R (Cth) v D'Agostino & Ors

Judgment

1. HER HONOUR: This judgment assumes familiarity with earlier judgments in relation to these proceedings, and particularly with R v Pirrello, Pirrello & D'Agostino (No. 6) [2019] NSWSC 1833; R v Pirrello, Pirrello & D'Agostino (No. 7) [2019] NSWSC 1834; R v Pirrello, Pirrello & D'Agostino (No. 9) [2019] NSWSC 1836; R v Pirrello, Pirrello & D'Agostino (No. 10) [2019] NSWSC 1837.
2. On 18 December 2019, during the course of the tenth week of proceedings, and two days after the jury had been asked to retire to deliberate upon its verdicts, the Court received some information from staff of the Office of the Sheriff concerning the conduct of some jurors. The information was conveyed verbally, and recounted what amounted to second, third, or fourth-hand hearsay. The Sheriff was asked to instruct jurors to put any concerns they may have had in a note to the Court. A request was also made for the Sheriff to provide a written report concerning the interaction with the jury, with information from those officers who spoke with a juror, giving as much detail as possible and recounting relevant conversation in direct speech. On receipt of the report (now MFI 78), it was provided to the parties.
3. The accused Joseph D'Agostino thereafter made application for the discharge of the jury. He submitted that there was cause to conclude that a combination of possible problems within the jury room - bullying, illness or discomfit, and an absence of dutiful attention to deliberations - when taken with the close proximity of the Christmas period, dictated that the whole of the jury be discharged.
4. The application was not supported by any other party.
5. Having considered the submissions of the accused I refused the application. Because of the late hour, and the need to give some further direction to the jury before allowing them to separate for the evening, my reasons for that decision were reserved until today.
6. The application made by Mr D'Agostino for a discharge of the jury was the third such made by him. The two earlier applications were each prompted by the discharge of a single juror: on one occasion due to illness; and on another due to a death in the juror's family.