible alternative explanations for each murder do not substantially alter my view: see DSJ v The Queen; NS v The Queen at 775 ([79]-[80] (Whealy JA). (See also Bathurst CJ at [10], Allsop P at [11], McClellan CJ at CL at [135] and McCallum J at [136]). Again, the probative value is to be assessed in the light of all of the evidence rather than looking at each murder in isolation and considering alternative hypotheses.

Probative value v prejudicial effect (s 101)

1. [45]

   In relation to s 101 of the Evidence Act (the requirement for probative value substantially outweighing any prejudicial effect), for the Crown it was simply submitted that any danger of misuse of the evidence by the jury could be cured by appropriate directions and so the evidence should not be excluded.

2. [46]

   Counsel for Mr Caleo submitted (AWS [32]-[34]):

3. [47]

   The "circular reasoning" referred to in the written submissions on the separate trial issue was as follows:

4. [48]

   It will be necessary to direct the jury as to the scope, and limits, of the coincidence evidence aspect of the Crown case. I am satisfied that it will be possible to fashion such directions in a manner that can be readily understood and applied. Further, a warning to not engage in the type of circular reasoning suggested could be given in a quite straightforward fashion and I am confident that the jury will not leap from one conclusion to another without proper consideration.

Conclusion

1. [49]

   For these reasons I am satisfied that, forecasting as best I can at this preliminary stage, the evidence has a high probative value which substantially outweighs any possible unfair prejudice it may have on the accused.

2. [50]

   The coincidence evidence relied upon by the Crown is admissible.

Tendency evidence

1. [51]

   The tendency rule is stated in s 97(1) as follows:

2. [52]

   The Tendency Notice served by the Crown (also amended following R v Afu; R v Caleo [2017] NSWSC 1780) is in the following terms:

3. [53]

   It can be seen that the same pro forma approach was taken to the formulation of the Tendency Notice as was taken in relation to the Coincidence Notice. Rather than making an effort to state the substance of the evidence as required by r 6(2) of the Evidence Regulation 2015, that is a something left to the reader to work out.

4. [54]

   The written submissions for the Crown restate the tendency asserted, refer to relevant authority as to the applicable principles, and remind of the need to have regard to certain other evidence. As to s 101 of the Act, it is said that any danger that the jury may engage in improper reasoning, in particular that it may place greater weight on the tendency evidence than is justified, may be cured by directions. The submissions provide a reason why the evidence should be admitted in a single paragraph:

5. [55]

   It emerges from this that the Crown is relying upon a tendency said to be evident from Mr Caleo's allegedly murderous response to the financial pressure he was under in relation to the financial dispute with Dr Chye as a foundation for an inference that it is more likely that he acted likewise in relation to his wife when he was again, on the Crown's case, under financial pressure.

6. [56]

   I accept that a tendency may be established by a single incident: Aravena v R (2015) 91 NSWLR 258 at 269-270 [85]-[89]; [2015] NSWCCA 288. Further, it is not a precondition for admissibility that the evidence establishes a pattern of behaviour or a modus operandi, let alone a striking pattern or similarity between the incidents. But for there to be significant probative value, "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged": Ford v R [2009] NSWCCA 306; 201 A Crim R 451 at 485 [125], endorsed by the plurality in Hughes v The Queen [2017] HCA 20 at [40] except insofar as to add the qualification that it is not necessary that the disputed evidence has this effect by itself; it is sufficient if it, together with the other evidence, makes significantly more likely any facts making up the elements of the offence charged.

7. [57]

   I am not satisfied that the evidence relied upon by the Crown in order to prove Mr Caleo's guilt in relation to the murder of Dr Chye "strongly supports proof of [the] tendency asserted" (Hughes v The Queen at [41]). On the Crown case, Mr Caleo was driven to extricate himself from potential financial ruin by engaging a person to murder the source of his problem. That is a fairly unique situation and while it may suggest that it indicates a tendency to take such desperate action in a similar situation, it does not strongly suggest so.

8. [58]

   I am also concerned that despite the probative value that the evidence might have (putting aside my lack of satisfaction that it has significant probative value), there is a very real risk that the jury will engage in impermissible reasoning despite any directions that may be given. The evidence of the circumstances of Mr Caleo's financial dilemma in relation to his wife (taking the Crown case at its highest) does not indicate that it was as ruinous as it was in relation to Dr Chye. Yet the jury may reason that because Mr Caleo was again facing a potentially unfavourable financial situation as a result of a property settlement with his wife that he would be driven again by a tendency to extricate himself by resort to murder. Even if the jury were satisfied that the evidence concerning the first murder established the tendency asserted by the Crown, there is a significant risk the jury may not properly evaluate the prospect that he might not have acted in accordance with that tendency in relation to his wife: Hughes v The Queen at [17].

Conclusion

1. [59]

   The tendency evidence relied upon by the Crown is inadmissible.

Severance of counts application by Mr Caleo

1. [60]

   It was agreed, realistically, that Mr Caleo's application for severance of the counts concerning the first and second murder would be resolved by the decision made as to the admissibility of the coincidence and tendency evidence (CWS at [5]; AWS at [3]).

2. [61]

   The application to sever count 2 (solicit to murder Michael Chye) from count 3 (solicit to murder Rita Caleo) is refused.

Summary of rulings

1. [62]

   The coincidence evidence is admissible.

2. [63]

   The tendency evidence is inadmissible.

3. [64]

   The application for severance of counts 2 and 3 is refused.