R v Agius; R v Castagna (No 2)

[2017] NSWSC 1864

Supreme Court

New South Wales

Medium Neutral Citation:	R v Agius; R v Castagna (No 2) [2017] NSWSC 1864
Hearing dates:	27 November 2017
Decision date:	27 November 2017
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	Documents admitted
Catchwords:	EVIDENCE – voir dire – objection taken to annual reports and accounts lodged with Companies House (UK) – alleged that provenance not established as documents downloaded from website – alleged unfairness as accused Agius was not shown to have prepared documents – HELD – documents admissible under s 69 of the Evidence Act 1995 (NSW) as business records – no occasion to limit their use under s 136 of Evidence Act
Legislation Cited:	Evidence Act 1995 (NSW), ss 69, 136, Dictionary
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   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

Introduction: the nature of the objection

1. Objection is taken on behalf of the accused Mr Agius, for whom Mr Lowe appears, to a number of annual reports and accounts for Billbury Limited, beginning with the ones for the year ended 31 October 1997 and including the reports and accounts for subsequent years. Mr Lowe submitted, first, that the documents were not business records within the meaning of s 69 of the Evidence Act 1995 (NSW). In the alternative, he submitted that, I ought limit their use under s 136 of the Evidence Act.

The forensic purpose of the documents to which objection is taken

2. The Crown relies on the annual reports as part of the evidence to show that payments made by Macquarie Bank to Billbury Limited, purportedly as remuneration for services provided to the bank by the accused Dr Castagna, were not treated by Billbury Limited as actual income or as part of its business. The Crown proposes to use this evidence to prove that Billbury Limited was simply a vehicle used by the accused to disguise the true nature of payments made by Macquarie Bank to Dr Castagna, presumably with the object of his avoiding income tax liability on these payments.

3. The Crown relies on various representations in those documents which show that, at best, Billbury Limited had a very modest financial activity during the relevant period, which did not include the payments made by Macquarie Bank. It had two directors, both of which were corporations, and only two employees.

The provenance of the documents

4. The Crown relies on the statement of Ms Lee of 21 March 2014 to establish the provenance of the documents. Ms Lee states that she obtained the financial accounts and annual returns from the website of Companies House of the United Kingdom for the years 31 October 1997 to 31 October 2002 inclusive, and that, on 19 August 2009, the Australian Taxation Office (ATO) obtained Billbury Limited's financial accounts for the years ended 31 October 2003 to 31 October 2007.

Consideration

5. Ms Lee’s evidence is sufficient in my view, to establish the provenance of these documents and that they are indeed, business records of Billbury Limited within the meaning of s 69 of the Evidence Act. I note that the dictionary to that Act defines “business” as including “a business conducted in another country”, in this case, the United Kingdom.

6. Mr Lowe submitted that these documents did not establish that his client, Mr Agius, had any involvement with Billbury Limited or in the preparation of the annual report and accounts. Whilst so much may be accepted on the face of these documents, the forensic purpose for which the Crown wishes to tender the documents is as I have indicated. I am not persuaded that there is any use to which these documents might be put which is unfairly prejudicial to Mr Agius, or might be misleading or confusing to the jury within the meaning of s 136 such that it would be appropriate to limit the use of these documents.

7. Accordingly, the documents which commence at pages 197, 225, 252, 339, 451, 535, 612, 655, 707, 909 and 944 of the draft jury bundle will be admitted under s 69 of the Evidence Act in the Crown case.

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Decision last updated: 06 March 2019