R v Agius; R v Castagna (No 4)

[2017] NSWSC 1866

Supreme Court

New South Wales

Medium Neutral Citation:	R v Agius; R v Castagna (No 4) [2017] NSWSC 1866
Hearing dates:	27 November 2017
Decision date:	27 November 2017
Before:	Adamson J
Decision:	Pages 1030 and 1034 rejected.
Legislation Cited:	Evidence Act 1995 (NSW), s 142
Category:	Procedural and other rulings
Parties:	Regina Robert Frances Agius (Accused) Anthony Dane Castagna (Accused)
Representation:	Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Accused Agius) P Strickland SC/S Callan/S White SC (Accused Castagna)     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

1. Objection is taken, on behalf of Dr Castagna, to part of the conversation from a telephone intercept taken on 11 December 2007 on the ground of relevance. I am reminded that the effect of s 142 of the Evidence Act1995 (NSW) is that, in order to be satisfied that evidence is relevant, I must be satisfied that it is relevant on the balance of probabilities. The conversation the subject of the objection is a conversation apparently, between the accused Mr Agius and his son, Daniel. There is a discussion about transfer of moneys including to a person referred to as "Uncle Tony" whom the Crown suggests it would be open to the jury to infer was Dr Castagna. I note that it is accepted that Mr Agius and Dr Castagna are cousins.

2. The discussion the subject of the intercept includes discussion of a transfer of some three amounts to “Uncle Tony”: an amount of $50,000, an amount of $65,000 and also, apparently, an amount of $170,000 coming from a deceased estate. The Crown has handed me a flow chart of transfers which indicates that the closest transfer to the date of the conversation is the one from Burgius Pty Limited, a company associated with Mr Agius, to Dr Castagna and Sandra Castagna on 19 December 2007 in the amount of AUD $200,000.

3. As the conversation refers to a transfer, or potential transfer, from “LOJ's” books, that would not seem to fit with the apparent transfer from Burgius Pty Limited to the account of Dr Castagna and his wife. Nor do the amounts line up such that an inference could be drawn that that transfer is the transfer referred to as the sum of the two figures referred to is $115,000 which is well short of the amount of $200,000. If the sum discussed in the intercepted conversation were referable to the amount from the deceased estate, then that would not appear to be at all relevant to these proceedings.

4. As I am not satisfied on the balance of probabilities that this part of the conversation is relevant to that transfer, I reject pages 1030 to 1034 of the proposed jury bundle on the grounds of relevance.

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Decision last updated: 06 March 2019