R v Afu; R v Caleo - [2017] NSWSC 1780

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo [2017] NSWSC 1780
Hearing dates: 6 October 2017
Decision date: 30 November 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Evidentiary rulings made

Catchwords: EVIDENCE – admissibility – criminal proceedings – two murders – hearsay – maker unavailable – representations to a friend – letter written by deceased to be opened if her death is deemed unnatural – representations by deceased about relationship with accused – representations by deceased implicating accused in other murder and her own possible future murder – some assertions based upon admissions – unfair prejudice – some statements admissible under s 66A Evidence Act 1995 (NSW) – relevance to one murder but not other – letter excluded in entirety
Cases Cited: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
Category: Procedural and other rulings
Parties: Regina
Alani Afu (Accused)
Mark Richard Caleo (Accused)
Representation:
Counsel:
Ms M Cunneen SC with Mr E Anderson (Crown)
Mr R Wilson (Afu)
Mr G Brady SC (Caleo)
Solicitors:
Solicitor for Public Prosecutions
Katsoolis & Co (Afu)
William O’Brien & Ross Hudson Solicitors (Caleo)

File Number(s): 2014/321700; 2015/34389

Judgment

Afu & Caleo

Alani Afu and Mark Caleo were arraigned in this Court on 5 May 2017 and pleaded not guilty to:

Caleo: Murder, alternatively solicit to murder, Michael Chye at Woollahra on 16 October 1989 (Counts 1 and 2)
Murder, alternatively solicit to murder, Rita Caleo at Double Bay on 10 August 1990 (Counts 3 and 4)
Afu: Murder Rita Caleo at Double Bay on 10 August 1990 (Count 3)

The matter was listed for trial on 5 February 2018 with an estimate of 8 weeks.
I note that the Crown has since indicated that in relation to the accused Mr Caleo it is proposed to amend the indictment so as to delete the charge of murder and proceed only on the charges of solicit to murder. Such amended indictment has not yet been filed but I proceed on the basis that it will be.

The applications

By a notice of motion filed on 30 May 2017 the accused Caleo sought the following order:

"Pursuant to s 21(2) Criminal Procedure Act the Indictment with respect to Mark Richard Caleo be severed and separate Trials ordered concerning counts 1 & 2 and 3 & 4."

The application was supported by an affidavit of Mr Caleo's solicitor affirmed on 29 May 2017. It annexes copies of the Crown Case Statement and a transcript of the committal proceedings.
On 2 June 2017, Johnson J set the matter down for hearing on 6 October 2017.
At the outset of the hearing on 6 October 2017, counsel for the accused Mr Afu sought and was granted leave to file in court a notice of motion seeking the following orders:

"1 That the accused Alani Afu be tried separately from the co-accused Mark Richard…

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.

Continue reading R v Afu; R v Caleo

Details

AGLC: R v Afu; R v Caleo [2017] NSWSC 1780
Case: [2017] NSWSC 1780
Decision Date: 30 November 2017

CaseChat Overview and Summary

The defendants were charged with the murder of two victims, and the matter came before the Supreme Court of New South Wales. The primary issue for the court was the admissibility of hearsay evidence in the form of a letter written by one of the victims, which contained statements about her relationship with one of the accused, and her assertions about being involved with both accused in criminal activity, including a possible future murder. The court had to consider whether the evidence was admissible under the exceptions to the hearsay rule, and if it was relevant and not unfairly prejudicial.

The court found that some of the statements in the letter were admissible under section 66A of the Evidence Act 1995 (NSW), as they were relevant to one of the murder charges but not the other. However, the court also found that some statements were unfairly prejudicial and not relevant to the issues before the court. The court held that the letter should be excluded in its entirety because the prejudicial effect outweighed its probative value.

The court further held that the admission of some of the statements could have led to a conviction based on improper grounds, which would be a miscarriage of justice. The court found that the prejudicial effect of the inadmissible evidence was such that it could have influenced the jury's decision, and therefore, the interests of justice required the exclusion of the letter. The court noted that the accused had a right to a fair trial, and the admission of inadmissible evidence could have infringed upon that right.

The final orders of the court were that the letter written by the deceased victim was to be excluded in its entirety from evidence in the trial. The court emphasised the importance of ensuring that evidence admitted in criminal proceedings is both relevant and not unfairly prejudicial, and that the accused's right to a fair trial is protected. The case highlights the need for careful consideration of the admissibility of hearsay evidence, and the potential consequences of admitting prejudicial evidence.

Orders