R v Agius; R v Castagna (No 3) [2017] NSWSC 1865

Supreme Court New South Wales

Medium Neutral Citation: R v Agius; R v Castagna (No 3) [2017] NSWSC 1865 Hearing dates: 27 November 2017 Decision date: 27 November 2017 Before: Adamson J Decision: Documents admitted Catchwords: EVIDENCE – objection taken by accused (Mr Agius) to communications between co-accused (Dr Castagna) and his accountants – HELD – evidence admitted as relevant to prove overt acts in performance of conspiracy alleged in the indictment 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 tempore 1. Objection has been taken on behalf of Mr Agius to the documents which are marked with a single asterisk on MFI 1 (a comprehensive table which lists the objections made by one of both accused to documents in the proposed Crown jury bundle). These documents are, largely, documents which constitute communications between Dr Castagna (the co-accused) and his accountants and the Australian Taxation Office (ATO). 2. Mr Lowe, who appears on behalf of Mr Agius, has objected to all these documents on the basis that he says there is no evidence in the Crown case which shows that his client was aware of the communications between Dr Castagna and his accountants, or Dr Castagna's accountants and the ATO. He submits that whilst these documents are plainly admissible in the charges which are brought solely against Dr Castagna, they are not admissible in the Crown case against Mr Agius. He submits that it would be necessary, before they were admissible, for the Crown to have evidence to show some involvement by Mr Agius in the communications by Dr Castagna with his accountants and thereafter to the Australian Taxation Office. 3. I do not accept this submission. In circumstances where the relevant charges are those contained in counts 1 and 2 in the indictment where it is alleged, essentially, that there was a conspiracy between Mr Agius and Dr Castagna either to defraud the Commonwealth up to 23 May 2001 or, thereafter, with the intention of dishonestly causing a loss to a third person, namely the Commonwealth, it would appear to be necessary only that the documents evidence overt acts by one party or both parties in the performance of the alleged conspiracy. The documents which bear a single asterisk on MFI 1 are relied upon by the Crown as evidence of overt acts performed by Dr Castagna in pursuance of the conspiracy alleged in count 1 and 2 of the indictment. In those circumstances, it is not necessary for the Crown to show, if they otherwise prove the conspiracy, that Mr Agius was aware of the finer points or details of the contact between Dr Castagna and his accountants as long as they are ultimately proved to be overt acts which are within the parameters of the conspiracy alleged. 4. Accordingly, those documents which are marked with a single asterisk on MFI 1 will be admitted in the Crown case against Mr Agius. I note that no objection has been taken on behalf of Dr Castagna to the admission of those documents.