R v Agius; R v Castagna (No 16) [2018] NSWSC 2047

Supreme Court New South Wales

Medium Neutral Citation: R v Agius; R v Castagna (No 16) [2018] NSWSC 2047 Hearing dates: 1 August 2018 Decision date: 01 August 2018 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Allow paragraphs [9]-[17] and [25] of the affidavit of Scott Miller sworn 18 May 2018. Catchwords: EVIDENCE – discretions – exclusion of evidence – criminal proceedings – affidavit evidence – contents of documents – relevance Category: Procedural and other rulings Parties: Regina (Crown) Robert Francis Agius (Offender) Anthony Dante Castagna ((Offender) Representation: Counsel: P McGuire SC/A McGrath (Crown) P Lowe (Offender Agius) P Strickland SC/T Epstein (Offender Castagna)

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

Judgment: EX TEMPORE 1. Mr Strickland SC, who appears with Ms Epstein on behalf of the offender Castagna, has objected to paragraphs [9]-[17] and [25] of the affidavit of Federal Agent Miller sworn 18 May 2018. 2. The objection made by Mr Strickland to paragraphs [9]-[17] is that they are irrelevant because they relate to a separate investigation conducted by the AFP which has been referred to as the "Owen T Daniels investigation" or "Star Lifter". 3. In paragraphs [9]-[17] Mr Miller deposed to the timeline of the Owen T Daniels investigation, and the quantity of documents which was compiled by the AFP to support the prosecution of 23 individuals following that investigation. The brief of evidence amounted to some five hundred lever arch files. The Crown submitted that the paragraphs [9]-[17] are directly relevant to the issue of the delay since the investigation of Dr Castagna arose in part from the Owen T Daniels investigation, which concerned the offender Agius. The Crown confirmed that it was not suggested that Dr Castagna had any culpability with respect to the matters which were the subject of that investigation as opposed to the offences with which he has been charged and convicted in the current proceedings. 4. Mr Crown also submitted that the Owen T Daniels investigation has been made relevant by the offender Castagna in paragraph [45] of his written submissions on sentencing. The offender Castagna referred to a potential reason why he suggested to his co-offender that they not speak on the phone: namely, concern for the offender Agius who was under surveillance in relation to the O and T Daniels investigation. 5. In my view paragraphs [9]-[17] are relevant to the sentencing of both offenders and not just to Mr Agius. Both offenders have submitted that I should take into account the delay between the events the subject of the charges and their eventual prosecution and trial of the Offenders. The matters deposed to in paragraphs [9]-[17] go directly to those matters and set out a timeline and a description of the size and complexity of the investigation. 6. The objection made to paragraph [25] is that the view expressed by Mr Miller in that paragraph amounts to no more than speculation. In this paragraph Mr Miller said: "The AFP are of the view that the material seized by the Vanuatu Police would have assisted the Prosecution Brief of Evidence for the Star Lifter/OTD investigation, and for other investigations including the investigation of Castagna." 1. The evidence at trial which was that significant sums of money which had been paid by Macquarie Bank to Billbury for services physically performed by Dr Castagna were ultimately directed into bank accounts in Vanuatu. It would seem to me to be plain beyond argument that the material which was unable to be obtained from Vanuatu would have assisted the prosecution in putting together its brief of evidence. For example, Mr Rositano, a Crown forensic expert was unable to perform a tracing exercise in respect of any of the transfers which had gone to Vanuatu because of the lack of documents from that jurisdiction. In these circumstances, I do not consider that it could reasonably be dispute that, that had documents been available from Vanuatu, they would have assisted the prosecution in relation to both the Owen T Daniels investigation and the investigation of Dr Castagna. 2. In those circumstances, whilst paragraph [25] is to some extent speculation since it is based on a hypothetical, it is significant since the hypothetical has been made out in that the documents have still not been provided.