Citation: R v Afu; R v Caleo (No 16) [2018] NSWSC 289
Court: Supreme Court of New South Wales
Date: 7 March 2018
Judge: R A Hulme J
Background
This ruling arose within a murder trial in which the Crown alleged that the accused Alani Afu was involved in the killing of a woman at her Double Bay home. A key Crown witness, referred to by the pseudonym Cindy, gave evidence about car trips to the area around the deceased's home, including on the night of the murder. Her evidence was that the same man drove the car on both occasions, and that man was identified by the Crown as Anthony Stambolis.
Under cross-examination, however, Cindy was taken to a prior statement in which she appeared to suggest the drivers on the two trips were different people. She later said the two men looked very similar, and at various points described both men as "Italian-looking." This created ambiguity about whether she was confusing the driver with Gerard Caleo, another figure in the Crown's account.
To address that ambiguity, the Crown sought to place before the jury photographs and video footage of Stambolis and Gerard Caleo, taken around the time of the murder in 1990, to demonstrate that the two men were similar in age and appearance. The admissibility of that material was the subject of this ruling.
Legal Issues
- Whether police charge photographs of Gerard Caleo (taken in 1997) and Anthony Stambolis (taken in 1990) should be admitted for the jury to compare the men's appearances.
- Whether still images taken from a funeral video, and the funeral video itself, should be admitted for the same comparative purpose.
- Whether any of the proposed evidence carried a risk of unfair prejudice, including by being misleading or by inviting the jury to give it undue weight.
Decision
Hulme J accepted that images of the two men had potential probative value in light of the confusion arising from Cindy's evidence. The question was whether the particular images proposed would produce unfair prejudice, either by being misleading or by leading the jury to place more weight on the evidence than its quality warranted.
The police charge photograph of Gerard Caleo was excluded. It was taken in 1997, seven years after the murder, and depicted him as a noticeably more mature man than he would have been in 1990. The seven-year gap meant the photograph did not reliably reflect his appearance at the critical time, and there was also criticism about skin colouring in the image.
The police charge photograph of Stambolis, taken in 1990, was also excluded. It was a close-up photograph and there was no equivalent close-up of Caleo from the same period, meaning the two could not be fairly compared using those images side by side.
The court admitted both the still images from the funeral video (exhibit 29) and an appropriately edited version of the funeral video itself (exhibit 33). The video clearly showed both men, albeit briefly, and the still images, while acknowledged to be of modest quality, were sufficient to assist the jury in identifying who to look for in the footage. The still images were characterised as a useful aide memoire, with the video itself constituting the primary evidence.
Orders Made
• The police charge photograph of Mr G Caleo (exhibit 28) is inadmissible
• The police charge photograph of Mr Stambolis in 1990 (exhibit 27) is excluded
• Exhibit 29 on the voir dire (still images from the funeral video) is admitted
• An appropriately edited version of the funeral video (exhibit 33) is admitted
Key Takeaways
- Photographs of a person taken substantially after the relevant time may be excluded where the age difference produces a misleading impression of their appearance at the time in question.
- Where comparative identification evidence is proposed, fairness requires that the images of each person be reasonably equivalent in their nature and proximity to the critical period. A close-up photograph of one person without an equivalent comparator for the other weighs against admission.
- Still images of modest quality are not automatically inadmissible. Where they serve a legitimate aide-memoire function, and clearer video footage accompanies them, the combination may be admitted notwithstanding criticism of image quality.
- Probative value in comparative appearance evidence arises where a witness's identification evidence is genuinely ambiguous, and images from the relevant time period can assist the jury in assessing that ambiguity.
- The risk of unfair prejudice in this context is assessed by reference to whether the evidence is misleading or likely to be given disproportionate weight, not simply because the images originated as police charge photographs.
Legislation and Cases Referenced
Cases:
- R v Afu; R v Caleo [2017] NSWSC 1780 (providing background overview of the Crown case)
Legislation: No specific legislation was cited in this decision.