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Court of Criminal Appeal 8 October 2025

D’Agostino v R

[2025] NSWCCA 159

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION APPEAL OUT OF TIME IRREGULARITIES IN JURY DELIBERATIONS WHETHER PRACTICAL INJUSTICE OCCASIONED

Citation: D'Agostino v R [2025] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 8 October 2025
Judges: Ward P; Wright J and Dhanji J

Background

The appellant was convicted in December 2019 on three counts of conspiracy to import a commercial quantity of border-controlled drugs. He pleaded guilty to Count 1 at arraignment, and the conviction appeal concerned only Counts 2 and 3. He was sentenced in March 2021 to an aggregate 30-year term with a 20-year non-parole period.

During the nine-week trial, the jury was reduced to ten jurors by the time deliberations began in mid-December 2019. On 19 December, the trial judge informed the parties that she had received verbal reports from sheriff's officers about problems in the jury room, including allegations of bullying and harassment. She had already directed that a written report be prepared. When the parties were briefed, that report disclosed that court and sheriff's officers had attended the jury room, spoken directly to the jury about the conflict, received a request from one juror to be discharged, and then privately interviewed that juror without the knowledge or involvement of the accused or his counsel.

After the parties received the report, senior counsel for the appellant applied to discharge the jury. The trial judge refused that application, and the jury returned verdicts of guilty on Counts 2 and 3 on 20 December. The Notice of Appeal was not filed until May 2025, more than five and a half years after conviction, requiring the Court to first grant an extension of time.

  • Whether leave and an extension of time should be granted given the substantial delay in filing the Notice of Appeal
  • Whether the communications between court or sheriff's officers and the jury, including the private interview of a juror, constituted a fundamental or material irregularity amounting to a substantial miscarriage of justice (Ground 1(a))
  • Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to preserve the convictions notwithstanding any irregularity
  • Whether the accused was denied procedural fairness by not being informed of and heard on the jury room events and the decision to order a report, and whether that denial occasioned practical injustice (Ground 1(b))
  • Whether the trial judge erred in refusing to discharge the jury (Ground 2)
  • Whether the sentence gave rise to a parity argument by reference to a co-offender's sentence

Decision

The Court unanimously allowed the appeal and quashed the convictions on Counts 2 and 3, though the three judges reached that result through partly different reasoning paths.

Ground 1(a): Fundamental irregularity. Ward P, with Wright and Dhanji JJ agreeing on the outcome, held that the private interview of a juror by sheriff's officers was a fundamental breach of a core requirement of criminal trials: that proceedings occur in open court and that the accused be aware of all communications bearing on the conduct of the trial. Applying Brawn v The King [2025] HCA 20, Ward P concluded that this irregularity of itself amounted to a substantial miscarriage of justice, making it unnecessary to consider whether the proviso in s 6(1) of the Criminal Appeal Act could save the convictions. Wright and Dhanji JJ considered it unnecessary to decide whether the earlier communications between court officers and the jury, before the private interview, also constituted a miscarriage of justice.

Ground 1(b): Procedural fairness. Wright and Dhanji JJ also upheld the procedural fairness ground. They found that the appellant was not promptly informed of the events in the jury room, the officers' conduct in addressing the jury, the juror's request to be excused, or the trial judge's decision to order a report. Had the appellant been heard on these matters when they arose, a different course may have been taken. That failure occasioned practical injustice. Ward P considered it unnecessary to address this ground given the success of Ground 1(a).

Grounds 2 and sentence appeal. The Court did not need to consider the refusal-to-discharge ground or the parity-based sentence appeal, given that the convictions were quashed and the aggregate sentence fell away. The matter was remitted for a new trial on Counts 2 and 3 and for resentencing on Count 1.

Orders Made

  • Time extended for filing the Notice of Appeal to 26 May 2025
  • Leave to appeal against conviction granted on Ground 1(a)
  • Leave to appeal against conviction and sentence otherwise refused
  • Appeal allowed on Ground 1(a)
  • Convictions on Counts 2 and 3 quashed
  • Aggregate sentence imposed on 26 March 2021 quashed
  • Matter remitted for retrial on Counts 2 and 3 and for resentencing on Count 1
  • Matter listed in the Supreme Court Arraignment List on 7 November 2025

Key Takeaways

  • A private interview of a juror by sheriff's officers, conducted without the knowledge or participation of the accused, constitutes a fundamental irregularity in the trial process and of itself amounts to a substantial miscarriage of justice, triggering no need to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW).

  • Where such a fundamental irregularity is established, the Court of Criminal Appeal confirmed that Brawn v The King [2025] HCA 20 provides the applicable framework and that the proviso has no role to play.

  • An accused must be promptly informed of, and given the opportunity to make submissions on, any communications between court officials and the jury that bear on the conduct of the trial. The failure to do so can itself constitute a denial of procedural fairness that occasions practical injustice.

  • Unauthorised communications directed at resolving conflict within a deliberating jury are not a matter to be managed by court or sheriff's officers acting independently of the parties. The need for prompt judicial intervention with the benefit of party submissions was emphasised by Wright and Dhanji JJ.

  • Notwithstanding a delay of more than five years in filing the Notice of Appeal, the gravity of the irregularities identified provided sufficient basis for the Court to grant an extension of time.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Code Act 1995 (Cth), Sch 1, ss 11.5(1), 307.1(1)
- Jury Act 1977 (NSW), ss 53A, 68A(1), 73A
- Criminal Procedure Act 1986 (NSW), s 21
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(2), 3.5(5)

Key Cases:
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
- Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Carson (a pseudonym) v The Queen [2019] VSCA 317
- R v Stretton [1982] VR 251
- R v Chaouk [1986] VR 707; (1986) 23 A Crim R 463
- R v Jackson and Le Gros [1995] 1 Qd R 547; (1994) 71 A Crim R 444
- R v Fitzgerald (1889) 15 VR 40
- R v Barnowski [1969] SASR 386
- R v Lamb (1974) 59 Cr App Rep 196