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Supreme Court 6 February 2018

R v Afu; R v Caleo (No 8)

[2018] NSWSC 187

HomicidePublic order & justice offences
CRIMINAL PROCEDURE APPLICATION FOR SEPARATE TRIALS ACCUSED WHETHER EVIDENCE AGAINST CO ACCUSED APPLICATION REFUSED.

Citation: R v Afu; R v Caleo (No 8) [2018] NSWSC 187
Court: Supreme Court of New South Wales
Date: 6 February 2018
Judge: R A Hulme J

Background

The two accused faced related but distinct charges arising from alleged events in Sydney in 1989 and 1990. The first accused was charged with murder, alleged to have killed a woman at Double Bay in August 1990. The second accused, her husband, was charged with two counts of soliciting murder: one relating to the deceased and an earlier alleged solicitation to kill her brother.

The Crown's case linked the two accused through the theory that the husband had engaged the first accused to carry out the killing. The evidence against the first accused was described as substantial, including alleged admissions to several witnesses and possession of items stolen from the deceased's home. The case against the husband rested heavily on the evidence of a single witness whose account had shifted considerably over time.

The husband applied for a separate trial, arguing that being tried alongside the first accused would expose him to highly prejudicial evidence that was not admissible against him, and that the disparity in the strength of the Crown's cases created a real risk of positive injustice.

  • Whether the evidence against the applicant was significantly weaker than the evidence against the co-accused, such that a separate trial was warranted.
  • Whether evidence admissible only against the co-accused was so prejudicial to the applicant that there was a real risk it would impermissibly strengthen the Crown's case against him.
  • Whether any prejudice arising from a joint trial could be remedied by appropriate directions to the jury.
  • Whether, in the interests of justice under s 29(3) of the Criminal Procedure Act 1986 (NSW), the trials ought to be separated.

Decision

Hulme J refused the application, finding that the applicant had not demonstrated that "positive injustice" would result from a joint trial. This is the governing standard under the relevant authorities: the applicant must show more than a remote possibility of unfairness; there must be a real risk of actual injustice.

On the disparity in evidence, the court accepted that the case against the first accused was stronger. However, Hulme J found that the case against the applicant was not limited to the single principal witness. The Crown intended to lead both direct and circumstantial evidence against the husband, and some of that evidence was capable of supporting the central elements of the principal witness's account.

On the prejudice argument, the court distinguished between different categories of potentially prejudicial evidence. Evidence concerning the first accused's involvement in drug use, criminal associations, and robberies was not directly connected to the applicant, and the court considered that a jury would find it unsurprising that someone hired to commit a murder had a criminal background. As for the most significant piece of contested evidence, namely a statement attributed to the first accused in which he referred to "the husband" as having directed the killing, Hulme J found this was a discrete and identifiable piece of evidence that could be the subject of a clear direction confining its use to the case against the first accused only.

The court noted that it was not persuaded the joint trial met the threshold for positive injustice, but expressly left open the possibility of a further application if circumstances changed as the evidence unfolded during the trial.

Orders Made

• The application for a separate trial was refused.

Key Takeaways

  • The threshold for ordering separate trials under s 29(3) of the Criminal Procedure Act 1986 (NSW) requires the applicant to demonstrate a real risk of "positive injustice," not merely a remote possibility of prejudice.
  • Where evidence admissible only against one co-accused is discrete and identifiable, a carefully crafted jury direction may be sufficient to prevent unfair prejudice to the other accused, thereby preserving the joint trial.
  • A disparity in the strength of the Crown's cases against co-accused does not, of itself, require separate trials; the court must assess whether the overall circumstances give rise to the requisite level of injustice.
  • Refusing a separate trial application does not permanently foreclose the issue: the Supreme Court made clear that a further application remains available if the evidence at trial develops in a way that changes the relevant circumstances.
  • Under the Piller considerations endorsed in this decision, the combination of significantly weaker evidence against an applicant and highly prejudicial inadmissible evidence against a co-accused may justify severance, but both elements must be assessed together against the positive injustice standard.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 29(2), 29(3)

Cases
- R v Darby (1982) 148 CLR 668; [1982] HCA 32
- R v Piller; R v Kramer; R v Edwards (1995) 86 A Crim R 249
- R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported)
- R v Privett [1999] NSWSC 1074
- R v Patsalis & Spathis (No 1) [1999] NSWSC 649; 107 A Crim R 432
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Regina v Pham [2004] NSWCCA 190
- R v Fernando & Anor [1999] NSWCCA 66
- Symss v The Queen [2003] NSWCCA 77
- Osman v R [2006] NSWCCA 196
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- R v Afu; R v Caleo [2017] NSWSC 1780