AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
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, NSW
Date: 6 August 2021
Judge(s): Bathurst CJ; Beech-Jones J; N Adams J

Background

The appellant was charged with soliciting the murders of two people: his wife (the deceased) and her brother. The deceased's brother was shot at his home in 1989, and the deceased was murdered in 1990 in what the Crown alleged was staged to look like a robbery gone wrong. The appellant was tried jointly with a co-accused who was charged with the actual murder of the deceased.

The Crown's case was that the appellant had arranged, through an intermediary, for the co-accused to carry out the murder. Prior to trial, the appellant applied for a separate trial on the basis that the Crown intended to call an associate of the co-accused who would give evidence that the co-accused said he had "killed a Chinese chick" for some jewellery, and that the "job" came from "the husband of the Chinese lady." It was accepted by all parties that this evidence was inadmissible against the appellant.

The trial judge refused the application for a separate trial and directed the jury that the evidence could not be used against the appellant. The jury ultimately found the appellant guilty of soliciting the murder of his wife, but not guilty of soliciting the murder of her brother. The appellant sought leave to appeal out of time against his conviction.

  • Whether the joint trial resulted in a substantial miscarriage of justice, given that evidence admissible only against the co-accused was placed before the jury
  • Whether the jury's exposure to that inadmissible evidence (despite a direction to disregard it) deprived the appellant of a real chance of acquittal
  • What is the correct legal test on a conviction appeal where a failure to order a separate trial is alleged

Decision

The Court granted leave to appeal out of time but dismissed the appeal. Bathurst CJ (with Beech-Jones J and N Adams J agreeing on the result) held that the proper question on a conviction appeal of this kind is not whether the trial judge erred in refusing to order a separate trial, but whether the joint trial produced a substantial miscarriage of justice or "positive injustice" to the appellant.

The Court confirmed that some degree of prejudice to one accused in a joint trial is almost inevitable where evidence is admissible against one co-accused but not the other. That prejudice alone does not establish a miscarriage of justice. To succeed, an appellant must show that the conduct of the joint trial deprived them of a real chance of acquittal.

Applying that test, the Court found that the evidence given by the co-accused's associate was not so significant, in the context of the whole trial, that there was a real risk the jury impermissibly took it into account. The trial judge had directed the jury that the evidence could not be used against the appellant, and the Court reaffirmed the foundational principle that juries are presumed to understand and follow judicial directions. The partial acquittal on the soliciting charge relating to the deceased's brother was also consistent with the jury having approached its task carefully.

Beech-Jones J and N Adams J each added observations on the precise formulation of the miscarriage of justice test under s 6(1) of the Criminal Appeal Act 1912 (NSW), noting that the question of whether a "real injustice" has been done to an accused is effectively equivalent to asking whether the accused lost a chance of acquittal that was fairly open to them.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A conviction appeal grounded on a failure to order a separate trial requires more than showing prejudice from the joint trial. The appellant must establish a substantial miscarriage of justice, in the sense of having been deprived of a real chance of acquittal.

  • Where evidence is admissible against one co-accused but not another, some prejudice in a joint trial is almost inevitable. That inevitability does not, of itself, constitute a miscarriage of justice.

  • The Court of Criminal Appeal confirmed that, as a general rule, juries are presumed to understand and comply with directions from the trial judge. A properly given limiting direction remains a meaningful safeguard even where the excluded evidence is potentially damaging.

  • The correct appellate inquiry is not whether the trial judge exercised the discretion to refuse severance correctly, but whether injustice actually resulted from how the trial unfolded. If positive injustice to the accused is established, the conviction must be set aside regardless of whether the original discretion was properly exercised.

  • Beech-Jones J and N Adams J noted that the question of the precise test for miscarriage of justice in this context has not been conclusively resolved by the High Court since Webb and Hay v The Queen, and that the formulation of "real injustice" in subsequent decisions aligns with the earlier language of "losing a chance of acquittal that was fairly open."

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 29(2)

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
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- 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 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
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30