R v Afu; R v Caleo (No 12) - [2018] NSWSC 191

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 12) [2018] NSWSC 191
Hearing dates: 15 February 2018
Decision date: 15 February 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Application for discharge of jury refused

Catchwords: CRIMINAL PROCEDURE – application to discharge jury – where accused charged with murder – where evidence adduced in cross-examination implied that accused had had sexual relationship with underage girlfriend – whether allusion to accused having sexual intercourse with underage female would occasion irreparable prejudice – application refused
Cases Cited: R v Afu; R v Caleo (No 7) [2018] NSWSC 186
Category: Procedural and other rulings
Parties: Regina
Alani Afu
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr R Wilson (Accused)
Solicitors:
Solicitor for Public Prosecutions
Peter Katsoolis & Co

File Number(s): 2014/321700

Judgment

HIS HONOUR: Earlier this afternoon, an application was made for the discharge of the jury. The application was made by Mr Wilson on behalf of the accused Alani Afu. I refused the application for the following reasons.
The application was based upon evidence-in-chief given by Mr Stambolis. The draft transcript that I have on a screen under the realtime transcript facility has the question, "How old was she?" and that is a reference to the witness who I will refer to by the pseudonym "Cindy". The answer as recorded in draft at least was, "I think she was a fair bit younger than the Tongan".
Mr Stambolis elsewhere in his evidence-in-chief had said that the person he refers to as "the Tongan" was "a few years older than me" and I note Mr Stambolis had indicated towards the beginning of his evidence that he was born in June 1970.
The subject of Cindy's age was the subject of an application to discharge the jury following the Crown Prosecutor's opening address which included mention of the age of Cindy as being "15 or 16". I refused that application: see R v Afu; R v Caleo (No 7) [2018] NSWSC 186.
It was also the subject of discussion yesterday (T407.47 - 410.4) in relation to a foreshadowed objection by Mr Wilson to evidence as to Cindy's age and other aspects. (See also Mr Wilson’s written submissions of 13 February 2018 – MFI 20.) Briefly, the concern is that there would arise prejudice if there was any allusion to Mr Afu having engaged in sexual intercourse with an underage female.
In the evidence given today by Mr Stambolis in relation to the question and answer I quoted earlier, Mr Wilson indicated that he had heard Mr Stambolis start the answer with part of the word "sixteen" before Mr Stambolis cut himself off and gave the answer as I indicated earlier. The answer that I indicated earlier that is in the draft transcript is consistent with the note I took of the answer. I did not hear any reference to "sixteen", or the partial use of that word, but I accept that that is what…

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

Case: [2018] NSWSC 191
Decision Date: 15 February 2018

CaseChat Overview and Summary

In the matter of R v Afu; R v Caleo (No 12), the accused were charged with murder. The court was asked to consider an application to discharge the jury based on the contention that prejudicial evidence had been presented during cross-examination, which suggested that one of the accused had engaged in a sexual relationship with an underage female. The court was required to decide whether this allusion would cause irreparable prejudice to the accused's right to a fair trial.

The court examined the nature and impact of the evidence in question, specifically focusing on whether the reference to a sexual relationship with an underage female would significantly undermine the fairness of the trial. It considered the potential for such evidence to prejudice the jury against the accused, thereby affecting their impartiality. The court assessed whether the prejudicial nature of this evidence outweighed the probative value it might have in proving the case against the accused. Ultimately, the court concluded that the potential for prejudice did not necessitate the discharge of the jury, and the application was refused.

The reasoning of the court was that, while the evidence in question was indeed prejudicial, it was not so damaging as to irreparably prejudice the accused's right to a fair trial. The court held that the jury could be managed through appropriate directions and that the prejudicial effect could be mitigated. Therefore, the court decided that the evidence should remain before the jury, and the application to discharge them was dismissed.

Orders