Caleo v R

Court of Criminal Appeal (NSW)|2021-05-21|Before: Bathurst CJ, Beech-Jones J, Adams J, Hunt J, Hulme J

Judgment

BATHURST CJ: By an indictment presented on 5 February 2018 the applicant Mark Richard Caleo (the applicant) was charged with soliciting the murder of Dr Michael Chye (Dr Chye) and of the applicant's wife Rita Caleo (the deceased). The first of these offences was alleged to have taken place on 16 October 1989, whilst the second was alleged to have taken place on 10 August 1990.
Alani Afu (Mr Afu) was charged with the murder of the deceased on the same indictment.
The applicant was tried jointly with Mr Afu. On 5 April 2018 the applicant was found guilty of soliciting the murder of the deceased but not guilty of soliciting the murder of Dr Chye. Mr Afu was found guilty of the murder of the deceased.
Prior to the commencement of the trial the applicant applied to be tried separately from Mr Afu. The basis of the application was the prejudice said to be caused to the applicant by virtue of the fact that the Crown proposed to call in its case against Mr Afu a Mr Joseph Naliva (Mr Naliva), an associate of Mr Afu, who it was anticipated would give evidence that Mr Afu asked him to sell some jewellery, saying he had "killed a Chinese chick for it" and the "job" was given to him "by the husband of the Chinese lady". It was also expected that Mr Naliva would give evidence that on the following day Mr Afu gave him 20 or 30 items of jewellery saying, "I had to knock a Chinese lady for this" and "the job came from the husband".
The Crown case was that the jewellery was the proceeds of a robbery which took place at the residence of the applicant and the deceased (collectively, the Caleos) on the night of the murder and that the "Chinese lady" was the deceased. It was accepted that the evidence was not admissible against the applicant: R v Afu; R v Caleo (No 8) [2018] NSWSC 187 at [25].
The trial judge refused the application for a separate trial: R v Afu; R v Caleo (No 8).
The applicant has appealed against his conviction for murdering the deceased. His sole ground of appeal is that the "trial judge erred in failing to order that the applicant be tried separately from [his] co-accused", being Mr Afu. At the hearing it was accepted that the relevant issue was not whether the trial judge erred in refusing to order separate trials but whether there was a substantial miscarriage of justice or what has been described as a positive injustice by virtue of the joint trial: Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 89; R v Gulder (1986) 8 NSWLR 12 at 15; DR v R [2019] NSWCCA 320 at [20]-[21].

The murders

Dr Chye and the deceased were brother and sister. The applicant and the deceased owned a company through which they operated various restaurants including Caleo's Italian Restaurant in the Queen Victoria Building in Sydney (the QVB), Brannigan's Brewery and Caleo's Ristorante, both at Brighton-Le-Sands, and the Caleo's of Sydney in Malaysia.
Dr Chye was fatally shot in his car which he had just parked in the garage of his home in Attunga Street, Woollahra on 16 October 1989.
As further outlined below, the body of the deceased was found in the en-suite bathroom in the home she shared with the applicant at Bay Street, Double Bay on 10 August 1990. She died from multiple stab wounds.
It is the Crown case that the applicant organised and financed both of the murders.

The Crown case against the applicant in respect of Dr Chye

Although the applicant's appeal only relates to his conviction for soliciting the murder of the deceased, the Crown case, rejected by the jury in respect of the death of Dr Chye, is of relevance in determining the issues raised by the appeal. It is thus necessary to summarise it briefly.
Dr Chye was the deceased's brother. The Crown case was that the circumstances giving rise to the allegations against the applicant arose out of the proposed purchase by the applicant and the deceased of properties at 14 and 16 Pleasant Way, Blakehurst (the Blakehurst properties). Dr Geoffrey Thompson (Dr Thompson), a close friend of Dr Chye, gave evidence that Dr Chye told him that he was purchasing the Blakehurst properties from a pathologist, Dr Bham. He also gave evidence that Dr Chye was planning to use the money he received from selling the Blakehurst properties to fund the purchase of a property at Attunga Street, Woollahra (the Woollahra property), and that Dr Chye had taken out a bridging loan to finance the purchase of the Woollahra property.
A Mr Graeme Peters (Mr Peters), Mr Chye's solicitor, gave evidence that Dr Chye bought the Blakehurst properties by way of a mortgagee sale. The purchase price was $825,000.
Dr Bham who was a bankrupt at the time apparently alleged that there was an oral agreement between him and Dr Chye that Dr Chye would transfer one of the Blakehurst properties, 14 Pleasant Way, Blakehurst, back to him. Dr Chye refused to do so, and Dr Bham lodged a caveat over the property.
On 17 June 1989 the applicant and the deceased agreed to purchase 14 and 16 Pleasant Way, Blakehurst for $3,475,000. A deposit cheque of $347,500 was made out to the vendor's agent. However, the sale could not proceed due to the caveat over the property lodged by Dr Bham.
On 7 July 1989 the cheque in payment of the deposit was stopped.
On 26 July 1989 an order was made that the caveat be removed and Dr Bham pay Dr Chye's costs.
The initial contract having apparently lapsed, the properties were put up for auction on 5 October 1989 and on 6 October 1989 the applicant and the deceased entered into a second contract to purchase 14 and 16 Pleasant Way for $3,625,000. It was an essential term of that contract that settlement take place on 20 November 1989.
The circumstances surrounding the sale of these properties caused considerable animosity between both the applicant and Dr Chye and between Dr Chye and Dr Bham.
The Crown relied on the following items of evidence in support of its case that the applicant solicited the murder of Dr Chye. 1. The Caleos asked for the deposit back. Dr Thompson and his wife Ms Denise Gardner (Ms Gardner) were friends of Dr Chye. Ms Gardner gave evidence that the Caleos asked Dr Chye if they could take the deposit on the Blakehurst properties back because they were concerned that they could not afford to proceed with the sale. 2. Inquiry regarding death clause in contract of sale. After receiving advice from his solicitor Mr John Morrissey (Mr Morrissey) that he faced financial ruin if he could not settle on the Blakehurst properties, the applicant contacted Mr Morrissey and asked him to explain the clause in the contract for sale relating to death and mental illness. 3. Argument at Dr Chye's surgery. In the days leading up to the murder of Dr Chye, Mrs Margaret Williams (Mrs Williams), the receptionist at Dr Chye's surgery, witnessed the applicant attending in an agitated state. Mrs Williams claims the applicant entered a consultation room where he and Dr Chye had a heated argument, after which the applicant slammed the door when he left. Dr Chye informed Mrs Williams that the argument was in relation to the Blakehurst properties sale and told her, "I had the little bastard on his knees. I gave him an extension. If he doesn't pay, I'll sue him for everything he's got". 1. Dr Chye threatened legal action against the Caleos. Dr Thompson gave evidence that Dr Chye told him that if the Caleos did not settle on the Blakehurst properties, he would pursue legal action against them and make sure they settled, even if that meant ruining the applicant financially. 2. The applicant made violent threats towards Dr Chye. Dr Chye informed several witnesses that the applicant had made violent threats towards him and that he had fears for his own safety. Ms Gardner gave evidence that Dr Chye told her the applicant had said to him "I'll kill you". Similar evidence was given by Ms Susan Thompson (Ms Thompson), Dr Thompson's sister. Dr Thompson gave evidence that Dr Chye told him about threats made by the applicant on more than occasion, including words to the effect of, "If you don't stop pushing, you are going to find yourself dead". Dr Thompson and Ms Gardner said these threats were made one or two weeks preceding Dr Chye's death. 1. Dr Chye retaliates against the applicant's threats. Dr Thompson gave evidence that Dr Chye told him that he said to the applicant that if he kept threatening him, "Well I'll get your kids killed". 2. Dr Chye wanted to write the deceased out of his will. Evidence to that effect was given by Ms Thompson and Mr Peters. 3. The applicant begged Dr Chye to not follow through with settlement. Mr James Wilkinson (Mr Wilkinson), who described himself as a good friend of the deceased, gave evidence that Dr Chye told him that "once [the applicant] went to his surgery on his knees and begged [Dr Chye] not to follow on with the suit. He just told me that … [the applicant] was on his knees begging him not to proceed with it". 4. Dr Chye was worried about the settlement. Ms Thompson gave evidence that Dr Chye was anxious about settlement of the Blakehurst properties and said, "I'm afraid I'm going to lose everything that I've worked so hard for". Similar evidence was given by Ms Gardner. 5. Dr Chye feared violence. Ms Thompson gave evidence that she had a conversation with Dr Chye over dinner during which he said to her that "he was very scared, he was worried about either being assaulted or murdered and he explained the security system of his house to me in great detail and how it worked and what protection he thought that would provide him" … "He was trying to be brave-faced as well" … "[the applicant] had threatened to have him murdered if he pushed the sale through". 6. Dr Chye acquired a gun. Mrs Williams gave evidence that she and her husband bought a gun and gifted it to Dr Chye for Christmas because he was nervous. Mr Wilkinson gave evidence that he knew Dr Chye had acquired a gun. 1. The applicant visited Dr Chye's new home. Mr Ping Kon Yap (Mr Yap), husband of Ms Janice Yap (Ms Yap) to with whom the applicant was allegedly having an affair at the time of the deceased's murder, gave evidence about visiting Dr Chye's new home in Woollahra with the applicant during which the applicant said, "A man like this would not have long to live".
There was also reliance placed on the evidence of Mr Anthony Stambolis (Mr Stambolis). The Crown case was that Mr Stambolis was intimately involved in the events leading up to the murder of the deceased. I have dealt with his evidence in respect of that matter in dealing with the Crown case in respect of the charge against the applicant for soliciting the murder of the deceased (see at [34] ff below). This section deals only with his evidence in respect of the murder of Dr Chye.
In his evidence in chief Mr Stambolis stated that the relationship between the applicant and Dr Chye "wasn't a friendly one". He stated that the applicant "didn't like [Dr Chye] period". He stated that the applicant made the following comments concerning Dr Chye: "Q. Did you hear him say anything? A. Oh, he said lots of things about [Dr Chye]. He - [Dr Chye] was gay; [the applicant] would talk about him being 'a faggot', 'fucking faggot' and things to that effect, excuse the language but that's what was said. He was - I remember him saying that - something to the effect that, 'Why does a faggot need such a big house and home and car?' He was - to me, he was clearly jealous of what [Dr Chye] possessed; the home, the arts, particularly the art. He mentioned a fair bit about art from time to time."
Mr Stambolis stated that on one occasion the applicant drove him to Double Bay and pointed out Dr Chye's house to him. He stated that on another occasion he and the applicant were driving through Kings Cross and they pulled up at a service station in Woolloomooloo. He said the applicant said that there was someone in there that was going to "fix" Dr Chye. Mr Stambolis said that he asked the applicant what he was talking about and he said that the applicant laughed it off and said, "fix him" or "fix him up". Mr Stambolis then gave this evidence: "A. I - certain I did. He didn't say 'kill', he didn't say 'bash', he didn't say anything like that, I don't recall that. He said 'fix him up'. I said, 'Who? What? What are you talking about?' And he said, 'A guy by the name of Rick'. I don't remember exactly the rest of the conversation but I do recall asking [the applicant] to call this Rick. [The applicant] didn't question calling him; he called him straight away, he gave me the phone. [The applicant] didn't answer the phone and say, 'Rick, it's [the applicant], I'm going to put someone on'. He dialled - he had a phone in the console of his car, he picked the handset up, he dialled the number and he handed me the phone. Rick answered the phone. I said, 'Is this Rick?' He said, 'Yes'. I said, 'Listen, this is [Mr Stambolis], I work for [the applicant]. You're not to do anything, don't do anything [the applicant] has asked you to do. Forget about it' and he's just, 'Okay', like it was nothing."
He also stated that after Dr Chye died, the applicant said to him on a number of occasions "the faggot's dead", "the faggot's gone", or "things to that effect".
Mr Stambolis also stated that he had a conversation with the applicant after the deceased had died in which the applicant asked him to kill the applicant's godfather by setting fire to his house with the godfather in it. Mr Stambolis stated that he declined to do this. He said that during the course of the conversation the following took place: "A. There was a lot of things discussed at that meeting. It was - [the applicant] had emphatically told me in Gerard's [(the applicant's younger brother's)] presence that he was responsible for [Dr Chye's] murder; that Ricky, the guy that I'd spoken to on his mobile phone in his car, that worked at the service station or was the nephew of the owner of the service station in Woolloomooloo, had committed the murder; that he had gone overseas to South America very, very shortly after the murder, whether it was a matter of days, hours, I can't recall, but it was virtually straightaway. He also made it clear that I was naive to think that he wasn't responsible for that and that [the deceased] wasn't going to be murdered because I questioned that. And it was like, 'How could you be so stupid as to not know [the deceased] was going to be murdered after what had happened to [Dr Chye]?', and that was that. There was a lot of things said. Exactly word for word, I can't say what I asked and how he answered, but I've got big chunks of lots of things that were said and how they were said and the point that was being made."
Mr Stambolis said that at the end of the conversation he agreed to do what the applicant and his brother asked but said that later he determined not to do it. Mr Stambolis said that if he was threatened, he would tell the applicant that he had a tape recording of the conversation and that if the applicant came anywhere near him or hurt his sister, his brother or anyone else in his family, the recording would find its way to the police.
In cross-examination Mr Stambolis was referred to his police record of interview of 13 October 1998. It was put to him that his evidence that the conversation with the applicant to which I have referred at [24] above took place four to eight weeks before the death of Dr Chye, was inconsistent with his statement at the interview that it took place four to six months previously. It was suggested to him that he recognised there was a problem in his evidence as the dispute about the Blakehurst properties did not occur until closer to the death of Dr Chye.
In cross-examination it was also put to him that the effect of his evidence was that the applicant had hired a contract killer. Mr Stambolis stated that the applicant did not say he was going to kill Dr Chye, rather, he was going to "fix him up". Mr Stambolis stated he did not know whether that meant "bash him" or "kill him". It was also suggested to Mr Stambolis that his evidence that the applicant dialled Ricky, gave the phone to him, and Ricky then said to him "You're not to do the job for [the applicant]" did not make sense. It was put to him that the conversation never occurred, and he denied that.
It was also put to Mr Stambolis that the applicant never said to him that Dr Chye was a "faggot" and he denied that. It was also suggested that he never went to Dr Chye's house with the applicant and he disagreed.
In addition to the evidence of Mr Stambolis there was also the evidence of Ms Yuko Okamoto (Ms Okamoto), the former wife of the applicant. She stated that in 1996, not long after she and the applicant started living in Japan, the applicant said he had arranged a hitman to kill Dr Chye because he had threatened his children. In cross-examination she admitted that she had started family law proceedings against the applicant in Australia concerning custody and maintenance for two daughters of the marriage. She agreed that in affidavits filed in support of the family law proceedings she did not say anything about the applicant's threat to kill Dr Chye, and that she had found some newspaper articles concerning the murders.
There was also a body of evidence which had the capacity to raise reasonable doubt in the minds of the jury that the applicant was involved in the murder of Dr Chye.
Dr Thompson was asked about a letter he wrote to Dr Chye's parents in which he said that Dr Bham was very angry as Dr Chye had managed to get out of selling the block of land back to him by having the caveat lifted by the courts. He said that he was not sure whether Dr Chye told him that or he learnt it from another source. Mr Peters, Dr Chye's solicitor, said it was likely that Dr Bham would have had to pay the costs of the caveat proceedings, which he estimated would amount to about $10,000.
Dr Thompson said that there was supposedly a threat from Dr Bham, but he did not think Dr Chye told him of it. He said he thought he learnt about that after Dr Chye's death.
Mr Wilkinson said he became aware that there were problems regarding the Caleos' purchase of the Blakehurst properties which concerned Dr Bham, and said that Dr Chye had mentioned to him that Dr Bham had made some threats. Mr Wilkinson stated that he was not sure what they were, but he did not think that Dr Chye was overly concerned.
Detective Senior Constable Oldfield (Detective Oldfield), one of the officers in charge of the investigation which led to the charges, gave evidence that he became aware of a handwritten letter by Dr Chye in which he set out that Dr Bham had threatened his life. Detective Oldfield was referred to that part of the letter which stated that Dr Bham called at Dr Chye's home demanding Dr Chye sign a certificate of transfer of 14 Pleasant Way, Blakehurst and that if he did not sign it, he would arrange to have him shot. Detective Oldfield noted that the letter went on to say that "[Dr Bham] had a gun in his briefcase and that he always travelled with a bodyguard close at hand", who was "also armed". The letter also stated that Dr Bham told Dr Chye that "he knew of people who had been murdered for less money". Detective Oldfield also referred to the fact that an associate of Dr Chye, a Dr Peter Jessup, stated that Dr Chye believed Dr Bham had poisoned his dog.
The applicant relied on his acquittal of the charge of soliciting the murder of Dr Chye in support of the proposition that having rejected the evidence of Mr Stambolis in respect of that charge, the jury could only have convicted him of soliciting the murder of his wife if they had taken into account the inadmissible evidence of Mr Naliva. It is in that context that it is necessary to consider the Crown case in respect of the murder of the deceased.

The Crown case in respect of the killing of the deceased

In its broadest outline, the Crown case was that Mr Stambolis at the behest of the applicant procured Mr Afu to murder the deceased in what was intended to look like a robbery gone wrong. To that end, the applicant on the evening of 10 August 1990 ensured that a balcony door was left open to facilitate entry into the premises for the purpose of carrying out the offence.
The Crown case was that on the night of 10 August 1990, Mr Stambolis along with Mr Afu and Mr Afu's girlfriend, Ms C, drove to the Caleo residence. Mr Afu went into the residence, stabbed the deceased to death, and stole a quantity of jewellery that belonged to her. The Crown case was that Mr Afu was paid $20,000 in cash withdrawn from the bank account of a restaurant operated by the Caleos.
In its case the Crown placed considerable reliance on the evidence of Mr Stambolis as establishing the solicitation of Mr Afu, and on his evidence and that of Ms C of the events which occurred on the night of the murder. It is necessary in these circumstances to deal with their evidence in a little detail. However, as I point out (see at [102] ff below), it was not the entirety of the evidence which supported the Crown case.

a The evidence of Mr Stambolis

Mr Stambolis gave evidence that at the relevant time he was employed by the Caleos at their Italian restaurant on the lower ground floor of the QVB. He stated that he ended up being made a junior supervisor on the floor at the front of house. He stated that at one time he was given a company car.
Mr Stambolis claimed that there was a lot of animosity between the applicant and the deceased. He said that he witnessed many arguments, although he did not recall specific subjects. He said that the applicant's younger brother, Gerard, was "unbelievably close" to the applicant.
Mr Stambolis stated that he saw the applicant before the deceased's death in the company of Ms Yap. He said that the applicant and Ms Yap appeared to be very affectionate to one another. He stated that he was asked by the applicant to chauffer them somewhere on a number of occasions, which he did.
Mr Stambolis said the restaurant took a lot of money, including cash. He stated he saw the applicant frequently taking cash from the till, usually the larger notes, the 50's and the 20's.
Mr Stambolis said at the time (around the time of the murder) he was smoking marijuana daily. He stated that he got it from a person who lived across the road from him in Dulwich Hill, as well as from the "Tongan" in Kings Cross. He said he met the Tongan "by fortune".
Mr Stambolis said that he was asked by the applicant to obtain some heroin. In that context he gave this evidence: "Q. What idea did you have about heroin? A. Again, going back to [the deceased], it was all in relation to [the deceased]. There was a lot of animosity between [the applicant] and [the deceased]. I feared for [the deceased's] safety. I asked [the deceased] to leave, to think about leaving. She wouldn't. I knew [the deceased] was going to Malaysia. I knew [the deceased's] father was a high-ranking police officer in Malaysia and, for some stupid reason, I thought that we could put heroin in her baggage, her travel to Malaysia, get caught and never be allowed to come back anywhere near [the applicant]. That's what I was thinking. I don't know why I would ever have thought that would have worked in hindsight, looking back as an adult and thinking rationally, but that was the plan and that's what I put to [the applicant]. He didn't say - he didn't agree to do it or even entertain the idea in the beginning, but he came back a couple of days later and asked me to purchase the heroin for him."
Mr Stambolis subsequently gave this evidence: "Q. After that, did [the applicant] ever ask you to do anything else in relation to [the deceased]? A. Yes, he did. Q. What did he ask you, Mr Stambolis? A. There was a lead-up of several things that happened previous to this initially, but he asked me to offer somebody $10,000 to murder her. Q. Do you remember when - was it 1990; she died in August 1990? A. Yes, yes, it was. Q. How long before she died was this? A. That he - oh, wasn't that long. A few months, perhaps. Q. What did you say when he said that to you, if anything? A. I questioned him, said, 'What the fuck are you talking about?' in those exact words, to be frank. He said - he - his response, and I don't expect anyone to understand this, was because he - hard to try and describe his character. It was a burst of laughter and a reassurance. BRADY: I object to this. CROWN PROSECUTOR Q. Can you, without any description of your own, can you just say what he did and said? A. It was a burst of laughter and a reassurance that [the deceased] wasn't going to be murdered; that he couldn't afford for anything to happen to [the deceased] because of what had happened to [Dr Chye] only not so long ago. That he had already had heat on him because of what had happened to [Dr Chye] and--"
Mr Stambolis then said that he was reassured by the applicant that it would only be an "insurance job". He stated that after that he told the Tongan that his boss "wanted somebody murdered, he was willing to pay $10,000 and would he do it". He elaborated on this evidence to the following effect: "Q. What did you say to the Tongan man? A. That my boss - well, initially it was about an insurance job on [the deceased's] car which proposed - was proposed to me by Gerard Caleo at Caffe Roma. I was asked one night by Gerard - we frequent Caffe Roma very regularly - if I could organise an insurance job on [the deceased's] car and I said, 'Yeah, man, for sure, for sure.' I didn't know how I was going to do it but. Q. When we are talking about an insurance job on a car, what was the understanding that that means? A. The car would be stolen and destroyed and an insurance claim made on it. Q. I see. What sort of car did [the deceased] have? A. A white four-door sedan SEL 560 Mercedes-Benz. Q. Then did the conversation go to some other form of activity apart from a car? A. Yes, an insurance job on [the applicant] and [the deceased's] apartment. Q. Who asked you to organise that? A. [The applicant] did. Q. What did he say to you? A. He asked me to offer the guy who was - whom he didn't know, being the Tongan, to go back and ask him if he would do an insurance job on the apartment; that there was a lot of jewellery there. Q. And did you convey that to the Tongan man? A. Yes, I did."
Mr Stambolis relayed to the applicant that his contact would do the insurance job for $2,000. He was subsequently told by the Tongan that he was not interested in doing the insurance job.
Mr Stambolis stated that subsequent to that occurring, the applicant came to him and asked him to "go back to the Tongan and tell him that he would pay him $10,000 to murder someone, and complete the insurance job". He stated that the applicant said to take all the jewellery in the tallboy and the bedside tables or drawers.
Mr Stambolis stated that he asked the applicant what he was talking about and the applicant told him, "Don't worry, no-one's is going to die, I can't afford the heat, it's only going to be an insurance job". He then said that he went back to the Tongan and said that his boss wanted his wife murdered and that he would pay him $10,000, but he had to take the jewellery and make it look like a robbery gone bad. When asked why he did this when the applicant had said no one was going to get murdered, Mr Stambolis made the following response: "A. Because that was my instruction and it was - when I questioned [the applicant], it seemed perfectly logical and reasonable to me at the time; that what he was saying about the heat on him with [Dr Chye] and not affording - not being able to afford having any more attention brought to himself for a murder. I thought, well, that makes perfect sense. There is no way he is going to murder [the deceased] because, if he does, he is gone for that and [Dr Chye], will only draw more attention to himself. So I believed that nothing would happen to [the deceased]."
Mr Stambolis said that in the lead up to the murder, he drove the Tongan to the Caleo residence. He stated that the Tongan's girlfriend was in the car. He stated that he showed the Tongan where the bedroom balcony was at the residence. He stated that he could not recall when this occurred.
Mr Stambolis stated that the Tongan asked how he was meant to get into the place. He told the Tongan that there was a sliding door that went to the balcony and that the applicant had instructed him to tell the Tongan that he would leave the sliding balcony door open so that he could just push the door open and walk straight into the bedroom.
Mr Stambolis stated that the murder did not happen immediately after that. He said, however, that at one stage he was informed by the applicant and Gerard Caleo that there was a dinner party that night (being held by the deceased), and that was the night the Tongan was to do the insurance job and the murder. However, he stated that the applicant reassured him that after the dinner party everyone was going out and that no one would be there, apart from the nanny and the children who would be fast asleep and who were in a completely separate part of the apartment.
Mr Stambolis stated that he relayed to the Tongan that "we were expected to go and do this murder, in his eyes". He reiterated that the applicant asked him to go back and offer $10,000 for the murder, and to add that it was necessary to ensure the place was ransacked and all the jewellery, gold and watches were taken. He stated that he said to the Tongan "I will pay you $10,000 to kill someone. You have to make it look like a robbery gone wrong".
Mr Stambolis said that he could not recall the applicant being at the QVB restaurant on the day of the murder. He said that that night he drove to Kings Cross and picked up the Tongan. He said that "[the Tongan] already knew we were going on this night to the apartment". He stated that the Tongan called for his girlfriend. He said that prior to that, he and Gerard Caleo had argued about who was taking the Tongan to the deceased's place that night.
Mr Stambolis said that when he picked up the Tongan's girlfriend, she had a bag with her. He said that when they arrived outside the apartment, the girlfriend passed the bag to the Tongan who then left the car. He said that after 10 to 15 minutes the Tongan came back. Mr Stambolis gave this evidence: "A. I was in the car with the girlfriend, as I said. All of a sudden the back door opened in a hurry and a loud sort of rush kind of thing, it wasn't like a quiet door opening. He jumped in the car and said, 'I stabbed slut, I stabbed the slut'. And I'm like, 'What?' And my first thought was the nanny. 'Fucking drive, drive'. And he was in my face here (indicated). I could - like growling in my face and I could taste his breath on my face. It was so, 'Fucking drive'. Started the car, we took off."
Mr Stambolis said that two or three days later, he went with Gerard Caleo to a house in Earlwood. He said that he had $5,000 and that Gerard Caleo had $5,000 and together they would pay $10,000 to the Tongan.
Mr Stambolis stated that when they arrived at the house at Earlwood, the door was opened by an "Islander". He said that they went into a bedroom where he saw the Tongan and his girlfriend in a bed. He said that he noticed that the Tongan had a bandage on his forearm and that the girlfriend was wearing a ring owned by the deceased.
He said that he and Gerald Caleo then each "[t]hrew the $5,000 basically in their lap on the bed". He said that he did not recall ever seeing the Tongan again.
Mr Stambolis was asked whether there was any description given of the deceased to the Tongan. He said that he told the Tongan she was an "Asian lady". He stated that he did not recall whether he said "Malaysian" or "Chinese", but that he "definitely said she was Asian". He was asked again what the Tongan had said when he came back to the car and responded that the Tongan said, "I stabbed the slut", or "'I stabbed the bitch' or something like that".
In his evidence in chief Mr Stambolis acknowledged that one of the reasons why he gave information to the police was to get preferred treatment for himself. He agreed that he held back things from the police, saying it was because of "fear". He stated that he had just started his own business and had got his life on track.
A great deal of the cross-examination of Mr Stambolis dealt with two matters. First, his extensive criminal record. There is no doubt that it was established that he was an experienced criminal who specialised in break and enters. He did not dispute the fact that he had committed hundreds of them, although he denied that he ever used violence.
The second matter, and which occupied a great deal of the cross-examination, was the varying accounts he gave to the police from time to time. Most of these accounts up to the time of his last statement minimised his involvement in the murder, or as the cross-examiner put it, "painted [himself] out of the picture". He freely acknowledged that in his statements up to his 2015 statement he had lied to the police. Thus, he admitted that in 1998 when he had been sentenced to gaol for a number of break and enter offences, he had told the police that the applicant had organised Dr Chye's death. He agreed that he had painted himself out of any involvement. In relation to the murder of the deceased, he agreed that in 1998 he had told the police that the first he had ever heard about the murder was the morning after. He agreed that that was a lie, most likely told to make the police think that he had nothing to do with the murder. He admitted that he also told the police that Gerard Caleo had borrowed his car on the night of the murder and that that was a lie. He agreed that he told that lie to get a benefit for his situation.
Mr Stambolis also agreed that he maintained the lie in his 2013 police interview about Gerard Caleo taking his car the night the deceased was murdered. He agreed that he was still painting Gerard Caleo into the picture and painting himself out of it. He agreed he told the police that Gerard Caleo was the person who effectively took the Tongan and that that was a lie. He agreed that he admitted that he told the police in 2015 that that was a lie.
He also agreed that in his 2013 police interview he said that he had done a reconnaissance and had gone to the Tongan's place afterwards and paid some money. He agreed that he left out entirely his involvement on the night. He also agreed that he told similar lies in his statement in 2014.
It was put to Mr Stambolis that he told the truth just prior to the committal hearing because there was a risk that a witness would put him in the car on the night of the murder. However, he responded that he rang the police because he "couldn't continue living a lie" and that he had turned his life around. It was also put to him that if he just told the police that he was in the car "without giving them something else" he might find himself charged, so he decided to make up a story about the applicant organising the murder. He denied that.
Mr Stambolis agreed in cross-examination that the first thing done between the Tongan, Gerard Caleo and the applicant was the stealing and burning of a car for insurance fraud. He said that there was a discussion about that, but the Tongan declined to do it. It was put to him that that was inconsistent with the fact that the burning of the car took place after the deceased's death. Mr Stambolis denied any inconsistency. It was put to him in that context that he intended to steal the deceased's jewellery and arranged for someone else to do it because he wanted to remove himself from it a little bit. He denied that. Mr Stambolis then in substance repeated the evidence that he had given in chief: "A. [The applicant] asked me to relay - he was requesting that somebody get killed for $10,000 while he was there to rob the place and make it look like a robbery gone wrong. That way he could get all the gold and watches and jewellery and whatever else [the applicant] said would be laying around and where it would be laying around. That was it. I questioned [the applicant] and I said, 'What are you talking about? Are you f'ing crazy? That's ridiculous' and he assured me that nobody was going to be there, that nobody would get killed because he couldn't afford the heat and that the robbery would not raise a brow. That's exactly what [the applicant] asked me to relay. And I think I have probably repeated that four times in this last five minutes, Mr Brady."
He was subsequently asked these questions and gave these answers: "Q. Can I go back then to what we were talking about before the morning tea break about this second offer. You say that you told the Tongan that it was to be a murder? A. Yes. Q. And you say the Tongan asked you what the person looked like? A. Correct. Q. He didn't ask for a photograph? A. I don't recall, no. Q. When you say 'I don't recall'-- A. I certainly do not recall the Tongan asking me for a photograph, no, most certainly not. Q. In fact, what you say is that all that was asked was, 'What does she look like?', and you said, 'She's Asian'? A. That's correct. Q. So he didn't then ask you, 'Well, where is she going to be in the house?'? A. I don't recall, I don't recall. Q. Well you'd remember surely-- A. No, I-- Q. --if this occurred, the Tongan asking you details about where the person who was supposedly to be murdered, in his mind, was in the house? A. I don't recall. I may have. He may have asked where she was meant to be and I may have told him 'in the bedroom', sure. I don't recall the conversation. Q. Sorry, you say, though, in your mind there's not going to be a murder, right? A. That's correct. Q. You are really clear about that? A. I'm absolutely certain about that. Q. You are clear that [the applicant] has said, '[the deceased's] not even going to be there'? A. That's correct. Q. Surely you'd remember if the Tongan said, 'Where is the person going to be in the house?'? A. You're suggesting that I'm supposed to tell him that, 'My boss said she's not actually going to be there but kill her anyway', is that what you're suggesting, Mr Brady, because as far as the Tongan was concerned he was going to commit a murder that was meant to look like a robbery gone wrong. It was [the applicant], Gerard and I who knew that it wasn't - well, knew, yeah. Q. Let me just ask the question again. You were clear that [the applicant] had said, '[the deceased's] not even going to be there'? A. That's correct.
Mr Stambolis subsequently agreed that in his mind the Tongan went there believing there was going to be a murder, whilst also in his mind the deceased was not going to be there. He was then asked the following questions: "Q. You see, in that answer, what you did say was 'and the robbery gone wrong'; that's how you expressed it, isn't it? A. That's exactly how it was relayed to me, Mr Brady. Q. Well, in fact you're putting that, aren't you, as a proposition 'the robbery gone wrong', because that's what it was, wasn't it? A. That's exactly what I was asked to relay to the Tongan and exactly what I relayed to him. Q. You say, do you, that you thought [the deceased] was not going to be there? A. Correct. Q. In fact, [the deceased] herself had told you she's not going to be there? A. Correct. Q. You thought the nanny would be there? A. Yes. Q. The nanny was Asian? A. Yes, she was. Q. You thought the Tongan was going there to kill someone? A. The Tongan was going there to rob the place. He thought he was going there to kill someone, Mr Brady. Q. You understood that he'd been told to go in and kill someone? A. Yes. Q. And to kill someone who was Asian? A. Yes. Q. A female? A. Yes. Q. And you knew the nanny was there? A. Yes, I did. Q. You knew, didn't you, bearing in mind what you're saying, there was a reasonable chance the nanny might die? A. If she was in the room, yes."
Mr Stambolis agreed that the applicant had sacked him from his restaurant job for crashing the applicant's car. It was also put to him that he exaggerated the difficulties between the applicant and the deceased. He denied that. He agreed that the deceased told him that she would not be at home on the night she died. He stated that his immediate reaction after the Tongan returned to the car was that he had killed the nanny. He agreed that that was because he thought the deceased was going to be out and that the nanny would be in a different part of the house. However, he denied that it was all part of his plan to get the deceased's jewellery.

b The evidence of Ms C

At the time of the murder of the deceased, Ms C was Mr Afu's girlfriend. She lived with him at a property at Earlwood.
She stated that she went to an apartment in Double Bay in company with Mr Afu and another man. She said that the other man picked them up in a cream-coloured Commodore.
She stated that on that day, Mr Afu and the other man got out of the car near a block of units, had a look and then came back.
Ms C said that about two weeks after that, the "same guy" took them to a restaurant at Sans Souci across the road from the beach. She said that they parked, and Mr Afu and the other man got out of the car and came back about 20 minutes later. She said that she saw a person greet them when they entered the restaurant.
She described the person who picked them up in the Commodore as "Italian looking" and wearing "nice silky pants and a - like a nice suit shirt".
Ms C said that during those times the man who was driving the car visited Mr Afu at the house in Earlwood. She said that both she and Mr Afu were asleep in bed and the man came to Mr Afu's side. She said that he gave Mr Afu some money and that she got up and she saw someone at the door, and there was a man there who said, "Fuck this, I'm out of here".
She said that the man came to Earlwood twice, once alone and once when he was not alone. She thought that he was with someone the first time that he came there. She said that on that occasion he gave Mr Afu $10,000. She said that Mr Afu bought a black Statesman with the proceeds.
She said that after the first time the men came with money, the same man picked her and Mr Afu up from Earlwood and took them to Double Bay. She said that this occurred at about 8.00pm at night. She stated that she was in the passenger seat in the front and Mr Afu was in the back, behind the driver's side. She said that Mr Afu got out of the car on his own and when he came back, he was "spinning out". She said that Mr Afu was away for about 20 minutes, he was not gone for a long time. Ms C was asked if he said anything and she gave this evidence: "A. Yeah, 'I fucking killed the slut. I had - like, I had to chop her fingers off.' Like, he - or something like that. Something about her fingers. And he - that's right, he said - the other guy said, 'Did you get the jewellery? Did you get the jewellery?' And [Mr Afu] said, 'Yeah, but' - and I - I must have been freaking out because the guy - I looked at the guy, like I remember looking at him and he said, 'Shh', like he just kept say - he just said, 'Shh', he said, '[Mr Afu], lay down, lay down, lay down', like telling [Mr Afu] to lay down, yeah."
Ms C said that Mr Afu had blood on him. She said that she saw he had a knife in his hand, and she recalls seeing blood on the knife. She described the knife as being like a machete.
She said that Mr Afu had blood on his shirt and on his hands, and that his left hand was cut.
Ms C said that Mr Afu was wearing Dunlop shoes on the night in question. She said that after she and Mr Afu returned home, she recalled seeing them "cut up in pieces".
She stated that Mr Afu had "heaps of jewellery, yeah, heaps of gold". She said that Mr Afu gave her two rings, which she sold to a "money lend place" a couple of years later.
Ms C was asked about the conversation between Mr Afu and the other man on the night in question. She said that she recalled something being said about the nanny leaving at 8.00pm.
Ms C was asked about a subsequent visit by the person who drove her and Mr Afu to Double Bay. She gave this evidence: "Q. After the night when [Mr Afu] came back with blood and with jewellery-- A. Yes. Q. --was there a visit by someone to Earlwood? A. Yes. I think it was the same guy that came - that drove us and he came to the house and he said, 'Oh, you did it, mate, you did it, you did it. It's all over the - it's in the news, it's in the papers' and-- Q. So that time was he with someone or not? A. I don't remember. Q. All right. How did you know that he was there? A. Oh, because I woke up to him. Like he was there, yeah, like, woke up. Q. And what was he dressed in that time? A. Same clothes, the same clothes. Like he was dressed up. Q. Dressed up? A. Yeah. Q. What did he do then? A. He gave [Mr Afu] another $10,000, which was exactly the same as the - the time before and he-- Q. Was the money in the same form? A. Yeah, same form."
Ms C described the person who came to the Earlwood house with the driver on the first occasion the money was given as also being young and Italian-looking.
Subsequently, in her evidence in chief, Ms C was asked whether she had heard anything said about "what circumstances might be in the apartment or flat". She stated that Mr Afu said that the nanny had seen him. She then gave this evidence: "A. Yeah, when he came out and he got in the car and he was freaking out, he said that the nanny had seen him and he said that - that - this is really hard for me. He said, like, he had to, like, chop her fingers off and - and - yeah. Q. Did he say why? A. Oh, she was struggling. He said - he said that - that he couldn't get them off, like he couldn't - he couldn't get the rings off. Q. Before he went in there, did the man who drove you there say anything about what was to happen? A. Yeah, he told him, like, just told him where to go, where the jewellery was and told him that-- Q. Do you remember what he said about that? A. What drawer to go to. He said that - like, where - like where in the room the jewellery was. Q. Do you remember-- A. And to make sure that he gets it. Q. Do you remember what he said about where the jewellery was? A. Yeah, in the cupboard at the end of the bed, like in the - I know it was - there was a cupboard in the room. Q. I think you said what drawer to go to earlier? A. Yeah. Q. Do you remember what he said about 'drawer'? A. The bedside table, there was a drawer there as well and just - like, mainly to make sure to get the jewellery. Q. Was anything said about how to get in the place? A. Yeah, he said that the window was going to be left open. Q. Was there anything said about who might be in the house, in the apartment? A. That the nanny was going to - like, she was supposed to be gone at 8 o'clock. Q. Anything said about any other people there? A. And, yeah, there was a baby there. Q. You said that a car was bought at some stage? A. Yes. Q. Are you able to say when in relation to this event at Double Bay? A. After Double Bay, after the second time the - the second amount of money was given, that's when the car was bought."
Ms C was cross-examined extensively about statements that she had previously made to the police and to the Crime Commission. In cross-examination by senior counsel for the applicant, it was put to her that when she talked to the police in 2014, she did not mention a second person coming around with the money. It was put to her that in her second statement, unlike her first, she said the $10,000 was given in $50 and $100 notes, wrapped in white coloured paper bands. It was put to her that that was not said in her first statement. She agreed that neither in her first or her second statement did she ever say anything about the first trip to Double Bay.
It was also put to her that in her statement made in March 2014 she said nothing about the second man coming, nor was there any mention of it at the committal hearing. It was suggested to her that there was no second man. She denied that.
Ms C was cross-examined more extensively by counsel for Mr Afu. It was suggested to her that she bore an intense dislike for Mr Afu because of circumstances in which one of her children was taken from her by Family & Community Services. It was put to her that the first occasion she spoke to the police in April 2013, she said that she did not have any knowledge whatsoever about the murder. She agreed that she said the same to her then de facto partner and to her lawyer.
It was put to her that that was the truth, but she said that she was lying.
She agreed that the second time she spoke to the police, she again said that she did not know anything about it. She agreed that she said, "I would love to tell you, I would love to make something up, but it is not the right thing to do. It's just wrong".
She agreed that she was asked by the police on that occasion if she had seen large amounts of money and she said "no". She also agreed that she said she "wasn't allowed to go anywhere", that she was "chained to the kitchen sink".
She was then cross-examined on her interview at the Crime Commission (the Commission). It was put to her that in her first statement made to the Commission there was no reference to the first trip to Double Bay. She was referred to her answer that she remembered that, one night, Mr Afu and Ms C drove from Earlwood to Double Bay and that Mr Afu told her to stay in the car and he went to a restaurant for about 20 minutes. It was put to her that that was a totally different story to the evidence which she gave.
She was also referred to the fact that there was no reference to the trip to Sans Souci in that statement.
She was then referred to the fact that her statement did not say anything about Mr Afu having a big knife like a machete with blood on it, or that Mr Afu said "I fucking killed her" or "I fucking stabbed her", nor that he said he had to "chop her fingers off". It was suggested to her that the only thing she said in that context was that Mr Afu said, "The nanny was there, the nanny saw me". It was also put to her that she said nothing about seeing the shoes "cut up into little pieces" and that there was no word in the statement about any jewellery.
In that context it was suggested to her that there was so much either wrong or missing from the statement that she was making it up. She denied this.
She was then referred to a statement made to the police on 5 April 2014. She agreed that there was nothing in that statement about the first payment, or anything about the first trip to Double Bay or the trip to Sans Souci. She also agreed that whilst she said in her statement that Mr Afu said something to the effect of "I stabbed her" and "nearly having to chop her fingers off", it said nothing to the effect of "I killed her", and nothing about a "bloody knife" or a "bloody shirt". She also agreed that it said nothing about the shoes that Mr Afu was wearing being Dunlops and nothing about them being cut up into pieces.
She was then asked about her third statement made on 4 November 2014. She was referred to the fact that in that statement she said that it was a different person who drove her to Double Bay before the murder and a different person to the one that drove on the night of the murder. She stated that she was confused but she knew that Mr Afu got in the car, had a knife and there was blood on it. She denied that the police put the idea of a separate person into her head.
She also agreed that she said in her statement that it was not the Italian-looking guy who drove her to Sans Souci. She agreed that there was still no mention of the bloody shirt or the Dunlop shoes being cut into pieces.
It was suggested to her that the first time she gave a description of the second person and what he was wearing was at the trial. She stated that no one had been in contact with her concerning her evidence.

c Other evidence

There was a body of other evidence which supported the Crown case. Perhaps most important was the fact that on 31 July 1990 the applicant drew a cash cheque in an amount of $15,000 on the account of Lymoy Pty Ltd and a further one for $10,000 on 13 August 1990. The Crown retained a forensic accountant who reviewed the company's books and records. The accountant had passed away by the time of the trial and his statement was read by a police officer. The police officer stated that the accountant identified three cash cheques as having been written in this period, whereas the police officer could only locate two. The three identified by the accountant were the two cheques just noted and another cheque written on 31 July 1990.
Further, on the night of the murder the applicant stayed very late at the Brighton-Le-Sands restaurant. The applicant's evidence was that he often stayed quite late, and that he did so on that particular night because his brother was not there. This evidence was contradicted by one of the applicant's employees, Ms Yvette Gaunt (Ms Gaunt), who stated first, that it was unusual for the applicant to stay late at night and second, that the applicant's brother usually worked during the day and went home in the evening.
Next, it was not disputed that there was no forced entry into the premises. The applicant admitted to the police that he had gone home at about 2.00pm to collect some business cards. Similar evidence was given by the nanny, Ms Chor.
So far as motive was concerned, there was a body of evidence that the applicant was having an affair with Ms Yap at the time of the murder, and that his marital relationship with the deceased was difficult. Evidence to that effect was given by Ms Yap's husband, Mr Yap. He gave evidence that he spoke to the deceased about the affair and he recalled the deceased saying that it was her who put the applicant into a good life here and if the affair goes on she could always bring him down. It should be noted that there was evidence that in May 1990 the deceased prepared a will which made no provision for the applicant. Further there was evidence that on 25 August 1990, five days after the murder, the applicant left Sydney for Kuala Lumpur and saw Ms Yap a matter of days after his arrival there.
A Ms Lynnette Lum who was a close friend of the deceased gave evidence that "Mark was fooling around". Ms Mimi Chan another friend of the deceased, gave evidence that the deceased told her she had problems because her husband was having an affair with Ms Yap. She said the deceased told her that she was going to fix the marriage and was not going to divorce him.
Ms Angela Cheah, another friend of the deceased, gave evidence that the deceased told her that the applicant was having an affair with someone saying to her "He comes with nothing and goes with nothing". Subsequently in her evidence she said that the deceased told her that the applicant had confessed that he was having an affair with Ms Yap. She also gave evidence that the deceased told her "Mark will never divorce her because she has something in hand you know, she has made him sign certain things you know, certain agreements and I don't know what it is". She also gave evidence the deceased was upset and told her the applicant had cancelled all her credit cards.
The applicant's former wife, Ms Maria Caleo, gave evidence that the applicant told her he was having an affair with "a Janice".

c The evidence of Mr Naliva

Mr Naliva was the person whom it was alleged was entrusted by Mr Afu to sell the jewellery the subject of the robbery. None of his evidence was admissible against the applicant.
There are three portions of his evidence which form the basis of the applicant's complaint in these proceedings. The first of these was in the following terms: "Q. Did you ask [Mr Afu] something about the jewellery? A. Yes, I asked [Mr Afu], 'Where did that come from?' Q. What did [Mr Afu] say? A. It come from some - some - someone he knocked or something. Q. 'Someone he knocked'? A. (Witness nods.) Q. Did he say who he knocked? A. Actually, it's a lady or something. Q. Can you remember what he actually said as though he is saying it now, even if you can't know the exact words, what he said - where he said he got the jewellery? A. From - from this lady he knocked. Q. Did he say what the lady was like? A. No. Q. Did he say what the lady looked like? A. No."
The second portion was as follows: "Q. Mr Naliva, before you had this occasion to be looking at jewellery with Mr Afu, did he ever tell you - so in the weeks or days before this - did he ever tell you of anything he was going to do in the future at Earlwood - sorry, when you were at Earlwood, did he tell you of what was going to happen? A. 'Going to do the job'. Q. What did he say? A. 'I'm going to do the job'. Q. He was going to do the job? A. Yes. Q. Did he tell you what was the job was? A. No. Q. Did he tell you who had given him the job? A. Yes, I can recall he got given a job by a Chinese - Chinese guy - or by a guy or something. Q. A guy? A. Yeah. Q. And what was the job to do? A. A job to - to knock a Chinese lady. Q. Then when you saw the jewellery that [Mr Afu] and his girlfriend showed you, did he say anything about where it had come from? A. At the time he said he had to knock someone - he had to knock someone to get the jewellery. Q. Did he say who the 'someone' was? A. He said 'a Chinese lady'."
Of more significance was the following portion of his evidence: "Q. Returning to before you ever saw the jewellery, when you were at the Earlwood place talking to [Mr Afu] and he said something about a job that was coming up, did he tell you who he was doing the job for? A. At the time was actually - he didn't actually tell me what he was doing the job for or who he was doing the job for. That's in later days. Q. At a later date did he tell you who he did the job for? A. One Chinese guy. Q. Who was the Chinese guy in relation to the Chinese woman who got killed, or did you never hear? A. I think the husband of the Chinese guy - the husband of the woman. Q. What did he say about that? A. About? Q. The husband? A. About, 'The husband gave me the job', that's all. Q. Did he ever tell you whether anyone else was involved in the job? A. No."
The last part of the evidence of Mr Naliva to which I have referred took place shortly before the luncheon adjournment. Immediately prior to the luncheon adjournment and in the absence of Mr Naliva, the trial judge gave the following direction: "HIS HONOUR: Just before you go, ladies and gentlemen, I just want to say something about an aspect of the evidence that you've heard this morning. Just as a general proposition, joint trials of accused are appropriate where more than one accused is charged in relation to the same matter, but it is inevitable that in most joint trials there will be evidence that is admissible against one accused that is not admissible against the other accused. We are able to have joint trials because we trust juries to comply with directions that judges give about the evidence that is available in the case against one accused but not available to be considered in the case against the other accused. If we couldn't trust juries to comply with directions like that, we could never have joint trials; we'd have to have separate trials of every accused who was charged and, given a fair number of trials involve more than one accused, we'd have to have separate single accused trials, which is quite a daunting process. In this case, there is some evidence that is admissible against only one accused and not the other and I touched on this earlier in the trial, you might recall. In Mr Naliva's evidence, we heard him say, in response to questions by the Crown Prosecutor earlier, when he was asked about whether Mr Afu said anything before the jewellery was shown about him doing a job, whether Mr Afu ever said, 'Who for?' and in the course of answering those questions, he said something along the lines of - and this is just my summary note of it - 'I think the husband of the Chinese guy - the husband of the woman' and a short time after that he was asked again, 'What did Mr Afu say?' and he said, 'The husband gave me the job', that's all'. That evidence of what Mr Afu said, according to Mr Naliva, is relevant to the case concerning Mr Afu; it is admissible in the case brought by the Crown against Mr Afu. It is not relevant and not admissible in relation to Mr Caleo. So it is an important matter for you to recognise that, when you are considering that sort of evidence about what Mr Naliva said Mr Afu said, that I have just referred to, that is available for you to consider in relation to Mr Afu, but definitely not in relation to Mr Caleo. You will notice that Mr Brady said that he had no cross-examination for Mr Naliva and that is for a very good reason: That that sort of evidence that I just referred to is not part of the case against Mr Caleo. So it is important that you bear that firmly in mind. When I come to sum up the case to you at the end of the trial I will be going through this subject in a lot more detail and referring to all the evidence that falls into this category, which you must clearly isolate and confine your consideration to one accused and not the other. I am thinking along the lines of giving you a summary list so you can be very clear about it. But I just thought I'd mention that after we heard that evidence from Mr Naliva this morning."

The summing-up

During the course of his summing-up the trial judge reminded the jury with particular emphasis on the evidence of Mr Stambolis that where a witness had given conflicting versions of events in their previous statements or interviews, it was necessary to look very carefully at their evidence generally before you could accept them as credible and reliable witnesses. However, his Honour emphasised to the jury that they were "free to accept all of what a witness has said or none of what a witness said" and that there was a "middle ground", namely, that "[y]ou may accept some of what the witness said, even though you do not accept other aspects of that witness's evidence."
In dealing with the evidence of Mr Naliva, the trial judge gave the following direction referring to what he said during the course of that witness's evidence: "Mr Naliva also gave evidence that Mr Afu had previously said that he had been given 'a job' to 'knock a Chinese lady'. He also said that Mr Afu said he had been given the job by the husband of the woman. Now, I just pause at that point to remind you of the direction that I gave you - and you will find it in the transcript at page 1192 - about that evidence being only in the case concerning Mr Afu. It is simply inadmissible in the case concerning Mr Caleo and you cannot take it into account in relation to him. It would be a serious breach of your oaths or affirmations as jurors to take this into account when considering whether the Crown has proved its case against Mr Caleo."
Subsequently in his address, the trial judge reminded the jury that they had to consider the charge against each accused separately and that it was open to them to enter verdicts of guilty against one of them and not the other. In that context, his Honour again emphasised the importance of not taking into account against one accused evidence only tendered against the other. His Honour made the following remarks: "You must not, during the course of your deliberations, take into account evidence only tendered against one accused in considering the case concerning the other accused. It would be a breach of your duty to decide the case according to law, as well as grossly unfair, to use evidence against an accused which the Crown did not rely upon in proof of its case against him."

The submissions

In his written submissions senior counsel for the applicant submitted that it was inevitable that the jury would find the applicant guilty if they found Mr Afu guilty. He emphasised that the applicant was unable to challenge the evidence of Mr Naliva and submitted that the evidence was so prejudicial it led to positive injustice and caused the trial to miscarry.
In that context senior counsel for the applicant emphasised at the hearing that it was ultimately only the evidence of Mr Stambolis that was capable of demonstrating directly that the applicant was involved with and solicited the murder of the deceased. He stated that in those circumstances what was of great significance was that the jury did not accept the evidence of Mr Stambolis in relation to the murder of Dr Chye. He also said that it was significant that Ms C said that after the murder Mr Afu said that he had killed the nanny (see at [79] and [87] above). He submitted that that supported the case put by the applicant at the trial, namely, that what occurred was a robbery organised by Mr Stambolis which went wrong. However, that with respect misstates the evidence. The evidence of Ms C was that Mr Afu said that the nanny saw him. Mr Afu's reference to chopping her fingers off to get the jewellery did not seem to relate to Ms Chor, but rather to the person wearing the jewellery, namely, the deceased.
Senior counsel for the applicant referred to the evidence of Mr Stambolis which I have set out at [69] and [70] above. He pointed out that if that evidence was accepted, it was anticipated that the deceased would not be in the house but the nanny would be, which he said was consistent with the evidence of Ms C that after the robbery Mr Afu said that the nanny saw him. However, it should be noted that according to Ms C, he also said, "I had to chop her fingers off [because] he couldn't get the rings off". It should be noted that the evidence of Ms Chor was that she was sleeping in her room next to the master bedroom, and that although she felt shaking at the head of her bed and heard a cry or a whining at the time of the stabbing, she did not see anyone.
He submitted that Ms C's evidence as to what occurred should be accepted, describing her as a "principal witness whose credit was not really impugned to a great degree … as opposed to Mr Stambolis".
Senior counsel for the applicant accepted that Dr Bham's motive for killing Dr Chye was stronger than that of the applicant (see the evidence to which I have referred at [32]-[36] above), and that may have been a factor weighing on the jury in relation to the acquittal of the applicant. He pointed out correctly that in relation to the murder of Dr Chye, there was also the evidence of Ms Okamoto that the applicant arranged the murder, which the jury must have rejected.
So far as the evidence of Ms Gaunt was concerned, senior counsel stated it was necessary to factor in the evidence of the supervisor of the Brighton-Le-Sands restaurant, Mr Docanto, that the applicant was working for his brother that night and that it was not put to him that there was anything unusual about him staying late.
In relation to the cash cheques, senior counsel for the applicant referred to the evidence of the accountant for the QVB restaurant, Mr Loke, who stated that the takings for the restaurant were between $15,000 and $25,000 per day, stating that suppliers were paid by cheque, although small amounts and staff wages were paid by cash. Mr Loke stated that he never wrote cheques on the Lymoy account, except for paying the suppliers.
Senior counsel for the applicant accepted the evidence concerning the cheques and the fact that the applicant was having an affair was suspicious, but submitted it was not sufficient to bolster the evidence of Mr Stambolis. He submitted that having regard to the weakness of the Crown case, there was a real risk that the jury impermissibly took the evidence of Mr Naliva into account. He submitted that the question involved weighing up the powerful evidence of Mr Naliva against the strength of the other evidence against the applicant.
The Crown in written submissions pointed out that generally speaking, it is desirable that persons connected with one case should be dealt with in the same trial. The Crown submitted that whilst some prejudice is inevitable, it is usually capable of being cured by judicial direction.
The Crown submitted that when the question of whether there should be separate trials is dealt with on an appeal against conviction, the question is whether the prejudicial material inadmissible against the co-accused is likely to turn an acquittal into a conviction. At the hearing, the Crown submitted that the Court considers the question not by speculating what would have happened if there was a separate trial, but rather by looking at the evidence adduced and the directions given.
The Crown pointed to the evidence which it submitted supported the evidence of Mr Stambolis that the applicant solicited the murder. I have set out the evidence above. The Crown described the evidence that the applicant was having an affair and that his relationship with the deceased was fractured as overwhelming, notwithstanding the applicant's denial.
The Crown submitted that the evidence of Mr Stambolis that the applicant told him that he would leave the sliding door open was consistent with the applicant having returned home that day. The Crown also pointed to the evidence of the investigating officer, Detective Beresford, that there was no sign of forced entry and no real disturbance in the room from which the jewellery was taken.
The Crown also referred to the fact that the applicant stayed late at the Brighton-Le-Sands restaurant on the night of the murder. Finally, the Crown referred to the cash cheques.
The Crown accepted unsurprisingly that there were difficulties with the evidence of Mr Stambolis and a significant challenge to his credibility which it submitted was a matter for the jury to consider in conjunction with the other evidence, taking into account what he described as the "forceful" directions of the trial judge.
In relation to the evidence of Mr Naliva, the Crown submitted that it was a "relatively isolated" piece of evidence in respect to which a forceful direction was given almost immediately. The Crown contrasted it with cases where there was a multiplicity of inadmissible statements by informer witnesses.

Consideration

It is well established that as a general rule, persons charged with committing an offence jointly should be tried together: Webb v The Queen at 89; DR v R at [18]. This approach is statutorily recognised in s 29 of the Criminal Procedure Act 1986 (NSW) which relevantly is in the following terms: "29 When more than one offence may be heard at the same time … (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
As can be seen, the power to conduct the joint trial conferred by s 29(2) extends to cases such as the present where two persons are charged with different offences arising out of the same set of circumstances. It was not suggested by either party that different principles apply to those where two or more persons are charged with the same offence.
It is also well established that in circumstances of joint trials involving the tender of evidence admissible against one co-accused but not the other, some prejudice to one or other of the accused is almost inevitable. The position was summarised by Toohey J in Webb v The Queen at 88-89 in the following terms (Mason CJ and McHugh J agreeing): "King C.J. dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King C.J. referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg. v. Collie. I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary.' Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred." (Footnotes omitted.) See also DR v R at [18].
Thus in order to succeed on an appeal following conviction on the ground of a failure to order a separate trial, the appellant must show what has variously been described as a substantial miscarriage of justice or improper prejudice (Toohey J in Webb v The Queen at 89), real injustice (Brereton JA in DR v R at [21], citing R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [31]) or positive injustice (R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep); R v Patsalis & Spathis [1999] NSWSC 649; (1999) 107 A Crim R 432 at [43] - approved on appeal, R v Spathis [2001] NSWCCA 476 at [148]). In R v Pham [2004] NSWCCA 190 ("Pham"), Adams J (at [39]) stated that positive injustice occurs when the inadmissible evidence placed on the scales will likely turn a potential acquittal into a conviction, stating that the likelihood must be real, as distinct from inconsequential, having regard both to the inherent character of the inadmissible evidence and the context of the Crown's case.
Many of the authorities which deal with this issue arose in the context of an interlocutory decision of the judge to refuse to order a separate trial. These authorities remain of assistance. However, if there has been injustice to the accused in the manner the trial unfolded, the conviction will be set aside irrespective of whether the discretion to order separate trials was properly exercised. In considering that question post-trial, the actual directions given by the trial judge must be taken into account.
In R v Middis, Hunt J (at 4 and 5) formulated the following considerations as relevant to the question of whether an application for a separate trial should be granted: "Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." … "I do not believe that the Court of Criminal Appeal in Regina v Oliver [(1984) 57 ALR 543] intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises [-] result in positive injustice to him in a joint trial." (Emphasis added.)
That passage has been approved by this Court on a number of occasions: R v Baartman (Court of Criminal Appeal (NSW), 6 October 1994, unrep); R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [12]; Symss v R [2003] NSWCCA 77 at [69]; Pham v R [2006] NSWCCA 3 at [10]; Madubuko v R [2011] NSWCCA 135; (2011) 210 A Crim R 249 at [28]; Trotter v R [2016] NSWCCA 57 at [26]-[27]; Hamalainen v R [2019] NSWCCA 276 at [68]. It is unnecessary in the present case to deal with the doubt expressed by Adams J in Pham at [40] that the weakness of the applicant's case compared to that of the co-accused is a relevant consideration.
In the present case the Crown case depended to a considerable extent on the evidence of Mr Stambolis. It was submitted by the applicant that the evidence of Mr Stambolis in relation to the murder of Dr Chye was rejected by the jury, and that his evidence was otherwise so unreliable and the circumstantial evidence so weak that there was a real risk the jury would be overwhelmed by the evidence of Mr Naliva and take his evidence into account, thereby turning a possible acquittal into a conviction.
There is no doubt that the evidence of Mr Stambolis of his conversation with the applicant outside the Woolloomooloo service station to which I have referred at [24] above and the subsequent conversation to which I have referred at [26] above did not satisfy the jury of the applicant's guilt of the murder of Dr Chye. The conversations were unusual to say the least, and the jury were fully entitled to reject them as proof of the applicant's guilt of soliciting that murder. However, it should be noted that the evidence of Ms Okamoto of a similar admission (see at [31] above) and the evidence to which I have referred at [21] above was also not sufficient to satisfy the jury.
It is important in this context to have regard to the evidence concerning Dr Bham. Of particular importance is the evidence of Detective Oldfield to which I referred at [36] above. In circumstances where, apart from the admissions alleged to have been made to Mr Stambolis and to Ms Okamoto, the Crown case was a relatively weak circumstantial case, and where another person, Dr Bham, seemed to have an equally powerful motive for the murder, it could not be concluded that the acquittal was based solely on the rejection of the evidence of Mr Stambolis. Nor could it be concluded that the acquittal was based solely on the jury having formed such an adverse view of Mr Stambolis's credibility and reliability that they would have discounted his evidence in dealing with the murder of the deceased.
In considering the conviction of the applicant for the murder of the deceased, it is important to bear in mind that the applicant did not contest at the trial that Mr Stambolis was involved in the robbery which led to the murder of the deceased, or that Mr Afu killed the deceased. The alternative hypothesis put by the applicant at the trial was that Mr Stambolis instigated the robbery which "went wrong", resulting in the killing of the deceased.
It is in that context that the jury came to consider the evidence of Mr Stambolis. There is no doubt that Mr Stambolis had lied on a number of occasions concerning his involvement in the robbery, and much of his evidence was internally inconsistent and illogical. Thus, he stated that the applicant asked him to offer someone $10,000 to murder the deceased, and then immediately said that the applicant said he "couldn't afford the heat" resulting from the murder. His evidence was that notwithstanding that he went to the Tongan and asked him to murder the deceased (see at [47], [50], [51] and [70] above). His evidence that the Tongan believed there would be a murder on the night in question whilst he did not was also difficult to accept. What it does show is that Mr Stambolis was saying anything he could to distance himself from the murder.
If the evidence of Mr Stambolis had stood alone, then in my view there would be little doubt that the jury could only have convicted the applicant if they had taken into account the evidence of Mr Naliva. However, it is necessary to consider the other evidence which supported the Crown case.
I have set out the relevant portions of the evidence of Ms C. Although senior counsel for the applicant submitted that her credit was not impugned to a great degree, it must be said that Ms C's story emerged over a series of interviews and contained a number of inconsistencies, the most significant of which being that she denied in her initial interview that she knew anything about the murder and that she had never seen large amounts of money. Nevertheless, her evidence corroborated that of Mr Stambolis to a significant extent. Ms C gave evidence of the first trip to the deceased's residence consistent with the evidence of Mr Stambolis. Her evidence as to the circumstances in which the second payment of $10,000 was made was also broadly consistent with the evidence given by Mr Stambolis of the payment he admitted he made, although Mr Stambolis put that payment after the murder whilst Ms C said the payment which was made by two men took place before the murder.
Further, her evidence of what occurred immediately after the murder provided strong support for the Crown case. Ms C's recollection that Mr Afu said he had to "chop her fingers off" to get the jewellery is consistent with the deceased being the object of the murder. Her evidence that Mr Stambolis told Mr Afu where to get the jewellery was broadly consistent with the evidence of Mr Stambolis.
Importantly, her evidence as to the timing of the two payments of $10,000 is consistent with the timing of the drawing of the cash cheques by the applicant, one before and one after the murder. The jury were entitled to reject the applicant's explanation that the first cheque was drawn to enable the deceased to purchase jewellery and the second cheque to pay suppliers, having regard to three matters: first, the evidence of the relationship between the deceased and the applicant at the time; second, the fact that in the 13 months prior to the drawing of the second cheque, the two cash cheques in question and the otherwise unidentified cheque that may have been drawn on the same day as the first cheque were the only cash cheques drawn on the Lymoy account; and third, the statement by Mr Loke that apart from small payments to suppliers, suppliers were paid by cheque.
Additionally, there is the evidence that the applicant went home on the day of the murder and the evidence of Ms Gaunt that the applicant stayed unusually late at the Brighton-Le-Sands restaurant on the night of the murder. Finally, there was the evidence of motive.
It should be noted that the question is not whether the verdict was unreasonable in the sense considered in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63. Even if it could not be said that the verdict was unreasonable in that sense, the question remains whether the evidence of Mr Naliva was so significant that, notwithstanding the directions to the jury, there was a real risk that the jury would take it into account and as a consequence, the applicant was deprived of a real chance of acquittal.
I do not think that there was such a risk in the circumstances of the present case. First, having regard to the evidence to which I have referred above, notwithstanding the difficulties with the evidence of Mr Stambolis the case against the applicant was reasonably strong. Further, almost immediately after Mr Naliva gave the evidence complained of, the trial judge gave the jury what was with respect a clear and firm direction. His Honour repeated that direction during the course of his summing-up.
As was pointed out in Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15 at [13], [31] and [32], the system of justice as administered by appellate courts requires the assumption that, as a general rule, juries understand and follow the directions given by the trial judge. As is evident from the need for separate trials in particular cases, there are cases where there is a real risk that, notwithstanding the directions given, the jury will unconsciously take into account the inadmissible evidence. However, for the reasons I have given this is not a case which falls into that category.

Conclusion

The applicant seeks leave to appeal out of time. Leave should be granted but the appeal dismissed.
BEECH-JONES J: I agree with Bathurst CJ and N Adams J.
N ADAMS J: I have had the advantage of reading the judgment of the Chief Justice in draft. I agree with orders proposed for the reasons provided by his Honour. I am not satisfied that the trial miscarried due to the fact that it was conducted jointly with the trial of the co-accused Mr Afu. I wish to make some additional observations as to the relevant test for ascertaining a miscarriage of justice in such cases.
By s 6(1) of the Criminal Appeal Act 1912 (NSW) this Court is to allow an appeal against conviction if it is of opinion either: that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence ("the first limb"), or that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law ("the second limb"), or that on any other ground whatsoever there was a "miscarriage of justice" ("the third limb"). Section 6(1) goes on to provide that the court may, even if it is of opinion that "the point or points raised by the appeal" might be decided in favour of appellant, dismiss the appeal if it considers that "no substantial miscarriage" of justice has actually occurred (commonly referred to as the proviso).
The test for whether there has been a "miscarriage of justice" within the third limb in s 6(1) as opposed to the test for whether there has been a "substantial miscarriage of justice" differs depending on the issues raised in the appeal. In GBF v The Queen [2020] HCA 40, the High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) noted a difference between the two tests in this way at [24]: "The Court of Appeal's conclusion that the appellant had not been deprived of a real chance of acquittal was expressed in terms of the test which was formerly used in deciding whether an appeal could be dismissed under the proviso. The antecedent question for determination was whether the impugned statement had occasioned a miscarriage of justice. The distinction between a miscarriage of justice within the third limb of the common form criminal appeal provision, proof of which lies upon the appellant, and the dismissal of an appeal under the proviso, proof of which lies on the prosecution, is as explained in Weiss v The Queen. Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the provision." (footnotes omitted) Although it is to be accepted that an "irregularity" or "failure to strictly comply with the rules of procedure and evidence" can amount to a miscarriage of justice within the third limb of s 6(1) without any need to consider whether that failure deprived the applicant of a real chance of acquittal (prior to the consideration of the proviso), they are not the only matters that can amount to a "miscarriage of justice" within the third limb of s 6(1). To put this another way, a miscarriage of justice can occur even though there is no "irregularity" or "failure to strictly comply with the rules of procedure and evidence". In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, the question was not whether there had been a "failure to strictly comply with the rules of procedure and evidence" but rather whether a miscarriage occurred due to trial counsel's conduct. In that context, Gaudron J stated the test for third limb miscarriage as follows at [26]: "The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." (footnotes omitted)
Similarly, in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, a complaint made about an unbalanced summing up was unanimously upheld by the High Court. The finding of miscarriage within the third limb was based on the impact of that unbalanced summing up on the result. Although there was no specific reference to the decision in TKWJ v The Queen, the miscarriage was, in effect, described in the same way. As Gageler J observed at [58]: "I agree with Bell, Keane, Gordon and Edelman JJ that the tone and content of the trial judge's comments on summing up so much favoured the prosecution as to have given rise to a substantial risk of those comments having persuaded the jury of the appellant's guilt. That conclusion is sufficient to require that the appellant's conviction be set aside on the ground that there has been a miscarriage of justice." (footnotes omitted, emphasis added).
In Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, Gageler J had earlier said this about third limb miscarriage at [54]: "… The words 'on any ground' in para (c) of the common form criminal appeal statute 'do not postulate the demonstration of error' but rather 'simply require that "something occurred or did not occur" in the trial'. The thing that occurred or did not occur in the trial may be an 'irregularity' falling short of a failure to observe some condition essential to a satisfactory trial - such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in para (c) [on any ground there was a miscarriage of justice] will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted." (footnotes omitted)
The test for whether there has been a miscarriage of justice caused by an appellant's trial being run jointly with one or more co-offenders was agreed by senior counsel in the present case to be that set out by the High Court in Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 89 ("Webb and Hay v The Queen"). In that decision Toohey J (with whom Mason CJ and McHugh J agreed) observed at 89: "In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.
…
Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred." (emphasis added)
In stating the test as being whether there has been a "substantial miscarriage", Toohey J appears here to have used the language of the proviso in the common appeal provision to explain the relevant test. The test for a "substantial miscarriage" at the time of that decision was whether an accused has "lost a chance which was fairly open to him of being acquitted". That was the test stated by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 in the following passage: "It is very well established that the proviso to s. 6 (1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried. (emphasis added)
Despite the fact that Fullagar J referred to a "miscarriage" rather than a "substantial miscarriage" in this passage, his Honour was expressly referring to the application of the proviso and whether a "substantial miscarriage" was established. Since the decision in Webb and Hay v The Queen the High Court has moved away from the Mraz v The Queen test as being the sole test for the application of the proviso: Weiss v the Queen (2005) 224 CLR 300; [2005] HCA 81 at [42], later confirmed in Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [16].
The High Court has not been asked to address the relevant test for whether there has been a miscarriage of justice caused by an applicant being subjected to a joint trial since Webb and Hay v The Queen. The test thus remains that as stated by Toohey J in Webb and Hay v The Queen: whether there has been a "substantial miscarriage", in the sense then understood as meaning whether an accused has "lost a chance which was fairly open to him of being acquitted". That is consistent with the test for a miscarriage as later stated by Gaudron J in TKWJ v The Queen.
Not only has the question of the relevant test in an appeal such as the present not fallen for consideration by the High Court since Webb and Hay v The Queen, as Bathurst CJ has observed at [136] above, the majority of decisions concerned with this question have arisen in the context of interlocutory decisions by trial judges to grant or refuse to order a separate trial and interlocutory appeals to this court from those decisions. Some of these decisions are cited by his Honour at [135] above and include R v Middis (Supreme Court (NSW), Hunt J, 27 March 1991, unrep). In R v Spathis; R v Patsalis [2001] NSWCCA 476, this Court considered such a ground in an appeal against conviction (at [148]-[149]) but merely found no error in the decision of the trial judge: R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432. Similarly, in R v Pham [2004] NSWCCA 190 this Court focussed on whether the decision of the trial judge was correct.
In DR v R [2019] NSWCCA 320, Brereton JA (with whom Hoeben CJ at CL and Cavanagh J agreed) noted at [21] that an appellate court considering an appeal against conviction based on a miscarriage caused by a joint trial is in a different position to a trial judge considering an application for severance at the outset of the trial. His Honour then cited the Victorian decision of R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183 at [31], and concluded, based on that decision, that the relevant test is whether there has been any "real injustice done to that accused": at [21].
It seems to me that the formulation of whether a real injustice is done to the applicant is just another way of asking whether the applicant has lost a chance which was fairly open to him of being acquitted, which is the way Bathurst CJ has expressed it at [149]. It seems to me that in a conviction appeal where a third limb miscarriage is alleged based on a complaint other than an irregularity or failure to strictly comply with the rules of procedure and evidence that is the relevant test: Baini v The Queen at [54] per Gageler J.

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