R v Afu; R v Caleo (No 4) - [2017] NSWSC 1787

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 190
Category: Procedural and other rulings
Parties: Regina
Alani Afu (Accused)
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr R Wilson (Accused)
Solicitors:
Solicitor for Public Prosecutions
Katsoolis & Co

File Number(s): 2014/321700

Judgment

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).
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.
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.
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.
A number of documents were tendered in support of the application…

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: [2017] NSWSC 1787
Decision Date: 18 December 2017

CaseChat Overview and Summary

The matter before the court involved two accused, Afu and Caleo, who were facing charges related to a criminal conspiracy. The dispute centred on whether the accused should be tried jointly or separately, specifically concerning the admissibility of evidence from one accused in the trial of the other. The court had to decide whether such evidence, which might bolster the credibility of crucial witnesses, could be admitted in the trial of the accused who was not present during the gathering of that evidence. Additionally, the court was tasked with assessing the effectiveness of jury directions in mitigating any potential prejudice arising from the admission of such evidence.

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.

Orders