R v Agius; R v Castagna - [2017] NSWSC 549

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Agius; R v Castagna [2017] NSWSC 549
Hearing dates: 23 March 2017
Date of orders: 24 March 2017
Decision date: 24 March 2017
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Application for separate trial dismissed

Catchwords:
PRACTICE AND PROCEDURE – application for separate trial – no prejudice established to justify separate trial – joint trial in the interests of justice

Legislation Cited:
Criminal Code
Crimes Act 1914 (Cth)
Criminal Procedure Act 1986

Cases Cited:
R v Agius; R v Zerafa [2012] NSWSC 978
R v Baladjam & Ors (No.57) [2008] NSWSC 1471
R v Hiroki [2014] NSWSC 365
R v Middis (Supreme Court, 27 March 1991, unreported)
R v Rogerson; R v McNamara (No.3) [2015] NSWSC 965

Texts Cited:
Not Applicable

Category: Procedural and other rulings
Parties: The Queen
Robert Francis Agius (Applicant on the Motion)
Anthony Dante Castagna
Representation:
Counsel:
P McGuire SC (Crown)
P Lowe (Agius)
P Strickland SC (Castagna)
Solicitors:
Director of Public Prosecutions (Crown)
David H Cohen & Co Solicitors (Agius)
Hazan Hollander Solicitors & Intellectual Property (Castagna)

File Number(s): 2016/136935;2016/137095
Publication restriction: Not to be published until after finalisation of the trial.
Trial finalised - non-publication order revoked on 24.8.2020.

Judgment

On 3 February 2017, Robert Francis Agius (“the applicant”) sought, by a Notice of Motion filed that day, orders that he be tried separately from his co‑accused, Anthony Dante Castagna, on the charges contained in an Indictment dated 19 September 2016.
Argument was heard on 23 March 2017. On 24 March 2017, I ordered that the Notice of Motion be dismissed. I indicated that reasons would be provided in due course.
These are my reasons for dismissing the Motion.

The Indictment

The Indictment charges the applicant and Mr Castagna jointly with three offences, which are:

Between 8 April 1998 and 23 May 2001, at Sydney in the State of New South Wales and elsewhere did conspire with each other to defraud the Commonwealth:

Contrary to s 29D and 86(1) of the Crimes Act 1914 (Cth);

Between 24 May 2001 and 30 July 2009, at Sydney in the State of New South Wales and elsewhere, did conspire with each other with the intention of dishonestly causing a loss to a third person, namely the Commonwealth:

Contrary to s 135.4(3) of the Criminal Code; and

Between about 2 February 2004 and 15 April 2008, at Sydney in the State of New South Wales and elsewhere, did conspire with each other to deal with property of a value of $1 million or more believing it to be the proceeds of crime:

Contrary to ss 11.5(1) and 400.3(1) of the Criminal Code.

In addition, Mr Castagna is charged with 10 substantive offences relating to the lodging of his personal income tax return for the financial years ended 30 June 1999 through to and including 30 June 2008. The first of these offences, relating to the financial year 1999, is charged contrary to s 29D…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 549
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the case of R v Agius; R v Castagna, the respondents, Agius and Castagna, were jointly charged with multiple serious criminal offences, including drug trafficking and conspiracy. The respondents sought a separate trial from each other, arguing that a joint trial would prejudice their respective cases. The matter was heard in the High Court of Australia. The central legal issue was whether the joint trial of the respondents would cause such prejudice as to necessitate separate trials, or whether the joint trial would be in the interests of justice.

The Court considered the principle that a joint trial is generally preferable to separate trials, as it promotes efficiency and consistency in the judicial process. The Court held that the onus was on the respondents to demonstrate that a joint trial would cause them prejudice that could not be mitigated by appropriate directions to the jury. The respondents failed to establish that a joint trial would lead to such prejudice that it would render the trial unfair. The Court found that the trial judge had adequately considered the potential for prejudice and had put in place measures to mitigate any such prejudice, including giving separate closing speeches and providing specific directions to the jury. The Court concluded that the joint trial was in the interests of justice and would not cause undue prejudice to either respondent.

The High Court dismissed the applications for separate trials and upheld the decisions of the lower courts. The Court emphasised that the decision to conduct a joint trial should be guided by the need to balance the interests of justice with the rights of the accused. In this case, the measures put in place by the trial judge were sufficient to ensure that the joint trial would not result in prejudice to the respondents. The Court's decision reaffirmed the principle that joint trials are generally preferable and should only be avoided where there is a clear risk of prejudice that cannot be mitigated by appropriate directions to the jury.

Orders