R v Robert Francis Agius

[2011] NSWSC 982

Supreme Court

New South Wales

Medium Neutral Citation:	R v Robert Francis Agius [2011] NSWSC 982
Hearing dates:	25/08/2011
Decision date:	31 August 2011
Before:	Simpson J at 1
Decision:	Application for separate trial dismissed.
Catchwords:	CRIMINAL LAW - procedure - application for separate trial - delay - bail conditions - estimated length of trial - nature of the Crown case - evidence to be tendered against each accused - no basis for separate trial made out - application dismissed
Legislation Cited:	Criminal Appeal Act 1912
Cases Cited:	Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen; Agius v The Queen [2011] HCA Trans 171 Domican v R (1989) 43 A Crim R 24 R v Agius & Ors [2011] NSWCCA 119 R v Agius & Ors [2011] NSWSC 367 R v Baladjan & Ors [2008] NSWSC 1471 Webb v The Queen [1994] HCA 30; 181 CLR 41
Category:	Interlocutory applications
Parties:	Robert Francis Agius (Applicant) Regina (Respondent)
Representation:	Counsel I Barker QC with him P Coady (Applicant) P Neil SC with him S McNaughton (Respondent/Crown) Solicitors Greg Murray Law (Applicant) Director of Public Prosecutions (Commonwealth) (Respondent/Crown)
File Number(s):	08/45500; 08/245425

Judgment

1. By notice of motion filed on 11 August 2011 the applicant, Robert Francis Agius, seeks an order for a separate trial of two counts of conspiracy to defraud the Commonwealth, in respect of which he is jointly indicted with three others (Kevin Zerafa, Carol Abibadra and Deborah Jandagi). No evidence was filed in support of the application. What follows as factual background is drawn from what I have gleaned over the past six months in dealing with this case, and what is asserted in written submissions filed on behalf of Mr Agius. No issue has been taken as to the accuracy of the factual substratum of the application.

Background

1. The proceedings have already a lengthy history. Mr Agius was, I was told, arrested on 28 April 2008 in Perth. An order was made that he be taken to Sydney. Bail was then refused, but was granted on 6 May 2008 on specified conditions, including the lodging of a substantial security and, importantly for the present application, that he remain in Australia. (He is said to be a resident of Vanuatu.) He was released on bail on 28 May 2008.

1. Since August 2008, a succession of orders has been made concerning service of the prosecution brief. The written submissions suggest that this process was very recently completed. A vast amount of documentary material has been served. The parties, I understand, are negotiating with a view to reducing the amount of documentary material it will be necessary to introduce into evidence.

1. On 18 May 2010, Mr Agius was committed for trial in this Court. On 3 October 2010 he and the three co-accused were arraigned in this Court and the trial fixed to commence on 27 April 2011. It had then an estimated duration of 12 weeks. (It had previously been given an estimated duration of 6-12 months.) It is a trial of very considerable complexity, involving alleged taxation fraud on a large scale.

1. By early 2011, it was plain that the matter was not ready to proceed. On 27 April 2011 each accused objected to the indictment, seeking a stay of one of the counts. I refused to make that order: R v Agius & Ors [2011] NSWSC 367. Pursuant to s 5F of the Criminal Appeal Act 1912, each accused sought leave to appeal to the Court of Criminal Appeal. Leave was granted, but the appeal was dismissed: R v Agius & Ors [2011] NSWCCA 119. Each applicant applied for special leave to appeal to the High Court; on 15 June 2011 special leave was refused: Abibadra v The Queen ; Jandagi v The Queen ; Zerafa v The Queen ; Agius v The Queen [2011] HCA Trans 171.

1. Since April this year, I have been given, from time to time, reports on the progress of preparation, and the time estimated, first, for the matter to be ready for trial, and, second, of the trial itself. The latter estimate has never been less than 12 weeks.

1. During this time I was informed (without evidence, but without challenge) that one of the co-accused (Ms Abibadra) is pregnant, and is due to give birth in early November. She will be unable to participate in a trial after mid-September.

1. Initially, the application for separate trials was made on three grounds. They were:

"Ground 1: The injustice that will result from further delay not of [Mr Agius'] making.

Ground 2: The case and the evidence to be led against Mr Agius and the [co-accused] is different, and will lead to difficult questions of admissibility.

Ground 3: The possibility of different verdicts as between Mr Agius and the [co-accused] already exists due to the differences in the case against them. Different verdicts would not be inconsistent."

1. Written submissions were provided in support of all three grounds.

1. On the hearing of the application, Ground 3 and much of Ground 2 were abandoned. Senior counsel addressed briefly. The principal basis advanced in support of the order was the delay that has occurred to date, and that will occur in the future. In this context, it is relevant to note that the trial of Ms Abibadra may not now proceed this year. It is not, however, impossible that, should a trial of the remaining accused, including Mr Agius, be feasible (especially given time constraints), the trial of Ms Abibadra could be separated.

1. As argument progressed, it became apparent that, even at this stage, the preparation for a trial, whether for Mr Agius alone, or of three or four accused, has not yet reached the stage at which one could confidently empanel a jury. It must also be remembered that, for a trial estimated to last three months or more, a significantly larger than usual jury panel will need to be summoned. That involves considerable lead time. I say this because, on the information available to me, there is no reason to believe that a trial of Mr Agius alone would be of materially shorter duration than a trial of all four accused.

1. I understand further that Mr Agius' legal representatives have notified some objections to the evidence proposed to be led against him, but these are not ready to be argued or determined.

1. In written submissions, counsel for Mr Agius, drawing on the decision of Whealy J (as his Honour then was) in R v Baladjan & Ors [2008] NSWSC 1471, identified various circumstances in which it would be appropriate to make an order separating the trial of co-accused. The starting point is that persons alleged to be co-offenders ought to be trial jointly: Webb v The Queen [1994] HCA 30; 181 CLR 41; Domican v R (1989) 43 A Crim R 24. A number of exceptions follow. None of the exceptions is here applicable.

1. I appreciate the point made on behalf of Mr Agius concerning the continuing bail condition requiring him to remain in Australia, not the country of his residence. However, senior counsel was unable to suggest that, even if he were granted a separate trial, it could begin earlier than mid-October. No estimate less than 12 weeks for such a trial has been provided. Because of the nature of the prosecution case, even in a trial of Mr Agius alone, virtually all of the evidence to be tendered against the co-accused would be tendered against Mr Agius. There would be no, or little, reduction in the hearing time, at least so far as the prosecution case is concerned.

1. Because this is a Commonwealth prosecution, the trial must be by jury. I would not be prepared to empanel a jury of 12 citizens in a trial that had a probability, or even a real possibility, of extending over the Christmas season. Jurors are drawn from the community, and this community is accustomed to spending time with family and friends at that time of the year. Many are able to take their annual leave only at that time of the year. Apart from imposing unfairness on those unfortunate citizens selected for such an onerous duty, there would also be a real risk that less than optimum attention was paid to the evidence, which will, in any event, be complex and difficult.

1. If a trial of all accused (or all accused except Ms Abibadra) cannot proceed this year, then, in my opinion, neither can a single trial of one accused only. As is clear, such a trial would not be noticeably shorter than a joint trial.

1. The basis for a separate trial has not been made out. The application is dismissed.

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Decision last updated: 06 August 2013