R v Afu; R v Caleo (No 4) [2017] NSWSC 1787

Supreme Court New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 4) [2017] NSWSC 1787 Hearing dates: 6 October 2017, 5 December 2017 Decision date: 18 December 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: The application by the accused Afu for a trial separate from the accused Caleo is refused. Catchwords: CRIME – procedure – joint or separate trials of accused – evidence in case of co-accused inadmissible in case of accused may bolster credibility of crucial witnesses – capacity of jury directions to ameliorate prejudice Cases Cited: R v Afu; R v Caleo [2017] NSWSC 1780 R v Afu; R v Caleo (No 2) [2017] NSWSC 1781 R v Afu; R v Caleo (No 3) [2017] NSWSC 1782 R v Pham [2004] NSWCCA 190 Category: Procedural and other rulings Parties: Regina Alani Afu (Accused) Representation: Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Accused)

Solicitors: Solicitor for Public Prosecutions Katsoolis & Co File Number(s): 2014/321700

Judgment 1. HIS HONOUR: The accused Alani Afu is charged with the murder of Ms Rita Caleo on 10 August 1990 (Count 1 in the indictment) whereas his co-accused, Mark Caleo, is charged with soliciting the murder of Dr Michael Chye on 16 October 1989 and soliciting the murder of Ms Rita Caleo on 10 August 1990 (Counts 2 and 3). 2. Counsel for Mr Afu filed in court (by leave) on 6 October 2017 a Notice of Motion by which he sought an order that Mr Afu be tried separately from Mr Caleo, alternatively, that the two accused be tried jointly but only in relation to the alleged murder of Ms Caleo. 3. The resolution of this application has had to await the determination of issues raised by Mr Caleo concerning the admissibility of evidence and severance of counts. Those issues have now been determined and, as to the latter, it was refused: R v Afu; R v Caleo [2017] NSWSC 1780; R v Afu; R v Caleo (No 2) [2017] NSWSC 1781; and R v Afu; R v Caleo (No 3) [2017] NSWSC 1782. 4. An overview of the Crown case is set out in the first of those judgments which primarily deals with the admissibility of a letter written by Ms Caleo on 15 May 1990 and of certain evidence the Crown would seek to adduce from Ms Mimi Chan. The second judgment deals with the admissibility of certain evidence the Crown would seek to adduce from Ms Angela Cheah. The third judgment deals with the admissibility of coincidence and tendency evidence. It was my ruling that the coincidence evidence was admissible and the concession of the parties that resulted in my ruling that the trials in respect of the two murders insofar as Mr Caleo is concerned should not be separated. That provides no prejudgment of the application by Mr Afu that he should be tried separately from Mr Caleo. 5. A number of documents were tendered in support of the application (voir dire exhibits 2, 3 and 4). Written submissions dated 6 October 2017 were provided by Mr Wilson of counsel. There are also written submissions by the Crown dated 4 October 2017. Mr Wilson did not wish to make any further submissions when the matter was before me on 6 October or again on 5 December 2017.