D’Agostino v R

WARD P: Before the Court for hearing on 25 August 2025 was an application by Joseph Rocky D’Agostino (the applicant) for leave to appeal against his conviction and sentence following a trial before Wilson J and a jury in late 2019 on three counts of conspiracy to import a commercial quantity of border-controlled drugs contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth), Sch 1 (Criminal Code). The conviction appeal relates only to two of those three counts; the applicant having pleaded guilty on arraignment to Count 1.

The applicant was sentenced on 26 March 2021 to an aggregate term of imprisonment for 30 years commencing on 8 September 2018 and expiring on 7 September 2048, with a non-parole period of 20 years expiring on 7 September 2038. His application for leave to appeal against sentence is based on a parity ground by reference to the sentence imposed on a co-offender (Person A).

At the outset, it should be noted that orders were made in these proceedings on 3 December 2018 (and subsequently) pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). Those orders remain in force. Relevantly, those orders prohibit publication or other disclosure of various matters relating to some of the applicant’s co-offenders, including the sentencing remarks and sentence appeal judgment (publication of which has been restricted) made in respect of one of those co-offenders (Person A).

The applicant’s Notice of Appeal was filed on 26 May 2025, almost five and a half years after conviction and over four years after sentence – well outside the time prescribed by r 3.5(2) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules). Hence, leave is necessary for the appeal to be brought (r 3.5(5)).

Leave to appeal is also required both for the conviction appeal (as the grounds on which it is brought raise questions of mixed law and fact) and for the appeal against sentence.

In relation to the delay in commencing these proceedings, the applicant relies on an affidavit sworn by his solicitor, Gerard Mitchell, on 31 July 2025, supplemented by the explanation proffered by his counsel from the Bar table. In essence, the explanation (for what is conceded by the applicant to be gross delay in this case – see AT 2.2) is that: for a period after his sentence in 2021 the applicant withdrew instructions from his present solicitors who had acted for him at trial; his present solicitors were retained again only in about April 2024; there was delay in obtaining legal advice necessary for the purpose of Legal Aid review processes (AT 2.4); and then, after the applicant’s present counsel was briefed in July 2024, there was delay both in counsel’s availability to review the material in late 2024 and in obtaining trial transcripts (and, in particular, the transcripts of 18 and 19 December 2019, which were critical for counsel’s assessment of the prospects of the conviction appeal) (AT 2.10-35).

Counsel for the applicant, Mr Howell, submitted that the long delay was multi-factorial and not the fault of the applicant.

The Crown opposes both the grant of leave to appeal out of time (submitting that the explanation for the delay is incomplete and unsatisfactory) and the grant of leave in relation to proposed Grounds 1 and 2 on the conviction appeal, on the basis that these proposed grounds lack merit. However, the Crown accepts that it may be considered appropriate, in the interests of finality, to extend time and grant leave to appeal (though the Crown submits that in that case the appeal should then be dismissed).

While the delay is only partly explicable by reference to matters outside the applicant’s control, an extension of time should be given for the filing of the Notice of Appeal and leave should be granted in relation to Ground 1 of the conviction appeal in light of the issues that have been raised on the conviction appeal. Leave to appeal in relation to Ground 2 is unnecessary as upholding Ground 1(a) will determine the appeal in favour of the applicant. Similarly, it will not be necessary to consider the application for leave to appeal against sentence as that does not arise in relation to the determination of Ground 1(a).

As noted above, the applicant was charged on three counts, each alleging a conspiracy with others to import a commercial quantity of border-controlled drugs.

Count 1 was that, between 14 August 2014 and 13 January 2015, the applicant conspired with a number of others (including Person A) to import a commercial quantity of heroin (the amount in question was approximately 28 kgs). This conspiracy was referred to as the Fiji conspiracy. As referred to above, the applicant pleaded guilty to this charge at arraignment (14/10/19; T 13.16).

Count 2 was that, between 13 January 2015 and 31 May 2015, the applicant, together with two other accused, conspired with a number of others (including Person A) to import a commercial quantity of cocaine (the amount in question was 400 kgs). This conspiracy was referred to as the Eclipse conspiracy. The applicant pleaded not guilty to Count 2 (14/10/19; T 13.26).

Count 3 was that, between 1 September 2015 and 31 March 2016, the applicant conspired with a number of others, including Person A, to import a commercial quantity of cocaine (the amount in question was approximately 607 kgs). This conspiracy was referred to as the Saxon Progress conspiracy. The applicant pleaded not guilty to Count 3 (14/10/19; T 13.40).

The applicant was tried jointly in relation to the Eclipse conspiracy with his two co-accused (both of whom were ultimately acquitted). The joint trial commenced on 14 October 2019 and occupied some nine weeks. It is not necessary here to summarise the Crown case and evidence adduced in support of that case; nor the defence case at trial save to note that, in essence, the defence case was that Person A, who gave evidence at the trial which directly implicated the applicant in relation to Counts 2 and 3, was motivated to implicate the applicant in order to diminish his own culpability in the conspiracies.

During the course of the trial, two of the original twelve jurors were discharged (on 7 November and 11 December 2019). The circumstances in which they were discharged are not relevant to the appeal but provide some contextual background.

Briefly, on the 19th day of the trial, the trial judge was informed that a juror was medically unfit to continue. The issue was raised promptly with the parties. The juror was discharged. Senior Counsel appearing at the trial for the applicant, Mr Stratton SC, then applied for the discharge of the jury. The respective counsel appearing for each of the co-accused did not join in that application and it was opposed by the Crown. While it was not the approach taken by the applicant (or the other parties) at the time, properly understood it would seem that the application was in essence to sever the indictment and discharge the jury with respect to the applicant (see s 21 of the Criminal Procedure Act 1986 (NSW); McNamara v The King (2023) 280 CLR 201; [2023] HCA 36). Her Honour refused the application for reasons published separately (and not included in the Appeal Book). No complaint is here made as to that decision.

Subsequently, on the 42nd day of the trial (11 December 2019), shortly before commencement of the summing up, a second juror was discharged following the death of a close family member. The primary judge permitted the juror to leave the jury room and then promptly informed the parties and ascertained their position as to the proposed discharge of the juror on the basis that the juror was not now available to perform the juror’s duties (11/12/19; T 3230).

Mr Stratton made a fresh application to discharge the jury (again, presumably, an application to sever the indictment and discharge the jury with respect to the applicant), identifying his major concern as being the reduction of the jury from 12 to 10 jurors. Again, neither of the co-accused joined in that application and it was opposed by the Crown. Again, that application was refused (with reasons published separately – not in the Appeal Book) and there is no complaint as to that decision.

The trial judge’s summing-up to the jury commenced on 13 December 2019 and continued on 16 December 2019 (with a weekend intervening). No issue is taken with any of the trial judge’s directions. The summing-up concluded in the afternoon of 16 December 2019 and the jury retired to consider its verdicts at 3:11 pm that day (16/12/19; SU 120). The jury was sent home at approximately 4:00 pm that day.

On 17 December 2019, the first full day of deliberations, the jury deliberated between 9:30 am and 4:00 pm (17/12/19; SU 123-126).

On 18 December 2019, the jury continued deliberating between 9:30 am and approximately 4:00 pm (18/12/19; SU 127-128). The Court reconvened at 3.55 pm that day. In the absence of the jury, the trial judge raised with the parties jury requests that had been received for some transcripts of evidence and that an enquiry had been made “via the court officer, not in a written note, as to how long they could continue in their deliberations” (18/12/19; SU 127). Each of these matters was then briefly addressed in the jury’s presence.

On 19 December 2019, the jury continued deliberating between 9:30 am and approximately 4:00 pm (19/12/19; SU 129-138). At 3:15 pm that day, the trial judge reconvened the Court to raise with the parties, in the absence of the jury, “a potential issue with the jury”. Her Honour informed the parties (SU 129) that:

Pausing here, the statement by her Honour that the Court had been convened “as quickly as we could, bearing in mind when the information was received” seems likely to be a reference to the provision of the report to which her Honour had there referred (the Report) (rather than the initial verbal provision of information to her Honour). There must on any view have been some time required to prepare the Report and the Report itself suggests a gap between the verbal disclosure to her Honour and the written report (during which time the private interview referred to in the 7th bullet point of the Report must have occurred – see below). However, as both parties accept, the timing of the initial disclosure to the trial judge is left unclear on the evidence.

By reference to the contents of the Report and the transcript of what was said when copies of the Report were handed to the parties, all that can be said is that the initial disclosure must have been sometime between 10:00 am on 18 December 2019 and 3:15 pm on 19 December 2019. However, in the trial judge’s subsequent judgment (R (Cth) v Pirrello, Pirrello & D’Agostino (No 11) [2019] NSWSC 1880 (Judgment No 11)) on the applicant’s third application to discharge the jury, her Honour indicated that the initial verbal disclosure to the Court was on 18 December 2019 (see at [2]) so it can comfortably be accepted that the initial disclosure was made some time during 18 December 2019, though not necessarily before the Court was reconvened at 4:00pm to consider other jury matters. This is of some significance when assessing the irregularities that the Crown concedes occurred in relation to the conduct of the sheriff’s officers/court officer.

The text of the document marked MFI 78 was as follows, headed “Jury Report Court 1 Darlinghurst”:

The Report concluded with a paragraph identifying the three sheriff’s officers and the court officer referred to in the Report as those “[a]ttending the jury room” (presumably a reference to the 4th bullet point in the note).

Significantly, in light of the procedural fairness issue now raised by the applicant, when copies of the Report were provided to the parties on 19 December 2019, the trial judge asked whether the parties sought to deal with the issue that afternoon or “put it off until tomorrow morning to give everyone an opportunity to consider their position”.

The response from Mr Stratton was to ask whether the sheriff’s officers had been approached “yesterday, that is Wednesday, not today”, to which the trial judge replied (SU 130):

Mr Stratton apparently then sought instructions and her Honour said:

Having obtained instructions, Mr Stratton expressed his preference for the matter not to stand over to the following day and for there to be a short adjournment. Her Honour stated that:

The proceedings were then adjourned from 3:23 pm until 3:47 pm.

After that adjournment, the Crown Prosecutor submitted that a direction should be given about four matters (SU 131): that bullying and harassment in the jury room should not be tolerated; that the jury should be encouraged to engage in open and civil discussion; that the jury should be reminded of their oath or affirmation (effectively, to render a true verdict according to the evidence); and that the jury should be reminded of writing a note should they require assistance “or if there is any disharmony they wish to bring to your Honour’s attention”.

The Crown Prosecutor said that there were “aspects of this note that are of concern” but that:

The applicant here points out that the Crown Prosecutor’s submissions did not address the effect of the delay in the parties being advised of what had happened nor the fact that, on the face of the Report, there had been unauthorised communications between the court officer, sheriff’s officers and the jury. Nor, I would add, did Mr Stratton raise those matters.

Mr Stratton then made a fresh application for the jury to be discharged. His submissions focused on what was described as the “cumulative effect of the problems in the note”, those being identified as: “a juror complaining of bullying”, “another … complaining of physical discomfort in proceeding” and “an allegation – and it is only that – that … two jurors aren’t taking it seriously” (SU 131). He noted (as no doubt all, including the trial judge, were well aware) that the jury was already “down to ten” (SU 132).

Mr Stratton also raised that jury deliberations were being undertaken “in close proximity of the Christmas holiday period”, to which her Honour observed that this had never been raised as a concern by anyone other than the applicant – including the jury (which Mr Stratton conceded).

The Crown points out that Mr Stratton did not raise any concern about how the sheriff’s officers, court officer or trial judge had dealt with the jury, whether in support of the discharge application or otherwise.

During submissions for the applicant on the discharge application, her Honour observed:

Counsel for only one of the co-accused was in court that afternoon. He made no discharge application on behalf of his client and indicated that neither did Senior Counsel for the other co-accused (with whom he had been in telephone contact) but asked that he be given overnight to consider his client’s position (in consultation with Senior Counsel for the other co-accused) – a request to which her Honour acceded, as evident from the following. Again, the discharge application appears to have proceeded on the false premise that, if discharged in relation to the applicant, the jury would also be discharged in relation to the co-accused.

The Crown Prosecutor submitted that the issues raised needed to be addressed immediately “[g]iven that this was raised with the Sheriff yesterday morning”. The trial judge agreed. Her Honour then refused the applicant’s discharge application, with reasons to follow (those being Judgment No 11) handed down before the jury verdicts on 20 December 2019. Her Honour invited Counsel for the co-accused to inform her associate the next morning if there was anything they wished to be said differently or add to what her Honour would say that afternoon.

Shortly thereafter, the jury returned and her Honour gave the following directions (SU 135-136):

Her Honour added that:

Her Honour concluded:

On 20 December 2019, the jury continued deliberating at 9:30 am. Her Honour’s reasons for her refusal to discharge the jury were delivered on 20 December 2019. In that judgment, the trial judge said (at [2]):

As to the discharge application, her Honour identified the information relevant to that application as that contained in MFI 78, saying (at [8]):

I note that all counsel had copies of the Report at the time of the third discharge application and it was open to any of them to seek to have a first-hand account given in court by the respective officers and/or one or more jurors to ascertain more precisely what had been said during the discussion in the jury room and the subsequent private interview of one of the jurors.

Her Honour said (at [15]) that the question was “whether there is a significant possibility that the outcome of the trial has been affected by the irregularity” (which the applicant here argues misstates the test on a discharge application – see AT 32.13-33.3, an issue which it is not necessary here to determine as it arises only in relation to Ground 2). Her Honour determined (at [16]) that “what is fair and just between the parties requires the trial to continue”, saying that:

Her Honour considered it significant that neither of the applicant’s co-accused had made an application for the jury to be discharged.

At about 11:00 am on 20 December 2019, after the jury had been told the previous afternoon that they could enter separate verdicts (see [42] above), the jury (then constituted by 10 jurors) returned verdicts of guilty against the applicant on both disputed counts (Counts 2 and 3). The jury then continued to deliberate in relation to the co-accused and on 23 December 2019 returned verdicts of not guilty for each of the co-accused on Count 2.

The applicant raises two grounds of appeal against his convictions by the jury on Counts 2 and 3, both grounds relating to matters concerning the events that occurred during jury deliberations on 18 and 19 December 2019. Those grounds are:

Both parts of Ground 1 rely on the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), namely that there was a miscarriage of justice.

The primary basis on which the applicant contends that there has been a miscarriage of justice is that there were material irregularities, which the applicant says were fundamental, in the course of the trial during the jury deliberations on 18 and 19 December 2019. While the Crown points out that Ground 1(a) is framed in terms of “material” (not fundamental) irregularities, the applicant submits that the first basis of miscarriage identified in Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (Brawn) (that is, irregularities that are fundamental) is engaged by the issues on this appeal. The applicant’s submission is that what happened in this case can properly be described as irregularities that are so profound as to be characterised as failures to observe the requirements of the criminal process in fundamental respects and that breach more than one presupposition of a criminal trial (see AT 30). In any event, the Crown did not suggest that it was not in a position to deal with the contention that the irregularities were fundamental in the sense explained in Brawn (see below).

The irregularities identified by the applicant are as follows.

First, that the court officer to whom the complaint of bullying and harassment had been made should (it being a matter potentially affecting the integrity of the jury’s deliberations) have conveyed that information directly to the trial judge (not to the sheriff’s officers). The applicant refers in this context to the observations of Kaye J in R v Stretton [1982] VR 251 (Stretton). The applicant says that this information was material and important.

Second, and following on from the first, that once the sheriff’s officers were advised by the court officer of the information, at around 10.00 am on 18 December 2019, the information should have been communicated to the trial judge at that stage.

By reason of the above irregularities on the part of the court officer and sheriff’s officers, the applicant complains that both the parties and the Court were denied the opportunity to consider what should be done in response to the bullying/harassment complaints promptly and in open court.

Third, that the officers (presumably those identified in MFI 78) attended the jury room to speak to the jury about the issue (of what was later described in MFI 78 as “ongoing conflict” among the jury); and, in the course of addressing the jury in the jury room, the jury was given certain advice and a direction. The applicant notes that it is unclear who gave that advice and direction (or whether it was more than one person); and that there is no objective record of what was actually said to the jury (the only record being MFI 78). The applicant emphasises that the officers did so: without input from the trial judge or the parties; behind everyone’s back; and in the secrecy of the jury room; and characterises the direction to the jury as to how the jury should be deliberating as more than an administrative or procedural direction.

The applicant maintains that this third irregularity is a fundamental irregularity in the process of the trial, even if the advice given to the jury merely repeated what the trial judge had already directed the jury. While the applicant in oral submissions appears to accept that “on the face of the MFI” it seems that no harm was caused, the applicant says that this is not an answer in the present case (see AT 16.18).

Fourth, that, in the course of the unauthorised communications with the jury, the jurors were “asked if they wanted to ask any questions or had any comments”, which resulted in the disclosure by an individual juror that he “could not go on” and wanted to be excused. Again, the applicant points out that there is no objective record of what was said in the course of this further discussion, including anything that might have been said by other jurors. The applicant says that the conduct of the officers arguably constituted an offence under s 68A(1) of the Jury Act 1977 (NSW); and that, even if it was not a criminal offence, the conduct of the officers was inappropriate “and put a serious, lengthy criminal trial in jeopardy”.

Pausing here, there is no suggestion that up to this point anything had been communicated to the trial judge about the bullying/harassment complaint or the attendance by officers and discussion in the jury room. The irregularities in the above were irregularities on the part of the respective court/sheriff’s officers.

Fifth, that at some point after the discussion in the jury room one or more of the officers involved went to see the trial judge in chambers. The applicant suggests that this was “shortly after” the officers left the jury room, although there is nothing in the Report to indicate that to be the case. All that can confidently be gleaned, by reference to MFI 78, is that the attendance on the trial judge in chambers was after the attendance by the officers in the jury room (at which advice/direction was given) and before the private interview with the individual juror.

As I understand it, the irregularity to which the applicant here points is not the fact that her Honour was informed in chambers of the information that had been received by the officers – indeed, the complaint in relation to the first and second identified irregularities is that her Honour was not immediately informed of that matter. Rather, the nub of the complaint seems to be that, on receipt of that information, her Honour did not reconvene the Court as soon as practical and inform the parties of this.

The applicant points out that there is no objective record of what was said by anyone in the course of the private discussion in chambers, the Report simply stating that officers “explained the situation” to the trial judge. However, the applicant submits that, having regard to [2] of her Honour’s judgment on the discharge application, it may be inferred that in the discussion in the judge’s chambers: something was said to the trial judge about the “conduct of some jurors”; it was disclosed to the trial judge that officers had had an “interaction with the jury”; and it was further disclosed that officers had spoken to “a juror”.

Further, the applicant says that the Report suggests that the individual juror’s request to be excused was raised with the trial judge, insofar as the Report notes that her Honour “felt” that defence counsel “would probably not agree to the juror being discharged and that the trial would be aborted due to this”. (As to this last submission, while it seems likely that an explanation of the situation at that point, assuming it was a complete account, would have included that a juror had said he wanted to be excused – as recorded in the 5th bullet point, it is impossible to infer that the Report was there recording what, if anything, the trial judge said in response to this. All that can be gleaned is that the author (or authors) of the Report perceived that her Honour had the feeling there ascribed to her.)

The applicant accepts that, having regard to [2] of her Honour’s judgment on the discharge application, it appears that the trial judge advised the officers who approached her to instruct jurors to put any concerns they may have in a note to the Court and to prepare a written report concerning their interactions with the jury (and to do so “in direct speech”). There is nothing in the Report itself to record such an instruction. However, there is no reason to doubt that her Honour did so (particularly since a written report was subsequently provided to her Honour). The applicant also points out that there is nothing in the Report (or the discharge judgment) to indicate that the sheriff’s officers in fact conveyed to the jury that the jury should put any concerns they may have had in a note.

The applicant says that, by the time the trial judge was approached, there were three issues: the bullying and harassment complaints; the fact that there had been unauthorised communications with the jury by one or more of the court officer and sheriff’s officers; and that an individual juror wanted to be discharged. While not conceding that those issues could have been remedied at that point, the applicant says that, had those three issues been raised with the parties at that stage, they could potentially have been remedied or at least there could have been discussion about potential remedies (see AT 16), including the potential for the admonition, in the presence of the jury, of the officers (as occurred in R v GAE (2000) 1 VR 198; [2000] VSCA 18, in a not dissimilar situation involving a judge’s tipstaff, where the application to discharge was refused on the basis that an immediate direction to the jury was able to remedy the position) followed by a judicial direction (say, of the kind ultimately given on 19 December 2019) (AT 16).

Fifth, the sheriff’s officers then proceeded to have a private “interview” with the individual juror who had asked to be discharged. There is nothing in the Report or the discharge judgment or the transcript on 19 December 2019 (the only three sources of information as to what occurred) to indicate that the trial judge directed the officers to carry out any investigation, or to interview any of the jurors, following the disclosure that had been made in chambers as to “the situation”; nor that her Honour became aware that they had done so until the Report was provided.

Complaint is also made by the applicant that the “interview” with the individual juror was done “privately” and that it is not clear from the Report whether jury deliberations stopped while the juror was taken away and spoken to privately (AT 18). The applicant says that it cannot be assumed that jury deliberations had stopped while the private interview took place, nor that the officers considered the proper way to carry out this interview, given that the officers had acted on their own and had seemingly been given no directions from the trial judge about how to do what they were doing. It is noted that MFI 78 does not record how long the interview with the juror took, who was present during it, or where it took place. The applicant complains that the parties had no opportunity to object to it happening.

In the course of this interview, the juror is reported as having disclosed further information: that some jurors had said they “would like to drag the trial out longer” for financial reasons and because they were getting a free lunch each day; that the court officer relayed to the sheriff’s officers that a younger female member of the jury had mentioned to him that she had “a mortgage to pay”; that the same or similar comments had been heard by other jury members on other occasions; and that the comments were being made by two younger female jurors aged in their early to mid-20s. The applicant submits that this interview was arguably a further offence under s 68A(1) of the Jury Act, suggesting there is some doubt as to whether it was information extrinsic to deliberations, being information about what was happening in the jury room (AT 17), but says that, even if it was not an offence, it was again inappropriate.

For completeness, I note that, in oral submissions, Mr Howell said that he did not place particular emphasis on the possibility that there had been a breach of prohibitions under the Jury Act but maintained that arguably what occurred in the private interview was the solicitation by the officer(s), and provision by the juror, of information about the jury deliberations without statutory authority (AT 17). Counsel explained that he raised this in the context of Ground 2 (see below) noting that such conduct by a juror would be a mandatory ground for the discharge of the jury (see s 53A of the Jury Act).

Sixth, that MFI 78 records officers suggesting to the juror in the private interview that, following the earlier “discussion” they had had with “all members of the jury”, “hopefully, things … settle down in the jury room”; and that the individual juror reportedly then agreed to “remain and see how things go”. Again, the applicant points out that there is no objective record of what was in fact said to the juror during this discussion. The applicant says that the private interview seems to have (covertly, in the sense that this was done behind everyone’s back) influenced the individual juror’s decision whether to ask to be discharged or not; and that this is a further irregularity (see AT 19).

The applicant points out that none of what had taken place in relation to the above was disclosed to the parties on 18 December 2019 in the afternoon when the members of the jury were sent home, despite her Honour raising at that time another matter she had learned about by the court officer without the jury having sent a note; and that nothing was conveyed to the parties on 19 December 2019 until 3:15 pm when the Court reconvened (and the Report was handed down and marked for identification). Pausing here, while the discharge judgment indicates that her Honour was approached some time on 18 December 2019, it is not clear at what time that occurred and there is certainly nothing to suggest that the events relied on as the fifth and sixth irregularities occurred (or were known by her Honour) on that day. At most, therefore, the complaint could only be that the first three irregularities that had occurred were not made known to the parties once (or as soon as) the trial judge became aware of them.

That this is the essence of the applicant’s complaint as to the events up to the end of 18 December 2019 is borne out by the applicant’s submission that, as soon as the trial judge was told that there were issues concerning the conduct of the jury and that there had been interactions between court and sheriff’s officers and the jury, her Honour “was obliged to disclose [that fact] to the parties and invite submissions from them as to the course, if any, that should be taken” (in the language of Carson (a pseudonym) v The Queen [2019] VSCA 317 at [9] (Carson); and in accordance with Stretton). The applicant also says that the jury’s deliberations should have stopped, and the jury separated, until what had happened was determined transparently in open court.

In that regard, the applicant refers to the observations by Niall JA, as the Chief Justice of Victoria then was, in Carson at [9] that:

The applicant contends that the communications between the court/sheriff’s officers and the jury in the jury room sometime after 10:00 am on 18 December 2019 were so irregular as to be properly characterised as a “failure to observe the requirements of the criminal process in a fundamental respect” (citing Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [123], Gageler J, as the Chief Justice then was, there quoting Maher v The Queen (1987) 163 CLR 221 at 234; [1987] HCA 31) and “a serious breach of the presuppositions of the trial” (citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [46]; Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [57]). Those presuppositions being, in summary, that: a jury will perform its functions properly; the jury will not be spoken to by third parties about matters that affect their deliberations; matters which arise and might affect the interests of parties will be disclosed to the parties; and jurors are not to be separated or interviewed in relation to resolving any question as to whether a juror should be excused or discharged from further service (AT 30).

In essence, the applicant seems to argue that the irregularities crystallised, so to speak, once the disclosure was made to the trial judge in chambers and not communicated promptly to the parties; and says that, by the time the parties were first advised of the situation at 3:15 pm on 19 December 2019, the situation was irremediable. The applicant says that nothing her Honour said to the jury at that point cured the fundamental problems created by the actions of the officers involved.

The Crown, in written submissions, accepts that the impugned communications were “somewhat irregular” (though maintaining that they were neither fundamental nor material errors or irregularities in the applicant’s trial). In oral submissions, the Crown was more forthright, expressly conceding that there were irregularities. However, the Crown was not in a position to indicate whether the irregularities were confined to the period up to the initial disclosure to the trial judge or encompassed the conduct thereafter (saying that the evidence was capable of interpretation in different ways and emphasising the difficulty of drawing inferences from the evidence) (see AT 41). The Crown nevertheless accepts that the irregularities involved, at the very least, when the jury was spoken to by the court/sheriff’s officers (AT 41).

As to the communications to the jury as a whole, the Crown argues that they were neither “fundamental” errors or irregularities in the applicant’s trial nor “material” errors or irregularities, as those terms are described in Brawn. The Crown submits that the applicant’s submissions elide the distinction in the authorities between communications concerning matters of procedure (which do not constitute a miscarriage of justice) and impermissible communications concerning the matters that the jury is tasked to consider. Insofar as the applicant suggests that any communication between a sheriff’s officer or court officer and the jury constitutes a fundamental irregularity in the trial, the Crown says that this is inconsistent with the authorities referred to in the Crown’s submissions.

The Crown says that there is no suggestion on the face of the Report (or elsewhere in the trial record) that what was discussed between the sheriff’s officers or court officer and the jury as a whole (or later with the individual juror) was directed to the evidence in the case, the merits of the case or how the jury should decide the case. Rather, it is said that the content of those communications concerned juror behaviour; and open and civil discussions amongst the jury members. The Crown argues that the communications went to the procedure for jury deliberations and were consistent with orthodox directions to juries by trial judges about how deliberations are to occur.

The Crown distinguishes R v Lamb (1974) 59 Cr App Rep 196 (Lamb) on the basis that, in the present case, the impugned communications with the whole jury did not apply pressure to the jury or go to how their deliberations were to occur. The Crown argues that, as in R v Kraaz [2006] QCA 299 (Kraaz), it is significant that the content of the impugned communications largely reflected what the jury had previously been directed by the trial judge throughout the trial, noting no objection was taken by the applicant to any of these directions throughout the trial. The Crown notes that in Kraaz one of the relevant considerations was whether this was effectively a procedural matter or something that had already been told to the jury because that goes to whether the irregularity strikes at the heart of the trial (AT 49).

It is submitted that the situation was remedied by the direction given to the jury on 19 December 2019 (noting what had previously been said by the trial judge in that regard).

As to the communication with the individual juror, the Crown points out that the Report indicates that the interview with the individual juror occurred after the sheriff’s officer attended the trial judge’s chambers. (Insofar as the Crown suggests that the sheriff’s officer subsequently reported back to the trial judge, leading to the creation of the Report at her Honour’s request, I cannot infer from the Report that there were two attendances in chambers. Indeed, I read the Report as suggesting quite the contrary.)

The Crown submits that, even if the sheriff’s officer’s communications with the individual juror were not authorised by s 73A of the Jury Act, it does not necessarily follow that the irregularity was fundamental or material. The Crown says that the communication referred to in the Report was “almost entirely one-sided”, with the juror making statements that were then conveyed to the trial judge by the sheriff’s officer. The Crown notes that the only reference to the sheriff’s officer’s communication is to the reassurance that “hopefully, things would settle down in the jury room”. Further, insofar as the jury was not all together while these communications took place, the Crown says that it must be assumed that the rest of the jury acted in accordance with the directions previously given to them that they should only deliberate when all were present.

The Crown distinguishes Stretton on the basis that the remarks in that case were obiter, directed to putting a stop to a practice that had developed amongst tipstaves in that jurisdiction which the Court considered to be inappropriate. The Crown says that it is also significant that the tipstaff’s conversations in Stretton identified “what his beliefs and opinions were”, and the Crown notes that the interaction with the tipstaff in Stretton was not the basis on which the Court considered there to have been a miscarriage of justice.

The Crown submits that the question here is whether the trial was fundamentally unfair as things evolved, emphasising that the applicant’s counsel did not seek an enquiry at the time the Report was provided (see AT 43); nor did he do so after having the opportunity to consider the position overnight, from which the Crown submits that it can be taken that, in the atmosphere of the trial, this was not seen to be material (see AT 43-44).

I interpose to note that, in response to the submission by the Crown that a forensic decision was made by Mr Stratton not to take issue with the irregularities disclosed by the Report, the applicant submits that, given the narrow application made on his behalf at that time, it is apparent that in the limited time available Mr Stratton had “perhaps not grappled with the fundamental, but unusual issues of trial process which were directly called into question by MFI 78”. That, however, does not grapple with the fact that the defence lawyers had the opportunity overnight to consider and make an application to revisit the issue.

In essence, the Crown’s argument is that the delay in informing the parties of the communication from the sheriff’s officers had no practical effect given that it came to light before the jury verdicts were given; the comments by the officers to the jury were repeated by the trial judge with input from the parties’ counsel; and the applicant’s counsel had the opportunity to raise any matters arising out of MFI 78 on 19 or 20 December 2019 before the jury verdicts (see AT 52-53).

In response to the applicant’s submission that what occurred breached the presuppositions of a fair trial, the Crown says: first, there is no evidence from which a reliable inference can be drawn that the jury did not perform its functions properly; second, the officers spoke to the jury about procedural matters; third, while there was delay, the evidence does not enable a conclusion that this had a practical effect; and, fourth, the private interview irregularity was remedied by the direction of the jury as to writing a note of any concerns (see AT 55-56).

The Crown emphasises that regard must be had to the trial that was had, not speculation as to what might have happened (cf the analysis in Carson on the issue of procedural fairness).

In Brawn, the High Court considered the test for materiality in order to establish a miscarriage of justice in a criminal trial. The High Court said (at [3]):

The High Court then harmonised the various formulations of the materiality threshold (from [9]ff) saying:

Relevantly, the Crown here accepts that, in the case of a fundamental error or irregularity, there is a miscarriage of justice that is necessarily substantial such that the proviso does not arise. The Crown’s position, however, as already noted, is that the conceded irregularities are neither fundamental nor material (and the Crown says that if, contrary to the Crown submissions, there is found to have been a material (but not fundamental) error, no substantial miscarriage of justice occurred as a result of any error or irregularity in the trial).

In that regard, the Crown says that the case against the applicant was very strong, pointing in the Crown submissions to various aspects of the evidence and available inferences that the Crown says demonstrate that there was ample evidence to prove the applicant’s guilt beyond reasonable doubt, and go to there being no substantial miscarriage of justice (even if error is found in relation to either proposed ground that meets the materiality threshold). I do not propose to address those submissions, given the conclusion I have reached that there was a fundamental irregularity, leading to the upholding of Ground 1(a).

I turn then to my reasons for concluding that there were irregularities in the trial by reference to the communications that occurred between the court and sheriff’s officers and the jury – first, in the jury room on 18 December 2019 and, second, by the subsequent private interview with the individual juror. There is no doubt that such communications were irregular (and the Crown concedes as much). The raft of cases referred to in submissions by both counsel as to unauthorised communications with a jury provides ample support for such a conclusion (see for example R v Fitzgerald (1889) 15 VR 40 at 21 per Williams J; R v Barnowski [1969] SASR 386 at 390; Lamb; Stretton at 253 per Starke J; R v Chaouk [1986] VR 707; (1986) 23 A Crim R 463 at 710, 715-716; R v Jackson and Le Gros [1995] 1 Qd R 547 at 548; (1994) 71 A Crim R 444; HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [109] (HCF)).

Had the irregularities been confined to the initial attendance by officers in the jury room (during which some advice/direction was apparently given to the jury about the behaviour required in the jury room in response to the complaint of bullying/harassment), they would in my view have been capable of remedy by a direction of the kind ultimately given on 19 December 2019. True, there was some delay in the parties being informed of the unauthorised communications (the actual extent of the delay being unclear) but I do not consider that the trial judge can fairly be criticised for seeking a written report of what had been said to the respective officers. As the Crown submits, inferentially, the trial judge required a record of the interactions with the jurors (in direct speech) in order to have an accurate account of events. By reference to the transcript, and her Honour’s reasons on the discharge application, there is no indication of any delay in informing the parties once her Honour received the Report.

The practical effect of the delay between requesting and receiving the Report, however, was that, during that period, there was a further unauthorised communication by the court/sheriff’s officers in the private interview held with the individual juror; and, for at least some of that period (if not during the time of the private interview itself), the jury was continuing its deliberations.

The applicant referred to the officers as having gone on a frolic of their own (AT 18). There is some force in that observation. Certainly, there is nothing to enable an inference to be drawn that her Honour requested them to interview the individual juror privately. Viewed charitably, the court/sheriff’s officers might have understood her Honour’s request for a written report in direct speech as involving the need for them to have the private interview but that is simply speculation; but that does not mean that there was not any irregularity.

To my mind, the private interview with the individual juror was a fundamental irregularity in the trial process. The summary account of that interview in the Report suggests that it went beyond discussion as to a mere procedural or administrative matter at least insofar as it records agreement by the juror not to seek to be discharged from the jury. It is not necessary to consider whether this discussion involved any breach of the Jury Act and it would be inappropriate to make such findings given the absence of full information as to what occurred and there being no opportunity for those accused of such a breach to be heard.

The significance of this irregularity is that it was a fundamental breach of the essential aspect of the criminal trial process, as recognised by Niall JA in Carson at [9], that the trial occur in open court and that the accused be aware of all communications that bear upon the issues of process of the trial.

The applicant points, in his submissions, to the following observations in HCF by Edelman and Steward JJ (dissenting in the result) (at [95]):

Thus, the practical effect of the delay occasioned by the request by the trial judge for a written report as to what had happened was that further unauthorised (and no doubt unforeseen by her Honour) communications occurred between the court/sheriff’s officers and one member of the jury. I am not persuaded that this irregularity was remedied by the direction given on 19 December 2019 (which was directed to a different issue).

The parties (and the Court) had no opportunity to consider what steps could or should be taken to address the initial irregularities before the further (unforeseen) discussion with the individual juror took place; and it at least potentially affected the position of the individual juror who had initially indicated a wish to be discharged (apparently due, among other things, to stress from the bullying/harassment) but who then “agreed” to remain on the jury.

As the occurrence of the unauthorised private interview was in my opinion a fundamental irregularity which of itself amounted to a substantial miscarriage of justice, there is no occasion to address the proviso to s 6(1) of the Criminal Appeal Act (see Brawn at [9]). Were it to have been necessary to satisfy the materiality threshold in relation to the irregularity in relation to the private interview, I would have concluded that the irregularity could realistically have affected the jury’s reasoning to a verdict of guilty in the sense that, here, what the applicant appears to have lost was the opportunity to make a more considered submission (or application supported by further evidence to be adduced of what had actually occurred) for discharge of the jury – insofar as the individual juror who had made the complaint apparently then “agreed” to remain on the jury rather than press a discharge application. Had this unauthorised communication not taken place, and the juror’s request for a discharge been dealt with in open court, there must have been at least a prospect that this would have led to the trial being aborted before any verdict at all was delivered.

In those circumstances, while I do not suggest that the trial judge could have foreseen what occurred during the period allowed for preparation of the Report, I consider that leave to appeal the conviction in relation to Ground 1(a) should be granted; that Ground 1(a) has been made good and that the convictions of the applicant on Counts 2 and 3 should be quashed and the matter remitted for a new trial on those counts.

In light of the conclusion reached above, it is not necessary to consider Ground 1(b). Suffice it to note that, in relation to the second limb of Ground 1, the applicant points to what was said in Farha v The Queen [2018] VSCA 310 and Carson as to procedural fairness; and the applicant says that this is not a case where the proviso should apply. The Crown, on the other hand, argues that no practical unfairness or practical injustice arose as a result of the fact that the parties were not immediately informed of the communications between the court staff and the jury, given that Senior Counsel for the applicant was not denied an opportunity to seek the discharge of the jury on 19 December 2019 and could have sought an opportunity, following reflection overnight, to seek examination on oath of the witnesses to those communications on the morning of 20 December 2019 and renew the application for the jury’s discharge with the benefit of that further evidence if considered appropriate at that time.

It is not necessary to consider Ground 2, given the conclusion reached in relation to Ground 1(a) and, as noted above, I would therefore refuse leave in relation to Ground 2.

The appeal against sentence does not arise in light of the conclusion reached on Ground 1(a). Leave to appeal against sentence should be refused. However, in light of the quashing of the convictions on Counts 2 and 3, the aggregate sentence should be quashed and the matter remitted for re-sentencing on Count 1 (to which the applicant pleaded guilty).

For the above reasons, the following orders should be made:

WRIGHT J and DHANJI J: We have had the considerable benefit of reading the judgment of Ward P in draft. We agree with the orders proposed by her Honour, with the exception that we would also grant leave with respect to ground 1(b) which, in our view has also been established. We gratefully adopt the background provided by her Honour.

For the reasons given by her Honour the conduct of the Court and/or Sheriff’s officers in engaging in a private interview with the individual juror following her Honour requesting the Sheriff report on what had occurred was a fundamental irregularity in the trial process. That is to say, that irregularity occasioned a substantial miscarriage of justice for the purposes of s 6 of the Criminal Appeal Act 1912 (NSW).

Unlike her Honour, we prefer not to express a view as to whether there was a substantial miscarriage of justice as a result of events prior to the Court officer and the Sheriff’s officers attending on her Honour in chambers on 18 December 2019. As noted above, we have also reached the conclusion that the applicant’s complaint of procedural unfairness as set out in ground 1(b) of his notice of appeal has been made good. It is necessary to say something about these aspects of the matter.

By the time at which the officers attended on her Honour in chambers on 18 December, there had been complaints made to the Court officer with respect to what is described in the report as “bullying and harassment by a certain faction of the jury” which had led to the foreperson relinquishing her role. Instead of reporting this to the judge, as should have occurred, the Court officer informed a number of Sheriff’s officers. The Sheriff’s officers, with the Court officer, then attended the jury room and gave the jury what amounted to an instruction as to how they should conduct themselves. All of this occurred without the knowledge of the trial judge or the parties. That the instruction may appear to have mimicked the direction usually given by judges to juries in similar circumstances is not altogether to the point. The parties had not been heard on the issue of what the jury should be told. As to the direction itself, judicial instructions are given with the authority of the judge and on this basis it is generally assumed that such directions will be followed (Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]; see also at [32]; HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [85]) albeit the assumption is not an immutable one (Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [42]). No such assumption operates with respect to an instruction of this kind given by a Court officer or by Sheriff’s officers. Reaching any conclusion is, of course, more difficult as there is no record of the precise terms of the instruction given. Nor were the parties able to make any observation of the response of jurors to what they were told. At least one juror was not satisfied that matters were resolved. That juror told the officers he wanted to be excused as a result of the manner he had been treated, how it was affecting him, and his physical discomfort.

The course adopted to this point was a significant irregularity in the trial process. When the initial complaint was made to the Court officer it should have been brought to the attention of the trial judge and, in turn, immediately to the attention of the parties. Having heard from the parties, the judge could then have made a decision as to what should be done. In a case such as this the decision would most likely have been to bring the jury back into the courtroom and, in the presence of not just the parties but also the public, provide them an appropriately crafted direction. This is, of course, a very common occurrence in jury trials.

Regrettably, the failure of the various officers involved to promptly bring the matter to the trial judge’s attention prevented the issues being dealt with in the orthodox fashion described above. Whether the irregularities to this point were fundamental in the sense that a substantial miscarriage of justice was occasioned does not, however, need to be decided.

Returning to the course of events, when the trial judge did, belatedly, learn of what had occurred, the parties were not immediately informed. This is the basis of the applicant’s complaint of procedural unfairness. On the trial judge being advised of what had occurred, the parties should have been informed in open court. Instead, the irregularity was compounded by the trial judge ordering that the Sheriff provide a report without having heard from the parties as to this course. In the result the parties did not learn of what had occurred until 3:15 pm the following afternoon, albeit a delay of this extent may not have been anticipated by the trial judge.

It might also be doubted that, in calling for a report, the trial judge anticipated that a private interview would take place with an individual juror, or that advice would be given to that juror. In this regard it may be that the officers misunderstood what had been requested, potentially on the basis of the power being exercised. The report was the result of the exercise of the power provided by s 73A(1) of the Jury Act 1977 (NSW) which provides:

The reference to a report under s 75C is to a report made by a juror or former juror in relation to another juror, which is of no present relevance. As can be seen from its terms, s 73A(1) is not cast as a power given to the trial judge but rather a power given to the Sheriff, conditional on the consent or request of the Court. The power is to “investigate … and report”. Thus, it may have been that it was the terms of the power being exercised that led to the Sheriff conducting the private interview with the juror, rather than simply reporting on what had occurred to date. That, as observed above, and as discussed in the reasons of Ward P, resulted in an insurmountable problem with respect to the integrity of the trial.

Had the issues which had arisen been brought to the attention of the parties as soon as the trial judge had been informed by the various officers involved, the parties would have had the opportunity to be heard on the appropriate course to be adopted. Attention may have been drawn to the terms of s 73A(1) of the Jury Act and the issue raised as to whether the Sheriff’s power to report was severable from the power to investigate. If it was considered that the power was severable, and it was appropriate to order a report, there is a reasonable likelihood that a submission would have been made that it would be prudent to make clear to the Sheriff’s officers that only a report was requested.

More fundamentally, however, had the parties been heard before the report was ordered, it is likely that submissions would have been made as to the appropriateness of requesting a report at all. It can be expected the primary submission would have been directed to the need to address the issues which had arisen in a timely fashion. Prompt judicial intervention with the benefit of submissions by the parties to at least attempt to restore a degree of equanimity in the jury room so that each juror could properly perform his, her or their function was a matter of importance. While it may not have been foreseen that the report process would take as long as it did, it was inevitable that it would cause delay. Such delay was inimical to the timely resolution of the problems that had been raised. In the circumstances, had the parties been heard, requesting a report may well have been rejected as the most appropriate course. At the least it seems unlikely that such a course would be adopted in the absence of an immediate direction to the jury seeking to address the concerns that had been communicated by the Court and Sheriff’s officers.

The reasoning above leads us to the conclusion that the applicant was denied procedural fairness as contended by ground 1(b). He was not promptly informed of or given the opportunity to make submissions concerning the issues that had arisen in the jury room, the conduct of the Court officer and Sheriff’s officers in addressing the jury in the jury room, or the request by one juror to be excused. He was not heard with respect to the trial judge’s decision to order a report. The applicant should have been made aware of these matters when they arose: see Carson (a pseudonym) v The Queen [2019] VSCA 317 at [76]; R v Stretton [1982] VR 251. Had the applicant been heard a different course may have been taken. The failure to inform the applicant and to hear him on these issues occasioned practical injustice in the circumstances of the present case: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].

We propose the following orders: