R v Afu; R v Caleo (No 5)
[2018] NSWSC 184
•06 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Afu; R v Caleo (No 5) [2018] NSWSC 184 Hearing dates: 6 February 2018 Decision date: 06 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Expert evidence conclusion inadmissible
Catchwords: EVIDENCE – admissibility and relevance – where an expert gave evidence concluding that a scar on the defendant’s hand could have been the result of the alleged offence – whether risk that jury would improperly use the evidence – conclusion ruled inadmissible Category: Procedural and other rulings Parties: Regina
Alani Afu (Accused)Representation: Counsel:
Solicitors:
Ms M Cunneen SC (Crown)
Mr R Wilson (Afu)
Solicitor for Public Prosecutions
Katsoolis & Co
File Number(s): 2014/321700
Judgment
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HIS HONOUR: There is evidence in the Crown case that when Mr Afu returned to a waiting car after having, on the Crown case, murdered Ms Caleo, he was seen to be bleeding from a cut on a hand. The witness, Cindy (a pseudonym), specifically says it was the left hand, although according to her statement of 19 February 2014 (at [17]), it was a "deep cut on his left hand that went from about the inside of the index finger across the palm". She specifically remembered putting a gauze pad on the cut.
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There is also evidence proposed to be led in the Crown case that a forensic biologist identified blood at the scene of the murder emanating, apparently, from two people; one being the deceased and the other being unknown.
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So, in short, the Crown case is that Mr Afu sustained a cut to his left hand in the course of stabbing Ms Caleo numerous times which resulted in her death.
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On 14 February 2017, Mr Afu was the subject of a forensic procedure, during which Dr Paul Gaudry examined his hands. Included in his findings are that there were two scars on the back of Mr Afu's left hand. This is inconsistent with the evidence I have referred to that Cindy would give that it was a cut to the palm. The Crown says that Cindy is simply mistaken about that.
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Dr Gaudry says, in his expert certificate of 8 May 2017, that "possible causes of the scars on the left hand ... are incised wounds due to a sharp object such as a razor blade, knife, glass, stick or scalpel". That is not the subject of objection.
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What is objected to is the conclusion Dr Gaudry then expresses:
"It is possible that the scars on the left hand were caused by cuts to the hand by a knife at the time of the alleged incident".
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Dr Gaudry earlier referred to having been told that the "incident" was the stabbing murder of Ms Caleo in 1990.
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Having regard to the state of the evidence, I am not of the view that the conclusion is admissible. I note that Mr Wilson, counsel for Mr Afu, would not object if Dr Gaudry gave evidence as to the time a scar might remain visible after an incised wound is sustained. If Dr Gaudry was to give that evidence, that, in conjunction with his evidence as to the possible cause of scars, in my view would be sufficient for the matter to be properly laid before the jury for its consideration as to whether the scar or scars were sustained during the "alleged incident".
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The conclusion expressed by Dr Gaudry is one in terms of "possibility" but, in my view, if the doctor were to be permitted to express that view it could lead to the jury giving the matter more weight than it deserves. It is a matter for the jury to determine, so I am of the opinion that that conclusion is not admissible.
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Decision last updated: 19 April 2018
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