R v Agius; R v Castagna (No 8) [2018] NSWSC 2040

R v Agius; R v Castagna (No 8) [2018] NSWSC 2040

The admitted documentary and intercepted-call evidence could be referred to in the Crown opening, and in a complex documentary conspiracy trial the Crown was entitled to explain how it said that evidence related to the charges. Although two areas of the opening carried potential prejudice because they included an element of persuasion concerning the accuseds' reluctance to speak on the telephone and the interpretation of Mr Agius' letter to solicitors, that risk could be ameliorated by a further Crown statement and judicial directions. The matters relied on, individually or cumulatively, did not warrant discharge of the jury.

Jurisdiction
Australia
Judgment Date
22 February 2018
Procedural Posture
Criminal Jury Trial on Indictment for Conspiracy and Related Offences / Application by Each Accused to Discharge the Jury Following the Conclusion of the Crown Opening
Outcome
Application to discharge jury refused.
Legal Topics
['application to Discharge Jury' 'crown Opening Address' 'fair Trial Prejudice' 'conspiracy' 'documentary Evidence' 'circumstantial Evidence' 'consciousness of Guilt']
['criminal Law' 'criminal Procedure' 'evidence'] ['application to Discharge Jury' 'crown Opening Address' 'fair Trial Prejudice' 'conspiracy' 'documentary Evidence' 'circumstantial Evidence' 'consciousness of Guilt']

Case Brief

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Procedural Posture

Criminal Jury Trial on Indictment for Conspiracy and Related Offences / Application by Each Accused to Discharge the Jury Following the Conclusion of the Crown Opening

Legal Issues

  1. 1 ['Whether the Crown opening, taken as a whole, was so prejudicial as to deprive the accused of a fair trial.' 'Whether passages in the Crown opening amounted to impermissible closing submissions rather than a permissible outline of the Crown case.' 'Whether the Crown was entitled in opening to refer to inferences from intercepted telephone calls in which the accused expressed reluctance to speak on the telephone.' 'Whether references to Mr Agius controlling certain companies were properly opened.' 'Whether any potential prejudice could be cured by a further Crown statement and judicial direction rather than discharge of the jury.']

Ratio Decidendi

The admitted documentary and intercepted-call evidence could be referred to in the Crown opening, and in a complex documentary conspiracy trial the Crown was entitled to explain how it said that evidence related to the charges. Although two areas of the opening carried potential prejudice because they included an element of persuasion concerning the accuseds' reluctance to speak on the telephone and the interpretation of Mr Agius' letter to solicitors, that risk could be ameliorated by a further Crown statement and judicial directions. The matters relied on, individually or cumulatively, did not warrant discharge of the jury.

Court Disposition

Application to discharge jury refused.

Orders

  • ['The respective applications made by each accused for the jury to be discharged are refused.']