R v Afu; R v Caleo (No 8) - [2018] NSWSC 187

Supreme Court

New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 8) [2018] NSWSC 187
Hearing dates: 5 February 2018
Decision date: 06 February 2018
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Application for separate trial refused

Catchwords: CRIMINAL PROCEDURE – application for separate trials – whether evidence against one accused significantly weaker than evidence against co-accused – whether evidence against co-accused highly prejudicial to applicant such that there is real risk that it will make case against applicant impermissibly stronger – whether unfairness can be remedied by directions to the jury – whether in the interests of justice that the whole set of circumstances be presented to the jury – whether balance possible between public interest in jury hearing trials together and any prejudice to co-accused – possible prejudice can be ameliorated by direction – possible future applications during course of trial not foreclosed – application refused.
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 29(2), 29(3)
Cases Cited: Osman v R [2006] NSWCCA 196
R v Afu; R v Caleo [2017] NSWSC 1780
R v Darby (1982) 148 CLR 668; [1982] HCA 32
R v Fernando & Anor [1999] NSWCCA 66
R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unrep
R v Patsalis & Spathis (No 1) [1999] NSWSC 649; 107 A Crim R 432
R v Piller; R v Kramer; R v Edwards (1995) 86 A Crim R 249
R v Privett [1999] NSWSC 1074
R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
R v Spathis; R v Patsalis [2001] NSWCCA 476
Regina v Pham [2004] NSWCCA 190
Symss v The Queen [2003] NSWCCA 77
Category: Procedural and other rulings
Parties: Regina
Mark Richard Caleo (Accused)
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr G Brady SC with Ms R Khalilizadeh (Accused)
Solicitors:
Solicitor for Public Prosecutions
William O’Brien & Ross Hudson Solicitors

File Number(s): 2015/34389

Judgment

HIS HONOUR: The accused Mark Caleo seeks a trial separate from his co-accused Alani Afu. On 6 February 2018 I announced my ruling that the application was refused (6.2.18 at T14). The following represents my reasons for that ruling.

Introduction

Mr Afu is charged with the murder of Ms Rita Caleo at Double Bay on 10 August 1990 whereas Mr Caleo is charged with soliciting to murder Dr Michael Chye at Woollahra on 16 October 1989 and soliciting to murder Ms Rita Caleo at Double Bay on 10 August 1990.
An overview of the Crown case appears in R v Afu; R v Caleo [2017] NSWSC 1780. In short it is that Dr Chye was the brother of Mr Caleo's wife, Ms Rita Caleo. The Crown contends that Mr Caleo solicited an unknown person to murder Dr Chye after they had a falling out over a property transaction. It also alleges that he solicited the murder of his wife, such murder being carried out by Mr Afu.
The provisions of s 29(2)…

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 187
Decision Date: 06 February 2018

CaseChat Overview and Summary

In the case of R v Afu; R v Caleo (No 8), the applicants, Afu and Caleo, sought separate trials in relation to criminal charges. The application was heard in the High Court, where the applicants argued that the evidence against them was significantly different in strength, and that the evidence against Caleo was highly prejudicial to Afu. The applicants contended that this prejudice could not be adequately addressed through jury directions, and thus it was in the interests of justice for the trials to be separate.

The legal issues before the court included whether the evidence against one accused was significantly weaker than the evidence against the co-accused, and whether this weakness and the prejudice from the evidence against the co-accused could be remedied through directions to the jury. The court also had to determine whether it was in the interests of justice for the whole set of circumstances to be presented to the jury together, balancing this with the public interest in jury trials being heard together and the potential for prejudice to be ameliorated through direction.

The court considered the evidence presented and the arguments made by both parties. It found that the evidence against Afu was not significantly weaker than the evidence against Caleo, and that any prejudice to Afu from the evidence against Caleo could be addressed through appropriate jury directions. The court determined that it was in the interests of justice for the trials to be heard together, taking into account the public interest in jury trials being heard together and the potential for prejudice to be ameliorated. The court also noted that any future applications for separate trials during the course of the trial were not precluded.

The High Court refused the application for separate trials, finding that the balance between the public interest in joint trials and any potential prejudice could be managed through jury directions, and that it was in the interests of justice for the trials to proceed together.

Orders