Citation: R v Agius; R v Castagna (No 8) [2018] NSWSC 2040
Court: Supreme Court of New South Wales
Date: 22 February 2018
Judge: Adamson J
Background
Two accused, Mr Agius and Dr Castagna, were standing trial on charges of conspiracy to defraud the Commonwealth and related offences. The Crown case was substantially documentary, built around two lever-arch files of documents and a number of agreed summary exhibits, all admitted without objection. The Crown opening ran across parts of three days and walked the jury through many of those documents in detail.
At the conclusion of the opening, counsel for both accused applied to have the jury discharged. Their core complaint was that the Crown had crossed the line between introducing the evidence and arguing about it, effectively delivering a closing address before any evidence had been called.
Specifically, the defence took issue with passages in which the Crown drew inferences from the evidence, characterised the accused Agius as having "controlled" certain companies, and commented on the significance of the accused expressing reluctance to speak on the telephone in intercepted calls, which the defence said amounted to an impermissible submission about consciousness of guilt.
Legal Issues
- Whether the Crown opening had strayed beyond its proper function and amounted, in effect, to a closing address.
- Whether the Crown's remarks about the accused's reluctance to speak on the phone constituted an impermissible submission during opening.
- Whether the cumulative effect of the opening was so prejudicial as to deprive the accused of a fair trial, warranting discharge of the jury.
- Whether any identified prejudice could be remedied short of discharge.
Decision
Adamson J set out the proper purpose of a Crown opening: it exists to assist the jury in following the Crown case and appreciating the context and relevance of the evidence, not to persuade. The court acknowledged that this boundary is genuinely difficult to draw in a complex, document-heavy trial. Where a case involves numerous charges and intricate financial relationships, the Crown may need to explain why particular documents matter, and a failure to do so could itself be unfair to the accused.
On the main complaint, the court found that most of the passages challenged by the defence were either within the permissible scope of opening, or sufficiently close to the line as not to warrant the drastic remedy of discharge. The court noted that because all exhibits had been admitted without objection, it was open to the Crown to refer to them and explain their relevance. Referring to the apparent significance of a document is not the same as making a submission about the ultimate conclusion to be drawn from the whole of the evidence.
However, two passages did raise genuine concern. The court accepted that the Crown's treatment of the accused's telephone reluctance, and its characterisation of a particular letter from Mr Agius to his solicitors, contained an element of persuasion beyond what was appropriate at the opening stage. These passages touched on consciousness of guilt, a sensitive inference requiring particular care.
Notwithstanding those concerns, the court held that discharge was not warranted. The identified prejudice could be adequately addressed by permitting the Crown to remind the jury that the opening was an introduction only, and by the court itself directing the jury on the limited purpose of an opening address. The applications to discharge were refused.
Orders Made
• Applications made by each accused for the jury to be discharged are refused
• Crown to be permitted to reiterate that opening is no more than an introduction to the evidence and outline of the Crown's case
• Crown to make a further statement to the jury regarding the nature and purpose of the opening
• Court to emphasise the place of the opening in the trial and the course of the trial
Key Takeaways
- The proper purpose of a Crown opening is to assist the jury in understanding the charges and the anticipated evidence, not to persuade them of the Crown's conclusions. A Crown opening should not replicate the function of a closing address.
- In complex, document-heavy trials, the court recognised that a Crown opening may legitimately explain the relevance of particular documents to the charges, and that leaving the jury entirely in the dark about significance until closing could itself be unfair to the accused.
- Where all exhibits have been admitted without objection, the Crown has broader latitude to refer to and explain those documents during opening than it would have in relation to evidence whose admissibility remains contested.
- Passages touching on consciousness of guilt, such as an accused's reluctance to speak on the telephone, carry particular sensitivity during an opening, and the court found those remarks contained an element of impermissible persuasion.
- Discharge of a jury is not the automatic remedy for an overstep in Crown opening. Where prejudice is identifiable but not irreparable, a curative direction and a Crown reminder of the opening's limited purpose may suffice.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 159
- Evidence Act 1995 (NSW), ss 135, 136, 137
Cases
- Agius v The Queen (2013) 248 CLR 601; [2013] HCA 27
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- R v Cianatar (2006) 16 VR 26; [2006] VSCA 263
- R v MM [2004] NSWCCA 81; 145 A Crim R 148
- R v Xie (No 14) [2014] NSWSC 1979