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District Court 20 August 2024

R v Agostini

[2024] NSWDC 363

Sexual offencesAssault & violenceTheft & property

Citation: R v Agostini [2024] NSWDC 363
Court: District Court of New South Wales
Date: 20 August 2024
Judge(s): Haesler SC DCJ

Background

The accused faced three charges arising from events on or about 2 September 2022: detaining a complainant without consent while causing actual bodily harm (s 86(3) Crimes Act 1900), aggravated sexual assault in company involving deprivation of liberty (s 61JA(1) Crimes Act 1900), and stealing an iPhone from the person of another complainant (s 94 Crimes Act 1900). A jury was empanelled and the trial commenced on 13 August 2024. Defence counsel had served an alibi notice, though the defence had not yet opened its case to the jury.

By the end of the third day of the trial, the Crown case had almost concluded. When the Court resumed on the following Monday morning, the accused failed to appear.

Police inquiries established that the accused had not suffered any known misadventure. His Honour drew the inference that the accused had deliberately absented herself from the proceedings. Her legal representatives, regarding their retainer as terminated, sought and were granted leave to withdraw. When invited to assist as amicus curiae (that is, to assist the court as a friend without formal instructions), counsel declined, which Haesler SC DCJ accepted as a proper course.

  • Whether the trial should continue in the absence of both the accused and her legal representatives, or whether the jury should be discharged
  • Whether the accused's deliberate failure to attend constituted a waiver of her right to be present at trial
  • Whether adequate jury directions could sufficiently address the risk of prejudice arising from the accused's unexplained absence
  • What weight to give to competing considerations including community interests, court resources, and the accused's right to a fair trial

Decision

His Honour identified the applicable legal framework from the Court of Criminal Appeal's decision in Williams v R [2012] NSWCCA 286 and the Supreme Court's decision in R v Sheard; R v Bennis; R v Welford [2022] NSWSC 992. The established principles are that an accused's presence is normally a prerequisite to a fair trial, that the discretion to continue in an accused's absence must be exercised sparingly, and that deliberate absconding during a trial can amount to a waiver of the right to be present.

Haesler SC DCJ carefully weighed arguments on both sides. In favour of continuing, the Crown pointed to the accused's apparent deliberate choice to abscond, the strong Crown case, the availability of the principal complainant's audio-visual recording for any retrial, the community interest in completing the trial, and the court's capacity to give appropriate jury directions. The trial was also described as relatively short, making a retrial less burdensome.

Against continuing, His Honour identified several significant concerns. With no legal representation, there was no one to assist in formulating jury directions or to address the jury on the accused's behalf. The accused would be unable to present her alibi defence. Even carefully framed directions might not dispel the jury's inference that the accused's non-appearance indicated guilt. His Honour drew on the High Court's recent observation in Steven Moore (a pseudonym) v The King [2024] HCA 30 that the assumption juries follow directions is not immutable, and concluded the risk of unfair prejudice not being alleviated by directions was relatively high.

Ultimately, Haesler SC DCJ held that the accused's absence, while appearing to constitute a waiver of her rights, could not displace the fundamental requirement that an accused facing serious charges carrying the prospect of many years of imprisonment be given the opportunity to present a defence. The absence of any defence representation, combined with the unavoidable risk that the jury would treat non-attendance as an admission of guilt, meant continuing the trial would risk a miscarriage of justice. The jury was discharged.

Orders Made

  • The jury was discharged.
  • The bench warrant previously issued was to continue.

Key Takeaways

  • The District Court confirmed that the discretion to continue a criminal trial in the absence of an accused must be exercised sparingly, and that an accused's presence is ordinarily a prerequisite to a fair trial.
  • Deliberate absconding during a trial can amount to a waiver of the right to be present, but His Honour found that apparent waiver did not, on its own, justify proceeding without representation or the ability to present a defence.
  • The absence of defence counsel, combined with no opportunity for the accused to call alibi evidence or make submissions to the jury, weighed heavily against continuation.
  • Reliance on jury directions alone was found insufficient in circumstances where the risk of jurors drawing an adverse inference from the unexplained non-appearance was assessed as relatively high, consistent with the High Court's recent caution in Steven Moore (a pseudonym) v The King [2024] HCA 30 that jury compliance with directions is not invariable.
  • Community and resource interests in completing a trial, while genuine and legitimate considerations, did not outweigh the fundamental requirement that an accused facing serious charges be afforded a meaningful opportunity to present a defence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61JA(1), 86(3), 94
- Criminal Procedure Act 1986 (NSW), s 294CA

Cases
- R v Jones [1998] SASC 7021; (1998) 72 SASR 281
- R v McHardie and Danielson [1983] 2 NSWLR 733
- R v Sheard; R v Bennis; R v Welford [2022] NSWSC 992
- Steven Moore (a pseudonym) v The King [2024] HCA 30
- Williams v R [2012] NSWCCA 286