R v Afu; R v Caleo

Supreme Court of NSW|2018-02-27|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Katsoolis & Co William O'Brien & Ross Hudson Solicitors File Number(s): 2014/321700; 2015/34389

Judgment

HIS HONOUR: Ms Angela Cheah is a witness the Crown had proposed to call. She made a statement to police dated 21 November 1990. However, Ms Cheah is a resident of Malaysia and has indicated a reluctance to co-operate. She has even avoided attempts to make contact with her.
Mr Brady SC on behalf of the accused Mark Caleo indicated that it is not contested that Ms Cheah is "unavailable" within the meaning of that term in the Dictionary to the Evidence Act 1995 (NSW). Mr Wilson, counsel for the co-accused Alani Afu, was neutral on the subject as the evidence of Ms Cheah does not affect his client.
I accept that Ms Cheah is not available to give evidence.

Statutory provisions

Admissibility of evidence of what Ms Cheah said in her statement turns on s 65 of the Evidence Act. The provisions of s 65 provide one of the exceptions to the general inadmissibility of hearsay evidence pursuant to s 59 which provides (relevantly): "59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. … "
Section 65 provides (relevantly): "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. … "
Section 67 provides a notice requirement but there is no issue as to this.
Section 65 must be read with the provisions of s 62 in mind. They are (relevantly): "62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. … "
In considering the admissibility of the evidence in question it is appropriate to bear in mind that in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, the High Court said in a unanimous judgment (at [60]): "It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion."
The Crown relied upon ss 65(2)(b) and (c) in contending for admissibility of the evidence of the prior representations of Ms Cheah.

Defence submissions

Mr Brady submitted that the representations by Ms Cheah in her statement as to what Ms Caleo had said were "well outside the time one would think it would be fresh under s 65(2)(b) and there is nothing that indicates that section 65(2)(c) would be satisfied".
It was submitted that the "shortly after" requirement in s 65(2)(b) was not satisfied in relation to a conversation that is said to have occurred six months or more in the past. As to s 65(2)(c), it was submitted that the onus was upon the Crown to establish that the circumstances in which the representations were made were such that make it highly probable that the representations are reliable. He contrasted truthfulness with reliability. Mr Brady said that reliability involved a range of matters but they included whether or not Ms Cheah could accurately recall things.
Mr Brady also referred to the fact that there was no evidence as to the manner in which the statement was taken from Ms Cheah. For example, there is nothing to indicate whether she had anything to refer to which would have assisted her recollection of the conversations with Ms Caleo.

Crown submissions

In addressing s 65(2)(b), the Crown Prosecutor acknowledged the time that had elapsed between the various conversations and the date the statement was taken. Nevertheless she maintained that "it was made shortly after the asserted fact occurred and in circumstances which, … with the death of this lady's friend, make it unlikely that she would have fabricated these representations".
As to s 65(2)(c), it was submitted that the representations by Ms Cheah as to her conversations with Ms Caleo were made in circumstances that make it highly probable that they are reliable in that Ms Cheah was making the statement at the Australian High Commission; she well knew that it was about the death of her friend; she was clearly doing all she could to recall what had taken place and what was said; and there is detail which is consistent with other evidence. Ms Cheah would have realised that upon being called to the High Commission to make this statement in relation to the death abroad of her friend, she would have realised the seriousness or the gravity of the matter and "is certainly unlikely to have represented anything which could not now be relied upon".
Reference was made to Ms Cheah having known Ms Caleo since their school days. Ms Cheah knew Ms Caleo and her circumstances well. Ms Cheah knew the parties (presumably a reference to both Ms Caleo and her husband, the accused Mark Caleo).
Reference was also made to the statement including (in paragraph one) the usual promise to tell the truth. Although it was not clear to whom she made the statement, it appeared to be in very formal circumstances. Moreover, it was a detailed statement.
In submissions in reply to those of Mr Brady, it was submitted that the conversations Ms Cheah recounted in the statement were simple, not complex. They were conversations with a lifelong friend. Ms Cheah would have been interested in what Ms Caleo said. It was something momentous in Ms Cheah's friend's life, namely divorce, and therefore something that Ms Cheah could readily bear in mind and recall even six or seven months later. That passage of time was not an unreasonably difficult time in which to retain this type of information when one is close to the person and interested in the person's future as a lifelong friend.

s 65(2)(b)

I was not taken to any case law on the correct construction of s 65(2)(b) but I have found useful the discussion in Odgers, Uniform Evidence Law (12th ed, 2016, Lawbook Co) at [EA.65.150]. It appears clear that the phrases "made when or shortly after the asserted fact occurred" and "in circumstances that make it unlikely that the representation is a fabrication" should not be considered disjunctively.
I accept that the phrase "shortly after" provides for some flexibility where the representation was not made "when" the asserted fact occurred. However, having regard to the overall concern with the exception to the hearsay rule in s 65 being a consideration of reliability, and a concern of s 65(2)(b) being unlikelihood of fabrication, "shortly after" must mean a period that is relatively minimal. Minutes or hours are one thing; a day or a few days is another; but a matter of six months or more as in the present case is quite something again.
The Crown Prosecutor's submissions were to the effect that the "shortly after" requirement was met because the representations were made at a time when Ms Cheah would still retain a good memory of what Ms Caleo had said to her. With respect, I do not believe that is what the phrase is concerned with. In contrast to other provisions in the Act (s 32(2)(b)(i) and s 66), freshness of memory is not the issue.
The Crown Prosecutor's submissions in relation to this exception to the hearsay rule focussed on the asserted unlikelihood of Ms Cheah having fabricated her evidence as to what she claimed that Ms Caleo had said to her. That, with respect, is an irrelevant consideration. Section 65(2)(b) is concerned with the representation being made "in circumstances that make it unlikely that the representation is a fabrication" rather than the unlikelihood that the witness would have fabricated it.
I am not satisfied that the evidence of Ms Cheah's previous representations are admissible pursuant to s 65(2)(b).

s 65(2)(c)

Little is known about the circumstances in which Ms Cheah made her representations about what she was told by Ms Caleo; that is, the circumstances in which she made her statement of 21 November 1990. The statement includes that it was made at the Australian High Commission in Kuala Lumpur on that date. It is said to have been made "in matter of Rita Caleo". It includes the usual first paragraph in which the maker of a statement asserts truthfulness and acknowledges the consequences of untruthfulness. The statement is signed and is witnessed by a person who is not identified.
The content of the statement reveals nothing to support the contention that it was made in circumstances that make it highly probable that the representations contained within it are reliable. On the other hand, there is one aspect that indicates unreliability: in paragraph 9 there is a representation that Ms Caleo said that the settlement (presumably of the purchase of the property by her and husband from her brother-in-law) had occurred. That is not correct; settlement never occurred.
In relation to this exception to the hearsay rule, the Crown Prosecutor's submissions again focussed, in part, upon aspects which related to the likelihood of Ms Cheah's truthfulness. Truthfulness may be assumed for present purposes but the question is concerned with reliability and a high probability of it deriving from the circumstances in which Ms Cheah's representations were made.
The circumstances include that the subject matter of Ms Cheah's representations were topics which no doubt were of interest and importance to her. For that reason, it is likely that the general thrust of what Ms Caleo told her was likely to have been retained in her memory notwithstanding the time that had elapsed (about 14-15 months since the first conversation and about 6 months since the last).
Submissions were also made which concerned Ms Cheah's reliability as a witness in respect of the statements made by Ms Caleo in their various conversations. Again, however, it is the circumstances in which Ms Cheah's representations were made that is the question, not her general reliability as to the subject matter: see Sio v The Queen at [72].
The circumstances in which the representations were made include, significantly, that she was being asked to relate what she had been told by Ms Caleo a significant period of time after Ms Cheah had the various conversations with her. In those circumstances it is very reasonable to ask how accurately she would be able to recall the precise statements Ms Caleo actually made. One would not be surprised that she accurately recalled the subject matter and the gist of what Ms Caleo said. But that is not to say that what is set out in her statement is a reliable account of what Ms Caleo actually said. There is clearly error as I have pointed out in relation to the first conversation. There remains a real possibility of error in relation to the terms of the subsequent conversation.
The prosecution bears the onus of establishing that it is "highly probable" that the representations are reliable. That is quite a high threshold to admissibility. I am not satisfied it has been met.
I am not satisfied that the evidence of Ms Cheah's previous representations are admissible pursuant to s 65(2)(c).

Conclusion

The evidence of Ms Cheah's previous representations set out in her statement dated 21 November 1990 is excluded.

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Evidence Act 1995(NSW)ss 59, 62, 65

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