R v Agius; R v Castagna (No 12)

[2018] NSWSC 2044

Supreme Court

New South Wales

Medium Neutral Citation:	R v Agius; R v Castagna (No 12) [2018] NSWSC 2044
Hearing dates:	22 March 2018
Decision date:	22 March 2018
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	Application to discharge jury refused
Catchwords:	CRIMINAL LAW – application for discharge of jury – Crown referred to affidavit evidence admitted without objection or limitation – Crown submission raised bad character – application for discharge refused – jury directed to disregard submission – jurors’ working copies of document required to be destroyed to eliminate risk that notes taken of withdrawn submission would be referred to – fresh copies supplied
Cases Cited:	Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
Category:	Procedural and other rulings
Parties:	Regina Robert Francis Agius Anthony Dante Castagna
Representation:	Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Accused Agius) P Strickland SC/S White SC (Accused Castagna)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) David J Cohen (Accused Agius) Hazan Hollander Lawyers (Accused Castagna)
File Number(s):	2016/136935; 2016/137095

Judgment: EX TEMPORE

Introduction

1. An application for the jury to be discharged has been made on behalf of the accused Castagna by Mr Strickland SC, who appears with Mr White SC.

2. The application was founded on aspects of the Crown closing address in which the Crown referred to an affidavit sworn by the accused Castagna on 6 February 2002. The affidavit was made in civil proceedings in the Supreme Court of Victoria, in which the accused Castagna was apparently subject to orders for non-party discovery for documents relating to his relationship with either or both of Billbury Limited (Billbury) and Uniton in the period 1 January 1993 to 30 June 2000. The affidavit was admitted without objection and formed part of Exhibit B (at pages 172-175), the principal bundle of Crown documents.

3. The Crown, in his closing address, drew the jury's attention to the fact that the document was an affidavit and, accordingly, that the accused Castagna had to take an oath in making it. The Crown highlighted particular words and reminded the jury that this was equivalent to oral evidence which a witness gives on oath in the witness box. The Crown then took the jury through the affidavit and invited the jury to examine what the accused Castagna had said in that affidavit. The Crown juxtaposed what was said in the affidavit with other evidence in the Crown case. It seems to me that this was done with a view to demonstrating that what had been sworn in the affidavit was untrue, in that it was inconsistent with the evidence in the Crown case, much of which was objective. For example, the Crown invited the jury to compare the truth or otherwise of paragraph [9] in the affidavit with the annual returns of Billbury which are in evidence and show, in effect, that Billbury did little or nothing in the relevant years.

The accused Castagna’s submissions

4. Mr Strickland submitted that the Crown had earlier represented to the accused Castagna's representatives that it would not adduce evidence of bad character to rebut the evidence of good character which was to be led on behalf of the accused Castagna. Mr Strickland explained that, in reliance on that indication, he had adduced evidence from a number of Crown witnesses as to the accused Castagna's good character. He cross-examined several of the Crown witnesses as to whether they regarded the accused Castagna as an honest man and whether they had any doubts about his integrity. They all gave answers which tended to establish the good character and reputation of the accused Castagna. Mr Strickland submitted that the Crown, in its address, was going against the agreed basis on which good character was raised and that it would not have been raised had he had any apprehension that the affidavit would be used for that purpose.

Consideration

5. I note that the affidavit of the accused Castagna (Ex B, pp 172 to 175) was admitted into evidence without objection. No order was sought to limit its use. In these circumstances, no complaint can be made about its use by the jury as the tribunal of fact. It would be open to the jury to infer that what the accused Castagna deposed to, about matters of which he was aware, was not only incorrect but also deliberately untrue.

6. Nonetheless, I am satisfied on the basis of Mr Strickland's submission that the understanding on the basis of which the accused Castagna decided to raise good character was as set out in Exhibit 2DC (the schedule in which the Crown identified the relevance of the affidavit). The Crown identified the relevance of the affidavit as being that it was inconsistent with statements made in the voluntary disclosure statement provided by the accused Castagna to the Australian Taxation Office. In these circumstances it is open to the Crown to submit to the jury that there are inconsistencies between the affidavit and the voluntary disclosure statement. While I accept that the Crown did not share Mr Strickland’s understanding of the effect of the correspondence and Exhibit 2DC, I consider that it was reasonable for Mr Strickland to come to the understanding which he did on the basis of the correspondence exchanged between the parties (Exhibits 2DA and 2DB) and Exhibit 2DC.

7. In these circumstances, I consider that the submission made by the Crown, to the effect that it was open to the jury to find that the accused Castagna was dishonest because of the content of the statement in the affidavit and the disparity between the contents of the affidavit and the other evidence in the Crown case, ought not to have been made.

8. While it is true that the jury, as the tribunal of fact, is entitled, no ruling having been made to the contrary, to use this affidavit for all purposes in determining the guilt or innocence of the accused, it is not, in my view, open to the Crown to invite the jury to reason from that evidence that the accused Castagna is not a person of good character, having regard to the antecedent correspondence and Mr Strickland’s understanding of the effect of those communications.

9. The question then arises as to what is necessary to remedy the effect of those statements on the jury. Mr Strickland submitted that no remedy other than a discharge of the jury would be sufficient to undo the harm and that there was no direction that I could give which would be sufficient.

10. Whilst I am of the view that the Crown has, albeit unwittingly, overstepped the mark, having regard to the matters I have raised, I do not consider that a discharge is necessary in circumstances where the affidavit is in evidence without limitation. The Crown is entitled to draw the jury's attention to this affidavit as it is part of the evidence in the case, and there is no limit as to its use. What I consider to be required is a direction that the jury disregard the submission that the statements in the affidavit were false or incorrect and inconsistent with the other evidence in the Crown case.

11. Mr Strickland has indicated that, whilst he does not concede that a direction would be sufficient to remedy the harm, I should, were I to refuse the application for discharge, say words to the following effect to the jury:

“The Crown has made submissions to you regarding exhibit B, pages 172 to 175. The Crown has made statements about the untruthfulness of the affidavit. These statements by the Crown ought not to have been made. I confirm that the Crown does not suggest that the accused Castagna made statements in the affidavit that he knew to be false. These submissions and statements are withdrawn and I ask you to disregard them entirely.”

12. In my view, a direction to that effect would be sufficient to remedy the harm.

13. In note that, in the course of argument on this application, the Crown suggested that it would be open to the Crown to compare what was in this affidavit with other objective evidence in the Crown case. In my view, having regard to the limits of what is set out in Ex 2DC as to the Crown's position, it would not be open to him to do so. However, as referred to above, it would be open to the jury to take into account the affidavit for what it was worth, as part of the whole of the evidence in the trial.

14. As this course was outlined in Ex 2DC, it is open to the Crown to draw the jury's attention to any inconsistencies between statements made in this affidavit and in the accused Castagna's subsequent voluntary disclosure statement to the Australian Tax Office, that being the specific basis on which the Crown pressed the tender of the affidavit.

15. For these reasons I propose to make a statement to the jury along the lines suggested by Mr Strickland, after which I will invite the Crown to resume the closing address in conformity with the limitations referred to above.

16. For completeness I note that, after delivery of these reasons ex tempore, Mr Strickland asked that the jury be required to return to the court officer their working copies of Ex B, pp 172-175 (the affidavit referred to above). While I am entitled to assume that the jury has complied with my directions (Demirok v The Queen (1977) 137 CLR 20 at 22; [1977] HCA 21 per Barwick CJ), I am persuaded that this additional step is appropriate in order to help the jury comply with the direction to disregard the Crown submission referred to above. For this reason, I acceded to this request to guard against the possibility that jurors might have made notes on their copies of the submission which the Crown has been required to withdraw and might subsequently refer to their notes in the course of their deliberations. I directed that the original copies be collected and destroyed. The jurors were supplied with fresh, clean copies of these pages for insertion into their working folders.

Order

17. For these reasons, I make the following order:

1. Refuse the application for discharge of the jury made on behalf of the accused Castagna.

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Decision last updated: 06 March 2019