R v Agius; R v Castagna (No 6)

[2017] NSWSC 1868

Supreme Court

New South Wales

Medium Neutral Citation:

R v Agius; R v Castagna (No 6) [2017] NSWSC 1868

Hearing dates:

28 November 2017

Decision date:

28 November 2017

Before:

Adamson J

Decision:

(1) Pursuant to s 10(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), the publication of the following is prohibited until further order or 5 February 2018, whichever is the earlier:

 

(a) The fact or details of Mr Agius's previous conviction or current sentence; and

 

(b) The fact or details of freezing orders made under the Proceeds of Crime Act 2002 (Cth) in respect of the assets of Dr Castagna and Mr Agius and their related companies.

(2) I direct that the substantive application for an order under s 7 of the Act be determined on 5 February 2018 unless it is earlier determined by me in chambers.

Catchwords:

NON-PUBLICATION ORDER – order sought under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – Crown not on notice of application – interim order made to protect position of Crown and to prevent publication of fact of freezing orders against both accused and conviction of the accused Mr Agius

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 10
Proceeds of Crime Act 2002 (Cth)

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 (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 temopore

1. Application is made on behalf of the two accused in a trial which is listed to commence before me in February 2018 for an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act).

2. Ms Callan, who appears with Mr Strickland SC and Mr White SC, has applied for a non-publication order in relation to the fact of the accused Mr Agius's prior convictions and the fact of there having been freezing orders made in respect of the assets of the two accused, Mr Agius and Dr Castagna, respectively.

3. Mr Crown has indicated that, as notice has not been given of this application, he would prefer for the matter to be deferred in order that he can consider the form of the orders and obtain instructions.

4. I note that s 10 of the Act provides that an interim order to be made which is to have effect, subject to revocation by the Court, until the application is determined. If an order is made as an interim order as s 10(2) provides, the Court must determine the application as a matter of urgency. It seems to me to be appropriate in the circumstances to make interim orders under s 10 of the Act. The making of an interim order would preserve the Crown's ability to make submissions as to why the order ought be revoked or altered while at the same time protecting the administration of justice in relation to this trial by preventing any publication relating to Mr Agius's conviction or the freezing orders having been made. I accept that such publication might tend to prejudice the rights of the two accused at the imminent trial.

5. I am satisfied that it is appropriate to make interim orders under s 10. The ground for making the order is the ground in s 8(1)(a) of the Act, namely, that the order is necessary to prevent prejudice to the proper administration of justice. The order will be expressed to operate “until further order” or until 5 February 2018, which is a date already allocated for pre-trial applications. If agreement can be reached on the form of an order under s 7 of the Act, the order could be made in chambers before 5 February 2018.

Orders

6. On that basis I make the following interim orders:

(1) Pursuant to s 10(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), the publication of the following is prohibited until further order or 5 February 2018, whichever is the earlier:

(a)   The fact or details of Mr Agius's previous conviction or current sentence; and

(b)   The fact or details of freezing orders made under the Proceeds of Crime Act 2002 (Cth) in respect of the assets of Dr Castagna and Mr Agius and their related companies.

(2) I direct that the substantive application for an order under s 7 of the Act be determined on 5 February 2018 unless it is earlier determined by me in chambers.

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Decision last updated: 06 March 2019