R v Afu; R v Caleo (No 16)

[2018] NSWSC 289

Supreme Court

New South Wales

Medium Neutral Citation:	R v Afu; R v Caleo (No 16) [2018] NSWSC 289
Hearing dates:	7 March 2018
Decision date:	07 March 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Evidence admissible
Catchwords:	EVIDENCE – discretions – exclusions of evidence – where Crown sought to adduce photographs showing similarity between two people – photos included police charge photos – charge photos show men at two very different time periods – evidence excluded   EVIDENCE – discretions – exclusions of evidence – where Crown sought to adduce video and still images from video showing similarity between two people at time of murder – video relatively clear – criticisms of quality of still images – still images useful to jury as aide memoire – evidence admitted
Cases Cited:	R v Afu; R v Caleo [2017] NSWSC 1780
Category:	Procedural and other rulings
Parties:	Regina Alani Afu Mark Richard Caleo
Representation:	Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Afu) Mr G Brady SC with Ms R Khalilizadeh (Caleo)   Solicitors: Solicitor for Public Prosecutions Katsoolis & Co William O’Brien & Ross Hudson Solicitors
File Number(s):	2014/321700; 2015/34389

Judgment

1. HIS HONOUR: This judgment is a revised version of one given ex tempore and assumes familiarity with the issues in the trial.

2. An overview of the Crown case (pre-trial) is to be found in R v Afu; R v Caleo [2017] NSWSC 1780.

The issue

3. An issue about the admissibility of photographs and a video depicting Gerard Caleo and Anthony Stambolis has arisen as a consequence of the evidence of Cindy (a pseudonym).

4. Cindy's evidence included that she and the accused Alani Afu were passengers in a car on two occasions when trips were made to the vicinity of the home in Double Bay of Ms Rita Caleo. The first trip was, on the Crown case, for a reconnoitre of the area surrounding Ms Caleo's home and, on the second occasion, when the murder of Ms Caleo was carried out.

5. The effect of the primary evidence of Cindy is that it was the same man who was the driver of the car on both occasions. The Crown case is that this man was Mr Stambolis but Cindy did not know him by name. When Cindy was cross-examined, she was taken to a statement that she had made to police in which she had said something to the effect that the driver of the car on a second trip to Double Bay was not the same as the driver on the first occasion. She also said that the driver on the second occasion looked like the driver on the first occasion, a man whom she had referred to as "the Italian-looking guy".

6. Cindy also gave evidence of two visits to her home at Earlwood when Mr Afu was given bundles of money; once before the murder and once after. On one of those occasions there was a second man although it seems she did not get a very good look at him, if she got a look at him at all. At some point in her evidence in describing two men she said that both men looked Italian.

7. In the course of the cross-examination about what Cindy had said in her prior statement about there being different men who drove the car on the two trips to Double Bay, she said that this was incorrect. She said in re-examination that the two men looked very similar.

8. It is this potential confusion or uncertainty in the evidence of Cindy as to the identity of the two men that gives rise to this issue about the comparative appearance of Gerard Caleo and Anthony Stambolis. I have said that the Crown case is that Mr Stambolis was the driver on both occasions of trips to Double Bay. That was his evidence. He also said that Mr G Caleo accompanied him on a visit to the home at Earlwood when money was paid to Mr Afu.

The evidence

9. The Crown is seeking to place before the jury evidence of the actual appearance of Mr G Caleo and Mr Stambolis to make the point that the evidence of Cindy as to the two men she spoke of in her evidence having a similar appearance should be accepted. The Crown contends that the men shown in the various photographs and the video are similar in age and appearance and there is nothing striking in terms of dissimilarity.

10. There is a photograph of Mr Stambolis taken in 1990 (a police charge photograph) and a photograph of Mr G Caleo taken in 1997 (also a police charge photograph). Even cropped to avoid the name boards, they still might be thought to be "mug shots" although I am not sure the jury would infer this. In any event, I do not think that any concern of this type is significant.

11. As a defence exhibit on the voir dire (exhibit 32) there is a photograph of Mr G Caleo and Mr David Chye seated together at some function which was clearly taken some years before 1990. Mr G Caleo looks considerably younger, perhaps in his mid-teens, or possibly younger, whereas he was 18 at the time of the murder of Ms Rita Caleo. He has a rather boyish look in this photograph. It may be that it was taken at the wedding of Mark and Rita Caleo at which David Chye said he met and sat next to Gerard Caleo.

12. Still photographs of the two men which are exhibit 29 on the voir dire, lifted from a video of the funeral of Ms Caleo in August 1990, have been criticised on the basis of their poor quality. I agree that they are not terribly good but they do show Mr G Caleo and Mr Stambolis as being not dissimilar in age and appearance.

13. The Crown has also tendered, as exhibit 33 on the voir dire, the actual video of the funeral. They show the two men much more clearly than in the still photographs, although fleetingly. It would be necessary, if that video is to go to the jury, for it to be substantially edited so the focus can be on the appearance of the two men and to avoid lengthy moving vision of extraneous matter.

Determination

14. Having regard to the issue raised in the evidence of Cindy there is potentially probative value in images of Mr G Caleo and Mr Stambolis going to the jury for their assessment as to the similarity, or dissimilarity, of the appearance in 1990 of these two men. Unfair prejudice would only arise if the means of making a comparison of their appearance would be misleading or that the jury could give the evidence greater weight than is warranted, having regard to the quality of the images.

15. The police charge photograph of Mr G Caleo (exhibit 28 on the voir dire) is inadmissible because it shows him at a time when he was seven years older than he was at the critical time. He looks like a far more mature man and there is some force in the criticism about skin colouring in this depiction.

16. The police charge photograph of Mr Stambolis in 1990 (exhibit 27 on the voir dire) should also be excluded. It is a close up photograph and there is no equivalent comparator with Mr G Caleo.

17. I am prepared to admit exhibit 29 on the voir dire, the still images from the funeral video, as well as an appropriately edited version of the funeral video itself, exhibit 33. The still images will be useful to the jury as a guide to who they are looking for in the video, and as an aide memoire. The video itself will be the important evidence.

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Decision last updated: 19 April 2018