Citation: R v Agius; R v Castagna (No 4) [2017] NSWSC 1866
Court: Supreme Court of New South Wales
Date: 27 November 2017
Judge(s): Adamson J
Background
Two accused, referred to here as the first accused and the second accused (who are cousins), were the subject of criminal proceedings. The evidentiary dispute arose during what appears to be a jury trial in the Supreme Court.
The Crown sought to tender pages from a proposed jury bundle containing a telephone intercept recorded on 11 December 2007. The intercept captured a conversation between the first accused and his son, in which money transfers to a person referred to as "Uncle Tony" were discussed. The Crown contended the jury could infer "Uncle Tony" was the second accused.
The specific transfers discussed in the intercept involved amounts of $50,000, $65,000 and approximately $170,000 from a deceased estate. The Crown's flow chart of financial transactions pointed to a transfer of AUD $200,000 on 19 December 2007 from a company associated with the first accused to the second accused and his wife as the most proximate transaction.
Legal Issues
- Whether the intercepted telephone conversation was relevant to the financial transfer identified by the Crown, applying the balance of probabilities standard under s 142 of the Evidence Act 1995 (NSW)
Decision
Relevance of the intercepted conversation:
The court noted that s 142 of the Evidence Act 1995 (NSW) requires relevance to be established on the balance of probabilities, a standard higher than mere possibility (at [1]).
The court identified two significant obstacles to the Crown's case for relevance. First, the conversation referred to a transfer from "LOJ's" books, which did not correspond with the apparent source of the December 2007 transfer, being a company associated with the first accused. Second, the dollar amounts did not align: the two figures mentioned in the intercept totalled $115,000, well short of the $200,000 transfer identified by the Crown (at [3]).
The court also noted that if the amount discussed in the intercept related to the deceased estate, it would not appear relevant to the proceedings at all (at [3]).
Not being satisfied on the balance of probabilities that the conversation was relevant to the identified transfer, the court rejected the pages from the proposed jury bundle (at [4]).
Orders Made
- Pages 1030 to 1034 of the proposed jury bundle rejected on grounds of relevance.
Key Takeaways
- Under s 142 of the Evidence Act 1995 (NSW), a court must be satisfied on the balance of probabilities that evidence is relevant before it can be admitted, a standard that requires more than mere possibility (at [1]).
- Where the Crown seeks to connect an intercepted conversation to a specific financial transaction, a mismatch in both the source of funds and the amounts discussed will ordinarily defeat a relevance argument on the balance of probabilities (at [3]).
- A conversation about transfers that may relate to an unconnected matter, such as a deceased estate, does not thereby become relevant to the Crown's case simply because the same intercept contains other references (at [3]).
- The Supreme Court applied a careful, transaction-specific analysis rather than admitting the evidence on the broader basis that a named individual might be identifiable in the conversation (at [1]-[4]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 142
Cases
- Not stated