Citation: R v Afu; R v Caleo (No 7) [2018] NSWSC 186
Court: Supreme Court of New South Wales
Date: 8 February 2018
Judge: R A Hulme J
Background
Two accused faced trial for murder. The Crown case alleged that one accused, Mr Afu, was a hired killer who murdered a woman by stabbing her 23 times in her home, and that the co-accused had solicited that murder. The trial concerned events from 1989 and 1990.
During her opening address, the Crown Prosecutor told the jury that a key witness, referred to by the pseudonym Cindy, had been Mr Afu's girlfriend and was aged 15 or 16 at the time of the murder. There were also references to Cindy and Mr Afu sharing a bedroom. Cindy was expected to give significant evidence implicating Mr Afu directly in the murder.
Counsel for Mr Afu applied immediately for the jury to be discharged. He argued that the reference to Cindy's age, combined with other evidence suggesting a sexual relationship, would lead the jury to infer Mr Afu had engaged in child sexual abuse, causing incurable prejudice that could not be cured by any direction.
Legal Issues
- Whether the Crown Prosecutor's reference to the witness being 15 or 16 years old, in the context of a sexual relationship with the accused, gave rise to incurable prejudice warranting discharge of the jury.
- Whether the inference that the accused had engaged in sexual conduct with an underage person would divert the jury from rational consideration of the murder charge.
- Whether any such prejudice outweighed the relevance of the witness's age to an assessment of her credibility.
Decision
Hulme J refused the application. His Honour reasoned that, viewed against the entirety of the Crown case, the reference to Cindy's age did not carry the incurably prejudicial significance that counsel for Mr Afu maintained. The jury was to hear evidence that Mr Afu was a cannabis dealer, a hired killer who stabbed a woman 23 times, stole jewellery, and later spoke callously about the killing. In that context, evidence of a sexual relationship with an underage person paled in comparison to the gravely serious conduct already before the jury.
Hulme J acknowledged there was some force in the Crown Prosecutor's submission that Cindy's age was relevant to assessing her credibility. The jury would be better placed to evaluate her evidence knowing she was a teenager at the time, and also a heroin addict who had run away from home. These were matters going directly to the weight to be given to her account of significant events.
The central question was whether there was a realistic prospect that the jury would engage in impermissible reasoning: that because Mr Afu had consensual sex with an underage person, he was a person of bad character and therefore more likely to have committed murder. His Honour was not persuaded any such irrational chain of reasoning posed a realistic risk, particularly given the directions the jury would receive. The application was refused.
Orders Made
No formal orders were recorded beyond the refusal of the discharge application.
Key Takeaways
- An application to discharge a jury on the basis of incurable prejudice requires the court to assess whether there is a realistic prospect that the jury will reason irrationally from the impugned material, rather than simply whether some prejudice exists.
- The Supreme Court held that the severity and nature of the charged offence is highly relevant when weighing whether collateral prejudicial material will divert a jury from its duty. Here, evidence of sexual conduct with a 15-year-old was found to pale against an allegation of paid contract killing.
- Witness age at the time of relevant events may be legitimately placed before a jury where it bears on credibility, particularly when the witness was a teenager whose circumstances affected her capacity to observe and recall events.
- Refusing the discharge, the court placed significant weight on the capacity of proper jury directions to guard against impermissible reasoning, finding no realistic prospect that the jury would be diverted from the central issues.
- The decision does not establish any broad principle that references to underage relationships are always permissible in criminal trials; the outcome turned on the specific factual matrix and the overwhelming gravity of the charges the jury was asked to consider.
Legislation and Cases Referenced
Cases:
- R v Afu; R v Caleo [2017] NSWSC 1780 (prior judgment in same proceedings providing an overview of the Crown case)
- Unnamed Court of Criminal Appeal decision regarding sentencing in sexual assault cases involving an 18-year-old and a 15-year-old (cited by defence counsel but not formally identified in the judgment)
Legislation: No specific legislation was cited in the judgment.