R v Afu; R v Caleo (No 9) [2018] NSWSC 188

Supreme Court New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 9) [2018] NSWSC 188 Hearing dates: 7 February 2018 Decision date: 07 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Application for separate trial refused Catchwords: CRIMINAL PROCEDURE – application for separate trials – where new information – where Crown and co-accused case theory both implicate applicant – where co-accused's case theory unlikely to have credibility or be pursued – application based only on speculation that particular case theory be pursued or would have credibility – application refused Cases Cited: R v Afu; R v Caleo (No 8) [2018] NSWSC 187 Category: Procedural and other rulings Parties: Regina Mark Richard Caleo (Accused) Representation: Counsel: Ms M Cunneen SC (Crown) Mr G Brady SC with Ms R Khalilizadeh (Accused)

Solicitors: Solicitor for Public Prosecutions William O'Brien & Ross Hudson Solicitors File Number(s): 2015/34389

Judgment 1. HIS HONOUR: Shortly before empanelment of the jury was expected to occur on the morning of Wednesday 7 February 2018, a further application was made on behalf of the accused Mark Caleo for a trial separate from the co-accused Alani Afu. 2. After having heard submissions I refused the application and gave some broad and brief reasons, indicating that I would later publish reasons in more detail. The following are those reasons.

Basis of the further separate trial application 1. Mr Brady, senior counsel for Mr Caleo, said that this application was based upon "new information". He had been told by Mr Wilson, counsel for Mr Afu, that "at least one of the possible case theories" in the case for Mr Afu relates to the prosecution witness Joseph Naliva. 2. In R v Afu; R v Caleo (No 8) [2018] NSWSC 187 at [21]-[23] I set out the evidence of Mr Naliva that is inadmissible but prejudicial to Mr Caleo. It is to the effect that Mr Afu made an admission that "the husband" (i.e. Mr Caleo) procured the murder of Mrs Caleo. 3. Mr Brady said that the "possible case theory" or "a prospect that what will ultimately be said in Mr Afu's case" is that Mr Naliva was the actual murderer or that he arranged for the murder to occur. It will be put that Mr Naliva is falsely claiming that Mr Afu admitted to having carried out the murder in order to conceal Mr Naliva's own responsibility for having "either committed the offence or arranged for the offence to be committed". 4. A contention that Mr Naliva was responsible in either of these ways was said to have more cogency because he could be characterised as someone more entrenched in serious criminal activity than Mr Afu and therefore a more likely person to be approached to carry out a murder. 5. The consequence for Mr Caleo was said to be that the jury will hear two competing cases. First, the Crown on the one hand will contend that the jury should accept that Mr Afu committed the murder because he made the admissions claimed by Mr Naliva (which included that "the husband" procured the murder). On the other hand, they will hear counsel for Mr Afu contend that Mr Naliva was giving false evidence in that respect but nonetheless using his own knowledge of the events. The jury may then consider that such knowledge included that it was Mr Caleo who procured the murder, similarly to the Crown case. 6. It was submitted that in dealing with either of these competing cases concerning Mr Afu, the aspect of "the husband" being the procurer of the murder would become more prominent than it already would be.