Citation: R v Agius; R v Castagna (No 12) [2018] NSWSC 2044
Court: Supreme Court of New South Wales
Date: 22 March 2018
Judge(s): Adamson J
Background
Two accused were on trial. The application dealt with in this judgment concerned one accused, Castagna, who had given a sworn affidavit in earlier Victorian civil proceedings. That affidavit was admitted into evidence without objection or any limitation on its use, forming part of the principal Crown exhibit bundle.
Before trial, the Crown had given an indication to Castagna's legal representatives that it would not adduce bad character evidence to rebut good character evidence. Counsel for Castagna relied on that indication when deciding to adduce evidence of good character through cross-examination of Crown witnesses, eliciting responses that supported Castagna's reputation for honesty and integrity.
During the Crown's closing address, the Crown drew the jury's attention to the affidavit, invited the jury to conclude that its contents were untrue, and compared those contents unfavourably with other objective evidence in the Crown case. Counsel for Castagna applied to have the jury discharged on the basis that this submission constituted improper use of the affidavit as bad character evidence, contrary to the parties' earlier understanding.
Legal Issues
- Whether the Crown's closing address improperly invited the jury to reason that the accused was a person of bad character, in breach of an agreed understanding between the parties.
- Whether, if the submission was improper, a discharge of the jury was necessary, or whether a direction to the jury to disregard the submission would be sufficient remedy.
- Whether additional procedural steps, beyond a direction, were required to guard against the risk of ongoing prejudice from the improper submission.
Decision
Adamson J accepted that the affidavit was properly in evidence without limitation and that the jury, as the tribunal of fact, was entitled to use it for all purposes. However, her Honour was satisfied that Castagna's senior counsel held a reasonable understanding, based on the pre-trial correspondence and the Crown's own document identifying the affidavit's relevance, that the affidavit would only be used to demonstrate inconsistency with Castagna's voluntary disclosure statement to the Australian Taxation Office.
Against that background, Adamson J held that the Crown's submission inviting the jury to find that Castagna was dishonest because of the affidavit's contents, and their divergence from other Crown evidence, ought not to have been made. Her Honour characterised this as the Crown having "unwittingly overstepped the mark," accepting that there was no deliberate breach of the agreement.
Despite this finding, her Honour refused the discharge application. The affidavit was in evidence without restriction, and a carefully worded jury direction was sufficient to remedy the prejudice. The direction confirmed that the Crown did not suggest Castagna had knowingly made false statements in the affidavit, and instructed the jury to disregard the relevant submissions entirely.
Her Honour also acceded to a further request from Castagna's counsel. Jurors' working copies of the affidavit pages were collected and destroyed to eliminate the risk that any notes jurors had made on those copies might later be consulted during deliberations. Fresh, unmarked copies were provided in their place.
Orders Made
- Application for discharge of the jury made on behalf of the accused Castagna was refused.
Key Takeaways
- Where a Crown prosecutor has given a pre-trial indication limiting the purposes for which evidence will be used, submissions in closing address that exceed those limits may be improper even if the evidence itself is unrestricted in admissibility.
- A jury discharge is not automatically required when a Crown closing address contains an improper submission. Where the evidence at issue is properly before the jury without limitation, a firm direction to disregard the impugned submission may be sufficient.
- The Supreme Court confirmed the principle from Demirok v The Queen that a court is entitled to assume jurors will comply with directions. However, that assumption does not prevent a court from taking additional practical steps to assist compliance.
- Collecting and destroying jurors' annotated working copies of a document, and supplying fresh copies, is a recognised step to reduce the risk of jurors referring to notes made during an improper submission.
- The permitted scope of the Crown's remaining submissions was limited to comparing the affidavit with the voluntary disclosure statement, being the specific basis on which the Crown had pressed the tender of the affidavit.
Legislation and Cases Referenced
Cases:
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 (Barwick CJ at 22) — cited for the proposition that courts are entitled to assume juries comply with directions.
Legislation: No specific legislation was cited in this judgment.