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. Submissions 1. The essence of Mr Wilson's application that the jury should be discharged was that there was incurable prejudice arising from the Crown Prosecutor raising the spectre of Mr Afu being responsible for child sexual abuse. He submitted that "in the current climate in our society about attitudes towards and knowledge about child sexual abuse, it is something that would invariably have been noticed by one or more jurors, if not all of them". 2. He referred to evidence in the Crown case (e.g. an occasion when Mr Afu and Cindy were in bed together) from which there would arise "an inevitable inference in the jury's mind that Mr Afu had sex with [Cindy] when she was underage". 3. Reference was made to a decision of the Court of Criminal Appeal in which it had been said that an age difference between an 18 year old and a 15 year old in a sexual assault case rendered it of such seriousness that it was likely to result in a full-time custodial sentence being imposed. Although Mr Wilson was unable to cite the actual case, I have no doubt that such a statement might have been made as it is generally consistent with the way in which child sexual assault cases are regarded by judges. 4. Mr Wilson submitted that there was no relevance in the jury being aware that Cindy was aged 15 although he accepted that the fact she was pregnant may be relevant. 5. It was submitted that the reference to Cindy being aged 15 was not relevant but was "highly prejudicial". It came at a stage when the cost of avoiding the prejudice by discharging the jury and empanelling a fresh jury was minimal. 6. The Crown Prosecutor submitted that there was no prejudice flowing to the accused in relation to the reference to Cindy's age. It was anticipated that there would be evidence that at the age of 13 she ran away from home and became a prostitute and a heroin addict and it was expected that this would come out in the evidence. It was also submitted that in order to make a proper evaluation of the witness' credibility the jury should know that she was a child. She would be giving evidence about events that occurred then rather than when she was of greater maturity. It was submitted that given Cindy met Mr Afu when she was a "runaway", a "working girl" and addicted to heroin at a young age, it would be unfair to paint her as any other type of woman at that time. It was said to be relevant as well that Cindy makes no complaint about this aspect of Mr Afu's conduct towards her. For these reasons, it was submitted that the jury would have no adverse (prejudicial) reaction, particularly given that, on one view of it, Mr Afu gave Cindy a roof over her head and some degree of protection. 7. In reply, Mr Wilson maintained the point that what was raised in the Crown Prosecutor's opening amounted to serious criminal conduct and that the "fact that a young person may have been a prostitute, may have had sexual relations with a large number of people before having criminal acts subjected upon her makes no difference". He also submitted that the assertion that Cindy's age was relevant to an assessment of her credibility was contrary to modern jurisprudence in relation to the evidence of children. Further, the fact that Cindy made no complaint about Mr Afu's conduct was "of very little moment in terms of the seriousness of the alleged criminal nature of the conduct, the implicit conduct". Mr Wilson reiterated the point that child sexual abuse, even when "consensual", was regarded in the community with "absolute abhorrence". Determination 1. In the context of all the evidence that the jury will hear in this case I do not accept that the fact that the Crown Prosecutor mentioned in the course of her opening address that Cindy was aged "15 or 16" when she was Mr Afu's girlfriend, that she was pregnant and that there was an occasion when they were in bed with each other (all implying, quite obviously, that sexual intercourse between the pair had occurred) has the significance counsel for Mr Afu maintains. 2. The jury are going to hear evidence from Mr Anthony Stambolis that Mr Afu was a person from whom he used to purchase cannabis in Kings Cross. He was the person Mr Afu thought of when he was asked if he knew someone who could "do something dodgy". 3. Further, the jury have heard that the Crown case is that Mr Afu "broke in" to Ms Caleo's bedroom and killed her by stabbing her 23 times. They will hear that he is alleged to have stolen a significant quantity of expensive jewellery and watches and later tried to sell them, saying (somewhat callously the jury might think) that he killed a "Chinese chick". They will hear evidence to the effect that he carried out the murder and "theft" of the jewellery for $20,000. In other words, the jury will hear a prosecution case to the effect that Mr Afu was a hired thief and killer. 4. Cindy's evidence is of considerable significance in the Crown case. Her evidence will include that Mr Afu carried out reconnaissance at the Caleo home at Double Bay sometime before the murder. She will give evidence from which the Crown will invite the inference that there was a meeting between Mr Afu and Mr Caleo at the latter's restaurant at Brighton-Le-Sands a short time before the murder. 5. Cindy is expected to say that on the night of the murder Mr Afu returned to the car in which she was waiting with Mr Stambolis and admitted to having stabbed "her" and that he was bleeding from the left hand (which is significant because blood other than Ms Caleo's was found at the crime scene). She will give evidence of having received some items of the stolen jewellery from Mr Afu. 6. Cindy is also expected to give evidence of the payments of $10,000 in cash allegedly made to Mr Afu before and after the murder. She is expected to say that she was present a few days after the second payment when Mr Afu bought a car for which he paid $10,000 in cash. 7. If the jury accepts Cindy's evidence there will be a powerful case of murder presented by the Crown against Mr Afu. Accordingly, it is expected that her evidence will be keenly contested and her credibility will be stridently challenged. 8. There is some force in the Crown Prosecutor's submission that an assessment of Cindy's credibility would be more informed if the jury were aware that she was in her mid-teenage years at the time of the events in question (although there might not necessarily be a need to mention again specifically that she was 15) and was a heroin addict. The fact that she sought payment for having sexual relations with others in order to fund her addiction is a matter about which minds may differ as to the effect on her credibility but it is possible that some would regard that as relevant. 9. The very discrete impugned passage in the Crown Prosecutor's opening address could be regarded as incurably prejudicial if there was some prospect that the jury may divert from the issues raised for their consideration and impermissibly reason that because Mr Afu had consensual sex with an underage person he was therefore guilty of child sexual abuse, therefore a person of bad character and therefore was more likely to have murdered Ms Caleo. 10. The jury will be asked to consider the Crown's evidence in support of an allegation of an extremely serious example of murder. Without diminishing the seriousness of child sexual abuse, what is involved here pales into insignificance compared to the offence charged. 11. Having regard to the nature of the evidence and the allegations being made by the Crown, I was not persuaded that there is any realistic prospect of an irrational process of reasoning diverting the jury from its duty to decide the case in accordance with the directions I will be giving. 12. For these reasons the application to discharge the jury was refused. ********** 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: 19 April 2018