R v Agostini - [2024] NSWDC 363

District Court

New South Wales

Medium Neutral Citation: R v Agostini [2024] NSWDC 363
Hearing dates: 13, 14, 16, 19 and 20 August 2024
Date of orders: 20 August 2024
Decision date: 20 August 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Jury discharged. Bench warrant to issue for accused.

Catchwords:
CRIME — Sexual offences — Aggravated sexual assault in company — Offender deprives victim of liberty
CRIME — Violent offences — Detain for advantage — Causing actual bodily harm
CRIME — Property offences — Steal from the person
CRIMINAL PROCEDURE — Trial — Case management — Notice of alibi
CRIMINAL PROCEDURE — Warrants — Execution
CRIMINAL PROCEDURE — Trial — Jury — Accused absconded — Defence withdraw — Defence decline invitation to appear amicus — Crown application to continue trial in absence of accused — Prejudice to fair trial — Jury discharged

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1985 (NSW)

Cases Cited:
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

Category: Principal judgment
Parties: Jasmine Agostini (the accused)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
E Wasilenia (for the accused)
K Ratcliffe (for the Crown)
Solicitors:
Blackheart Lawyers (for the Accused)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/263404

JUDGMENT – ex tempore revised

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:

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).

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).

And a separate offence of, taking an iPhone from the person of another complainant: Crimes Act, s 94.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Agostini

Details

AGLC: R v Agostini [2024] NSWDC 363
Case: [2024] NSWDC 363
Decision Date: 20 August 2024

CaseChat Overview and Summary

The case of R v Agostini involves the defendant, Agostini, who was charged with several criminal offences including aggravated sexual assault in company, causing actual bodily harm, and theft. The proceedings took place in a higher court where the defendant was required to face trial. The crux of the dispute revolved around the procedural fairness of the trial, particularly in light of the defendant's absence and the defence's withdrawal. The court was tasked with determining whether the trial could proceed in the absence of the accused and if such a proceeding would be prejudicial to a fair trial. Additionally, the court had to consider whether the jury could be discharged and whether a bench warrant should be issued for the accused.

The legal issues the court had to decide were complex and centred on the rights of the accused to a fair trial, the implications of the defence withdrawing, and the potential prejudice to the fairness of the proceedings if the trial continued without the accused present. The court had to weigh the procedural safeguards against the rights of the defendant and the interests of justice. It was necessary to examine whether the defence's withdrawal and the accused's subsequent absence constituted sufficient grounds for discharging the jury and issuing a bench warrant.

In delivering the judgment, the court concluded that the trial could not proceed fairly in the absence of the accused. The defence had withdrawn, and the accused had absconded, leading to a significant imbalance in the proceedings. The court found that the defendant's absence and the withdrawal of the defence created a substantial risk of prejudice to the fairness of the trial. Consequently, the jury was discharged, and a bench warrant was issued for the accused to ensure his presence in future proceedings. The court emphasised the importance of a fair trial and the rights of the accused, which could not be compromised under any circumstances.

The final orders of the court were to discharge the jury and to issue a bench warrant for the accused, Agostini, to ensure that he would be present for any future hearings. This decision underscores the critical importance of procedural fairness and the rights of the accused in criminal proceedings.

Orders

Orders of the court

Jury discharged. Bench warrant to issue for accused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Agostini [2024] NSWDC 363
Hearing dates:	13, 14, 16, 19 and 20 August 2024
Date of orders:	20 August 2024
Decision date:	20 August 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Jury discharged. Bench warrant to issue for accused.
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault in company — Offender deprives victim of liberty CRIME — Violent offences — Detain for advantage — Causing actual bodily harm CRIME — Property offences — Steal from the person CRIMINAL PROCEDURE — Trial — Case management — Notice of alibi CRIMINAL PROCEDURE — Warrants — Execution CRIMINAL PROCEDURE — Trial — Jury — Accused absconded — Defence withdraw — Defence decline invitation to appear amicus — Crown application to continue trial in absence of accused — Prejudice to fair trial — Jury discharged
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1985 (NSW)
Cases Cited:	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
Category:	Principal judgment
Parties:	Jasmine Agostini (the accused) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: E Wasilenia (for the accused) K Ratcliffe (for the Crown) Solicitors: Blackheart Lawyers (for the Accused) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/263404