R v Afu; R v Caleo

Supreme Court of NSW|2018-02-05|Before: Hulme J, Hunt J

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

Judgment

HIS HONOUR: The accused Mark Caleo seeks a trial separate from his co-accused Alani Afu. On 6 February 2018 I announced my ruling that the application was refused (6.2.18 at T14). The following represents my reasons for that ruling.

Introduction

Mr Afu is charged with the murder of Ms Rita Caleo at Double Bay on 10 August 1990 whereas Mr Caleo is charged with soliciting to murder Dr Michael Chye at Woollahra on 16 October 1989 and soliciting to murder Ms Rita Caleo at Double Bay on 10 August 1990.
An overview of the Crown case appears in R v Afu; R v Caleo [2017] NSWSC 1780. In short it is that Dr Chye was the brother of Mr Caleo's wife, Ms Rita Caleo. The Crown contends that Mr Caleo solicited an unknown person to murder Dr Chye after they had a falling out over a property transaction. It also alleges that he solicited the murder of his wife, such murder being carried out by Mr Afu.
The provisions of s 29(2) of the Criminal Procedure Act 1986 (NSW) authorise the hearing of a trial of two or more accused, subject to the provisions of s 29(3): "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."
There is no issue about "the offences [arising] out of the same set of circumstances": s 29(2)(b). The issue is whether the trials of the two accused should be separated "in the interests of justice": s 29(3).

Principles

In written submissions (undated but provided before a pre-trial hearing on 6 October 2017), counsel for Mr Caleo acknowledged that there was a natural logic to joining trials alleging common purposes but submitted that separate trials may still be required where the evidence against one accused is significantly different to the evidence against the co-accused (citing R v Darby (1982) 148 CLR 668; [1982] HCA 32).
Counsel for Mr Caleo referred to a judgment of a single judge of this Court (Dowd J) in which the following considerations were identified in assessing whether separate of the trials of co-accused is justified: R v Piller; R v Kramer; R v Edwards (1995) 86 A Crim R 249. Those considerations are: ● Where the evidence against an applicant for separate trials is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him. ● Where the evidence against those other accused contained material highly prejudicial to the applicant although not admissible against him. ● 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 charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
Reference was made to R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unrep) where it was said that the word "would" in the last of the above considerations means a "real risk" of positive injustice, as opposed to a remote possibility.
Reference was also made to R v Privett [1999] NSWSC 1074, in which it was stated (at [13]) that the circumstances in which a joint trial may give rise to positive injustice cannot be exhaustively defined.

Submissions for Mr Caleo

The application for separate trials by Mr Caleo was made on the following bases: a) The evidence against Mr Caleo is significantly weaker than the evidence against Mr Afu. b) The evidence against Mr Afu is highly prejudicial and there is a real risk that it will make the case against Mr Caleo immeasurably and impermissibly stronger.

Comparison of the strength of the evidence against each accused

It was contended that the evidence against Mr Afu is "overwhelming" and much of it is not admissible against Mr Caleo. Counsel described the evidence against Mr Afu as including admissions he is alleged to have made to a number of witnesses, as well as there being a number of witnesses who will give evidence of him being in possession of items stolen at the time of the murder of Ms Caleo.
It was also submitted that while the Crown case was that the murder of Ms Caleo was solicited by Mr Caleo and committed by Mr Afu, there was limited, if any, evidence of contact between the two of them. The evidence against Mr Caleo is said to be almost entirely based upon the evidence of Mr Anthony Stambolis. Mr Stambolis' evidence was characterised as contradictory and ultimately unclear. It was said that Mr Stambolis initially said that Mr Caleo played no role in any of the meetings or coordination concerning the proposed murder of Ms Caleo; rather it involved Mr Caleo's brother, Gerard. In a later version, Mr Stambolis suggested that meetings in which the murder was planned occurred between him, Mr Caleo and Mr Afu. It was said that Mr Stambolis' version shifted to him being the conduit between the parties and that all dealings between Mr Caleo and Mr Afu were at "arm's-length"; the most recent version given by Mr Stambolis at the committal hearing on 20 February 2017 (p 41.32; p 68.2-3) being that he had "never seen the Tongan [Mr Afu] with Mark Caleo ever, ever".
Reference was also made to the evidence of Mr Afu's then girlfriend, Cindy (a pseudonym), that she had seen "the husband of the murdered lady". However, this evidence was the subject of a successful objection at the committal hearing, Cindy having said that she "can't remember how I knew it was the husband", so it was unlikely that this evidence would be admissible at trial.
It was submitted that there is a real risk that the jury may be overwhelmed by the evidence against Mr Afu in a way that would unfairly strengthen the case against Mr Caleo. In order to find Mr Afu guilty the jury would be asked to find that his motive was to act on the directions of Mr Caleo. If the jury found that the strong case against Mr Afu was proven, then the jury could find the weak case against Mr Caleo was inevitably proven in circumstances where Mr Afu would have no other motive than to be acting on the direction of Mr Caleo.

Prejudice and associated risk

It was submitted that the evidence against Mr Afu consists of context evidence of his relationships and associations as well as his motive for participation in the offence. Such evidence included Mr Afu's involvement in drug use, heroin supply, robberies, carrying firearms, and doing "jobs" in the Kings Cross nightclub community.
There was said to be real prejudice to Mr Caleo in being associated with evidence of Mr Afu's associates and his involvement in criminal behaviour. There would be unfairness in associating Mr Caleo with the same criminal milieu in which Mr Afu operated; he would be "tarnished with the same brush" and suffer prejudice as a result. Such evidence is not admissible against Mr Caleo and so it was contended that the risk of prejudice is "a grave one", particularly in circumstances where there is no evidence of a similar nature that is admissible against Mr Caleo.
Finally, it was submitted that the injustice and unfairness of trying Mr Caleo together with Mr Afu cannot be remedied by directions to the jury.
The foregoing is a summary of the submissions made in writing. They were supplemented with oral submissions made on 5 February 2018. Mr Brady SC took me to the proposed evidence of a Mr Joseph Naliva. This evidence was described as "the crux of the case for the separation [of the trials of the two accused]".
Mr Naliva was referred to by Mr Brady as "an associate" of Mr Afu. Mr Naliva claims to have been visited by Mr Afu (and his then girlfriend, Cindy) on 26 August 1990. Mr Afu had some jewellery that he wanted Mr Naliva to sell. The Crown case is that this was jewellery taken by Mr Afu at the time he murdered Ms Caleo in her bedroom on 10 August 1990.
Mr Naliva said in a statement dated 22 January 1991 (at [5]): "I emptied the jewellery onto my bed and I could then see that it was expensive jewellery. I said to Alan [Mr Afu], 'Is this hot?' He said, 'Red hot'. I joked to Alan, 'What did you do, did you murder someone?' Alan said, 'We had to knock off a Chinese lady for this'. I said, 'How did you do that?' He said, 'We were given a job to do which was directed by the husband'. (Emphasis added)
In a record of an interview with police on 8 February 1991, Mr Naliva said (at A 10): "I asked him where he got the jewellery and he turn around and told me that he [had] to knock a Chinese lady for this. He said, 'I had to knock a Chinese lady for this'. I turn around and [asked] him, 'How did you do it?' and he said, 'We were given this job'. He said the job came from someone approached by the husband." (Emphasis added)
Later in that answer in this interview, he said: "I remember before they left that he said something that he forgot to take a Rolex off the woman's hand. I also remember he said that the husband was shifty that he would take the Rolex watch and keep it for himself. I said, 'What's happened to it now?' and that's when he said the husband would have taken it now." (Emphasis added)
In a statement dated 12 February 2013, Mr Naliva said (at [26]): "The next day they came to my hotel. Alani Afu and Susie [Cindy] had a bag of jewellery that went on the bed. I asked Alani Afu if his [sic] killed someone for the jewellery. Alani Afu said, that he killed a Chinese chick for it. Alani Afu told me that the job was given to him by the husband of the Chinese lady." (Emphasis added)
It was submitted that the assertions by Mr Naliva that Mr Afu said "the job" of murdering Ms Caleo was given to him by "the husband", Mr Caleo, or even "someone approached by the husband" were not statements made in furtherance of a joint enterprise but should be characterised as "admissions". As such, they are not admissible against Mr Caleo. I accept that is correct. However, it was submitted that there was "exceptional prejudice" to Mr Caleo. He would not be able to cross-examine Mr Naliva about the statements or make any submission to the jury. If the jury came to the conclusion that Mr Afu was responsible for the murder of Ms Caleo there was a real risk that it would accept that he was acting at the behest of Mr Caleo because of Mr Naliva's evidence. It was contended that there would be a serious and unacceptable risk that the jury would take such evidence into account when considering the case against Mr Caleo despite any directions to the contrary that I might give.
Mr Brady also submitted that Mr Naliva's evidence set out above should be considered in the context of there possibly being evidence of Cindy that she saw Mr Afu meeting with a person who she thought was "the husband" (although this is of doubtful admissibility) and the overall stronger case against Mr Afu.

Crown submissions

In written submissions dated 4 October 2017 (prepared before seeing the written submissions by counsel for Mr Caleo referred to above) the Crown submitted that the evidence that the accused Mr Afu was the killer of Ms Caleo is an integral part of the proof that Mr Caleo arranged that murder. Similarly, the evidence that Mr Caleo arranged the killing of his wife is an integral part of the evidence that Mr Afu carried it out. It was said that there was virtually no contact between the two accused at any time, except for a brief meeting after the event (corrected to "before the event" in further written submissions of 2 February 2018). The link comes from the evidence of Mr Stambolis which, as to the murder of Ms Caleo, is strongly corroborated by the evidence of Cindy. The meeting before the event was a reference to the evidence of Cindy that an associate of Mr Caleo (on the Crown case) drove her and Mr Afu to "Sans Souci … where the husband's restaurant was" (further written submissions [2]).
The Crown case is that the arrangements for the murder of Ms Caleo, which was to be made to look like "a robbery gone wrong", were made largely by Mr Stambolis. Mr Stambolis was an employee of Mr Caleo at his restaurant, "Caleo's", in the Queen Victoria Building. He knew Mr Afu from buying drugs from him at Kings Cross. The Crown case is that Mr Stambolis drove Mr Afu, together with Cindy, to Double Bay on the night of the murder, waited in the car with Cindy while the murder took place, and then drove him home. It was later noticed that Mr Afu was in possession of a large quantity of jewellery and that he had a cut hand (Ms Caleo died after being stabbed 23 times). Blood at the crime scene was mostly that of Ms Caleo but blood of another blood group was also found.
In the further Crown written submissions, it was asserted that the Crown case is that Mr Stambolis and Mr Caleo's brother, Gerard Caleo, were involved in making the arrangements with, and payments to, Mr Afu. Cindy described in her statement of 4 November 2014 a "guy that looked like the Italian looking guy [who drove her and Mr Afu on the night of the murder but] definitely wasn't the Italian looking guy". This other man, she asserted, drove them on another occasion before the murder to the units at Double Bay and said that "the husband was gonna leave the bedroom window unlocked". This was the man who was present when Cindy saw the two accused meet at "Sans Souci" (on the Crown case, Brighton-Le-Sands) restaurant.
The Crown relies upon the evidence of the Caleo nanny, Ms Lai Lan Chor, as supporting this evidence. Her evidence will be that Mr Caleo returned home briefly on the afternoon before Ms Caleo's murder and walked upstairs to the bedroom into which the murderer later gained entry without force. (The Crown will invite the jury to infer that this was in order to leave the door to the balcony open to permit entry by the murderer and to place Ms Caleo's jewellery in a place readily accessible to the murderer.)
The Crown also referred to evidence of Mr Stambolis that he paid cash to Mr Afu after the murder, such cash having come from Mr Caleo. That cash was in an amount which corresponds with an unusual withdrawal of cash from Mr Caleo's bank account at the relevant time.
In the further Crown written submissions, the Crown contended that both Mr Stambolis and another man (Gerard Caleo on the Crown case) were present when Mr Afu was paid $10,000 in cash after the murder. Cindy said in her statement of 5 March 2014 (at [12]) that two men were present when the payment was made, one who told Mr Afu that he had done a good job; that he had seen on the news that footprints had been found near a tree (consistent with other evidence in the Crown case), and; that "when Alan [Mr Afu] got the money, the other guy kind of freaked out and left real quick". Mr Stambolis was "the other guy" on the Crown case, the person who had driven Mr Afu and Cindy to Double Bay on the occasion of the murder, and he will give evidence that supports Cindy's account.
The Crown referred to Symss v The Queen [2003] NSWCCA 77 at [68] where Sheller JA (with the agreement of James J and Smart AJ) said: "The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts."
The Crown submitted that it was in the interests of justice that the "whole picture" be presented to the jury, namely that Mr Caleo arranged for the murder of Dr Chye in order to eliminate Mr Caleo's dire financial problems. Then, within 10 months, Mr Caleo solicited Mr Afu to murder Ms Caleo for fear of being exposed by her as being responsible for arranging the murder of her brother. It was said to be "undoubted" that the two murders arose from the same set of circumstances: Criminal Procedure Act, s 29(2)(b).
In relation to the reference to the "interests of justice" in s 29(3), the Crown referred to Osman v R [2006] NSWCCA 196 where, at [22], McClellan CJ at CL (Johnson and Latham JJ agreeing) pointed out: "It is important to bear in mind that the interests of justice involve more than the interests of the accused. … [T]he interests of the Crown, the witnesses and the public must also be considered."
The Crown also referred to cases specifically concerned with "cut-throat" defences where the accused persons seek to place the blame upon their co-accused: for example, R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965. The Crown did not envisage such a situation arising in this trial but it did anticipate that Mr Caleo would suggest that Mr Afu carried out the murder independently of any involvement by him.
Reference was also made to the need to strike a balance between the public interest in a jury hearing the trials together and any prejudice to the accused: R v Fernando & Anor [1999] NSWCCA 66 at [212].
The Crown did not anticipate that the evidence adduced against, or by, Mr Afu could give rise to a risk of positive injustice against Mr Caleo. It submitted that although the evidence against the two accused is different, the evidence against Mr Caleo was not "significantly weaker" (citing R v Middis). Moreover, any evidence admissible only against Mr Afu would not be capable of being prejudicial against Mr Caleo because it does not concern him.
In oral submissions responding to those made by Mr Brady on 5 February 2018 the Crown Prosecutor contended that isolating the evidence of Mr Naliva (set out above) gives it a prominence and an appearance of incurable prejudice that is not warranted when viewed in the context of all of the evidence.
By way of example, reference was made to Mr Naliva's statement of 12 February 2013 where (at [33]-[36]) he referred to an occasion at the All Nations Club at Rushcutters Bay when Mr Afu introduced him to a man who he later told Mr Naliva was "the man who gave him the job" and "the husband of the Chinese woman with all the jewellery". Mr Naliva said that he understood this to be "the husband who paid Afu to murder the Chinese woman and to take the jewellery".
I interpolate that I cannot see how evidence of Mr Naliva that Mr Afu said these things could be admissible against Mr Caleo. Perhaps, however, evidence of a description of this person ([36] of this statement) would be admissible, because it seems to coincide with at least one aspect of Mr Caleo's description: "he had a high pitched voice".
The Crown does, however, have other evidence (direct and circumstantial) of the involvement of Mr Caleo in soliciting the murder of Ms Caleo. Particular reference was made to the evidence of Mr Stambolis and Cindy and to evidence of admissions alleged to have been made by Mr Caleo at a later time. In short, it was submitted that the evidence of Mr Naliva hardly stands alone.
It was also submitted that Mr Naliva's evidence will not be the only evidence that will require a direction to the jury that it must only be taken into account in relation to the case of one but not the other accused.

Reasons for refusal of the application

I readily acknowledge the potential prejudice as identified in the submissions by counsel for Mr Caleo in support of this application that he be tried separately from Mr Afu. I accept that there will be evidence that, on its face, implicates Mr Caleo but would only be admissible against Mr Afu.
It appears that this will be a trial in which there will be a number of items of evidence that will be admissible against one but not the other accused; not just the items that have been referred to above. The jury will need to clearly understand the case against each accused and the evidence that is available to be taken into account and that which is not. That is not an unusual situation in joint trials of multiple accused. As Hunt J (as he then was) said in R v Middis, "some prejudice to one or other accused is inevitable in any joint trial".
Sometimes there is a fine line to be drawn in determining whether the potential for prejudice may be sufficiently ameliorated by "express and careful directions": Symss v The Queen at [76]. The difficulty lies in the fact that the evaluative judgment required is often one made when a trial is in prospect and the evidence is only that which it is anticipated will be given. For example, counsel for Mr Caleo has described the anticipated evidence of Mr Stambolis as being contradictory and unclear. Whether that description will still be apt once Mr Stambolis has given evidence before the jury remains to be seen.
A difficulty which will pervade the evidence of the critical witnesses is that they will be speaking of events that occurred a very long time ago. The strength and reliability of memories will likely vary quite significantly. Another difficulty is that some of the significant witnesses (Mr Stambolis, Mr Naliva and Cindy are particular examples) will likely be the subject of quite robust attacks upon their credibility. Having not seen any of them give evidence at this point it is impossible to say what the jury are likely to make of them.
All of this is to highlight the difficulty of forecasting that one case is "significantly weaker" than the other.
On its face, however, the Crown case against Mr Afu does appear to be relatively strong, but the case against Mr Caleo is not without some strength either. I do not know whether there is any alternative, innocent explanation for some of the key points relied upon in the circumstantial aspect of the Crown's case: for example, Mr Caleo's attendance at the home at Double Bay on the day preceding Ms Caleo's murder and his entrance to her bedroom; his staying back late at work on the night of the murder, and; the unusual cash withdrawals that the Crown say coincide with the cash payments made to Mr Afu for carrying out the murder. There are also the admissions he is alleged to have made quite some time after the murder. Also, of course, there is the coincidence evidence relied upon by the Crown in relation to both murders.
I do not accept that if the jury is satisfied of the guilt of Mr Afu it will almost inevitably also find Mr Caleo guilty. On the Crown case, most of the arrangements for Mr Afu to carry out the murder involved contact between him and Mr Stambolis and Mr Caleo's brother, Gerard. If the jury are satisfied of Mr Afu's guilt, it might well follow that they are satisfied that he did so at the urging of one or the other or both of these two men. But there would remain a real question for the jury as to whether behind them was the solicitation of the accused Mr Caleo.
I also do not accept that Mr Caleo will be "tarnished with the same brush"; that he will be prejudiced by being associated with evidence of Mr Afu's associates and his involvement in criminal behaviour. The Crown case is to the effect that Mr Stambolis was tasked with finding someone to do something "dodgy". As I understand it, it is expected that Mr Stambolis will say that he was asked to find someone who would be prepared to enter a home and take valuable property as part of an insurance fraud and to kill the occupant (although Mr Stambolis did not think that the latter was intended at all). It follows that Mr Stambolis would approach someone he thought had a criminal propensity. Common sense suggests that this would be so and the jury would probably find it unsurprising. I cannot see how there is any unfair prejudice in this that supports Mr Caleo's application.
Next there is the expected evidence of Mr Naliva of admissions said to have been made by Mr Afu nominating "the husband" (i.e. Mr Caleo) as the person soliciting the murder of Ms Caleo. This appears to me to be a subject that is readily identifiable in order to isolate it and direct the jury that it may only be used in the case concerning Mr Afu. By "only be used", I mean that it should be possible to provide a direction that the jury can well understand that it cannot be used either directly, or as bolstering the evidence of other witnesses, in the case concerning Mr Caleo.
Having regard to the multi-faceted case that the Crown intends to bring against Mr Caleo, in terms of both direct and circumstantial evidence, I do not regard this as being a case like Regina v Pham [2004] NSWCCA 190 where, as Hulme J described it (at [4]), "the only substantial evidence against the Appellant was that of two witnesses both of whose credibility was the subject of substantial attack and at least one of whose credibility left a lot to be desired". True it is that Mr Stambolis' evidence is significant and important to the Crown, particularly so in relation to the murder of Ms Caleo, but it is not "the only substantial evidence". Moreover, the other evidence relied upon is both probative of the alleged guilt of Mr Caleo and capable of supporting the central tenet of Mr Stambolis' evidence that it was Mr Caleo who urged that the murder be carried out.
Ultimately, the question is whether "positive injustice" will be caused to Mr Caleo if he is tried together with Mr Afu: R v Middis; R v Patsalis & Spathis (No 1) [1999] NSWSC 649; 107 A Crim R 432 at [6] (endorsed in the Court of Criminal Appeal by Heydon JA in R v Spathis; R v Patsalis [2001] NSWCCA 476 at [148]). I was not persuaded that this is so and accordingly the application for a separate trial was refused.
However, and as I indicated when announcing my ruling on 6 February 2018, if the evidence and the circumstances as I was able to perceive them at the time of making this ruling should change as the evidence unfolds during the course of the trial, it should not be thought that any further application is foreclosed.

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Criminal Procedure Act 1986(NSW)ss 29(2), 29(3)

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