Citation: R v Afu; R v Caleo (No 12) [2018] NSWSC 191
Court: Supreme Court of New South Wales
Date: 15 February 2018
Judge(s): R A Hulme J
Background
Two accused were on trial for murder. During the trial, evidence emerged concerning a young woman referred to by the pseudonym "Cindy," who had a relationship with one of the accused, Alani Afu. The question of Cindy's age had already arisen earlier in the proceedings, including during the Crown Prosecutor's opening address, which had placed her age at "15 or 16."
During evidence-in-chief given by a witness referred to as Mr Stambolis, a question was asked about Cindy's age. The answer recorded in the draft transcript indicated she was "a fair bit younger" than Afu. Defence counsel, however, asserted that the witness had begun to say "sixteen" before cutting himself off.
The concern underlying the application was that any implication that Afu had engaged in sexual intercourse with an underage female could occasion significant prejudice to his case before the jury.
Legal Issues
- Whether evidence or allusions during cross-examination suggesting that the accused had a sexual relationship with an underage female gave rise to irreparable prejudice sufficient to warrant discharge of the jury.
- Whether the partial utterance of the word "sixteen" by the witness, if heard by jurors, created a prejudicial suggestion of criminal conduct by the accused.
Decision
Hulme J declined to discharge the jury. The judge noted some uncertainty as to whether Mr Stambolis had in fact begun to say "sixteen," though he accepted, on the account of defence counsel and those assisting him, that this may have occurred. It was also unclear whether any juror would have registered it.
The judge found that a reference to Cindy being 16 years of age did not, of itself, give rise to any suggestion of criminality on the part of Afu. At the age of 16, a sexual relationship would not necessarily imply unlawful conduct, and no prejudice arose from the reference on that basis alone.
Even if the evidence could be read as implying underage sexual intercourse, Hulme J was not persuaded that irreparable prejudice would follow. The judge relied on his earlier reasoning in R v Afu; R v Caleo (No 7) [2018] NSWSC 186, where he had previously refused a discharge application arising from the same topic during the Crown's opening address.
Orders Made
No orders were made in this decision.
Key Takeaways
- Hulme J held that a witness's reference to a complainant's age as 16 did not, without more, imply criminal conduct by the accused or create prejudice warranting jury discharge.
- A reference to an accused having a relationship with a 16-year-old does not automatically carry an inference of unlawful sexual intercourse, and courts will assess the actual prejudicial content of the evidence rather than treating the subject as inherently damaging.
- Irreparable prejudice is the threshold required to discharge a jury mid-trial; the Supreme Court found that threshold was not met here, even taking the defence's account of the witness's partial utterance at its highest.
- The decision reflects a broader pattern in this trial, with the same issue having been raised and refused on an earlier occasion during the Crown's opening, demonstrating that courts treat repeated applications on substantially similar grounds with consistency.
- Factual uncertainty about what jurors actually heard was treated as a relevant consideration, though the court resolved the application on the absence of prejudice rather than on that uncertainty alone.
Legislation and Cases Referenced
Cases:
- R v Afu; R v Caleo (No 7) [2018] NSWSC 186
Legislation:
No legislation was cited in the judgment.