R v Camelo-Gomez

Supreme Court of NSW|2022-02-28|Before: Wilson J

Judgment

HER HONOUR: On 3 March 2022, prior to the commencement of the trial of the accused for a charge of murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), the Court made orders with respect to the admission of disputed evidence on a number of subjects. Reasons were provided on 3 March 2022 for two of the orders made that day: R v Camelo-Gomez (No 2) [2022] NSWSC 211. The Court's reasons for the balance of the orders, as to the admissibility of telephone calls made by the accused, and the admissibility of expert evidence as to injuries sustained by the accused in November 2001, were reserved until today.
These are the last of the pre-trial matters in which rulings were required. The earlier decisions, from which the general background of the matter can be gleaned, are R v Camelo-Gomez [2022] NSWSC 136 and R v Camelo-Gomez (No 2) [2022] NSWSC 211.

Telephone Calls of 1 - 2 November 2001

The Crown argues that evidence of telephone calls made from the accused's mobile telephone service to that used by Carlos Camelo and associated evidence is relevant to proof of a fact in issue in the trial, being the existence and nature of a relationship between the accused and Camelo. The accused objects to the tender of the evidence, arguing that there is no evidence that the accused made the telephone calls, and prejudice would be occasioned to her by the admission of the evidence.

The Evidence

If admitted, the Crown proposes to tender evidence of telephone calls placed from the accused's telephone service by way of a short summary table, rather than by the tender of voluminous and no doubt complicated call charge records. The draft table shows calls placed or short message service ("SMS") texts sent from the accused's service, a number ending in 7960, to Camelo's service, a number ending in 7965, and some other calls. The most important information for present purposes is extracted below: Date Time Type of Call Duration 1.11.2001 23:55:11 SMS 2.11.2001 00:02:18 SMS 2.11.2001 00:04:19 SMS 2.11.2001 02:44:38 SMS 2.11.2001 07:06:52 STD (Voice) 5 seconds 2.11.2001 07:06:56 STD (Voice) 5 seconds 2.11.2001 07:08:09 STD (Voice) 2 seconds 2.11.2001 07:08:13 STD (Voice) 2 seconds 2.11.2001 07:11:29 STD (Voice) 2 seconds 2.11.2001 07:11:33 STD (Voice) 1 second 2.11.2001 07:25:31 STD (Voice) 3 seconds 2.11.2001 07:25:32 STD (Voice) 3 seconds 2.11.2001 07:29:48 STD (Voice) 322 seconds

Between the call to Camelo at 00:04:19 on 2 November 2001 and that placed at 02:44:38 that morning, a call was made from the accused's service to the police at Parramatta Police Station, at 01:35:08. Its duration was for 202 seconds or about three and a half minutes. It corresponds with a call received at Parramatta Police Station from a female caller who identified herself as Belinda, and who gave a phone number ending in 2639. The caller told the officer who took the call that a grey Daihatsu Charade using false registration plates was then at a McDonalds restaurant at North Parramatta. "Belinda" said she was the girlfriend of the driver of the Charade, Nicholas Soucoff.
Nicholas Soucoff was a friend of Carlos Camelo and shared a house or apartment at Cecil Hills with him at the time.
Police officers were dispatched to North Parramatta to check on the report. They saw the Charade in the McDonalds car park; Nicholas Soucoff was the driver. The vehicle was stopped as the registration plates fixed to it were cancelled plates that had been originally issued to a Subaru station wagon. The Charade was additionally unregistered and uninsured and Mr Soucoff's driving licence was suspended. Soucoff was arrested and charged with driving and traffic offences.
Nicholas Soucoff told police on 16 July 2019 that he had very little memory of the incident and couldn't say who was in the Charade with him when he was arrested on 2 November 2001. He thought "that Sean guy" might have given him the false registration plates but did not remember whether he had shared accommodation with Sean at Cecil Hills at the time.
Sean Hardy, who was interviewed on 3 November 2001 by police investigating the murder of Irene Jones, told them that he shared premises at Cecil Hills with two men, being Soucoff and Camelo, although Hardy used other names for them. Sean Hardy said that he had been with his flatmates Soucoff and Camelo in the car park of a McDonalds when the car was stopped by police and Soucoff was arrested. Hardy said that, prior to going to McDonalds, the three men had been in Sefton on a night out "watching the strippers" (Ex. VD E.3 at 10).

The Submissions

The Crown argued that the evidence of the phone calls and related matters is directly relevant to proof of the existence and nature of the relationship between the accused and Camelo and also goes to proving that, as at the early hours of 2 November 2001, the accused was well aware that Camelo remained in Australia and had not left the country on 15 October 2001. The evidence highlights the closeness of their relationship only hours before the murder and further, it is evidence capable of rebutting the accused's claim to have had a relationship with Camelo of the kind ordinarily to be expected between brother and sister-in-law.
The Crown submitted that the circumstances in which the communications from the accused's mobile service to Camelo's mobile service - the inference being that the accused and Camelo were using their own phones at this time, rather than that some other persons had access to them - supported the Crown's case that the accused was in a relationship with Camelo and was obsessed with him. The frequency of the communications and the hour at which each was made pointed to a relationship that went beyond that of friends, or of relatives by marriage. The apparent lack of any response from Camelo followed by the call placed to the police is a basis upon which to infer that the accused was aware that Camelo was on a night out with friends, was unhappy about it and, when she could not reach Camelo, reported the illegal status of the car in which he was travelling to police.
The Crown relies upon evidence establishing the nature of the relationship between the accused and Camelo as this relationship is at the heart of the motive to murder which the Crown alleges the accused held. That is, the deceased disapproved of her daughter's association with the accused, had refused to provide money to her for Camelo's benefit, and had threatened to change her will to disinherit the accused if the relationship continued.
The accused disputed that the evidence has probative value. It was argued that the evidence does not establish that the accused was using her mobile telephone at the time the text messages were sent and calls made, and it is open to infer that the user of the phone could have been Belinda, particularly since there is no evidence to establish how the accused could have known that Camelo was at McDonalds in the early hours of 2 November 2001 in a car with false registration plates. The accused contended that the reasoning process urged upon the Court and to be urged upon the jury is irrational and speculative, and cannot overcome the gaps in the evidence, the principal gap being the complete absence of evidence to show that the accused was aware at the time of Camelo's presence in the car with the stolen plates, at McDonalds.
She submitted that, even if there is some probative value in the evidence, it is outweighed by the prejudice occasioned to her from its admission. Jurors might regard the accused, to her disadvantage, as a meddlesome busybody for calling police and reporting the driving offences. If jurors were to leap over the gaps in the evidence and draw the irrational conclusion the Crown would ask them to draw, they may be left believing that the accused is a person who engaged in odd behaviour, and in dishonest behaviour, in that she lied to police by giving a false name.
Further, it is submitted that, in the absence of Camelo as a witness, the accused is disadvantaged because she cannot lead relevant evidence from him of the circumstances surrounding these events and, importantly and more broadly, of the platonic nature of their relationship. The accused herself was never asked about this matter in interviews with police and did not have an opportunity to respond to the allegation in that format.

Determination

The obsessive and intimate nature of the relationship between the accused and Camelo is the underpinning of the Crown case against the accused. Upon it rests the Crown's contention that the accused had a clear motive to kill her mother, and to do so at the time Mrs Jones was threatening to disinherit her daughter as a mark of her displeasure with the accused's association with Camelo. It is a fact that is very much in issue in the trial. On that basis, evidence that is capable of establishing the existence of an intimate relationship between the accused and Camelo is relevant.
The impugned evidence meets that criterion in my view and thus the test of relevance at s 55 of the Evidence Act 1995 (NSW). Although the fact of calls or messages from a mobile telephone service cannot alone establish the identity of the person using the service at the particular time, there must be at least a strong inference available that the owner of the service was the person using it. That is particularly so where there are other features of the use of the service that support the inference. Here, the following features taken together are capable of having that effect: 1. The accused lived with her mother, and not in a shared household where multiple persons could have had access to the telephone; 2. The communications were all made very late at night or very early in the morning, times when it is less likely that the accused was in company with others who might have borrowed her telephone, and more likely that she was at home and alone; 3. The communications were all made to Carlos Camelo, a person other evidence establishes was important to the accused, in whatever capacity that may have been; 4. There is no evidence to suggest that Mrs Jones might have needed to repeatedly message and telephone Camelo; 5. The repeated communications are more likely to have been made by the same user, as opposed to a single call made by someone who borrowed the handset; 6. There is no evidence that the accused knew or associated with Nicholas Soucoff's girlfriend Belinda such that Belinda could have gained access to the accused's phone at the times at which the communications were made, or over the period of the communications; and 7. There is no evidence of any association between Camelo and Belinda that might explain frequent communications made to him by Belinda.
On the basis that the user of the service was the accused, the repeated attempts by the accused to contact Camelo late at night and in the early hours of the morning tends to support the Crown's case that the accused's relationship with Camelo went well beyond friendship or their status as in-laws. Her frustration or anger at being unable to reach Camelo at a time when she knew he was socialising with others, or at a time when she perceived he should answer her communications, could have led to the accused contacting police about the illicit nature of the car Camelo was in. This is an inference available on the evidence of the persistence of the communications and the times at which they were made.
The absence of evidence to explain how the accused could have known that Camelo was with Soucoff in an illicit car will be plain to the jury and its members can assess the evidence in light of that fact. It does not make the evidence of the calls irrelevant or otherwise inadmissible; it goes to the assessment of the weight to be attributed to it by the jury, that being a matter for its members.
As to any prejudicial effect, the accused relies upon ss 135 and 137 of the Evidence Act to argue that the evidence should be excluded. Section 135 provides (in this context) that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. Section 137 provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused.
I do not find the accused's arguments in this regard particularly persuasive. That a jury might, on hearing this evidence, regard the accused as meddlesome or a busybody does not in my view amount to prejudice. These are relatively mild criticisms that, in the context of an allegation of murder, or almost any criminal offence, have no significance and negligible or no prejudicial effect. Similarly, even if jurors concluded that the accused had given a false name to police in the context of passing on information about the possible commission of driving offences, that conclusion does not amount to the sort of opinion that is prejudicial as contemplated by ss 135 and 137.
Even if individual jurors took the sort of negative view that such a conclusion could involve (or a conclusion that the accused was meddlesome or a busybody), appropriate directions can address the possibility of prejudice. The Crown does not rely upon the evidence to suggest that the accused was the sort of person who would report her boyfriend's flatmate for minor criminality to break up a night out that she was not happy about; it relies upon the evidence to support a conclusion that the accused was obsessed with Camelo, with whom she was intimately involved on the very day of her mother's murder.
That Camelo is not available as a witness from whom the accused could endeavour to lead exculpatory evidence relevant to the telephone calls, or that she herself was not asked about the matter in 2001 or soon thereafter, may lead to some prejudice to the accused, but not of a nature as to suggest or demand that the evidence should or must be excluded. Any prejudice based upon those considerations that may arise can be readily addressed by directions to the jury.
Having concluded that the evidence is relevant and probative of the Crown's case, and that its admission would not occasion unfair prejudice to the accused, the evidence was admitted.

Evidence Concerning Injuries to the Accused

The premise of the admission of evidence concerning injuries to the accused is the Crown's contention that the injuries the accused sustained were inconsistent with the severity of the assault upon her by the blonde male intruder she told police had attacked her on the evening of 2 November 2001. The Crown intends to call evidence from doctors who examined or consulted with the accused on 3 November 2001, and also evidence from Dr Jane Van Diemen. It is some aspects of the evidence of Dr Van Diemen to which the accused takes objection.
A significant volume of documentary and digital evidence was tendered by the accused as Ex. VD 4.1 - 4.21. Dr Van Diemen was also called to give evidence via an audio-visual link on 2 March 2022.
For present purposes it is not necessary to review much of the documentary evidence in any detail. It goes to make clear the information available to Dr Van Diemen when she formulated her opinions, and sets the context in which she expressed them. The Court - and Dr Van Diemen - were provided with all material relevant to either the record of injuries observed upon the accused, or the accused's account of the assault in which she said that she sustained them. Photographs of the accused's injuries and a recording of a forensic procedure conducted with the accused on 3 November 2001 form part of the material.
Dr Van Diemen is a highly qualified forensic medical officer whose expertise is in forensic medicine. The doctor sees both living patients and the bodies of persons who have died for examination. Having reviewed the material provided to her Dr Van Diemen prepared two reports, on 6 September 2021 and 11 February 2022. She gave her opinions as to whether the accused's documented injuries are consistent with her account of the assault upon her and the ligature the accused said was used by her assailant about her neck in an attempt to strangle her.
Dr Van Diemen expanded upon and explained her opinions in oral evidence before the Court on 2 March 2022.
The accused objects to three specific aspects of Dr Van Diemen's evidence: 1. Evidence concerning the general incidence of soft tissue injury in non-fatal ligature strangulation; 2. Evidence of Dr Van Diemen's opinion as to the likelihood of linear abrasions being sustained by the accused to her neck during strangulation; and 3. Evidence of Dr Van Diemen's opinion concerning abrasions on the accused's neck observed by others on 3 November 2001.
With respect to [30(1)] the accused objects to Dr van Diemen's observation that, in cases of non-fatal ligature strangulation, it is more common to see soft tissue injury associated with externally visible injuries than where there are no such injuries. The accused contends that this evidence is not relevant, not based upon specialised knowledge, or is misleading or confusing: ss 55, 79; and 136 of the Evidence Act.
With respect to [30(2)] it is contended that evidence of Dr Van Diemen's expectation that a ligature mark would be left by the claimed attack upon the accused is not based upon specialised knowledge and is thus inadmissible; or, if it is, the evidence should be excluded pursuant to ss 135 or 137 of the Evidence Act.
As to [30(3)] the accused advances the same three bases upon which she contends that the evidence should be excluded as that relied upon in relation to the evidence referred to at [30(1)].

Determination

Expert evidence is admissible pursuant to Part 3.3 of Chapter 3 of the Evidence Act. Section 76 provides a general rule that opinion evidence is not admissible to prove the existence of a fact about which the opinion is expressed. Section 79 provides an exception to this rule for the evidence of experts, relevantly in these terms: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Part of the objection taken to the impugned parts of Dr Van Diemen's evidence is that the opinions are not based upon specialised knowledge. That submission is difficult to reconcile with Dr Van Diemen's unchallenged evidence as to her experience. The doctor is a forensic expert and holds a Fellowship for the Faculty of Clinical Forensic Medicine within the Royal College of Pathologists of Australasia. She is a staff specialist at the Canberra Hospital and works as a Forensic Medical Officer for the Australian Federal Police. She sees victims of violence, living and dead, and documents and interprets injuries sustained by those victims.
She has seen many persons who have suffered strangulation injury or who have died because of strangulation. Dr Van Diemen's clinical experience includes involvement in a conservative estimate of more than 200 non‑fatal strangulation cases involving both sexual and non‑sexual violence, of which between 20 and 40 cases involved the relatively rare phenomena of ligature strangulation. The doctor has seen around about five cases of fatal strangulation with a ligature, in the absence of hanging or asphyxiation. If hanging, or asphyxiation cases where a ligature was used, are included, the number of cases where Dr Van Diemen has conducted an examination is between 100 and 150. It is impossible to regard that as anything other than extensive experience of direct relevance to the opinions expressed.
That experience of strangulation injuries is informed by Dr Van Diemen's qualifications and experience more broadly.
On the evidence of Dr Van Diemen's qualifications and experience I cannot conclude that the opinions she expressed are not based upon specialised knowledge.
The doctor has drawn upon her considerable experience to give her observations as to the sort of injuries commonly seen in non-fatal ligature strangulations, and the injuries she has frequently seen have in turn informed her opinion as to the specific details of the alleged assault upon the accused and the injuries examining doctors noted that the accused had sustained at the time.
In isolation, the doctor's reference to what she has commonly seen is or may be irrelevant, and it could perhaps be confusing, but the evidence will not be given in isolation. It will be given as part of her account of her experience and expertise, and as part of the specialised knowledge upon which she drew in formulating her opinions as to the accused's injuries.
That opinion can be tested in evidence before the jury, as it was in evidence on the voir dire. Based upon what the doctor told the Court on 2 March 2022 it can be anticipated that she will readily concede that the common injury is not seen in every case, and injuries can differ from person to person, even to the extent of an absence of visible injury. I see no reason why the evidence would be confusing to the jury, or prejudicial to the accused, and it can inform the jury's consideration of the issue of the alleged assault upon the accused.
Similarly, with the doctor's expectation of seeing a ligature mark to the neck given the accused's account of the mechanism of the assault upon her, her experience overall informed her opinion but, as Dr van Diemen made clear in oral evidence, her opinion was based significantly on the details of the accused's circumstances, informed by experience.
The doctor can be taken through her evidence and the basis of the conclusions she drew, and that should mean that there is no room for confusion amongst the jury members.
With respect to the abrasions noted to the accused's neck on 3 November 2001, similarly, I see nothing in the doctor's evidence that is not based upon her studies and clinical experience, and there can be nothing misleading about explaining how such injuries typically occur. The mechanism of injury and the nature of injury commonly occasioned informed Dr Van Diemen's opinion and is relevant on that basis. The jury would be assisted by an understanding of the mechanism by which fingernail scratches can be left on a neck in a strangulation assault.
Whilst there may be prejudice to the accused in the sense that the doctor's evidence, if accepted, tends to support the Crown case against her, that is not the sort of prejudice that gives rise to either a discretionary exclusion pursuant to s 135 of the Evidence Act, or a mandatory exclusion of the impugned portions of Dr Van Diemen's evidence pursuant to s 137. I am satisfied that Dr Van Diemen's opinions rest on her extensive experience as a forensic medical officer, and extensive experience specifically of strangulation injury and death.
The importance or otherwise of her general observations can be tested in cross-examination, and submissions can be made to the jury as to how the doctor's evidence should be assessed by the fact finders.
I am unable to see any proper basis upon which those parts of the doctor's evidence subject to challenge are inadmissible or should or must be excluded.
The evidence is admissible, as the Court ordered on 3 March 2003.

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: 15 December 2022

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