R v Agius; R v Castagna (No 12) [2018] NSWSC 2044

Supreme Court New South Wales

Medium Neutral Citation: R v Agius; R v Castagna (No 12) [2018] NSWSC 2044 Hearing dates: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Application to discharge jury refused Catchwords: CRIMINAL LAW – application for discharge of jury – Crown referred to affidavit evidence admitted without objection or limitation – Crown submission raised bad character – application for discharge refused – jury directed to disregard submission – jurors' working copies of document required to be destroyed to eliminate risk that notes taken of withdrawn submission would be referred to – fresh copies supplied Cases Cited: Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 Category: Procedural and other rulings Parties: Regina Robert Francis Agius Anthony Dante Castagna Representation: Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Accused Agius) P Strickland SC/S White SC (Accused Castagna)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) David J Cohen (Accused Agius) Hazan Hollander Lawyers (Accused Castagna) File Number(s): 2016/136935; 2016/137095

Judgment: EX TEMPORE

Introduction 1. An application for the jury to be discharged has been made on behalf of the accused Castagna by Mr Strickland SC, who appears with Mr White SC. 2. The application was founded on aspects of the Crown closing address in which the Crown referred to an affidavit sworn by the accused Castagna on 6 February 2002. The affidavit was made in civil proceedings in the Supreme Court of Victoria, in which the accused Castagna was apparently subject to orders for non-party discovery for documents relating to his relationship with either or both of Billbury Limited (Billbury) and Uniton in the period 1 January 1993 to 30 June 2000. The affidavit was admitted without objection and formed part of Exhibit B (at pages 172-175), the principal bundle of Crown documents. 3. The Crown, in his closing address, drew the jury's attention to the fact that the document was an affidavit and, accordingly, that the accused Castagna had to take an oath in making it. The Crown highlighted particular words and reminded the jury that this was equivalent to oral evidence which a witness gives on oath in the witness box. The Crown then took the jury through the affidavit and invited the jury to examine what the accused Castagna had said in that affidavit. The Crown juxtaposed what was said in the affidavit with other evidence in the Crown case. It seems to me that this was done with a view to demonstrating that what had been sworn in the affidavit was untrue, in that it was inconsistent with the evidence in the Crown case, much of which was objective. For example, the Crown invited the jury to compare the truth or otherwise of paragraph [9] in the affidavit with the annual returns of Billbury which are in evidence and show, in effect, that Billbury did little or nothing in the relevant years.