R v Afu; R v Caleo

Supreme Court of NSW|2017-12-05|Before: Hulme J

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

Background

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.
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.
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

The coincidence rule is stated in s 98(1) of the Evidence Act 1995 (NSW) as follows: "98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) 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, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

Coincidence Notice

The Coincidence Notice served by the Crown (amended following R v Afu; R v Caleo [2017] NSWSC 1780) is in the following terms: "Notice is given that the Prosecution presently intends to adduce 'coincidence' evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, i.e. evidence that two or more events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. 1. The 'person' referred to in the proceeding [sic] paragraph is Mark CALEO. 2. The two or more events which are the subject of the proposed evidence are: the murders of both Dr Michael Chye and Rita Caleo. 3. The evidence is to be tendered to prove that Mark CALEO did a particular act, namely that Mark CALEO did arrange for the murders of both Dr Michael Chye and Rita Caleo. 4. The coincidence evidence to be adduced will be evidence from which it may be inferred that, by reason of the similarities between the two murders and the circumstances in which they occurred, it is improbable that the two murders occurred coincidentally. The crucial circumstances common to both are as follows: ● Each victim was murdered in his or her own home in the exclusive Sydney suburbs of Woollahra and Double Bay. ● Each victim was killed by someone contracted to commit the murders. ● Each victim was in fear of Mark CALEO and believed they would be killed as a result of their connections with him. Both deceased persons expressed those fears to associates. ● Each victim intended to expose Mark CALEO and cause him financial harm: ◦ CHYE to sue him, embarrass and expose him as a failure and cripple him financially ◦ Rita CALEO would harm in in that she had commenced and intended to continue to 'squeeze' him financially ● The deceased persons were siblings. ● The two murders occurred within a period of 10 months and at a time when they were engaged in financial dealings with the accused which threatened financial ruin to him. ● The accused had a reasonable belief that he would benefit financially form the death of each accused. ● Both deceased persons were witnesses in relation to a major overseas fraud involving billions of dollars. The accused knew this and presented this hypothesis as to a reason why they murdered [sic - were murdered]. ● Both deceased persons were siblings and the children of a Malaysian Police Officer, who targeted Malaysian organised crime figures for the majority of his policing career. The accused knew this and presented the hypothesis that both murders were pay back. 5. The substance of the evidence of the occurrence of the events is contained within the following documents which previously has/have been served upon you. [Eight statements are listed with details of their date and certain paragraph numbers within them.] 6. So far as known to the Prosecution, particulars of the date, time, place and circumstances at or in which each of those related events referred to in paragraph 3 above occurred are contained within the documents referred to in paragraph 5 above. 7. So far as known to the Prosecution, the names of each person who saw, heard or otherwise perceived each of those related events referred to in paragraph 3 above are contained within the documents referred to in paragraph 5 above."
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.
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): (2) A notice of coincidence evidence must state: (a) the substance of the evidence of the occurrence of 2 or more events that the party giving the notice intends to adduce, and (b) particulars of: (i) the date, time, place and circumstances at or in which each of those events occurred, and (ii) the name of each person who saw, heard or otherwise perceived each of those events … "
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.
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.
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

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.
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

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.
As to the similarities in the "events", the Crown relies upon (CWS [18]): "(i) Both murders were committed at the respective deceased's home in exclusive Eastern suburbs of Sydney where murder by a person unknown to the deceased was, and remains, extremely rare, especially when the siblings were in different occupations and not involved in criminal activity. (ii) Both deceased were vulnerable in that they were alone and taken by surprise at night. (iii) The two deceased were siblings of each other. (iv) The murders were less than 10 months apart. (v) Although the second murder was made to look as though it was a robbery, the Crown case is that both deceased were murdered by a person contracted to kill them."
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]): "(i) Each deceased at the time of his/her death was involved in financial dealings with the accused which threatened financial ruin to the accused. (ii) The death of each accused was likely to result in a substantial financial benefit to the accused. (iii) Each deceased was in fear of the accused and had expressed a fear of being killed by him to associates. (iv) Both deceased had been witnesses in relation to a major overseas fraud. The accused knew this and presented it as an hypothesis as to why they were murdered. (v) Both deceased were children of a high-ranking Malaysian police officer who had been involved in the investigation of organised crime in Malaysia. The accused knew this and presented the hypothesis that the murders were pay-back."
A discussion of the asserted similarities appears below in the context of the assessment of whether the evidence has significant probative value.

Reasonable notice

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

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".
The evidence relied upon by the Crown is as follows: (i) Anthony Stambolis, a former employee of the accused, will give evidence that at some time before the death of Dr Chye the accused told him that someone was "going to fix Michael … finish him off". Mr Stambolis will also give evidence that he introduced the co-accused Afu to the accused Caleo's brother, Gerard Caleo, having been asked by Gerard Caleo if he knew someone who could "do something dodgy for him". Mr Stambolis later took Mr Afu, at Mr Afu's request, to show him where his "boss" (Mr Caleo) lived. Pursuant to this request, Mr Stambolis drove Mr Afu (and his girlfriend Cindy (a pseudonym) to the Caleo home at Double Bay on the occasion when Ms Caleo was murdered, waited for Mr Afu to return, and when he did return, with a cut hand, Mr Afu made admissions to the effect that he had stabbed Ms Caleo and that the nanny was present. (ii) Dr Chye's receptionist, Ms Margaret Williams, will give evidence that she heard a heated argument between Mr Caleo and Dr Chye, related to the property transaction, in the days before Dr Chye's death. After Mr Caleo had left, Dr Chye told Ms Williams, "I had the little bastard on his knees. I gave him an extension. If he doesn't pay, I'll sue him for everything he's got". (iii) Dr Chye's friend, Dr Geoffrey Thompson, will give evidence that he told him on 13 October 1989 that Mr Caleo had said, "if you don't stop pushing, you're going to find yourself dead". He will also say that Dr Chye told him after one of several death threats by Mr Caleo that he replied to Mr Caleo, "well I'll get your kids killed". The Crown says that this evidence ties in with evidence which will be given by Ms Yuko Okamato, who married Mr Caleo in 1995, that Mr Caleo admitted having arranged a "hitman" to murder Dr Chye because Dr Chye had threatened to take his daughters' lives and that he had informed the "hitman" that Dr Chye's garage door moved quickly and that he needed to be fast and be a good shot. (The Crown noted that Dr Chye was shot in his car seconds after driving into his garage having activated its automatic door.) (iv) The evidence that, less than three months before her death, Ms Caleo changed her will with her solicitor, Mr John Morrissey, removing Mr Caleo as a beneficiary, saying that she did so as a result of his affair with Janice Yap. (The Crown noted that Mr Caleo left Sydney for Kuala Lumpur five days after his wife's funeral and lived with Ms Yap until that relationship ended in 1993.) Ms Angela Cheah will give evidence that Ms Caleo told her on 26 April 1990 that Mr Caleo was having an affair with Janice Yap and on 3 May 1990 told her that she had made Mr Caleo sign some papers and an agreement and he was not very happy. (v) Ms Caleo's nanny in the home at Double Bay, Ms Lai Chan Chor, will give evidence that, unusually, Mr Caleo returned home during the afternoon preceding the murder of Ms Caleo and spent a short time in the bedroom, the exterior sliding door to which the killer entered. (The Crown case is that the sliding door was unlocked by him and jewellery was put in a pre-arranged place so that it could be quickly taken by the killer.) (vi) Staff of the accused will give evidence that it was highly unusual for Mr Caleo to stay so late at the restaurant on the night his wife died. (vii) There will be evidence that Mr Caleo withdrew $15,000 in cash comprised of $50 and $100 notes from the bank on 31 July 1990. He later claimed that sum was stolen from the bedroom at the time of Ms Caleo's murder. This is in conjunction with the evidence of Cindy that in the week preceding Ms Caleo's murder a man came to the home where she and Mr Afu lived and gave Mr Afu $10,000 in cash comprising $50 and $100 notes.
The Crown's submissions proceed to refer to some relevant principles concerned with the admissibility of coincidence evidence (CWS [23]-24). These are followed by the following submissions (with my comments interpolated): "The Crown submits that, when considered cumulatively, it is extremely improbable that the similarities that exist in relation to the two murders, and the similarities that exist in the circumstances in which they occurred, could have happened coincidentally. The Crown submits that the similarities give rise to an inference that the accused was responsible for soliciting each murder." (CWS 24) (This submission is a restatement of the coincidence rule with the insertion of "extremely". As the submissions by counsel for Mr Caleo point out (AWS [26]), it is a conclusion with no analysis to support it.) "The Crown submits, further, that the evidence has probative value in the sense that it is capable of rationally affecting the assessment of whether or not the same person was responsible for soliciting the two murders, and whether or not that person was the accused." (CWS 24) (This is a submission that the evidence has probative value because it is relevant.) "The Crown submits, in relation to the 'other evidence' that considerable circumstantial evidence against the accused is available in relation to each murder and that that evidence further reduces the probability that the similarities identified between the events, and between the circumstances in which the events occurred, might be explained by coincidence." (CWS 24(m)) (This is a submission that the evidence has significant probative value because the "other evidence" supports the conclusion for which the Crown contends. There is no analysis, nor submission, as to why this is so.)
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]): "Not only was each victim a person with whom the applicant had had business dealings, but he was in a current dispute with each of them. In the circumstances, the judge was entitled to conclude, as would the jury as the tribunal of fact, that … it would be contrary to ordinary experience for this series of fires, affecting these particular victims, to have occurred by coincidence."
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".
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".

The "crucial circumstance common to both [murders]" according to the Coincidence Notice

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.
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.
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.
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.
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.

The similarities in the murders

In the written submissions, the Crown listed five matters as being the "similarities in the murders".
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.
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.
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.
The 10 month period between the two murders, as noted above, does not appear to be of any significance.
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.

The similarities in the circumstances in which the murders occurred

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.
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.
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".

Dissimilarities

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].
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.

Conclusion on "significant probative value"

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.
In my view, the strength of the evidence which points to the improbability of coincidence appears to arise from the following: Both murders were of persons closely related to Mr Caleo: his brother-in-law and his wife. There were financial circumstances pertaining to the relationships that were potentially disadvantageous to Mr Caleo: the prospect of being sued for a large sum of money by Dr Chye and the prospect of an unfavourable property settlement with Ms Caleo. Both murders were committed by intruders into the homes of the deceased: Dr Chye was shot to death in his garage when he arrived home; Ms Caleo was stabbed to death in her bedroom. It would be open to a jury to conclude that these two violent deaths were not unpremeditated. There is evidence that Mr Caleo had arranged the murders. In relation to Dr Chye, he said that he had arranged for someone to "fix" him and he later admitted to having hired a "hitman". In relation to his wife, it could be inferred that he had forewarning of the murder of his wife by his unusual attendance at the home and going to her bedroom during the day preceding the murder (on the Crown case to leave a sliding balcony door open for the murderer) and then staying unusually late at his work place while the murder occurred. From this it could be inferred, in conjunction with the other circumstances, that his reason for having forewarning was that he was responsible for having arranged the murder.
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").
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)

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.
Counsel for Mr Caleo submitted (AWS [32]-[34]): "The jury, regardless of the dissimilarities and lack of meaningful similarities, may reason that because the accused was related to both deceased, that the deceased were both part of the same family and the accused had some arguments with both that he must have killed them both. The fact of the accused's relationship with both and the fact that the deaths were only 10 months apart would lead to the risk those factors would overwhelm any proper assessment by the jury of the coincidence evidence. The jury are likely to engage in the circular reasoning as set out in the written submissions on the separate trial argument."
The "circular reasoning" referred to in the written submissions on the separate trial issue was as follows: "If the accused did murder his wife then he must have murdered his brother in law because that is the reason for murdering his wife. And if he did murder his brother-in-law then he must have murdered his wife."
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

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.
The coincidence evidence relied upon by the Crown is admissible.

Tendency evidence

The tendency rule is stated in s 97(1) as follows: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) 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, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The Tendency Notice served by the Crown (also amended following R v Afu; R v Caleo [2017] NSWSC 1780) is in the following terms: "Notice is hereby given that the Prosecution presently intends to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, i.e. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. 1. The person whose "tendency" is the subject of the evidence sought to be adduced is MARK CALEO. 2. The tendency sought to be proved is his tendency to act in a particular way, namely to become very desperate when he is squeezed financially and to arrange for the murder of persons to whom he is related by marriage who apply extreme pressure to his financial situation. 3. The evidence is to be tendered to prove that MARK CALEO did a particular act, namely that MARK CALEO did arrange for the murder of both Dr Michael CHYE and Rita CALEO. 4. The substance of the "tendency" evidence which the Prosecution intends to adduce is contained within the following documents which previously have been served upon you: [The same eight statements as in the Coincidence Notice are listed with details of their date and certain paragraph numbers within them.] 5. So far as is known to the Prosecution, particulars of the date, time, place and circumstances at or in which the conduct referred to in paragraph 3 above occurred are contained within the documents referred to in paragraph 4 above. 6. So far as is known to the Prosecution, the names of each person who saw, heard or otherwise perceived the conduct referred to in paragraph 3 above are contained within the documents referred to in paragraph 4 above. 7. In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: that the accused was responsible for arranging the murder of both deceased."
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.
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: "There is evidence from Dr Geoffrey Thompson and Mr James Wilkinson that the accused threatened the life of Dr Chye in the context of a major financial transaction that threatened the accused with, as his solicitor, Mr John Morrissey will attest, financial ruin. Mr Morrissey will also attest that he advised the only ways for the accused to escape financial ruin, which included the death of Dr Chye. If the jury accepts that the accused had the tendency to arrange the killing of his relative by marriage in order to avoid financial ruin, and indeed arranged the murder of Dr Chye, it would be open to the jury to use this evidence in their assessment of whether the accused arranged the murder of his wife."
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.
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.
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.
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

The tendency evidence relied upon by the Crown is inadmissible.

Severance of counts application by Mr Caleo

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

Summary of rulings

The coincidence evidence is admissible.
The tendency evidence is inadmissible.
The application for severance of counts 2 and 3 is refused.

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

Evidence Regulation 2015(NSW)r 6(2)

Evidence Act 1995(NSW)ss 98(1), 101

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