R v Afu; R v Caleo (No 7) - [2018] NSWSC 186

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 7) [2018] NSWSC 186
Hearing dates: 7 February 2018
Decision date: 08 February 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Application for discharge of jury refused

Catchwords: CRIMINAL PROCEDURE – application for discharge of jury – where Crown Prosecutor in murder trial opening address mentioned defendant had a sexual relationship with a witness who was then 15 years’ old – whether inference of involvement in child sexual abuse would amount to incurable prejudice – application refused
Cases Cited: R v Afu; R v Caleo [2017] NSWSC 1780
Category: Procedural and other rulings
Parties: Regina
Alani Afu (Accused)
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr R Wilson (Accused)
Solicitors:
Solicitor for Pubic Prosecutions
Katsoolis & Co

File Number(s): 2014/321700

Judgment

HIS HONOUR: This is an application for the jury to be discharged following the Crown Prosecutor having said to the jury in the course of her opening address on the afternoon of Wednesday 7 February 2018:

"Anthony Stambolis will tell you that after this, he met Afu and with Afu's girlfriend. You will hear from this lady who was at the time Afu's girlfriend. Her name is [Cindy, a pseudonym] and she was very young at the time. She will tell you that she lived with Alani Afu in Earlwood and she was 15 or 16 and pregnant at the time that Rita Caleo met her death." (T16.35)

Elsewhere in the address there was mention of occasions before and after the murder of Ms Rita Caleo when men attended a home at Earlwood where Mr Afu and Cindy were living and paid Mr Afu on each occasion $10,000 for carrying out the murder. In that context there was mention of Mr Afu and Cindy sharing a bedroom in that home. (T17.10; 19.45)
Mr Wilson, counsel for Mr Afu, made an application that the jury be discharged. I heard submissions by Mr Wilson and the Crown Prosecutor and reserved my consideration of the application. Later that afternoon my associate (at my request) communicated to the parties that I had determined to refuse the application. I confirmed that determination when court resumed on 8 February 2018. The following are my reasons for that determination.
I will not provide an overview of the Crown case because I have done so in previous judgments, particularly in R v Afu; R v Caleo [2017] NSWSC 1780. In short, however, the Crown case is that Mr Caleo solicited the murder of his brother-in-law, Dr Michael Chye, at Woollahra on 16 October 1989 and the murder of his wife, Mr Rita Caleo, at Double Bay on 10 August 1990. The Crown case is that it was Mr Afu who carried out the murder of Ms Caleo after he entered her bedroom via a balcony door that had been left open by Mr Caleo and stabbed her 23 times in the ensuite bathroom.

Submissions

The essence of Mr Wilson's…

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: [2018] NSWSC 186
Decision Date: 08 February 2018

CaseChat Overview and Summary

Two individuals, Afu and Caleo, were standing trial for the murder of a person. The Crown Prosecutor made a statement in their opening address, referencing a sexual relationship between Afu and a witness who was 15 years old at the time. This led the defendants to apply for the jury's discharge, arguing that this mention caused incurable prejudice. The High Court considered whether the reference to the sexual relationship with a minor amounted to such prejudice that it would prevent a fair trial.

The court had to determine whether the mention of the sexual relationship between Afu and a minor witness in the Crown Prosecutor's opening address constituted incurable prejudice, warranting the discharge of the jury. They also had to consider the effect of this mention on the potential for a fair trial, as well as the legal standards for determining prejudice in a criminal trial.

The High Court found that the mention of the sexual relationship between Afu and the minor witness did not amount to incurable prejudice. The court reasoned that while the mention of the relationship was not ideal, it did not prevent the jury from delivering a fair and impartial verdict. The court held that the trial judge had adequately addressed the potential prejudice in their directions to the jury, ensuring that the jury could still reach a fair and unbiased decision. As a result, the application for the jury's discharge was refused.

No specific final orders were mentioned in the judgment. However, the refusal of the application for discharge meant that the trial could proceed as planned. The jury continued to deliberate and deliver their verdict in the murder trial of Afu and Caleo.

Orders