R v Afu; R v Caleo (No 7) [2018] NSWSC 186

Supreme Court New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 7) [2018] NSWSC 186 Hearing dates: 7 February 2018 Decision date: 08 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Application for discharge of jury refused Catchwords: CRIMINAL PROCEDURE – application for discharge of jury – where Crown Prosecutor in murder trial opening address mentioned defendant had a sexual relationship with a witness who was then 15 years' old – whether inference of involvement in child sexual abuse would amount to incurable prejudice – application refused Cases Cited: R v Afu; R v Caleo [2017] NSWSC 1780 Category: Procedural and other rulings Parties: Regina Alani Afu (Accused) Representation: Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Accused)

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

Judgment 1. HIS HONOUR: This is an application for the jury to be discharged following the Crown Prosecutor having said to the jury in the course of her opening address on the afternoon of Wednesday 7 February 2018: "Anthony Stambolis will tell you that after this, he met Afu and with Afu's girlfriend. You will hear from this lady who was at the time Afu's girlfriend. Her name is [Cindy, a pseudonym] and she was very young at the time. She will tell you that she lived with Alani Afu in Earlwood and she was 15 or 16 and pregnant at the time that Rita Caleo met her death." (T16.35) 1. Elsewhere in the address there was mention of occasions before and after the murder of Ms Rita Caleo when men attended a home at Earlwood where Mr Afu and Cindy were living and paid Mr Afu on each occasion $10,000 for carrying out the murder. In that context there was mention of Mr Afu and Cindy sharing a bedroom in that home. (T17.10; 19.45) 2. Mr Wilson, counsel for Mr Afu, made an application that the jury be discharged. I heard submissions by Mr Wilson and the Crown Prosecutor and reserved my consideration of the application. Later that afternoon my associate (at my request) communicated to the parties that I had determined to refuse the application. I confirmed that determination when court resumed on 8 February 2018. The following are my reasons for that determination. 3. I will not provide an overview of the Crown case because I have done so in previous judgments, particularly in R v Afu; R v Caleo [2017] NSWSC 1780. In short, however, the Crown case is that Mr Caleo solicited the murder of his brother-in-law, Dr Michael Chye, at Woollahra on 16 October 1989 and the murder of his wife, Mr Rita Caleo, at Double Bay on 10 August 1990. The Crown case is that it was Mr Afu who carried out the murder of Ms Caleo after he entered her bedroom via a balcony door that had been left open by Mr Caleo and stabbed her 23 times in the ensuite bathroom.