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. Submissions in support of the application 1. The submissions by counsel for Mr Afu identified that the Crown relied upon the evidence of three witnesses, Mr Anthony Stambolis (former employee of Mr Caleo), Cindy (a pseudonym), (former girlfriend of Mr Afu) and Mr Joseph Naliva (said to be an associate of Mr Afu). 2. I accept that the evidence of Dr Paul Gaudry, a doctor who examined Mr Afu in February 2017 and observed some scars, should be put aside. 3. It is submitted that the evidence of Mr Stambolis is of doubtful reliability and credibility. Reasons for this are set out in the written submissions (at [11]-[13]). 4. The same is submitted in relation to the evidence of Cindy and Mr Naliva (with reasons in the submission at [14] and [15] respectively). 5. It is submitted that the case against Mr Caleo is altogether different and seemingly stronger. If the three witnesses (Stambolis, Cindy and Naliva) are not accepted by the jury, there would be no case against Mr Afu. 6. Reference was made to R v Pham [2004] NSWCCA 190 where Adams J doubted (at least) the significance of a co-accused's case being stronger; suggesting the focus should be on the evidence in the case of the co-accused that is thought to be prejudicial. 7. In R v Pham there was evidence of two witnesses which was controversial but it was supported by what was said by the co-accused in a police interview that was admissible in his case but not in the appellant's case. Theoretically, the jury could take the interview into account in assessing the credibility and reliability of the two witnesses' evidence in the co-accused's case but could not do so in relation to the appellant's case. RS Hulme J said (at [8]) that there was no practical way the jury could have assessed the credibility and reliability of those witnesses differently. He did not believe that the jury could separately form two assessments. Asserted prejudice 1. Mr Wilson submitted that there was prejudice for Mr Afu being tried together with Mr Caleo for the following reasons. 2. None of the evidence relating to the first murder is admissible against Mr Afu but it is prejudicial in a general sense in that it is highly emotionally charged and likely to arouse the sympathy of the jury for the two deceased. It was also contended that there was specific prejudice in two ways. 3. First, the jury could impermissibly reason that Mr Caleo had a tendency to engage hired killers, making it more likely that he would hire someone (Mr Afu) in the manner described by Mr Stambolis. This was likely to affect the jury's assessment of Mr Stambolis' credit. Further, it could affect their assessment of the evidence of Cindy and Mr Naliva. 4. Secondly, the evidence of Mr Stambolis in relation to the first murder is consistent with the sort of thing other, credible and largely independent, witnesses allege Caleo had said. This would also affect the jury's assessment of Mr Stambolis's credibility. 5. It was submitted that the jury will be required to take into account all of the evidence in relation to both murders when assessing the credibility of Mr Stambolis (and, to an extent, Cindy) in Mr Caleo's case. However, they will also need to be directed to take the same approach in relation to the case against Mr Afu but ignoring the evidence of the first murder when doing so. 6. Upon this analysis, it was submitted that there is a real risk that the case against Mr Afu will be made immeasurably stronger by evidence that is not admissible against him, the same as was the situation in R v Pham. 7. It was accepted that trying Mr Afu separately from Mr Caleo would involve duplication of the evidence in relation to the second murder. However, it was submitted that this was not a case involving a "cut-throat defence" and so there was no scope for inconsistent verdicts "since on the Crown case there could be a rational basis for any combination of verdicts". Consideration 1. I do not accept there is unfair prejudice in a general sense in Mr Afu being tried jointly with Mr Caleo because the jury would be sympathetic to the two deceased. The jury will be directed in the usual terms about the need to be objective and impartial and to put aside feelings of sympathy, bias and prejudice. They are directions that are readily understood and applied by juries on a daily basis. I see no reason to think that they would not be adequate in this case. 2. The assertion that the jury could conclude that Mr Caleo had a tendency to engage hired killers, making it more likely that he would hire somebody like Mr Afu, is not of such significance alone, or in combination with other matters, that would warrant a separate trial being ordered. It would seem likely that I will be asked to direct the jury not to engage in tendency reasoning (having excluded the tendency evidence contention advanced by the Crown) and if there was such a request I anticipate that I would accede to doing so. That would be adequate to deal with any possibility of the credibility of Cindy's and Mr Naliva's evidence being impermissibly bolstered by such impermissible reasoning as well. 3. The importance of Mr Stambolis' evidence in relation to the first murder seems to be limited to his assertion that there was an occasion when he was in a car with Mr Caleo when, as they passed a service station at Woolloomooloo, Mr Caleo pointed at it and said, "Somebody working in there by the name of Rick is going to fix Michael". Mr Stambolis asked what he meant by "fix" and Mr Caleo replied, "Finish him off". The more substantial evidence that the Crown expects him to give relates to the second murder. 4. It could be expected that the jury would evaluate Mr Stambolis's credibility in part based upon the extent to which his evidence concerning the first murder is supported by other evidence that is relevant to that murder. Thus, there would be an assessment that is made partly on the basis of evidence that is not admissible against Mr Afu. But the situation in this case is not as stark as it was in R v Pham. Again, being mindful of the difficulty in forecasting and without knowing precisely what evidence will be before the jury, I anticipate that appropriate directions to the jury should provide an adequate remedy. 5. The Crown seeks a joint trial and provides some valid reasons to support this. My conclusion, based upon my forecast as to how the evidence might unfold before a jury and the directions I might give, is that there should be. However, if it transpires that the evidence actually presented to the jury warrants this issue to be revisited, then this ruling should not be thought to foreclose another application. Conclusion 1. The application by the accused Afu for a trial separate from the accused Caleo is refused. ********** Amendments 10 July 2018 - Typographical error in case name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2018