Bathurst CJ at [1]; Beech-Jones J at [153]; N Adams J at [154]
Decision:
Leave to appeal out of time should be granted but the appeal dismissed.
Catchwords:
CRIME – appeals – appeal against conviction – miscarriage of justice – joint trial – whether failure to order a separate trial resulted in a substantial miscarriage of justice – where evidence tendered was admissible against one co-accused but not the other –whether applicant deprived of a real chance of acquittal – Criminal Procedure Act 1986 (NSW), s 29(2)
[This headnote is not to be read as part of the judgment]
The applicant, Mark Richard Caleo (the applicant), was charged with soliciting the murder of Dr Michael Chye (Dr Chye)…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Caleo v R [2021] NSWCCA 179
Case
[2021] NSWCCA 179
Decision Date
CaseChat Overview and Summary
The case of Caleo v R involved an appeal against the conviction of one of the defendants in a joint criminal trial. The appellant, Caleo, sought to overturn his conviction on the basis that the failure to order a separate trial resulted in a substantial miscarriage of justice. This was particularly pertinent as evidence that was admissible against one co-accused was not admissible against the other. The crux of the appeal was whether Caleo was thereby deprived of a real chance of acquittal.
The court was required to determine whether the joinder of the trials led to an unfair trial for Caleo, despite the evidence being admissible against his co-accused. This necessitated a detailed examination of the principles surrounding joinder of defendants in criminal trials, particularly in the context of the admissibility of evidence. The court had to assess whether the potential prejudice to Caleo outweighed the efficiency and fairness of a joint trial. Additionally, the court needed to consider whether the trial judge properly exercised his discretion under the Criminal Procedure Act 1986 (NSW), section 29(2) in deciding whether to order a separate trial.
The court found that the joinder of the trials did not result in a substantial miscarriage of justice for Caleo. The evidence that was admissible against the co-accused did not unfairly prejudice Caleo to such an extent that a separate trial was necessary. The court held that the trial judge appropriately exercised his discretion and that the overall fairness of the trial was not compromised. Consequently, the appeal was dismissed, affirming Caleo's conviction.