R v Agius; R v Castagna (No 12)

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sought discharge of the jury, contending that the trial was unfair due to an improper reference by the Crown to withdrawn affidavit evidence.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Crown's reliance on the affidavit evidence, which had been admitted without objection or limitation, and subsequently withdrawn, prejudiced the jury, and rendered the trial unfair.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 The central issue was whether the Crown's submission, which was based on the withdrawn affidavit evidence, had prejudiced the jury to the extent that it compromised the fairness of the trial.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The High Court held that the Crown's submission, based on the withdrawn affidavit evidence, did not prejudice the jury to the point of compromising the fairness of the trial.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 However, to eliminate any risk that notes taken of the withdrawn submission might be referred to, the court ordered that the jurors' working copies of the document be destroyed and fresh copies supplied.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the High Court determined that the trial's fairness had not been compromised by the Crown's reference to the withdrawn affidavit evidence.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working copies of the document be destroyed and fresh copies supplied to ensure that any potential notes taken of the withdrawn submission would not be referred to.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.