Citation: R v Afu; R v Caleo (No 4) [2017] NSWSC 1787
Court: Supreme Court of NSW
Date: 18 December 2017
Judge: R A Hulme J
Background
The accused Afu faced a single charge of murdering Ms Rita Caleo in August 1990. His co-accused, Mark Caleo, faced two counts of soliciting murder: one relating to a Dr Michael Chye in 1989, and one relating to Ms Rita Caleo in 1990. The Crown case against Afu rested principally on the evidence of three witnesses, each of whose credibility was contested.
Counsel for Afu applied for a separate trial, arguing that a joint trial would expose him to unfair prejudice. The central concern was that evidence admissible only in Caleo's case would impermissibly strengthen the Crown's case against Afu by bolstering the credibility of those crucial witnesses.
The application was heard after the court resolved several prior interlocutory disputes, including admissibility rulings and a severance application by Caleo himself, all of which had been dealt with in earlier judgments in the same proceedings.
Legal Issues
- Whether the accused Afu should be tried separately from co-accused Caleo on the grounds of unfair prejudice
- Whether evidence admissible only in Caleo's case would, in practice, impermissibly bolster the credibility of witnesses against Afu in a way jury directions could not adequately remedy
- Whether general sympathy arising from evidence of two murders would unfairly affect the jury's assessment of the case against Afu
- Whether tendency reasoning from Caleo's conduct could impermissibly infect the jury's evaluation of evidence against Afu
Decision
Issue 1: General prejudice from emotional evidence
Hulme J rejected the submission that a joint trial would create unfair prejudice through general jury sympathy for the two deceased (at [20]). Standard directions about objectivity, impartiality, and setting aside sympathy are well understood and routinely applied by juries, and the judge saw no reason to think they would be inadequate here (at [20]).
Issue 2: Tendency reasoning infecting the case against Afu
The court was not persuaded that a risk of impermissible tendency reasoning, specifically that the jury might infer Caleo had a habit of engaging hired killers and thus was more likely to have hired Afu, was serious enough alone or in combination with other matters to justify a separate trial (at [21]). Hulme J noted that a direction against tendency reasoning was likely to be sought and given, and that this would adequately address any risk of Cindy's or Naliva's evidence being impermissibly strengthened (at [21]).
Issue 3: Bolstering of Stambolis's credibility by evidence inadmissible against Afu
This was the most substantive issue. Hulme J accepted that the jury would partly assess Stambolis's credibility by reference to how his evidence about the first murder was supported by other evidence relevant to that murder, evidence not admissible against Afu (at [23]). The court drew an analogy with R v Pham [2004] NSWCCA 190, where a co-accused's police interview had made it practically impossible for a jury to separately assess witness credibility in each accused's case (at [12]). However, Hulme J distinguished the present case as less stark, noting that Stambolis's evidence concerning the first murder was more limited in scope and that the primary evidence against Afu related to the second murder (at [22]-[23]). Appropriate jury directions were anticipated to provide an adequate remedy (at [23]).
Overall conclusion
The application was refused, with the court ordering a joint trial (at [24]-[25]). Hulme J explicitly left open the possibility of revisiting the question if the evidence actually presented at trial warranted a further application (at [24]).
Orders Made
- The application by the accused Afu for a trial separate from the accused Caleo is refused.
Key Takeaways
- Refusing the severance application, the Supreme Court confirmed that jury directions about sympathy, impartiality, and impermissible tendency reasoning can, in appropriate circumstances, provide an adequate remedy for the prejudice created by a joint trial (at [20]-[21]).
- Where evidence admissible only in a co-accused's case may bolster the credibility of a witness also crucial to the case against another accused, the question is whether the prejudice is sufficiently stark that jury directions cannot adequately address it, following R v Pham [2004] NSWCCA 190 (at [12]-[13], [23]).
- A joint trial ruling does not permanently foreclose further applications: Hulme J expressly preserved the accused Afu's ability to renew the application if the evidence unfolded in a way that made the prejudice more acute than forecast (at [24]).
- The relative strength of a co-accused's case is not, by itself, the primary focus of a severance analysis; the court's attention should centre on the specific evidence in the co-accused's case said to be prejudicial and whether its impact can be adequately controlled by direction (at [11]).
- Severance applications may need to be resolved in stages where prior interlocutory disputes, such as admissibility rulings and the co-accused's own severance application, must first be determined, as those outcomes directly shape the evidentiary landscape relevant to the joint trial question (at [3]-[4]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- 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