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

HIS HONOUR: This judgment is a revised version of one given ex tempore and assumes familiarity with the issues in the trial.
An overview of the Crown case (pre-trial) is to be found in R v Afu; R v Caleo [2017] NSWSC 1780.

The issue

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).
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.
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".
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…

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.

Keep reading for free

Create a free CaseChat account to read R v Afu; R v Caleo (No 16) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 289
Decision Date: 07 March 2018

CaseChat Overview and Summary

The case of R v Afu; R v Caleo (No 16) involved two defendants charged with a murder and other serious offences. The trial court was required to determine the admissibility of certain photographic and video evidence that the Crown sought to use to establish a connection between the two accused and the crime. The primary legal issues centred on the discretionary exclusion of evidence under the common law and statutory provisions, specifically the application of the discretion to exclude evidence that is likely to cause unfair prejudice to a defendant or that is otherwise not in the interests of justice.

The court examined the photographs in question, which included police charge photos of the accused at different times, and found that they were taken at significantly different periods, leading to an unreliable comparison. The court held that the prejudicial effect of these photos outweighed their probative value, and they were excluded from evidence. In contrast, the court considered a video and still images from the video that depicted the two accused at the time of the murder. Although the video was of relatively clear quality, the still images were criticised for their quality. Nonetheless, the court found that the still images were useful as an aide memoire for the jury and were therefore admissible.

The court's reasoning focused on the need to balance the probative value of the evidence against any prejudicial effect it might have. In the case of the charge photos, the court found that the prejudicial effect outweighed the probative value, leading to their exclusion. Conversely, the video and still images were deemed sufficiently probative to be admitted, despite the criticism of the still images' quality. The court concluded that the probative value of the evidence, when considered in the context of the overall case, justified its admission.

The final orders of the court involved the exclusion of the charge photos and the admission of the video and still images. This decision highlights the importance of considering the probative value and prejudicial effect of evidence when making discretionary decisions about its admissibility.

Orders