R v Afu; R v Caleo (No 9)
[2018] NSWSC 188
•07 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: R v Afu; R v Caleo (No 9) [2018] NSWSC 188 Hearing dates: 7 February 2018 Decision date: 07 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Application for separate trial refused
Catchwords: CRIMINAL PROCEDURE – application for separate trials – where new information – where Crown and co-accused case theory both implicate applicant – where co-accused’s case theory unlikely to have credibility or be pursued – application based only on speculation that particular case theory be pursued or would have credibility – application refused Cases Cited: R v Afu; R v Caleo (No 8) [2018] NSWSC 187 Category: Procedural and other rulings Parties: Regina
Mark Richard Caleo (Accused)Representation: Counsel:
Solicitors:
Ms M Cunneen SC (Crown)
Mr G Brady SC with Ms R Khalilizadeh (Accused)
Solicitor for Public Prosecutions
William O’Brien & Ross Hudson Solicitors
File Number(s): 2015/34389
Judgment
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HIS HONOUR: Shortly before empanelment of the jury was expected to occur on the morning of Wednesday 7 February 2018, a further application was made on behalf of the accused Mark Caleo for a trial separate from the co-accused Alani Afu.
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After having heard submissions I refused the application and gave some broad and brief reasons, indicating that I would later publish reasons in more detail. The following are those reasons.
Basis of the further separate trial application
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Mr Brady, senior counsel for Mr Caleo, said that this application was based upon "new information". He had been told by Mr Wilson, counsel for Mr Afu, that "at least one of the possible case theories" in the case for Mr Afu relates to the prosecution witness Joseph Naliva.
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In R v Afu; R v Caleo (No 8) [2018] NSWSC 187 at [21]-[23] I set out the evidence of Mr Naliva that is inadmissible but prejudicial to Mr Caleo. It is to the effect that Mr Afu made an admission that "the husband" (i.e. Mr Caleo) procured the murder of Mrs Caleo.
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Mr Brady said that the "possible case theory" or "a prospect that what will ultimately be said in Mr Afu's case" is that Mr Naliva was the actual murderer or that he arranged for the murder to occur. It will be put that Mr Naliva is falsely claiming that Mr Afu admitted to having carried out the murder in order to conceal Mr Naliva's own responsibility for having "either committed the offence or arranged for the offence to be committed".
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A contention that Mr Naliva was responsible in either of these ways was said to have more cogency because he could be characterised as someone more entrenched in serious criminal activity than Mr Afu and therefore a more likely person to be approached to carry out a murder.
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The consequence for Mr Caleo was said to be that the jury will hear two competing cases. First, the Crown on the one hand will contend that the jury should accept that Mr Afu committed the murder because he made the admissions claimed by Mr Naliva (which included that "the husband" procured the murder). On the other hand, they will hear counsel for Mr Afu contend that Mr Naliva was giving false evidence in that respect but nonetheless using his own knowledge of the events. The jury may then consider that such knowledge included that it was Mr Caleo who procured the murder, similarly to the Crown case.
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It was submitted that in dealing with either of these competing cases concerning Mr Afu, the aspect of "the husband" being the procurer of the murder would become more prominent than it already would be.
Crown submissions
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The Crown Prosecutor responded with a number of submissions that highlighted the unlikelihood of this possible case theory currently proposed by Mr Afu's representatives having any credibility. One example was said to be that acceptance of the theory would require a substantial rejection of the evidence of Mr Stambolis and Cindy who both directly and independently implicate Mr Afu. It would also require either rejection of, or finding an alternative explanation for, evidence that supports them. An example of that is the evidence of Mr Afu's purchase of a car for $10,000 in cash shortly after he is said to have received such a sum of money for having carried out the murder of Ms Caleo.
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It was also submitted that I had previously dealt with the question of prejudice to Mr Caleo arising from the evidence of Mr Naliva that is only admissible against Mr Afu. If this theory is in fact ventilated on behalf of Mr Afu it would not add to that prejudice; it would be the same whether it was Mr Afu or Mr Naliva who carried out the murder at the behest of "the husband".
Reasons for refusing the application
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The application was refused because it appeared to be based upon speculation. There was speculation as to whether this "possible" case theory will actually be pursued on behalf of Mr Afu given the likelihood that forensic decisions will need to be made as the evidence unfolds in the trial.
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There is also speculation as to whether the theory, if pursued on behalf of Mr Afu, could be at all credible. Mr Naliva may have been more involved in serious criminal activity, or he may have been more involved in associating with persons who did so, but is it to be suggested that he carried out the murder in the same way, for the same reasons, and received the same remuneration as Mr Afu? Credibility of the theory is even more problematic in relation to the possible contention that Mr Naliva arranged, rather than carried out, the murder. If it was not Mr Afu, or Mr Naliva, who will it be suggested was the murderer? Moreover, what will be suggested may be the motives of Mr Stambolis and Cindy both, and apparently independently, falsely attributing to Mr Afu what was actually the conduct of Mr Naliva given the absence (at least to my awareness) of any evidence that they even knew him?
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The third element of speculation was the degree to which any additional prejudice might flow to Mr Caleo if a viable defence case theory of this type was raised by Mr Afu's representatives. I was not persuaded that there would necessarily be any significant difference to the prejudice already acknowledged and dealt with in the first separate trial application made by Mr Caleo. The possibility that there might be remains to be seen.
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In the end, the "positive injustice" to Mr Caleo that would warrant a separate trial was not established on such speculative bases and for these reasons the application was refused.
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Decision last updated: 19 April 2018
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