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8
Court of Criminal Appeal 6 August 2021

Caleo v R

[2021] NSWCCA 179

Also reported as (2021) 290 A Crim R 352
Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE JOINT TRIAL ACCUSED BUT NOT THE OTHER

Citation: Caleo v R [2021] NSWCCA 179
Court: Court of Criminal Appeal
Date: 6 August 2021
Judge(s): Bathurst CJ (principal judgment); Beech-Jones J and N Adams J agreeing; N Adams J with additional observations

Background

The applicant was tried jointly with a co-accused, Mr Afu, on an indictment arising from the murder of the applicant's wife in Sydney in August 1990. The Crown alleged that the applicant solicited and financed the murder, while Mr Afu was alleged to have carried it out. The applicant was also charged with soliciting the separate murder of his wife's brother, Dr Chye, in 1989. The jury convicted the applicant of soliciting the murder of his wife and acquitted him of the charge relating to Dr Chye. Mr Afu was convicted of murder.

Before trial, the applicant sought a separate trial on the basis that evidence to be given by a Crown witness, Mr Naliva, was admissible only against Mr Afu. Mr Naliva gave evidence that Mr Afu had told him he had "killed a Chinese chick" for some jewellery and that the job came "from the husband." It was accepted that this evidence was inadmissible against the applicant. The trial judge refused the application for a separate trial, and the applicant appealed against his conviction on the ground that this refusal caused a substantial miscarriage of justice.

Legal Issues

  • Whether the joint trial resulted in a substantial miscarriage of justice or positive injustice to the applicant, by reason of the jury's exposure to the inadmissible evidence of Mr Naliva
  • Whether the applicant was deprived of a real chance of acquittal by that exposure, notwithstanding the trial judge's directions to the jury
  • What test applies in a conviction appeal alleging a miscarriage of justice caused by a joint trial (addressed by N Adams J)

Decision

The central issue: substantial miscarriage of justice from the joint trial

The Court confirmed that the question was not whether the trial judge had erred in refusing to order a separate trial, but whether, as the trial unfolded, the applicant suffered a substantial miscarriage of justice or positive injustice (at [7]). The established formulation, drawn from Webb v The Queen and applied consistently in this Court, asks whether the inadmissible evidence was likely to turn a potential acquittal into a conviction, and whether that likelihood was real rather than inconsequential (at [135]).

Strength of the admissible Crown case

Bathurst CJ found the Crown case against the applicant was reasonably strong, even setting aside Mr Naliva's evidence (at [150]). The principal Crown witness, Mr Stambolis, gave direct evidence that the applicant engaged him to procure someone to murder the deceased for $10,000, directing that jewellery be taken to simulate a robbery gone wrong (at [46]-[55]). While Mr Stambolis had lied to police on multiple occasions and his credibility was seriously challenged (at [63]-[66]), his evidence was corroborated to a significant degree by the co-accused's former girlfriend, Ms C, whose account of the night of the murder and the surrounding payments was broadly consistent with his (at [145]-[146]). The timing of two cash cheques drawn by the applicant aligned with the alleged payments to Mr Afu before and after the murder (at [147]). Additional circumstantial support came from the applicant's presence at home on the day of the murder, his unusual decision to stay late at his restaurant that night, and evidence of his extramarital affair and a fractured marriage providing clear motive (at [148]).

The acquittal on the Dr Chye charge

The applicant argued that his acquittal on the charge of soliciting Dr Chye's murder showed the jury had rejected Mr Stambolis's evidence entirely, and that the only explanation for his conviction on the remaining charge was reliance on Mr Naliva's inadmissible evidence. The Court rejected that reasoning (at [141]). The acquittal could not be attributed solely to rejection of Mr Stambolis, because another person, Dr Bham, appeared to have an equally powerful motive for Dr Chye's murder and the circumstantial Crown case on that charge was relatively weak (at [141]).

Effect of the trial judge's directions

Almost immediately after Mr Naliva gave the impugned evidence, the trial judge delivered a clear and firm direction to the jury that the evidence could not be used against the applicant. That direction was repeated during the summing-up (at [150]). Consistent with the general principle that juries are presumed to understand and follow judicial directions (at [151]), and given the relative strength of the admissible case, the Court was not persuaded there was a real risk the jury unconsciously relied on Mr Naliva's evidence. The appeal was dismissed (at [151]-[152]).

The applicable test (N Adams J)

N Adams J added observations on the correct legal test. Her Honour confirmed that the test for miscarriage of justice in a conviction appeal based on a joint trial remains that articulated in Webb v The Queen: whether the applicant has lost a chance that was fairly open to him of being acquitted (at [164]). Her Honour noted this formulation is, in substance, equivalent to asking whether "real injustice" was done to the applicant, as expressed in DR v R (at [167]).

Orders Made

  • Leave to appeal out of time granted
  • Appeal dismissed

Key Takeaways

  • In a conviction appeal based on the conduct of a joint trial, the question is not whether the trial judge erred in refusing to order separate trials; it is whether, as the trial actually unfolded, the applicant suffered a substantial miscarriage of justice by being deprived of a real chance of acquittal (at [7], [136]).

  • The Court of Criminal Appeal confirmed that the test for miscarriage of justice in this context remains whether the applicant has "lost a chance which was fairly open to him of being acquitted," consistent with Webb v The Queen, and that this is equivalent to the formulation of whether "real injustice" was done (at [164], [167]).

  • Inadmissible evidence given in a joint trial does not automatically cause a miscarriage of justice; the risk that it turned a potential acquittal into a conviction must be real rather than inconsequential, assessed by reference to the character of the inadmissible evidence and the overall strength of the admissible Crown case (at [135], [150]).

  • Prompt and emphatic judicial directions to disregard inadmissible evidence are a relevant factor in assessing whether a real risk of contamination existed; juries are generally presumed to understand and follow such directions, though the presumption may yield in cases of acute prejudice (at [150]-[151]).

  • An acquittal on one count in a joint trial does not necessarily establish that the jury rejected a witness's credibility entirely for all counts; the acquittal may reflect other features of that count, such as a stronger alternative suspect or a weaker circumstantial case, rather than a wholesale rejection of the witness (at [141]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- DR v R [2019] NSWCCA 320
- GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
- Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15
- Hamalainen v R [2019] NSWCCA 276
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Madubuko v R [2011] NSWCCA 135; (2011) 210 A Crim R 249
- McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5
- Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59
- Pham v R [2006] NSWCCA 3
- R v Afu; R v Caleo (No 8) [2018] NSWSC 187
- R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183
- R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep)
- R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428
- R v Gulder (1986) 8 NSWLR 12
- R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep)
- R v Patsalis & Spathis [1999] NSWSC 649; (1999) 107 A Crim R 432
- R v Pham [2004] NSWCCA 190
- R v Spathis [2001] NSWCCA 476
- Symss v R [2003] NSWCCA 77
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Trotter v R [2016] NSWCCA 57
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Weiss v the Queen (2005) 224 CLR 300; [2005] HCA 81