Citation: R v Agius; R v Castagna (No 5) [2017] NSWSC 1867
Court: Supreme Court of NSW
Date: 28 November 2017
Judge(s): Adamson J
Background
This decision arose during a criminal trial in which Dr Castagna was one of the accused. The Crown sought to include a trust deed in the jury bundle. The deed, dated 22 April 1987, related to a discretionary trust known as the Delrick Trust.
On its face, the trust deed named the International Red Cross as the primary beneficiary. However, in a voluntary disclosure statement made in November 2008, Dr Castagna had described the trust as a vehicle intended to benefit his family. The trust deed also contained provisions empowering the trustee to appoint additional beneficiaries beyond the named primary beneficiary.
Defence counsel objected to the document's inclusion, arguing that the manner in which the Crown might use it could cause unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the trust deed should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether the apparent discrepancy between the trust deed's named primary beneficiary and Dr Castagna's characterisation of the trust in his voluntary disclosure statement could be used by the Crown to establish a consciousness of guilt or to impugn the accused's credibility in its own case.
Decision
Issue 1: Proposed use of the trust deed by the Crown
The Crown's senior counsel confirmed two important limitations on its intended use of the document. The Crown would not rely on the trust deed to suggest that statements in Dr Castagna's voluntary disclosure statement were deliberate lies amounting to a consciousness of guilt. The Crown also confirmed it would not use the deed in its own case to attack Dr Castagna's credibility (at [2]).
The Crown reserved the right, however, to use the trust deed in cross-examination should Dr Castagna elect to give evidence at trial (at [2]).
Issue 2: Admissibility under s 137
Adamson J held that, given the Crown's confirmed limitations on use, the probative value of the trust deed was not outweighed by the danger of unfair prejudice to the accused within the meaning of s 137 (at [3]). The document had been effectively identified by Dr Castagna himself in his voluntary disclosure statement, and the Crown was not advancing it as a misleading or false document (at [3]).
The trust deed was found to be plainly relevant and was admitted into evidence (at [3]-[4]).
Orders Made
- The trust deed at pages 1453 to 1462 of the proposed jury bundle was admitted into evidence.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a document will be admitted where its probative value is not outweighed by the danger of unfair prejudice to the accused (at [3]).
- The Crown's confirmed undertakings about how it would use a contested document were material to the court's assessment of prejudicial effect. By limiting its use of the trust deed, the Crown removed the basis for exclusion under s 137 (at [2]-[3]).
- A discrepancy between a document's terms and an accused's description of that document in a voluntary disclosure statement does not, without more, render the document inadmissible or automatically prejudicial (at [3]).
- The Supreme Court left open the question of whether the Crown could deploy the trust deed in cross-examination if the accused elected to give evidence, treating that as a separate matter to be dealt with if and when it arose (at [2]).
- Where a document has been effectively identified by the accused in their own prior statement, that connection weighs in favour of admission as a relevant document (at [3]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Not stated