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submission – jurors’ working copies of document required to be destroyed to eliminate risk that notes taken of withdrawn submission would be referred to – fresh copies supplied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

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.
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.
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

Mr Strickland submitted that the Crown had earlier represented…

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: [2018] NSWSC 2044
Decision Date: 22 March 2018

CaseChat Overview and Summary

In the matter of R v Agius and R v Castagna (No 12), the respondents sought discharge of the jury, contending that the trial was unfair due to an improper reference by the Crown to withdrawn affidavit evidence. The case was heard in the High Court of Australia. The respondents argued that the Crown's reliance on the affidavit evidence, which had been admitted without objection or limitation, and subsequently withdrawn, prejudiced the jury, and rendered the trial unfair.

The court was required to determine whether the respondents' application for discharge should be granted. The central issue was whether the Crown's submission, which was based on the withdrawn affidavit evidence, had prejudiced the jury to the extent that it compromised the fairness of the trial. Additionally, the court needed to assess the appropriate remedy, if any, to rectify the situation and ensure the trial's fairness.

The High Court held that the Crown's submission, based on the withdrawn affidavit evidence, did not prejudice the jury to the point of compromising the fairness of the trial. The court found that the jury had been adequately directed to disregard the submission. However, to eliminate any risk that notes taken of the withdrawn submission might be referred to, the court ordered that the jurors' working copies of the document be destroyed and fresh copies supplied. Consequently, the application for discharge was refused.

In conclusion, the High Court determined that the trial's fairness had not been compromised by the Crown's reference to the withdrawn affidavit evidence. The court ordered that the jurors' working copies of the document be destroyed and fresh copies supplied to ensure that any potential notes taken of the withdrawn submission would not be referred to. The application for discharge was ultimately refused.

Orders