Citation: R v Afu; R v Caleo (No 9) [2018] NSWSC 188
Court: Supreme Court of New South Wales
Date: 7 February 2018
Judge: R A Hulme J
Background
Two accused, referred to here as the first accused and the second accused, were facing a joint criminal trial. The prosecution alleged that the second accused had procured the murder of his wife, and that the first accused had carried out the killing. A key prosecution witness had given evidence that the first accused admitted to committing the murder at the direction of "the husband," being the second accused.
Shortly before jury empanelment, senior counsel for the second accused brought a fresh application for his client to be tried separately from the first accused. He described the application as being based on "new information" conveyed by counsel for the first accused.
The new information was that at least one possible case theory being considered for the first accused's defence involved the prosecution witness himself, asserting that this witness either committed the murder or arranged for it, and was falsely implicating the first accused to conceal his own involvement.
Legal Issues
- Whether the second accused had established sufficient grounds, based on the newly disclosed defence theory, to warrant a separate trial from his co-accused
- Whether the potential prejudice arising from that defence theory constituted a "positive injustice" to the second accused justifying severance of the trials
Decision
Hulme J refused the application, finding it rested on multiple layers of speculation rather than established fact. First, there was uncertainty about whether the proposed defence theory would actually be pursued at trial, given that forensic decisions by counsel often shift as the evidence unfolds.
Second, the court was not persuaded the theory had any real prospect of credibility. Acceptance of it would require the jury to substantially reject the evidence of two independent witnesses who directly implicated the first accused, and to explain away other corroborating evidence, including a large cash payment he received around the relevant time. The proposition that the prosecution witness, rather than the first accused, had arranged or committed the murder was described as even more problematic, given the absence of any apparent connection between that witness and the other two witnesses who independently pointed to the first accused.
Third, even if the theory were pursued and had some credibility, the degree of any additional prejudice to the second accused remained uncertain. The court noted it had previously dealt with the prejudice arising from the prosecution witness's evidence in an earlier separate trial application, and was not persuaded that the defence theory, if ventilated, would add meaningfully to that existing prejudice.
Hulme J concluded that the "positive injustice" standard required to justify separate trials had not been met on such speculative foundations.
Orders Made
No orders were made in this decision.
Key Takeaways
- A separate trial application must establish a "positive injustice" to the applicant; speculation about what a co-accused's counsel might argue, and how credible that argument might be, is insufficient to meet that threshold.
- Where an application for severance is premised on a "possible" defence theory that has not been confirmed as the course that will actually be taken, courts will treat the prejudice concern as too contingent to warrant separate trials.
- The Supreme Court assessed the inherent credibility of the proposed co-accused defence theory as part of its analysis, identifying multiple evidentiary obstacles that made the theory unlikely to succeed even if pursued.
- Prejudice already acknowledged and managed in a prior separate trial application does not automatically generate fresh grounds for severance simply because a new defence theory might re-emphasise the same prejudicial material.
- Refusing the application, the court signalled that remaining prejudice concerns could be revisited if the theoretical case theory actually materialised during the trial in a form that warranted reconsideration.
Legislation and Cases Referenced
Cases:
- R v Afu; R v Caleo (No 8) [2018] NSWSC 187 (prior ruling dealing with the admissibility and prejudicial impact of the prosecution witness's evidence)
Legislation:
No specific legislation was cited in the judgment.