Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Afu; R v Caleo (No 4) [2017] NSWSC 1787 Hearing dates: 6 October 2017, 5 December 2017 Decision date: 18 December 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: The application by the accused Afu for a trial separate from the accused Caleo is refused.
Catchwords: CRIME – procedure – joint or separate trials of accused – evidence in case of co-accused inadmissible in case of accused may bolster credibility of crucial witnesses – capacity of jury directions to ameliorate prejudice Cases Cited: R v Afu; R v Caleo [2017] NSWSC 1780
R v Afu; R v Caleo (No 2) [2017] NSWSC 1781
R v Afu; R v Caleo (No 3) [2017] NSWSC 1782
R v Pham [2004] NSWCCA 190Category: Procedural and other rulings Parties: Regina
Alani Afu (Accused)Representation: Counsel:
Solicitors:
Ms M Cunneen SC (Crown)
Mr R Wilson (Accused)
Solicitor for Public Prosecutions
Katsoolis & Co
File Number(s): 2014/321700
Judgment
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HIS HONOUR: The accused Alani Afu is charged with the murder of Ms Rita Caleo on 10 August 1990 (Count 1 in the indictment) whereas his co-accused, Mark Caleo, is charged with soliciting the murder of Dr Michael Chye on 16 October 1989 and soliciting the murder of Ms Rita Caleo on 10 August 1990 (Counts 2 and 3).
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Counsel for Mr Afu filed in court (by leave) on 6 October 2017 a Notice of Motion by which he sought an order that Mr Afu be tried separately from Mr Caleo, alternatively, that the two accused be tried jointly but only in relation to the alleged murder of Ms Caleo.
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The resolution of this application has had to await the determination of issues raised by Mr Caleo concerning the admissibility of evidence and severance of counts. Those issues have now been determined and, as to the latter, it was refused: R v Afu; R v Caleo [2017] NSWSC 1780; R v Afu; R v Caleo (No 2) [2017] NSWSC 1781; and R v Afu; R v Caleo (No 3) [2017] NSWSC 1782.
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An overview of the Crown case is set out in the first of those judgments which primarily deals with the admissibility of a letter written by Ms Caleo on 15 May 1990 and of certain evidence the Crown would seek to adduce from Ms Mimi Chan. The second judgment deals with the admissibility of certain evidence the Crown would seek to adduce from Ms Angela Cheah. The third judgment deals with the admissibility of coincidence and tendency evidence. It was my ruling that the coincidence evidence was admissible and the concession of the parties that resulted in my ruling that the trials in respect of the two murders insofar as Mr Caleo is concerned should not be separated. That provides no prejudgment of the application by Mr Afu that he should be tried separately from Mr Caleo.
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A number of documents were tendered in support of the application…
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- Case
- [2017] NSWSC 1787
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the principles governing joint and separate trials, particularly the admissibility of evidence obtained from one accused that could be used against another. The court had to balance the need for a fair trial for each accused with the potential benefits of joint trials, such as efficiency and the preservation of witness testimony. Another significant issue was the impact of jury directions on the potential prejudice that might arise from the admission of co-accused evidence. The court had to determine whether the directions provided were sufficient to ensure that the jury could fairly consider the evidence in isolation from any prejudicial effects.
The court found that the evidence in question, which was relevant to the credibility of crucial witnesses, could be admitted provided that adequate jury directions were given to mitigate any potential prejudice. The court emphasised that while there is a strong preference for separate trials to ensure fairness, there are circumstances where a joint trial may be appropriate, particularly when it is necessary to preserve witness testimony. The court concluded that the jury directions given in this case were sufficient to ensure that the jury could properly assess the evidence without being unduly influenced by any prejudicial aspects. Consequently, the court allowed the evidence to be admitted in the trial of the accused who was not present during its collection, provided the jury was properly instructed.
The court ordered that Afu and Caleo be tried jointly, with the admission of the contested evidence subject to the conditions outlined. The jury was to be given specific directions to ensure that they could fairly assess the evidence without prejudice. The court's decision balanced the need for efficiency in the judicial process with the fundamental right to a fair trial for each accused. The final orders reflected the court's determination to uphold the principles of justice while addressing the complexities of joint trials in cases involving multiple accused persons.
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Evidence
Evidence Before The Court
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