R v Agius; R v Castagna (No 1)

[2017] NSWSC 1863

Supreme Court

New South Wales

Medium Neutral Citation:	R v Agius; R v Castagna (No 1) [2017] NSWSC 1863
Hearing dates:	27 November 2017
Decision date:	27 November 2017
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	Orders made
Catchwords:	SUPPRESSION ORDER – order sought that articles relating to one or both of the accused be removed from the internet in NSW pending the determination of a criminal trial of the accused for conspiracy to defraud the Commonwealth – order not opposed – HELD – order necessary to protect the administration of justice
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 12
Category:	Procedural and other rulings
Parties:	Regina Robert Francis Agius (Accused) Anthony Dante Castagna (Accused)
Representation:	Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Accused Agius) P Strickland SC/S Callan/S White SC (Accused Castagna)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) David H Cohen & Co (Accused Agius) Hazan Hollander Lawyers (Accused Castagna)
File Number(s):	2016/136935; 2016/137095

Judgment: EX TEMPORE

1. By notice of motion filed on 17 November 2017, the accused Dr Castagna seeks a “take-down” order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in respect of various articles concerning the two co-accused in this case, Dr Castagna and Mr Agius. The order is sought until the conclusion of the trial or until further order.

2. The order is supported by the affidavit of Peter Whitehead of 17 November 2017, which identifies the various articles and the contents of those articles, which are exhibited to that affidavit. I also note the affidavit of Vasudha Sathanapally of 26 November 2017 in which the deponent deposes to the efforts made on behalf of the Commonwealth Director of Public Prosecutions to take down certain material relating to the accused from websites over which it has control.

3. I am satisfied on the basis of the affidavit evidence that each of the articles referred to in the draft short minutes of order handed up to me by Ms Callan, who appears on behalf of Dr Castagna with Mr Strickland SC and Mr White SC, that it is appropriate that the order be made.

4. I make the order on the ground under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act; namely, I am satisfied that the order is necessary to prevent prejudice to the proper administration of justice. The order is made in the context of an imminent jury trial of both accused in which, although I would give firm directions to the jury about not making any inquiries, including of the internet, it is desirable that as much protection be given to the accused and to the fairness of their trial as possible.

5. I am obliged by s 12 of the Court Suppression and Non-Publication Orders Act to specify the period for which the order is to operate and to ensure that it is to operate for no longer than is reasonably necessary to achieve the purpose for which it is made. I am satisfied that making the order until the conclusion of the trial or until further order is sufficient to meet the requirements of s 12 of the Act.

6. For these reasons, I make orders in terms of the short minutes of order which I will initial and date and place with the papers

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Decision last updated: 06 March 2019