(1998) 72 SASR 281
R v McHardie and Danielson [1983] 2 NSWLR 733
R v Sheard
R v Bennis
Source
Original judgment source is linked above.
Catchwords
(1998) 72 SASR 281
R v McHardie and Danielson [1983] 2 NSWLR 733
R v SheardR v Bennis
Judgment (7 paragraphs)
[1]
Solicitors:
Blackheart Lawyers (for the Accused)
Public Prosecutions (NSW) (Crown)
File Number(s): 2022/263404
[2]
Introduction
On Tuesday, 13 August 2024 Jasmine Agostini was indicted and said she was not guilty to three offences, all said to have occurred on or about 2 September 2022. They involved allegations that:
1. In company with others, she had detained the complainant without his consent with intention of committing a serious indictable offence of intimidation and at the time of the detainment causing the complainant actual bodily harm: Crimes Act 1900 (NSW), s 86(3).
2. That she, as part of an extended joint criminal enterprise with others, had caused the complainant to suffer sexual intercourse without his consent knowing that he was not consenting, during that period, deprived him of his liberty: Crimes Act, s 61JA(1).
3. And a separate offence of, taking an iPhone from the person of another complainant: Crimes Act, s 94.
R v Agostini [2024] NSWDC 363 | Case summary | Zoe
Ms Agostini said she was not guilty. A jury was empanelled, and the trial commenced. Although counsel for the defence did not open his case to the jury, it became clear that it was intended to present an alibi, an alibi notice having been served prior to the trial.
The Court did not sit on 15 August due to industrial action by NSW Sheriffs. By Friday afternoon, day three of the trial, the Crown case had almost concluded. The matter was adjourned to Monday so that the defence could consider a Crown application to tender the alibi notice. When the Court resumed on Monday morning the accused did not appear. The Court took the opportunity to hold preliminary discussions in relation to the proposed tender of the alibi notice and corrections to the jury elements document, which had been settled by me after helpful submissions put forward by the Crown Prosecutor.
By 11.30am it became clear that the accused was not going to appear that day. Evidence was called from the officer-in-charge about efforts made to contact her. I issued a bench warrant. The jury was asked to return today and told not to speculate about the non-appearance of the accused.
This morning I received additional evidence from the officer-in -charge about the considerable enquiries made by police to see whether the accused had suffered some misadventure or was deliberately absenting herself from the Court. The overwhelming inference was, subject to extreme misadventure which has not come to notice, that the accused is, deliberately absenting herself from the Court.
Her counsel and the solicitor appearing, indicated that in the absence of their retainer they considered their retainer terminated and sought leave to withdraw from the proceedings. I asked whether they would consider assisting amicus. Counsel indicated they would prefer not to. While it is reasonable and quite proper for counsel to continue in the role of amicus, they are by no means bound to do so.
The Crown then made an application the trial proceed in the absence of the jury. The Crown provided me helpfully with the decision of the Court of Criminal Appeal in Williams v R [2012] NSWCCA 286. We also discussed a more recent decision of Justice N Adams in R v Sheard; R v Bennis; R v Welford [2022] NSWSC 992.
[3]
Consideration
The question then is whether, as the Crown submit, I continue with the trial in the absence of the accused and defence counsel or discharge the jury?
That decision requires proper exercise of my judicial discretion: see R v McHardie and Danielson [1983] 2 NSWLR 733; R v Jones [1998] SASC 7021; (1998) 72 SASR 281; Williams v R [2012] NSWCCA 286.
Arguments against the continuation of trial include:
1. The jury might engage in speculation regarding the accused's absence despite any direction I might give them not to;
2. A direction to the jury about not speculating about her absence may not be sufficient to remove potential injustice because of speculation about her motives;
3. That there will no opportunity for the accused to give evidence or call evidence in support of her purported alibi;
4. There will be no opportunity for the defence to address the jury or have any input into the appropriate judicial directions to the jury;
5. That should there be a fresh trial, she may be disadvantaged because a transcript may not convey the impact of challenges made to the credibility of some prosecution witnesses;
6. That those disadvantages in combination with her inability to put her case in submissions to the jury would cause a significant injustice; and
7. An accused cannot be presumed to waive her right to a fair trial.
Arguments in favour of the continuation of the trial include:
1. That Crown would be in a position, should there be a re-trial, to recall witnesses before the fresh jury rather than rely on a transcript. Here the principal complainant's evidence was recorded. And, his evidence could be given by way of replaying the audio visual recording to the jury: Criminal Procedure Act 1985 (NSW), s294CA;
2. That on the material before me the accused has made a deliberate choice to absent herself, and thus waived her rights;
3. That while the recording of the principal complaint's evidence is available the credibility and reliability of other witnesses was tested and their positive responses to that testing may not be revealed by the transcript;
4. The court's time, the prosecution's time, the jury's time in particular, has been wasted at considerable expense. There is obviously a community interest in the completion of the trial;
5. There are important public policy reasons that have to be considered. An accused on bail who, it would appear, believed that sometime during the trial her prospects for acquittal were remote, should not be able to absent herself and thereby force a new trial;
6. I can frame appropriate directions to the jury, that will remove the risk of prejudice and the jury can be expected to obey those directions; and
7. The key disadvantage here will be the inability for the accused to give evidence or call her alibi evidence, but that disadvantage was the product of her conscious and deliberate decision to abscond.
[4]
General propositions
The following general propositions can be drawn from Williams v R;
1. The accused's presence is normally a prerequisite to a fair trial;
2. There is a longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial;
3. The discretion to continue a trial in the absence of an accused should only be exercised sparingly; and
4. Absconding on bail during a trial can amount to a waiver by the accused of their right to be present at the trial. That waiver can be constituted by an escape from custody, or a breach of bail, or as here by, without excuse or explanation, absenting from the proceedings.
[5]
Determination
Here counsel has, as is his right, left the Court. I did not refuse leave to withdraw. I do not believe I should have compelled him to appear amicus. Accordingly, there is no one available to put arguments for, or assist with directions, on behalf of the accused.
There was to date a particularly strong Crown case. I am in the dark as to how strong the proposed alibi defence might be. No matter how carefully a jury direction is framed, there will remain the inescapable inference that it was not strong, given her voluntary failure to attend Court.
I have to consider my finding the accused voluntarily absented herself. Her absence on balance, indicates a waiver of her right to be present. But there is no evidence she was personally aware that this was so.
I have to consider the defence, so far as it has been disclosed. I note the proposed alibi and the assertions in cross-examination that key prosecution witnesses had motives to invent their evidence about the presence of the accused at the specific times and location, the subject of the trial.
I have to consider the length of time over which the court case has run. It was a relatively short trial which will be even shorter if it has to re-run.
I have to consider the prejudice the accused might suffer. She cannot present a defence that she may have available to her.
I have to consider the risk that the jury will presume, despite any direction to the contrary, that her nonattendance is an admission of guilt. The assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges is not "immutable": Steven Moore (a pseudonym) v The King [2024] HCA 30 at [42]. The possibility that unfair prejudice might not be alleviated by directions is relatively high here.
There is also a risk of miscarriage of justice. If a defence case cannot be presented and argued for, convictions would be inevitable.
I have to consider the inconvenience to the complaints and other witnesses, some of whom may have to give evidence again. But I note the audio-visual recoding of the principal complainant's evidence will be available at a re-trial.
I have to consider the impact of not continuing on the resources of the Court, police and prosecution, and on the administration of justice.
But there is also a fundamental requirement that serious matters which would carry the potential punishment of many years imprisonment, that the accused be present, and despite her apparent waiver of her rights, given a chance to put a defence.
The jury have been paying close attention to the evidence. If I discharge them, their time and that effort will be wasted. The court administrator in me would like to continue and finalise this matter. But the principal that an accused should be present at every stage of the trial is more important than what I perceive, on the evidence currently before me, to be her deliberate flaunting of her obligations to the Court. I will not continue with the trial.
[6]
Orders
The jury will be discharged. The bench warrant previously issued will continue.
[7]
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Decision last updated: 22 August 2024