R v Afu; R v Caleo (No 12) [2018] NSWSC 191

Supreme Court New South Wales

Medium Neutral Citation: R v Afu; R v Caleo (No 12) [2018] NSWSC 191 Hearing dates: 15 February 2018 Decision date: 15 February 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Application for discharge of jury refused Catchwords: CRIMINAL PROCEDURE – application to discharge jury – where accused charged with murder – where evidence adduced in cross-examination implied that accused had had sexual relationship with underage girlfriend – whether allusion to accused having sexual intercourse with underage female would occasion irreparable prejudice – application refused Cases Cited: R v Afu; R v Caleo (No 7) [2018] NSWSC 186 Category: Procedural and other rulings Parties: Regina Alani Afu Representation: Counsel: Ms M Cunneen SC (Crown) Mr R Wilson (Accused)

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

Judgment 1. HIS HONOUR: Earlier this afternoon, an application was made for the discharge of the jury. The application was made by Mr Wilson on behalf of the accused Alani Afu. I refused the application for the following reasons. 2. The application was based upon evidence-in-chief given by Mr Stambolis. The draft transcript that I have on a screen under the realtime transcript facility has the question, "How old was she?" and that is a reference to the witness who I will refer to by the pseudonym "Cindy". The answer as recorded in draft at least was, "I think she was a fair bit younger than the Tongan". 3. Mr Stambolis elsewhere in his evidence-in-chief had said that the person he refers to as "the Tongan" was "a few years older than me" and I note Mr Stambolis had indicated towards the beginning of his evidence that he was born in June 1970. 4. The subject of Cindy's age was the subject of an application to discharge the jury following the Crown Prosecutor's opening address which included mention of the age of Cindy as being "15 or 16". I refused that application: see R v Afu; R v Caleo (No 7) [2018] NSWSC 186. 5. It was also the subject of discussion yesterday (T407.47 - 410.4) in relation to a foreshadowed objection by Mr Wilson to evidence as to Cindy's age and other aspects. (See also Mr Wilson's written submissions of 13 February 2018 – MFI 20.) Briefly, the concern is that there would arise prejudice if there was any allusion to Mr Afu having engaged in sexual intercourse with an underage female. 6. In the evidence given today by Mr Stambolis in relation to the question and answer I quoted earlier, Mr Wilson indicated that he had heard Mr Stambolis start the answer with part of the word "sixteen" before Mr Stambolis cut himself off and gave the answer as I indicated earlier. The answer that I indicated earlier that is in the draft transcript is consistent with the note I took of the answer. I did not hear any reference to "sixteen", or the partial use of that word, but I accept that that is what Mr Wilson, his reader and his instructing solicitor, heard. 7. How much of the word "sixteen" Mr Stambolis might have said is unclear and also unclear is whether any jurors would have picked it up. But assuming that they did, reference to Cindy's age being 16 I do not see as a problem. It does not give rise to any suggestion of criminality on behalf of Mr Afu. There is no prejudice arising in that respect. 8. Moreover, even if there was a reference to something that would suggest that Mr Afu had engaged in underage sexual intercourse, I am not convinced that there would be irreparable prejudice for the reasons I gave in the judgment I referred to earlier (R v Afu, R v Caleo (No 7)). For those reasons the application was refused.