Citation: R v Agius; R v Castagna (No 15) [2018] NSWSC 2046
Court: Supreme Court of New South Wales
Date: 1 August 2018
Judge: Adamson J
Background
This decision arose during a sentence hearing involving two offenders, Agius and Castagna. The Crown sought to read an affidavit from a deponent, Scott Miller, which included paragraphs describing a mutual assistance request made to Vanuatu by the Commonwealth Attorney-General's Department for the purpose of obtaining material relevant to the prosecution.
The paragraphs in dispute (paragraphs 18 to 25 of the affidavit) were expressed in hearsay form, meaning the deponent was recounting information provided to him by others rather than giving direct first-hand evidence. Counsel for Agius objected to those paragraphs and sought a direction that would bring the formal rules of evidence to bear on the sentence hearing.
Legal Issues
- Whether the court should give a direction under section 4 of the Evidence Act 1995 (NSW) that the Act apply to the sentence hearing, thereby activating the rule against hearsay and potentially excluding the disputed paragraphs
- Whether the hearsay evidence in the affidavit should nonetheless be admitted as the best evidence available in the circumstances
Decision
Counsel for Agius argued that it was unfair to permit the Crown to rely on hearsay evidence about events in Vanuatu when, if strict proof were required, the Crown would need to obtain direct evidence from Vanuatu police, court records, and other foreign documents. The submission was framed as a fairness concern: the offender faced evidence he could not effectively test.
The Crown's position was that the material was the best evidence available, and that it went to a specific sentencing question: whether delay between the commencement of the Australian Federal Police investigation and the trial had been adequately explained, or whether prosecutorial tardiness warranted mitigation of sentence.
Adamson J accepted the Crown's submission that the hearsay material was the best evidence available to the AFP in the circumstances. Her Honour was not persuaded that the interests of justice required the Crown to formally prove these matters through primary sources. The Crown also expressly disavowed any intention to use the material to draw inferences that Agius had obstructed the AFP's efforts to obtain material from Vanuatu.
On that basis, the application for a section 4 direction was refused and the disputed paragraphs were allowed into evidence notwithstanding their hearsay form.
Orders Made
- The application by the offender Agius for a direction under section 4 of the Evidence Act 1995 (NSW) was refused
- Paragraphs 18 to 25 of the affidavit of Scott Miller sworn 18 May 2018 were admitted into evidence notwithstanding that they were expressed in hearsay form
Key Takeaways
- In sentence hearings, the Evidence Act 1995 (NSW) does not automatically apply; a party seeking its application must obtain a direction under section 4, and the court retains a discretion to refuse such a direction.
- The Supreme Court treated "best evidence available" as a relevant consideration when deciding whether hearsay material should be admitted in a sentencing context, particularly where obtaining primary evidence would require significant steps across international borders.
- Where the Crown expressly limits the purpose and scope of hearsay evidence, disavowing reliance on particular inferences, that concession can be relevant to the court's assessment of fairness and the interests of justice.
- A challenge to hearsay evidence on fairness grounds will not necessarily succeed simply because direct evidence could theoretically be obtained; the court will weigh what is practically available against the interests of justice.
- Sentence hearings operate under procedural rules that differ from those governing trials, and the extent to which formal evidentiary rules apply remains a matter for the court's direction in each case.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 4
Cases: No cases were cited in this decision.