R v Agius; R v Castagna (No 15)

[2018] NSWSC 2046

Supreme Court

New South Wales

Medium Neutral Citation:	R v Agius; R v Castagna (No 15) [2018] NSWSC 2046
Hearing dates:	1 August 2018
Decision date:	01 August 2018
Before:	Adamson J
Decision:	(1) I refuse the application by the offender Agius for a direction under s 4 of the Evidence Act.  (2) I allow paragraphs [18]-[25] of Mr Miller’s affidavit sworn on 18 May 2018 notwithstanding that they are in hearsay form.
Catchwords:	EVIDENCE – whether hearsay evidence is the best evidence in the circumstances – evidence allowed   EVIDENCE – whether direction should be given that the rules of evidence apply in the sentence hearing – direction refused
Legislation Cited:	Evidence Act 1995 (NSW), s 4
Category:	Procedural and other rulings
Parties:	Regina (Crown) Robert Francis Agius (Offender) Anthony Dante Castagna (Offender)
Representation:	Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Offender Agius) P Strickland SC/T Epstein (Offender Castagna)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) David J Cohen (Offender Agius) Hazan Hollander Lawyers (Offender Castagna)
File Number(s):	2016/136935; 2016/137095

Judgment: EX TEMPORE

1. The Crown has sought to read, in the sentence hearing, the affidavit of Scott Miller sworn on 18 May 2018. Mr Lowe, who appears for the offender Agius, objects to paragraphs [18]-[25] of that affidavit. These paragraphs concern a mutual assistance request to Vanuatu made by the Commonwealth Attorney General’s Department in order to obtain material for the purposes of a prosecution. They are expressed to be in a hearsay form, based on information provided to Mr Miller and his belief. Mr Lowe seeks a direction under s 4 of the Evidence Act 1995 (NSW) that the Evidence Act apply to these proceedings. The effect of such a direction would be to make applicable the rule against hearsay in the Evidence Act and potentially lead to the material in paragraphs [18]-[25] inclusive being excluded.

2. Mr Lowe submitted that it would be unfair for the rules of evidence not to apply because, as things stand, the offender Agius faces a deponent who is only able to provide hearsay evidence of what has occurred in Vanuatu. Mr Lowe contended that if these matters were required to be strictly proved it would be necessary for the Crown to adduce evidence from a police officer from the Vanuatu police force; obtain records from the Vanuatu Appeals Court; and obtain other documents from Vanuatu.

3. Mr Crown has submitted that the material in the objected to paragraphs is the best evidence available to the Crown. He contended that the material is relevant to the question whether the time taken between the commencement of the AFP investigation and the time of the trial has been satisfactorily explained or whether there has been some tardiness or delay on the part of the AFP or prosecuting authorities which should lead to the sentence being mitigated on that ground.

4. I am satisfied on the basis of Mr Crown’s submissions that this is the best evidence available to the AFP and that it would not be in the interests of justice to require the Crown to plead these matters fully.

5. The Crown has expressly disavowed any reliance on any inference which may be available from the material to which objection has been taken that the offender Agius has been in any way obstructive of the processes sought or undertaken by the AFP to obtain the relevant material from Vanuatu.

Rulings and orders

6. For the reasons given above, I make the following rulings and orders:

1. I refuse the application by the offender Agius for a direction under s 4 of the Evidence Act.

2. I allow paragraphs [18]-[25] of Mr Miller’s affidavit sworn on 18 May 2018 notwithstanding that they are in hearsay form.

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Decision last updated: 06 March 2019