Supreme Court New South Wales Medium Neutral Citation: R v Agius; R v Castagna (No 5) [2017] NSWSC 1867 Hearing dates: 28 November 2017 Decision date: 28 November 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Document admitted Catchwords: EVIDENCE – objection to trust deed on basis that could be used to impugn credibility of the accused or as a deliberate lie amounting to a consciousness of guilt – primary beneficiary said to be the International Red Cross – accused said in his voluntary disclosure statement that trust intended to benefit his family – Crown confirmed no such use would be made of the trust deed in its own case – HELD – trust deed admissible – probative value not outweighed by any prejudicial effect Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Procedural and other rulings Parties: Regina Robert Francis 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 to a trust deed made on 22 April 1987 which the Crown wishes to include in the jury bundle on the basis that it is the trust deed to which the accused, Dr Castagna, has referred in paragraphs 12 and 13 of his voluntary disclosure statement made on 18 November 2008. On its face, the trust deed identifies the International Red Cross as the "primary beneficiary" of the discretionary trust, whereas Dr Castagna, in his voluntary disclosure statement, described it as a way of benefiting his family. The terms of the trust empower the trustee to appoint other beneficiaries other than the primary beneficiary. The trust deed provided that the trust be referred to as the Delrick Trust. 2. Mr Strickland SC, who appears with Ms Callan and Mr White SC on behalf of Dr Castagna, contended that, depending on the use to which the Crown wishes to put this document, the document ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). Mr Crown confirmed that the trust deed will not be relied upon either as the basis for the submission that statements made in the voluntary disclosure statement are deliberate lies which amount to a consciousness of guilt. He also confirmed that the Crown would not rely on the trust deed in its own case to impugn the credibility of Dr Castagna. Mr Crown, however, has indicated that if Dr Castagna elects to give evidence at the trial, he might seek to use some part, or aspect, of the trust deed to impugn Dr Castagna's credibility in cross-examination. 3. In circumstances where the Crown relies on the trust deed as being a document which has been, in effect, identified by Dr Castagna in his voluntary disclosure statement and which the Crown will not suggest is a misleading or false document (on the ground that the primary beneficiary is identified as being the International Red Cross, whereas Dr Castagna has described it and apparently sees it as a way of making provision for his own family) I do not consider that the probative value of the trust deed is outweighed by the danger of unfair prejudice to the accused within the meaning of s 137 of the Evidence Act. It is, in my view, plainly relevant and ought be admitted. Ruling 1. Accordingly, I rule that the trust deed at pages 1453-1462 of the proposed jury bundle is admissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2019