Dicianni v R; Pintabona v R

[2015] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dicianni v R; Pintabona v R [2015] NSWCCA 201
Hearing dates:	25 June 2015
Decision date:	31 July 2015
Before:	Hoeben CJ at CL at [1] Price J at [258] Davies J at [265]
Decision:	(1)   In the application by Giuseppe Dicianni for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. (2)   In the application by Giuseppe Dicianni for leave to appeal against sentence, leave to appeal is granted but the appeal is dismissed. (3)   In the application by Josephine Pintabona for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. (4)   In the application by Josephine Pintabona for leave to appeal against sentence, leave to appeal is granted and the appeal is allowed. (5)   The sentence imposed on 13 September 2013 is quashed and in lieu thereof Ms Pintabona is sentenced as follows: (a)   For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016; (b)   For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016. (c)   Direct that the co-applicant be released to parole forthwith.
Catchwords:	CRIMINAL LAW – Dicianni – CONVICTION APPEAL – two murder offences – whether verdict unreasonable and could not be supported by evidence – strong Crown circumstantial case – motive – DNA evidence – actions of co-offender as accessory – evidence of flight – whether co-offender drove him from murder scene – appeal dismissed – SENTENCE APPEAL – whether sentences manifestly excessive – appeal dismissed – Pintabona – CONVICTION APPEAL – accessory after the fact to two murders – whether evidence of statements admissible – whether verdict unreasonable and could not be supported by evidence – whether open to jury to be satisfied beyond reasonable doubt that co-offender drove offender from murder scene – strong circumstantial case – DNA evidence – conviction appeal dismissed – SENTENCE APPEAL – whether manifestly excessive – sentence appeal allowed – co-offender resentenced.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) – s 6(1) Criminal Procedure Act 1986 – s 281
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 House v R [1936] HCA 40; 55 CLR 499 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Mallet v Mallet [1984] HCA 21; 156 CLR 605 McKenzie v R [1996] HCA 35; 190 CLR 348 R v Dileski [2002] NSWCCA 345; 1323 A Crim R 408 R v Hillier [2007] HCA 13; 228 CLR 618 R v Tan Do (Unreported – Court of Criminal Appeal – 7 May 1997 R v Taouk [2005] NSWCCA 155; 154 A Crim R 69 R v Ward [2004] NSWSC 420 R v XX [2009] NSWCCA 115; 195 A Crim R 38 SKA v R [2011] HCA 13; 243 CLR 400 Shepherd v R [1990] HCA 56; 170 CLR 573 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	Giuseppe Dicianni – Applicant Josephine Pintabona – Co-applicant Regina – Respondent Crown
Representation:	Counsel: D Dalton SC – Applicant Dicianni D Dalton SC – Co-applicant Pintabona J Girdham SC – Respondent Crown   Solicitors: J Hajje – Applicant Dicianni Andrew Scali Solicitors – Co-applicant Pintabona Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2010/54319; 2012/78797
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Dicianni and Pintabona [2013] NSWSC 1328 Date of Decision: 13 September 2013 Before: RS Hulme AJ File Number(s): 2010/54319; 2012/78797

Judgment

1. HOEBEN CJ at CL:

Offences and sentences

Giuseppe Dicianni (the applicant) stood trial with Josephine Pintabona (the co-applicant) before RS Hulme AJ and a jury upon two counts of murder. The two murders related to the killing of Mario and Albert Frisoli in their home at Rozelle on 6 May 2009. The applicant was alleged to be the principal offender and the co-applicant his accomplice.

2. It was the Crown case that the co-applicant was having an affair with the applicant, that she drove him to and from the home of the deceased and that she thereafter sought to assist him by providing a false alibi.

3. The trial commenced on 29 April 2013. His Honour directed verdicts of not guilty with respect to the co-applicant upon the two murder charges at the end of the Crown case on 28 May 2013. Thereafter on Friday 7 June 2013 the jury retired to consider their verdicts with respect to the applicant upon two murder charges, and with respect to the co-applicant upon two accessory charges. The jury returned with majority verdicts of guilty on all counts on Monday 24 June 2013.

4. The applicant was sentenced on count 1 relating to Mario Frisoli to a term of imprisonment with a non-parole period of 20 years, commencing 18 August 2010 with an additional term of 4 years. On count 2 relating to Albert Frisoli he was sentenced to a term of imprisonment with a non-parole period of 20 years commencing 18 August 2020 with an additional term of 4 years. The overall sentence comprised a non-parole period of 30 years, commencing 18 August 2020 with an additional term of 4 years.

5. The co-applicant was sentenced as an accessory after the fact to the murder of Mario Frisoli to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing 13 March 2013 with a further term of 9 months. As an accessory after the fact to the murder of Albert Frisoli, she was sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing 13 March 2014 with an additional term of 1 year. The overall sentence comprised a non-parole period of 3 years with a balance of term of 1 year, so that the co-applicant would be eligible for parole on 13 March 2016.

6. The applicant has appealed against conviction on a single ground:

Ground 1 – The verdicts of the jury were unreasonable and could not be supported by the evidence.

7. The co-applicant has appealed against conviction on the following grounds:

Ground 1 – His Honour erred in admitting into evidence the appellant’s statements to the police on 17 June 2009 and 20 July 2009.

Ground 2 – The verdicts of the jury were unreasonable and could not be supported by the evidence.

CROWN CASE

8. The Crown case against the applicant and co-applicant was as follows.

9. The murders were the culmination of longstanding acrimony arising from the breakdown of a business relationship between the applicant and Albert Frisoli that had been deteriorating since 2002 after the applicant was diagnosed with bowel cancer and his involvement in the business became more limited. Thereafter, the relationship was marred by court disputes, threats and restraining orders. Ten days before the killings, criminal proceedings instituted upon the applicant’s complaint that Albert Frisoli had forged his signature on documents were withdrawn and the prospects of success in related civil proceedings, upon which the applicant had spent almost $400,000, appeared unlikely.

10. On 6 May 2009 the applicant used a disguise to gain entry to the Frisoli home and to avoid detection by security cameras which he believed to be operative, but which were not, so that he could kill Albert Frisoli. He first killed Mario Frisoli and later Albert Frisoli. Albert Frisoli was aged 57 and his brother Mario was aged 51. They lived together at 17 Goodsir Street Rozelle. Mario was a pensioner and spent most of the day at home. Albert ran a successful construction business out of premises at Wetherill Park and after May 2006 at Seven Hills.

11. At about 5.15pm on Wednesday 6 May 2009 a neighbour saw what he thought to be an elderly lady wearing a cloak, hood or scarf slowly walking along Goodsir Street and cross the road towards the front door of the Frisoli home. Shortly after the neighbour heard sounds of what appeared to him to be a person being pushed against a wall, bodies coming together, breaking glass and thumping.

12. At about 6.35pm CCTV showed that Albert Frisoli attended a BP Service Station at Seven Hills on his way home. He was wearing a short sleeved shirt and no scarf. At 7.15pm he spoke briefly on his mobile phone to his girlfriend, Natasha Kourea, and told her that he was just parking his truck at home and would call her back shortly. He did not do so and did not respond to an SMS message she sent him at 9.40pm. Witnesses heard thudding noises emanating from the Frisoli home and at 7.20pm a witness standing in front of 17 Goodsir Street heard a loud banging noise and a male voice scream. It was the Crown case that Albert Frisoli had been murdered shortly after he entered the house.

13. The bodies of Mario and Albert were found the following day (7 May 2009) by Mr Mirko Naidofski. There was no sign of forced entry into the premises, except for the damage caused by Mr Naidofski. Mario lay on his back in the lounge-dining room next to the couch to the immediate left of the entrance from the hallway. Albert Frisoli lay face down in the same room near the dining furniture. Both had been stabbed fatally – Mario 21 times and Albert 27 times. Albert had also sustained significant injuries to the head – his jaw and nose had been broken and one of his dislodged teeth lay underneath his body. In addition to the clothing which he had been wearing in the CCTV footage taken at the BP garage, a black scarf was found partly wrapped around his right arm.

14. Bloodied footprints were identified in and around the deceased bodies which Luminol revealed led up the driveway of the Frisoli home into Goodsir Street, through a park and along George Street. The footprints continued to the gutter, suggesting that the killer entered a vehicle from the passenger side and that the vehicle had been correctly parked for that side of the road.

15. On 9 May 2009 the police spoke to the applicant under caution. He denied any involvement in the deaths and said that he had not been feeling well and had spent the previous days at home with his wife.

16. On 11 May 2009 the applicant made arrangements to urgently obtain an Australian passport, to meet his accountants and his lawyers, to obtain a referral from his GP to a medical practitioner in Italy and to obtain tickets to Italy for himself and the co-applicant. On 12 May 2009 he collected his passport and the tickets. Police spoke to him, his son Robert and the co-applicant at Sydney International Airport on 12 May 2009 just before he and the co-applicant flew out of Australia. The applicant never voluntarily returned to Australia. He was extradited on 29 July 2011.

17. Investigations were lengthy and involved forensic analysis of the crime scene and in particular, the scarf found on Albert’s body. There were fibres on each body which police believed to be consistent with coming from a cape or a wig. The scarf contained DNA consistent with that of the applicant and the co-applicant.

18. The Crown case against the co-applicant was that she had driven the applicant away from the murder scene and provided him with a false alibi. She did return to Australia on a couple of occasions and when first spoken to by the police on 17 June 2009, gave an account of events on 6 May 2009 which provided the applicant with an alibi. Later she confirmed that on 6 May 2009 she alone had driven her car, a silver Hyundai, which she subsequently sold on 24 July 2009. She too was extradited and arrived in Sydney on 31 August 2012.

EVIDENCE IN THE CROWN CASE

Police and forensic investigations

19. Ms Ellen Konza of the Forensic Services Group was of the opinion that the body of Mario Frisoli had been moved. She based this on various bloodied marks on the floor.

20. At a later date Ms Konza examined the co-applicant’s silver Hyundai. Although numerous areas on the car seat, door trim and boot resulted in a positive reaction to Luminol spray, none of those areas produced a positive result for blood using a Hemastix test strip. An area of the fabric from the passenger seat, which had been positive to Luminol, was removed and sent for further examination. In cross-examination Ms Konza agreed that a Motorola ear-piece belonging to Albert Frisoli and a tea-towel were found to have her DNA on them, despite her having worn a protective suit to avoid such a possibility. She was not able to say how or when that contamination might have happened, or if it happened at the scene or later back at the laboratory. It was the only time in 11 years that she had deposited DNA on an evidentiary item.

21. Detective Elliott gave evidence that the use of Luminol resulted in the development of an extensive trail of bloodied footwear impressions from the front door mat at 17 Goodsir Street to the northern end of George Street, a distance of approximately 284 metres. The footprints entered a park and made a trail over the grass. The footprints continued for a further 18 metres into George Street and stopped at the western kerb, about 12 metres from the northern end of the George Street and Reynolds Street intersection.

22. Detective Brady, who had also followed the Luminol blood trail, gave evidence as to shoe comparisons with that blood trail. On 20 November 2009 he received and examined images of the shoe impressions in blood from the crime scene and compared them with shoes belonging to the applicant and co-applicant. He was able to rule out the co-applicant’s shoes as being similar in any way to the bloodstained impressions. In relation to the shoes belonging to the applicant, he was able to say that the particular shoes did not match the pattern of the soles found at the scene but the size, length and width of the outsole was “similar”. He explained that by “similar” he meant that the shoes did not have an “identical” pattern but were similar in length and size to the impressions at the crime scene. He thought that the impressions from the scene indicated a handmade shoe, rather than something synthetic such as a jogger.

23. In cross-examination Detective Brady agreed that there were differences between the measurements of the applicant’s feet and the partial shoe impressions and that the similarities he spoke of were within the scope of variation of foot sizes for people generally of that size. He agreed that there were many people in the community who had that foot size.

24. Professor van Vuuren, a forensic pathologist, gave the cause of death for Mario Frisoli as multiple stab wounds. She described 35 injuries, being either stab wounds or incisions. She distinguished between a wound and an incision in that a stab wound was caused by a stabbing motion and an incision was more likely to occur by a slashing type of motion. There were eight defensive wounds to the hands of Mario.

25. For Albert Frisoli the cause of death was described as “multiple stab wounds”. He was aged 57, with a body weight of 93 kgs. Professor van Vuuren described 34 injuries. There were no obvious self-defence injuries. There were several blunt force injuries to the head and face, including a fracture of the jaw with loose teeth, bruising to the left eye, a broken nose, lacerations to the head and subarachnoid haemorrhage and contusions of the brain.

26. Professor Duflou, a forensic pathologist, gave evidence in relation to an axe handle which had been found in the garage of the home of the co-applicant. He was of the opinion that the injuries to the face of Albert Frisoli, such as the broken jaw and broken nose, could have been caused by a blunt object including the axe handle. Because of the limited amount of bleeding from some of the stab wounds, Professor Duflou thought that those stab wounds were inflicted at about the time of death or a very short time before death when the heart was unable to pump blood. He thought that the blunt force injuries to the head were probably sustained before death, whereas at least some of the stab wounds were sustained after those injuries. He thought that some of the blunt force injuries could have caused unconsciousness. It was his opinion that Albert Frisoli’s death was due to stabbing and the blunt force injuries. Professor Duflou disagreed that there would necessarily have been DNA or saliva deposited on the axe handle from a single blow to the face.

27. Detective Searles, a fingerprint expert, gave evidence that no fingerprints of the applicant or co-applicant were found at 17 Goodsir Street.

28. Detective Sergeant Crimmins commenced an examination of the co-applicant’s car on 6 August 2009. Luminol was sprayed throughout the interior of the vehicle. When using Luminol he wore a full disposable suit with boot covers, gloves, eye-mask and a breathing apparatus that fully encapsulated the face and was attached to his back. Areas that reacted to the Luminol were circled with crayon, as shown in photos taken at the time. A presumptive test for blood using a Hemastix test strip was positive for the floor mats. The floor mats, seat covers and door trim were removed and sent for further examination. Swabs were taken of the door handles and also sent for further examination. He said that protective clothing was worn because Luminol was carcinogenic and in order to prevent contamination.

29. Ms Friedman from the Division of Analytical Laboratories at Lidcombe was an expert on DNA. She gave evidence concerning her examination of items and DNA testing. She said that the black scarf found with Albert Frisoli tested positively for human blood. There were 13 locations on the scarf tested for DNA. Three of those areas of the scarf produced significant results. In area 6 there was a mixture of DNA types. The profiles of Albert Frisoli, the applicant and co-applicant could not be excluded as contributors to that mixture. The effect of those results was that it was approximately 13 billion times more likely that the DNA profile originated from Albert Frisoli, the applicant and co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.

30. The result for area 9 was the same. There was a mixture of DNA types. Albert Frisoli was the major contributor. The applicant and co-applicant could not be excluded as minor contributors to that mixture. It was approximately 13 billion times more likely that this mixed profile originated from Albert Frisoli, the applicant and co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.

31. In area 11 there was a mixture of DNA types. Once again it appeared to be a mixture of Albert Frisoli, the applicant and co-applicant. On this sample it was approximately 1.2 billion times more likely that the DNA profile originated from Albert Frisoli, the applicant and the co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.

32. Ms Friedman said that she tried to test areas on the scarf where there appeared to be minimal staining from blood. In two of those areas the major contributor was the co-applicant. She thought that the most likely way for someone’s DNA to get onto an object like a scarf would be through wearing it and it would also depend on how the scarf were worn. If the scarf were worn around the neck, talking, coughing or sneezing could also deposit DNA onto the scarf.

33. Ms Friedman used another system in addition to Profiler Plus to test the scarf for DNA. This was the Y-STR system. This system targeted only male DNA. Ms Friedman explained the results of using that system as follows:

“Q. In relation to your major report, which you did before you received Ms Pintabona's buccal swab with her DNA, what were the results of the Y filer testing?

A. The Y-STR profile recovered from area 6 of the scarf, which is item 214, is a mixture that appears to originate from two male individuals. One of them could be Albert Frisoli. Assuming Albert Frisoli is the one contributor then Giuseppe Dicianni has the same Y filer profile as the second contributor. This result provides additional support for the hypothesis that Giuseppe Dicianni is one of the male contributors.” (T.345.25)

34. Ms Friedman also examined the trim near the front passenger seat of the co-applicant’s silver Hyundai motor vehicle. Her evidence in relation to that testing was:

“Q. What I'd like you to do is to go to the areas that you examined in your findings?

A. We examined four separate areas on the trim. In area (i) the screen test for blood gave a positive result, although we did know it was a fairly weak result and we attached the caveat that, just explaining as the test is not specific for human blood. The result indicates only the blood may be present and if so, is not necessarily human blood; it doesn't distinguish between animal blood and human blood. Although we got a positive result we subjected that area to DNA testing and we recovered a DNA mixture originating from more than one individual. However, we could not determine the profiles of the individual contributors.

In area (ii) we recovered, we got a positive result of the screen test for blood and the DNA testing recovered a DNA mixture originating for more than one individual. One of the contributors to that mixture has a combination of DNA types possessed only by Albert Frisoli, Holden Frisoli and Atlanta Frisoli among the individuals who provided reference samples for this case. The profile of this one contributor is expected to occur in approximately 1 in 20 unrelated individuals in the general population.” (T.247.34 – 248.2)

(Holden and Atlanta Frisoli are the children of Albert Frisoli.)

35. Ms Friedman further explained the results of the testing of the door trim of the car as follows:

“Q. Just in relation to the profile we're talking about, if you go to the approximate occurrence in the general population, you gave evidence, did you not, that the profile in this one contributor, of this one contributor is expected to occur in approximately 1 in 20 unrelated individuals in the general population?

A. Yes.

Q. Can you explain what that means, particularly when you consider, say, the approximate occurrence in the general population referred to in, say, the scarf can be grossly different?

A. The problem with the result that we obtained for the swab from the vehicle was, number one, as his Honour pointed out, there's only a small amount of DNA there. There also is a contribution of DNA from more than one individual and it appears that there's DNA from at least three people to this particular mixture. We have been extremely conservative in our working out who the possible contributors are. And it makes it extremely difficult, for the very reason I have given, because the low levels of DNA and the number of contributors, however, what cannot be contested is that one of the contributors to this mixture has that 7.3 at D7, because it comes up; it's there. It has to have come from somebody. Somebody has to possess that 7.3.

The difficulty, then, is trying to link that 7.3 with what's occurred at the other areas, and the only result that we are particularly confident with is the result at VWA which is on the top line in the middle where you can see there's quite a large contribution of 16. And in my opinion and my experience from dealing with thousands upon thousands of mixtures, I believe it is irrefutable that whoever possesses that 7.3 at D7 has to possess a 16 at VWA. I'm not saying they have to be 16, 16. I'm just saying they have to at least have a 16 at VWA, and the figures for one in 20 simply refer to the combination of somebody in the population who is both a 7.3 at D7 and 16 at VWA. That is all. I have used nothing else because I'm unable to, with confidence, determine what their profiles are at the other areas because there are a number of contributors and I can't be sure that what I'm seeing of those other areas doesn't come from the other contributors.

So I am looking at, first of all, my determinations that he can't be excluded as a contributor to the mixture. I know whoever has contributed to this mixture has to possess a 7.3 at that last area at D7 and possess a 16 at VWA. And looking at the figures of what percentage of people in the population have that combination, just that combination of those two results, is why the figures are not as significant as for a full profile.

Q. In relation to a full profile, and indeed in your report, let's say in relation to the scarf where there are far greater figures mentioned, can you indicate to the jury why that is?

A. When we look at the results from the scarf there's a lot more DNA, there is a lot more information and we're looking at a full profile because I know that with the amounts of DNA that I have recovered, I'm seeing all the information at all the nine areas from all the contributors. It appears that there is a mixture of three people in the mixtures where I have reported statistics. And we're looking at the likelihood of finding, first of all, an individual who fits that mixture and it would, there would be quite a few people in the population that would fit into that mixture because there is a mixture of three people.

To go at random and find a second person who in combination with the first person and then the third person, who in combination with the other two, gives you that mixture that we have seen from the scarf and nothing else. So you first have to find somebody who fits in. Not that difficult. Then a second person who fits in, and then a third person who, the three in combination will give you that particular mixture that we are recovering from the car. That's why the figures are that much more, that much greater than just looking at two particular areas because you're working with limited information. But within the scarf we got a lot more information.” (T.252.28 – 253.39)

36. Ms Friedman carried out testing on the axe handle found in the co-applicant’s garage. The results of her testing were:

“Q. Item 246 is the axe handle. In relation to the screening test for blood firstly, what was the result of that?

A. The results for that are positive. However once again we stated due to the weakness of the result and where it was from that as the test is not specific for blood this result indicates only that blood may be present and if so it's not necessarily human blood.

…

A. After carrying out some further testing, we tested three areas of the axe handle. The DNA testing in two of those areas was unsuccessful. However, DNA from the third area we recovered DNA that was a mixture that originated from more than one individual. Due to the low levels the DNA the profiles of

the individual contributors could not be determined. We also received some swabs said to have been taken from an axe handle and we recovered a DNA profile from those swabs. It was a partial DNA profile, but what was recovered was a partial profile that had the same profile as Giuseppe Dicianni. We conducted statistics on the DNA that we did recover and determined that that partial profile is expected to occur in approximately 1 in 1.3 million individuals in the general population.” (T.255.34-T.256.7)

37. Ms Friedman was cross-examined on three research papers regarding the secondary transfer of DNA. She agreed that DNA could be conveyed to an item via an intermediary but only under “very specific circumstances”. She agreed that she was well aware of the risk of contamination in the laboratory. They had the profiles of all their current staff and all their past staff as well. She was aware that in this case there had been contamination of a tea-towel and a mobile phone earpiece by Crime Scene Officer Konza.

38. Dr Susan Bennett gave evidence concerning fibres which were found at 17 Goodsir Street and on the bodies of the deceased. She was not able to draw any useful conclusions from those fibres other than there was a possibility that the fibres came from something like a wig.

Civilian witnesses

39. Mr Moss lived at 19 Goodsir Street. At about 5.15pm he saw what he described as an elderly lady walking down the street on the opposite footpath. She was walking down the hill from his left. He observed her to walk diagonally across the road towards number 17, which was next to his house. His evidence was:

“Q. What did you see her do then, or that person do then?

A. As she was diagonally walking across the road, I noticed her turn and gaze to, what appeared to be towards me, just momentarily, and directed her attention back towards number 17; continued to walk to number 17, through the gate. I lost sight of her momentarily because of the trees. And then I am able to see again once she walked passed the trees as she walked towards the front door of the house.

Q. You described this person as an elderly lady. Can you remember what it was about her, or the clothing, that you can recall?

A. Yes. She had what I would describe as a cloak, a cloak on, something that came forward and covered the face. Plus her - I guess the way she walked, just the demeanour of the person appeared to be an old, elderly lady to me, yep.” (T.313.30” (T.313.30)

40. Mr Moss described the cloak as a “red riding hood” cloak of a dark colour. Initially the old woman appeared to be walking slowly but when she crossed the road, she did so more purposefully. It was a “steady purposeful pace”. He had never seen her before.

41. Shortly thereafter he heard noises from number 17. Mr Moss described those noises as follows:

“A.   … They were sort of muffled, like very muffled. Sounded a bit to me like, at the time I thought it sounded like bodies against a wall, perhaps being hit against a wall. But it was quite muffled. And after a short amount of time I heard, to me it sounded like glass breaking, maybe a bar or something of that dimension breaking. I heard a little bit more of a muffled, muffled noise. And then I heard another object break again. It sounded like glass. The noise wasn't as loud as the previous one. A little bit more muffled noise and then silence.” (T.315.29)

42. Mr McDougall lived in Goodsir Street, a few houses down and across the street from the Frisolis. On the evening of 6 May 2009 he went outside to pick up his fiancée. His evidence was:

“Q. What time, are you able to say? This particular incident, what time was it?

A. About 20 past 7.

Q. Did you go outside your place to go and get into your car; is that right?

A. That's correct, yes.

Q. Can you indicate what you heard or what you saw?

A. Well, as I was putting my key into the car door I heard like a loud banging sound. And right on top of it, around about the same time, a male voice screaming. It was a loud thumping bang and a male voice screaming.

Q. The noise that you heard, are you able to describe that more?

A. Well, it was like a startled scream, a startled scream, a surprise. And I've never heard a scream like that before, so it was a new experience to me.

Q. The bang, the loud bang you heard, what was that like?

A. It was like two bits of heavy material coming together, like yeah. I work a lot at sea and we do a lot of banging and it was like that, yeah.

Q. How long did this scream go on for?

A. It would have been about five seconds at the most.

Q. What was your reaction to that?

A. Well I thought, crikey. It startled me. It actually startled me and scared me a little bit, because it was out of the blue. I didn't expect that. I thought, crikey, what was that? And I waited for about 10 seconds to see if there was anything. I turned straight to where I thought I heard the sound.” (T.339.20)

43. He was able to say that the incident happened at 20 past 7 because he had been trained in the military to look at his watch when anything startled him.

44. Mr Naidofski was a builder by trade and worked for Albert Frisoli. On 7 May 2009 at about 7.40am he tried ringing Albert but there was no response. He was not able to contact either Albert or Mario. He spoke to Albert’s partner, Natasha, and decided to go over to Rozelle. When he rang the doorbell and tried to ring the phone there was no answer. He went down the passageway between the houses and looked in the window. He could see a person lying face down on the ground. He told Natasha to call for an ambulance and he would dial 000. He asked a handyman nearby for his crowbar and forced the front door open. He found Mario lying on his back with his eyes open and Albert was lying face down. Both of them felt cold to the touch. He observed several pools of blood and a knife lying on the floor about a metre away. He went back outside without touching anything.

The business relationship between the applicant and Albert Frisoli

45. Ms Natasha Kourea was the de facto partner of Albert Frisoli. Their romantic relationship had commenced in 2000. Albert Frisoli and the applicant entered into a business relationship in 1997. The partnership performed building and concrete work. Ms Kourea met Albert when she was employed in the business.

46. In about 1999 the applicant was diagnosed with bowel cancer and had surgery and chemotherapy. The applicant stopped working at that time and never returned to fulltime work. She said that although the applicant was cleared of cancer by about 2002, he continued to suffer from pain in the stomach from the surgery which he had undergone.

47. In 2002 the relationship between the applicant and Albert Frisoli changed for the worse. The issue was a claim by the applicant that Albert Frisoli owed him money and that having sold a unit which he received from a client, he had not properly accounted to the applicant for the proceeds of sale. Ms Kourea described a particular incident in February 2006 when the applicant came to Albert’s office and she could hear raised voices. She observed the applicant pushing Albert against the wall with Albert saying “stop pushing me, I’ve got a sore neck, stop pushing me”.

48. A further confrontation occurred in March 2006 which resulted in Ms Kourea calling the police. After that incident, Ms Kourea and Albert Frisoli applied for an AVO against the applicant and his son Robert. The relations between the applicant and Albert Frisoli continued to be hostile during 2006 and 2007. At one point the applicant was charged with breaching the AVO. In 2006 Albert and his company commenced a civil action against the applicant’s company.

49. In October 2008 the police spoke to Albert Frisoli and Ms Kourea concerning an alleged fraud. The applicant alleged that Albert had forged his signature on a share transfer and that Ms Kourea had witnessed the forged signature. On 27 April 2009 the criminal proceedings came on for hearing at the Downing Centre Local Court. Discussions took place between Ms Kourea, Albert Frisoli and the police prosecutor concerning the opinion of the handwriting experts about the forged document. Following those discussions, the police prosecutor withdrew all of the charges against Albert Frisoli and herself. The applicant, his son Robert and the co-applicant were present at the court on that day.

50. Ms Kourea gave evidence that during the time that she had known Albert Frisoli she had not known him to wear a scarf, except when he went skiing. He always wore the same one which was grey and white with black stripes. She did the washing for Albert and Mario and that was the only scarf she had ever seen. She had not known Mario to wear a scarf. When she was shown the black scarf found on Albert’s body she said that she had never seen Albert or Mario wearing a scarf like that.

51. She said that for a period of time before the falling out between the applicant and Albert Frisoli, the co-applicant had been doing the cleaning of the office at Wetherill Park which the partnership used. During that time she could not recall Albert Frisoli wearing a scarf. She said that it had to be very cold for him to even wear a jumper or a jacket. She did not remember the co-applicant doing the cleaning after the dispute between the applicant and Albert Frisoli commenced.

52. In cross-examination she agreed that Robert did become involved in the concrete business until about 2002. She said that the applicant was worried about Robert, who had a problem with drugs, and that there was a fair bit of tension between him and Robert. They had become estranged for a period of time in 1999 or 2000. She agreed that Robert was a very volatile character and was quite irrational on occasions. She denied that she had exaggerated the level of the dispute between Albert Frisoli and the applicant, particularly as to what happened in February and March 2009.

53. Evidence was given by Mr Aloisi, who worked as a concreter, for a company that Albert Frisoli partly owned. He described an incident in early March 2006 when he arrived at work and found that the applicant was in Albert Frisoli’s office. He said that the applicant took him into Albert’s office and was holding a diary and a briefcase. The applicant said in a very loud voice “This diary’s going to give me all the proof I need and I’m going to kill the bastard and his kids”. He adhered to this testimony under cross-examination.

54. Mr Banks operated a business from an office next to that being used by Albert Frisoli and the applicant. He said that in February 2006 he was at work when he heard a commotion coming from the kitchen. Ms Kourea came in and said that there was some real trouble in the kitchen and could he come. When he entered the kitchen, he saw that the applicant was pushing Albert Frisoli into the corner and they were pretty much face to face. The applicant was saying that there was money missing from their business partnership and he was holding Albert Frisoli responsible for it. Mr Banks got between them and pushed them apart. He said that he had to intervene on two more occasions and he was aware that the police had attended the office in relation to some of the arguments. Mr Banks said that when he left work at 6.10pm on 6 May 2009 Albert Frisoli and Ms Kourea were still there working.

55. Detective Sergeant Winter from the Fraud Squad laid charges against Albert Frisoli and Ms Kourea after the applicant alleged that they had forged his signature on a change of company detail form and on a transfer of shares form. He was at court on 27 April 2009 when the matter was fixed for hearing. It was on that day that the applicant disclosed certain information to the police in relation to the signature used for comparison purposes by the handwriting experts. In particular, the applicant was not sure whether he had signed certain documents which the handwriting experts relied on for their opinion. He said that the applicant became very angry on a number of occasions after the police informed him that the prosecution case was now weak. Later that day, the prosecution was discontinued with the police withdrawing the charges against Albert Frisoli and Ms Kourea.

56. In cross-examination Detective Winter agreed that Robert was quite volatile with the police and appeared to be a hot headed young man. He agreed that Robert was the one trying to push for the prosecution to proceed.

57. Mr Moio, solicitor, was acting for the applicant in his civil proceedings against Albert Frisoli. He was present at the Downing Centre on 27 April 2009 when the criminal proceedings were withdrawn. It was on that occasion that he informed the applicant that the civil proceedings which he had brought against Albert Frisoli were also unlikely to be successful.

Location of Robert Dicianni on night of 6 May 2009

58. Mr Hogan was the manager of the Breakfree Motel in Bankstown. He gave evidence that on 6 May 2009 Robert Dicianni booked into room 232 at 4.03pm using his driver’s licence as photo ID. Information from the door lock showed that there were five occasions when the door card was used to enter the room: 17.32, 18.09, 22.52, 22.01 and 22.09. There were two entries for room service, noted as “dinner”, at 18.12 and 20.17. Robert was visible on the motel CCTV in the foyer and the basement car-park. In cross-examination he agreed that he was not sure if the times recorded allowed for daylight saving, but he could work it out if necessary.

58. Ms Bacaling was in a relationship with Robert Dicianni as of 6 May 2009. She said that in July 2009 Robert and the co-applicant were going overseas to Italy. Ms Bacaling purchased the co-applicant’s silver Hyundai, which was two years old with 36,000 kms on the clock, on 24 July 2009 for $3,000. The Hyundai had been purchased by the co-applicant in July 2007 for $17,000. On 26 July 2009 she drove Robert and the co-applicant to the airport for their trip to Italy. Shortly after that date, she had the car washed at a carwash place. She said that the car was pretty clean when she bought it, but she wanted it to be clean and shiny. She said that no-one asked her to have the car washed.

59. In cross-examination when she met Robert he told her about a legal case that he had against a business partner, who owed him something like a million dollars. He later told her that he had lost the case and he was upset about it. She said that because her flatmate did not like Robert coming back to her place, they decided to stay at a motel on the night of 6 May 2009. He was driving his green Monaro that day. They arrived at the Breakfree Motel in Bankstown at about 4pm, checked in and watched some TV. She said that Robert left the room at 7pm to buy a bottle of wine from Woolworths down the road and returned shortly before 7.30pm. She was able to remember those times because the TV show “Home and Away” was just starting when he left, and he returned shortly before it finished.

60. Detective Whitehouse attended the Breakfree Motel and viewed the CCTV footage for 6 May 2009. Detective Whitehouse was able to establish that Robert Dicianni arrived at the motel at 3.52pm in a lime green Holden Monaro and at 7.20pm he could be seen speaking with staff at the front counter.

The applicant’s state of health

62. Dr Fulham was a colorectal surgeon who performed a low anterior resection for carcinoma of the rectum of the applicant on 5 September 2000. Afterwards, the applicant was referred to an oncologist for chemotherapy. Dr Fulham saw the applicant on various occasions, between 29 August 2000 and 6 March 2009. The applicant presented with lower abdominal pain, but investigations showed no evidence of any recurrence of his colorectal cancer. Dr Fulham referred him to Dr Salmon for management of his chronic abdominal pain. On 23 February 2009 Dr Fulham performed a gastroscopy and colonoscopy. The results were normal and there was no evidence of any recurrence of his tumour. Dr Fulham was of the opinion that by February 2009 the applicant had made a full recovery from his bowel cancer.

63. Dr Fulham examined the medical records for the applicant from a hospital in Calabria Italy. These showed that he was admitted on 4 February 2011 and discharged himself on 9 February 2011. He was admitted for generalised weakness with low level malnutrition and asthenia. The medical history was recorded as a right hemi-colectomy which was incorrect. Dr Fulham said that the medical records from the hospital admission in 2011 indicated a number of tests had been performed, but there was no evidence that he was suffering from cancer.

64. Dr Romeo was a specialist in pain management. He treated the applicant for chronic abdominal pain from 23 June 2003 until 2009. He said that the applicant experienced pain after the resection of his bowel in 2000. In 2007 the applicant had expressed frustration regarding the ongoing pain and asked Dr Romeo to write him a referral letter to a professor in Medina Italy. Succeeding consultations with Dr Romeo included acute episodes of renal colic due to kidney stones. Dr Romeo saw the applicant on 4 May 2009 and gave him a prescription for Tremal for pain management, and Normacol Plus granules for constipation. On 11 May 2009 the applicant attended his medical centre between 7.18 and 7.44pm and advised that he was going back to Italy for pain management and requested an updated letter of referral to the same specialist in Italy as in the 2007 referral. Dr Romeo agreed in cross-examination that no matter what he said, the applicant had a fear that the cancer was in him and eating him.

The co-applicant’s actions on 6 May 2009

65. Ms Baker had known the co-applicant since high school. In 2009 they were “good friends” and she had arranged for a furniture maker in her building to make two bedside tables for the co-applicant. On 6 May 2009 she was trying to contact the co-applicant to tell her that they were ready. She rang the co-applicant several times in the morning and again throughout the day. She had never had trouble getting through to the co-applicant previously and became worried about her. Ms Baker’s husband tried to call the co-applicant as well, but could not get an answer.

66. Ms Baker went bowling that evening and finished at about 8.30pm. She decided to go to the co-applicant’s residence in Fairfield and thought that she arrived at about 8.40pm. There was no answer at the doorbell. Eventually, another occupant let her into the building, and she and her husband went to the co-applicant’s front door together. They knocked on her door but there was no answer. After about 10 minutes, Ms Baker gave up waiting and left. Just as she got outside the building, the co-applicant pulled up in her silver Hyundai. Ms Baker said “Where have you been?” to which the co-applicant replied “out”. Ms Baker described this response as “Said it in an angry way, in an abrupt way like you know why did I ask”. Ms Baker said “What do you mean “out”, where out?”. The co-applicant did not reply. Ms Baker told the co-applicant that now that she knew that she was safe, she would go home to which the co-applicant replied “Aren’t you coming in for coffee?”.

67. They went inside and Ms Baker asked the co-applicant where her phone was to which she responded that she must have left it at home. The co-applicant went to her bedroom and asked Ms Baker to ring her phone. The next minute the co-applicant came out and said “Oh, here it is” and she had her phone in her hand. Ms Baker remembered this particular day because she used to bowl every Wednesday night and this was the first Wednesday night after the co-applicant told her that their court case was adjourned. Ms Baker said it was probably about 9pm when the co-applicant arrived home.

68. The following Monday the co-applicant rang and asked Ms Baker to meet her downstairs. The co-applicant was crying and said that she had to go to Italy. When Ms Baker asked “why”, she said “I need to get away”. The co-applicant said she was going with the applicant, who had an appointment in Italy with a specialist for cancer. The co-applicant said that they were leaving the next day and that she would be away for three or four weeks, but she did not know. Ms Baker said “Why are you going in such a hurry?” to which the co-applicant responded “I just need to get away”. Ms Baker observed that the co-applicant was upset.

69. Phone records showed that on 6 May 2009 Ms Baker made eighteen unanswered calls to the co-applicant between 16:06:50 and 20:52:31.

70. In cross-examination Ms Baker agreed that she had not checked the times on her phone records when she made her statement to the police on 31 July 2009. The times which she had given in the statement had been a “rough estimate”. Ms Baker disagreed that she did not start to call the co-applicant until 16:06:50. Ms Baker worked in a call centre and had tried to call the co-applicant from her work phone a couple of times that day.

71. In cross-examination Ms Baker agreed that she “probably” left the co-applicant’s unit before the telephone records showed that the co-applicant had made a call to the applicant at 20:55:18 for 31 seconds. Ms Baker agreed that the two calls recorded as coming from her phone to the co-applicant’s phone at 20:52:25 and 20:52:31 were probably the call or two calls that she made to the co-applicant’s phone when she was in the unit and the co-applicant was looking for her phone. Ms Baker also agreed that two later attempted phoned calls by her to the co-applicant’s phone at 20:56:15 and 20:56:21 were probably made when she was on her way home in her car. Ms Baker said that she was not in the co-applicant’s unit for very long (T.551.45 – 552.44). On the basis of that material, the following was put to Ms Baker:

“Q. You see, what I want to suggest to you is that Ms Pintabona was home, was at the unit in the driveway no later than 8.45 pm?

A. Yes.

Q. Do you agree that's possible?

A. Possible.” (T.554.30)

72. Ms Baker agreed that the co-applicant had said that she had her nails done that day, but said that she had not noticed whether they had been freshly done or not. When asked about the later conversation with the co-applicant before she went to Italy, Ms Baker gave the following evidence:

“Q. In any event, she told you that Giuseppe needed medical attention for his cancer?

A. That's correct.

Q. And that she was going to go and assist him?

A. No, she didn't say she was going to assist him. She said she needed to get away and they needed a break and they were going away and he had a doctor's appointment in Italy because he had cancer.” (T.559.45)

73. Detective Sergeant Hollows said that he and Detective Ogilvy attended the apartment building where the co-applicant lived on 17 June 2009. Detective Hollows identified himself and the co-applicant buzzed them into the building. When he asked if they could enter and speak to her, the co-applicant said “no” because her house was too messy. She agreed to provide a statement but wanted to speak to her solicitor first. Detective Hollows’ statement continued:

“I said, 'Yes that's fine. Do you mind if I ask you some questions now and I will record them in my notebook as we go'. Pintabona said, 'Yes, that's fine'. I said, 'We are investigating a murder of Albert and Mario Frisoli that happened on 6 May 2009. How do you know Giuseppe Dicianni?' Pintabona said, 'He's just a friend and I've known him for about 10 years. I was his support person when I went to Italy with him on 12 May 2009'.

I said, 'Those happened on Wednesday 6 May 2009, do you know what you were doing on that day?' Pintabona said, 'Yes I remember'.” (T.813.9)

74. Detective Hollows then read out what he had written in his notebook at that time:

“Stated that Giuseppe came past her place in the morning at Fairfield by himself. He wasn't well when he came. Dropped off some food, some green vegetables that he grows then from his yard. Didn't stay long at all. About 10 to 15 minutes. It was between 8 to 8.30am. Left before 9am. I have known him for about 10 years. He was too sick that day and he went home. Then about 6.30pm I went past his house in Edensor Park by myself and he brought some sauce he made to me in a car. I did not go down to his house. I then left. I came back from Italy last Monday night at 8pm with Thai Airways.

He is very sick over there. Has prostate cancer, I think. Live by myself and if you want a statement I am happy to supply one, but I have to speak with my solicitor, Vince Macri. I will get back to you. I work part time at Bossley Park Deli. I remember that it was a Wednesday morning that he came over and dropped off the greens. In any case I keep a diary and when I get permission from my solicitor I will bring it with me when I give a statement. The Wednesday was the week before I left for Italy on the 12th of the 5th 2009. It was a Tuesday. And signed by Josephine Pintabona. Dated the 17th of the 6th, 2009." (T.814.39)

75. On 18 January 2010 Detectives Hollows, Doueihi and Bradley attended Sydney International Airport for the arrival from Italy of the co-applicant. Detective Hollows advised her that she was required by law to provide the name and address of the driver and passengers for her car between 4pm and 9pm on 6 May 2009. She said “Yes, I was driving on 6 May 2009, no-one was in my car as far as I know”. She indicated that she was willing to take part in an interview but wanted to speak to her solicitor first. The co-applicant said that she had a 2009 diary, but she could not remember where it was.

76. Detective Bradley gave evidence that she attended the co-applicant’s place of work on 20 July 2009 and spoke to her. The co-applicant said that the reason the applicant left Australia for Italy was because he was very ill with cancer. She said that she was his support person when she travelled to Italy with him on 12 May 2009.

77. Senior Constable Button gave evidence concerning the telephone records of various individuals which had been compiled into several spread-sheets covering the period 1 April 2009 – 10 May 2009. Those phone records showed that the applicant and the co-applicant were in regular contact with each other, making several calls a day leading up to 6 May 2009. On 6 May 2009 the co-applicant had her phone turned off, or not in use, between 1.26pm – 8.49pm. On 6 May 2009 the applicant made only one call at 8.49pm when he called the co-applicant.

78. In cross-examination Constable Button agreed that the co-applicant’s phone could have been switched on but simply not answered. This answer was qualified when he said that usually when a phone was turned on but not answered, the call was forwarded to another number. Accordingly, from what records were available it appeared that the phone was off and not answered.

79. Detective Inspector Doueihi provided a chronology setting out the Apprehended Violence Orders between Albert Frisoli and the applicant. He agreed that on 9 March and 24 May 2006, the applicant had made threats to harm Albert Frisoli and Natasha Kourea. The AVO’s granted to Albert Frisoli and Ms Kourea were against both the applicant and his son, Robert.

80. Detective Doueihi attended the applicant’s residence on 14 July 2009 with a search warrant. Because the applicant was not home, he spoke to the applicant’s wife, Carolina, and agreed to wait until Robert arrived. He made a note as to what happened thereafter as follows:

“Whilst waiting arrival of Robert speak to Carolina regarding Josephine Pintabona travel to Italy with her husband. Carolina claims not to know Pintabona and that her husband travelled overseas to seek treatment. Further claim that Pintabona may have travelled with her husband as a support person as she could not travel due to her illness. Ask about her movements and her husband's movements on 6/5/09. Could not confirm her husband's movements, but indicated she was home all day". (T.958.26)

In cross-examination Detective Doueihi strongly disagreed with the proposition that the applicant’s wife might have said “we” were home all day.

81. Ms Danz gave evidence, through a Vietnamese interpreter, that she worked at the Wakeley Perfect Nail Salon. She examined the salon’s appointment book and there was no appointment entered for Josephine Pintabona on 6 May 2009. Ms Danz did not remember if the co-applicant telephoned or attended that day. There was an entry for “Josephine” on 9 July 2009 with a tick next to it, which meant that the person attended. There was also an entry for “Jo” on Monday 11 May 2009, but Ms Danz did not know whether that referred to Josephine.

82. Ms Tat gave evidence, through a Vietnamese interpreter, that she also worked at the Wakely Perfect Nail Salon. She knew the co-applicant, who had been a customer for a few years. She could not remember if the co-applicant came to the shop on 6 May 2009. She could not remember if the co-applicant had telephoned the shop that morning.

The applicant’s note during trial

83. Court Officer Cassidy was standing near the dock on 6 May 2013 at 9.55am when the applicant and the co-applicant entered the dock. She saw the applicant pass a piece of folded up paper with some lines on it to the co-applicant. The co-applicant took it with her hand and immediately put the folded up paper with some other papers she was holding.

84. Corrections Officer Hammerton was in court when Ms Cassidy told him what she had seen. At 10.35am he asked the co-applicant whether the applicant had passed her some paper to which she replied “yes”. The co-applicant handed over a piece of notepaper that had been folded over at least four times. Mr Hammerton unfolded the paper and saw that it was written in a foreign language.

85. Senior Corrections Officer Beguely received the notepaper and spoke to the applicant while he was alone in his cell asking whether he knew that it was an offence to pass or receive anything from the outside while in custody. The applicant responded “Can I have it back, I’m sorry”. Mr Beguely took the note to the Sheriff’s office where a photocopy was made. The original was handed to Detective Whitehouse.

86. Mr Stevanoni, an accredited translator in the Italian language, translated the note from Italian to English. Its content was as follows:

“You must tell your lawyer that in addition to cleaning the office each week you used to take home towels, napkins, rugs and other rags from the office in order to wash them in your own washing machine.

Moreover, you always parked your car in front of the office, along the footpath in front of the entrance to the office.

And when Mr Frisoli Alberte (sic) used to light up a cigarette, he did not smoke inside the office, but rather went outside and sat or leaned against your car as it was always parked in front of the office.

When you came to clean the office on many occasions you would pick up Mr Frisoli’s black scarf from the kitchen table or chairs and take it to his office”

(Exhibit UU).

The scarf

87. In cross-examination Ms Kourea disagreed that people left clothes lying around the office area. She “supposed” somebody might put their coat down in the open area but she could not remember any occasion when, after his surgery, the applicant came into the office and put down a coat, or similar garment, on a chair or table in the general office area. She agreed that the co-applicant would come and clean the office when the office was at Wetherill Park but disagreed that the co-applicant took home tea-towels or other items that might be lying around, to be cleaned. She disagreed that Albert Frisoli had scarves other than the one she had described. She disagreed that a black scarf, like the one found on Albert Frisoli’s body, was left in the house when they all worked there together.

88. Detective Whitehouse obtained the CCTV footage from the BP Service Station at Seven Hills and extracted still images at 6.33pm and 6.36pm from it. These showed Albert Frisoli entering and leaving the service station shop wearing a short sleeved shirt and no scarf. The clothing he was wearing was exactly the same as when he was found murdered, except for the addition of a black scarf draped over his body.

89. He said that of the 16 people that can be seen on the CCTV footage, 13 of them were wearing either short sleeves or light clothing. None were wearing scarves, beanies, gloves or clothes consistent with cold weather. On 6 May 2009 the temperature was recorded by the Australian Government Bureau of Meteorology at Seven Hills as 16.7 degrees Celsius at 6.30pm and by Sydney Observatory at 19.3 degrees Celsius at 6.30pm (Exhibit WW).

90. In cross-examination Detective Whitehouse agreed that he had spoken to Atlanta Frisoli who said that her father was not a person who wore scarves. She said that her father had scarves but was simply not in the habit of wearing them. She had seen him wearing a scarf, but only in very cold weather and only very rarely. Detective Whitehouse had also spoken to Holden Frisoli who said that as far as he was concerned, his father did not wear scarves.

Applicant’s travel plans

91. Mr Labozetta was the manager of Marconi Travel Agents in Fairfield. He gave evidence that just after 9am on Monday 11 May 2009 the applicant and co-applicant booked two tickets to Italy. The applicant said that he needed to travel to Italy urgently because he needed an operation for cancer. Mr Labozetta was able to arrange a flight on Thai Airways for them, leaving the next day. He then assisted the applicant to apply for an urgent renewal of his passport.

91. Later that day, the co-applicant came to the shop at about 6pm and paid for one of the tickets. She paid $2000 cash and $1233 by EFTPOS. The next morning, 12 May 2009, the applicant and his son Robert came to the travel agency and paid the outstanding amount of $2840. The applicant collected his ticket and the co-applicant’s ticket. The tickets were for departure from Sydney on 12 May 2009 and departure from Rome on 13 July 2009. At some point before 13 July 2009 the co-applicant changed the return ticket for the applicant to 14 September 2009.

92. There was independent evidence that the applicant collected his Australian passport on 12 May 2009 at 11.45am. Thai Airways confirmed that the applicant failed to board the Thai Airways aircraft on 14 September 2009 and in doing so, forfeited his ticket.

93. Mr Antoniou, a solicitor, had been acting on behalf of the applicant since September 2007 in a civil dispute he had with his ex business partner. It related to an alleged fraudulent transfer of company shares while the applicant was ill. He said that in early 2009 the applicant came to his office and collected all the files relating to those proceedings. He said that on 11 May 2009 he was working in his office when Gino Cassaniti, an accountant in his building, asked if he would witness a General Power of Attorney document that he had prepared for the applicant and his son Robert. After Mr Antoniou explained the consequences of the Power of Attorney document to the applicant and Robert, he witnessed their signatures.

94. Mr Joubert was the principal of a corporate insolvency business. On 11 May 2009 he received a call from Gino Cassaniti about an urgent potential insolvency matter for Aian Investments. Mr Joubert drafted the documents necessary for a director of Aian Investments to appoint a voluntary administrator. Later that day, he met with Mr Cassaniti and the applicant who told him that the company owned a block of land at Wetherill Park and was owed debts by various people. The applicant appeared in a hurry to get the paperwork completed. When the property was sold on 23 February 2010, the proceeds were distributed to creditors and shareholders. It was a 60/40 split between a company associated with the applicant and his family, and 40% to a company associated with Albert Frisoli. The money payable to Albert Frisoli was still in his trust account at the time of the trial.

95. Detective Sergeant Chambers attended the applicant’s home at 10am on 9 May 2009. He observed that the applicant was wearing dress shoes of a size considerably smaller than his own size. Detective Chambers read into evidence his statement as to what happened on that occasion. The statement included:

“…. Did you kill Albert or Mario Frisoli?" He said, "No." I said, "Were you involved in the murder?" He said, "No." I said, "Did you arrange these murders?" He said, "No." I said, "Do you know who murdered them?" He said, "No, but Albert had a great many enemies." I said, "What were your movements this week?" He said, "I was home all week from Monday to Friday. I'm sick. I have cancer and take a high dosage of medication." I said, "Did you go anywhere at all this week?" He said, "I only go out once a week to take my wife to the club for lunch." Detective Sergeant Furia said, "Are you referring to the Marconi Club?" …

Detective Sergeant Furia said, "Did you take your wife to the club for lunch this week?" He said, "No, we are both sick. We just stayed home this week." Detective Sergeant Furia said, "Can anyone verify your story?" He said, "Just my wife. We were home alone all week." Detective Sergeant Furia said, "Did you have any visitors?" He said, "No."” (T.679.14)

97. On 12 May 2009 Detective Chambers received information that the applicant was planning to leave the country. At about 2pm he and Detective Sergeant Furia drove to the international airport. The applicant and the co-applicant had checked in and were sitting in a café. Detective Chambers’ evidence about what happened next was:

““I said, "Why are you going to Italy?" Josephine Pintabona said, "He is a sick man and going for cancer treatment." She opened her carry on bag and showed me some tablets. I said, "When will you be back?" Dicianni said, "In a month." Detective Sergeant Furia said, "Where are you going?" Dicianni said, "Turin. I am seeing a doctor who has been treating me for years."” (T.682.16)

98. Detective Sergeant Furia gave evidence that on Tuesday 12 May 2009 he attended the international airport with Detective Chambers. They located the applicant and co-applicant and spoke to them. Detective Furia spoke to the applicant in Italian:

“Hi, I’m Fabio Furia from the police again. You never told me that you were going to Italy. Why didn’t you call me. Giuseppe Dicianni said “Don’t be sly with me, I know you made inquiries with the travel agent …

Detective Sergeant Chambers said: “When will you be back?” Giuseppe Dicianni said “in a month”. I said “Where are you going?” Giuseppe Dicianni said “Turin, I’m seeing a doctor who has been treating me for years”. I said in Italian “Why should we believe you, you never told us you were leaving Australia?” Giuseppe Dicianni said in Italian “Listen, I know what game you guys play. I was once in the Carabinieri in Italy. If you think I killed Albert and his brother, prove it.” I directed a comment to Josephine, I said “Did you get my card with a message to call me?” She said “Yeah, I was going to call you when I got back”. I said “Giuseppe are you going to come and see me when you come back?” Giuseppe Dicianni said, “I’ll be back in a month and I will come and see you”. Giuseppe Dicianni shook my hand with a promise gesture. There continued to be some more general talk between the four of us before Detective Chambers and I left Josephine Pintabona and Giuseppe Dicianni at the airport.”

The route from the crime scene

99. Detective Sergeant Hollows with Detective Doueihi drove an unmarked police vehicle on 9 December 2009 from 1 George Street, Rozelle to the applicant’s home in Edensor Park and then to the co-applicant’s home in Fairfield. They left George Street at 7.30pm and arrived at Fairfield at 9pm. They did not travel on any toll roads. Detective Hollows read onto the transcript the following from his police notebook (Exhibit QQ).

“At 7.30pm on Wednesday 9 December 2009, with Detective Doueihi and I drove an unmarked police vehicle from outside 1 George Street, Rozelle, to xx xxxxxx xxxx Edensor Park, the home residence of Giuseppe Dicianni. Detective Doueihi being the driver and I was the passenger. From this location Detective Doueihi and I drove to xxx xxxxxxxxx xxxxxx Fairfield. I recorded the exact route we took being the following from 1 George Street, Rozelle.” (T.815.40)

100. Detective Doueihi said inquiries made with the M4 Tollway showed that no Etag activations were recorded against the applicant’s or co-applicant’s vehicle. In May 2009 the tolls were still taking cash or coins. If someone paid by cash, there would be no record of the vehicle having used the tollway. The only detection would be if the driver violated the toll then a camera image would be taken of the vehicle.

101. In cross-examination Detective Doueihi agreed that the route which he took on 9 December 2009 was from George Street, left into Reynolds Street, left into Evans Street and then down to Victoria Road. He took what he thought was the most direct route, without going through any tolls and sticking to the speed limit. He took 90 minutes to go from George Street to Edensor Park and then to Fairfield. He agreed that he did not check what traffic conditions were like on 6 May 2009 and that is why he maintained that there could be variations in time. He was aware of the CCTV camera outside 33 Ewell Street which showed a vision of cars as they turned from Reynolds Street into Evans Street. He had viewed the footage, but considered the quality very poor. A similar vehicle, or a dark vehicle may be seen, but it was not possible to make out any registration numbers.

102. It was established that the Ewell Street camera was motion activated and could be activated by light, headlight, car movement, pedestrians or even shaking the camera. Detective Doueihi agreed that there were other CCTV cameras in the vicinity but that the majority of them were for the protection of businesses and not all of them recorded vehicles on the road. He was questioned as to the most “logical” way to travel towards Victoria Road:

“Q. I want to put to you the most logical way out for an offender parked in George Street as you postulated was the way you travelled when you did your re-creation?

A. No I don't agree with that. The offender could have taken any route, any other different route. As I said there are different, there are a lot of variables to the route I took. The offender could have driven down to Victoria Road and turned right, gone all the way up Victoria road and hooked on to the M4 that way. The offender could have jumped straight on to the M4 freeway and that could have knocked fifteen minutes off the time. I did an estimation of what I believed to be the most direct route and it is purely suggestive of what my opinion is.

Q. You just said it might have knocked ten or fifteen minutes off the trip?

A. If the offender accessed the M4 from the beginning of the M4 at Concord that would certainly speed things up. I don't know how long, I did not try that route.

Q. You are just guessing?

A. I am not guessing, it is common sense if you hit the

M4 freeway at Concord some ten kilometres before I joined the M4 it certainly would reduce the time that I would have arrived at Edensor Park.” (T.992.8)

103. Detective Doueihi agreed that the footage from the Ewell Street camera had portions of footage missing, due to it being motion activated. There was one long gap from 19:11:42 through to 20:39:44. It was put to him that the camera times shown on the footage were an hour fast, meaning the gap was from 6.11pm through to 7.39pm, but he did not agree. It was put to him that on either view of the times, and for whatever reason, the co-applicant’s car was not captured by the Ewell Street camera leaving the area. Detective Doueihi maintained that there were two other possible ways of exiting the area without turning down Evans Street.

Evidence as to cars parked around Goodsir Street

104. Mrs Sinclair lived at the top end of Goodsir Street near Evans Street and knew Mario and Albert Frisoli. About 10am on Saturday 2 May 2009 she noticed an iridescent bright green coloured sedan parked outside the hardware store near where she lived. She noticed that the licence plates started with “BAZ”. The car was there on Sunday and Monday as well. The car was there when she left for work on the morning of Monday 4 May 2009 but was gone when she arrived home. She did not see anyone inside the car. It was common ground that the number plate on Robert Dicianni’s green Monaro started with the letters “BAZ”.

105. Mr Sinclair on the Sunday before 6 May 2009 saw a metallic greenish-yellowish type of small late model car parked on the street. He recalled the licence plate began with “BAZ”. The car was there Sunday and Monday. He did not go out on Monday, but when his wife came home she said “That little car has gone”. He particularly noticed the car because of the colour. He had never seen that car in the street before.

106. Statements were taken from local residents of Goodsir Street. One of those was Helen Tilly. Her statement was dated 12 May 2009. Relevant parts of that statement were:

““On Monday 4 May or Tuesday 5 May 2009 …As I was locking the screen security grill I noticed a mulberry/red coloured late 80s or early 90s coupe style sports car travelling towards Evans Street in Goodsir Street.

… As the car went past it would have been less than five metres from where I was standing. It was travelling slowly, even given that it was only a small narrow street. It was travelling much slower than normal traffic in the street. It was not a car that I have seen before in the street and seemed uncharacteristic for the street.

…

I think the driver was the only person in the vehicle. I couldn't be 100 per cent of that. I could see the driver was intensively observing both sides of the street. The driver had dark hair. His hair was about two inches long and appeared to be thick and full. He had dark features. I remember the dark eyes and eyebrows. He had a light olive coloured skin, which made the dark eye features prominent. I think he would have been in his mid to late 20's. I am not sure if I would recognise this person if I saw them again.” (T.925.19)

107. It was common ground that the applicant owned a red Honda Prelude coupe at that time.

THE DEFENCE CASE

108. It was the applicant’s case that Albert and Mario Frisoli had plenty of other enemies and that the Crown had not ruled out other people seen around the vicinity of Goodsir Street. He was at home all afternoon and on the evening of the murders, as attested by both his wife and the co-applicant. He was a weak, sick man and could not have committed the murders. He went to Italy for urgent medical treatment.

109. The co-applicant’s case was that she was not involved in any way. She was having her nails done that afternoon and she spoke to her friend. She drove past the applicant’s house at 6.30pm, saw him at home and collected some cooked food he had prepared for her.

The applicant’s evidence

110. The applicant said that he had been born in Italy, had never been to school and had taught himself to write. He came to Australia in 1972 when he was aged 26 with his first wife and three year old son Robert. He started working for himself in about 1983/84 doing concreting, formwork and steel work. He met Albert Frisoli in about 1984/85 when he was the general manager of Wintertons, which was a construction company for whom the applicant did some jobs. They first discussed starting a business together in about 1996 or 1997. By then he had known Albert for 12 years. In about 1997/98 they formed a company called Rostsun Civil. The applicant and Albert were 40% shareholders and his son Robert had a 20% share. The company did concrete formwork and steel. They purchased a block of land at Wetherill Park and built an office on it.

111. In September 2000 he was diagnosed with bowel cancer. After he was operated on, the cancer was gone but pain and going to the toilet remained a continuing problem. He was taking six Tramadol a day for the pain. After the operation, his relationship with Albert was not very good. From the end of 2005 he asked him a few times to show the paperwork for where the money went. Albert would reply “maybe next week” or “maybe next month”. The applicant said that he never got to see the books and he was suspicious that Albert was hiding something. The longer the delay, the more suspicious he became. He said that the language between them became more heated over time. The applicant said that he came from Calabria and it was just a normal part of the Italian culture to talk more with his hands and sometimes push a little bit and touch. He might have said things to Albert like “I’ll kill you”, but in Italian culture that can be used at any time. He said that even his wife said that to him in conversations.

112. The applicant said that after 2005 he had suspicions that Albert was keeping information from him. He never had any proof that he was keeping money, assets or information from him but the information he wanted related to State Concrete which was operated by Robert and Albert. He said that the pumps used by State Concrete were owned by Robert and that the two concrete pumps were worth $500,000 and $800,000. They were used on large construction jobs and earned a lot of money, sometimes $100,000 a week. He had invested about $800,000 in the pumps from his own assets. On the day that he was at the Wetherill Park office and spoke to Mr Aloisi, he had just found the book with the addresses to where the pumps had been sent. He had then said to Mr Aloisi “I got the proof where the pump be located every day. Now I can fight with Albert to show work not listed”. That conversation took place towards the end of 2005.

113. The applicant said that State Concrete started operating in about 2000-2001 and that at that time Robert was mixing with the wrong people and was a heavy drug user. Robert stopped working in 2005 and he lost everything – his house, his family and his pumps. After Robert’s marriage broke down in 2005, he lived in the front section of the applicant’s house. The applicant bought the $800,000 pump for Robert and tried to get him jobs and find labour. Despite this, Robert abandoned the business and the applicant had no contact with him for six or seven months.

114. The applicant said that the incident with Albert Frisoli on 23 February 2006 did not involve him threatening Albert with a syringe. He went to the kitchen area and brought with him a lease agreement for the yard and a document to remove Albert from the company. He had a 60% shareholding and he could do that. The applicant said that when he gave Albert the papers, he became agitated and went to get up from his chair causing him (the applicant) to hold him by the arm and tell him to sit down. They started talking loudly and screaming at each other. Chris Banks came in and the three of them talked and that was the end of it.

115. After that incident, Albert and Natasha Kourea took an AVO out against him. A couple of weeks later, the applicant took out an AVO against Albert. When the applicant breached the AVO, he did not think he was doing anything wrong by going to his own office. He did not understand the implications of the AVO. The applicant admitted going to Wetherill Park and cutting the padlocks after the AVO orders had been made final on 16 May 2006 at a time when he knew that he was in breach of the AVO orders.

116. After his operation in 2000, the applicant met the co-applicant and became intimately involved some six or seven months later. The co-applicant would help him visit doctors and specialists and would help him with his English. They saw each other every day. The applicant’s wife did not know about them until they went to Italy together. The applicant went to the Wetherill Park office from 1998 to 2005 and was very familiar with it. Although he had never seen Albert Frisoli with a scarf on his neck, he had seen that black scarf (Exhibit D) in the office. When they got to the office in the morning, they would take off their jackets, coats and things and put them on the table. When clients came, one of them would pick up everything and move it to a chair or somewhere else.

117. The applicant said that Albert Frisoli had forged some signatures and the matter went to the Supreme Court. Separate criminal charges were also brought against him over the forged signatures. Both these cases collapsed in 2009. The applicant was not happy about it but when he found that it was not true that the signatures were forged, he accepted it and said okay. The forensic experts said that they believed the signatures were not forged and were in fact, his. He had a recollection of signing the documents in question but did not recognise the signature as his. At the time he was on six Tramadol a day and had over $5 million or $6 million dollars in assets, without including three properties in Italy worth $1.5 million each.

118. The applicant did not know how much Albert might have been keeping from him. He wanted Albert to show him the paperwork and to be fair. The applicant had his wages paid by the company for two years when he was sick. He said that he thought that he might have owed the company money and wanted to give money back if that were the case.

119. The applicant’s health was very poor in 2009. He could not do physical work and he could not bend because of two herniated discs in his back. He denied killing Albert and Mario Frisoli – “absolutely not”. He did not arrange for either of them to be killed. He said that he had not set one foot in Rozelle after his cancer surgery. He denied using the sledge hammer handle to hit anybody. He said that he had given the handle, to the co-applicant for her protection and that was why it was found in her garage with his DNA on it.

244. She relied upon the same submissions which had been put in the applicant’s appeal to the effect that she could not have driven him from the murder scene – i.e. insufficient time for the journey, the weakness in the connection between the murder and her car and the other evidence, including her own, as to what she was doing on that day. Implicit in her case on appeal was that even if (which was not conceded) it was open to the jury to be satisfied on the balance of probabilities that she had so driven the applicant, it was not open to the jury to be satisfied beyond reasonable doubt on that matter.

Consideration

246. I do not agree that the jury had to be satisfied beyond reasonable doubt that the co-applicant drove the applicant from the murder scene. It was sufficient that they be satisfied on the balance of probabilities. My reasoning is as follows.

247. Although this Court is not bound by remarks or observations made by a trial judge when sentencing (SKA v The Queen, Crennan J at [110] – [115], with whom the plurality agreed) I find the analysis of RS Hulme AJ at [19] and [22] of the sentence judgment to be persuasive. I agree with his Honour that the finding of the jury of the accessory offence is more likely to have been that on 17 June 2009 the co-applicant informed Detectives Hollows and Ogilvy that on 6 May 2009 at 6.30pm the applicant was at his house in Edensor Park and at the time of providing that information, she was aware that he had murdered the deceased. For the reasons set out by the trial judge, the evidence did not establish that at the time she drove the applicant from the murder scene, she knew that he had committed the murders.

248. When one has regard to the elements of the offence of accessory to murder which have to be proved beyond reasonable doubt, on the facts of this case they do not include that the co-applicant drove the applicant from the scene of the murders. The only element of the offence to which that finding was relevant was her state of knowledge at the time she sought to mislead the police and give the applicant an alibi on 17 June 2009. The fact that she drove him from the murder scene, but did not at that time realise that he had committed the murders, was a circumstance to be taken into account with other circumstances, to establish beyond reasonable doubt the element of knowledge on 17 June 2009. Those other circumstances include her knowledge that he no longer had cancer, his precipitate departure for Italy when he realised he was a suspect, his settling of his affairs before so departing and that she was not telling the truth when she said he was at home at 6.30pm on 6 May 2009. By reference to that latter circumstance, it must follow from the jury verdicts that they rejected both the evidence of the applicant and co-applicant as to what happened on 6 May 2009. It was the total effect of those circumstances which allowed the jury to find beyond reasonable doubt that as of 17 June 2009 when she spoke to the police, the co-applicant was aware that the applicant had committed the murders.

249. In carrying out that analysis, I am mindful that the trial judge in his summing up (SU p 11) told the jury that the two things that the co-applicant was asserted to have done (driving him away and lying to the police on 17 June) were to be seen cumulatively because of the way the Crown put the case. That is confirmed when one looks at the way in which the Crown addressed the jury (T.1277.43 – 1278.3, 1299.39, 1307.2 and 1316.41 - .46). The effect of the address and the trial judge’s summing up is that what was put to the jury (at least implicitly, if not expressly) was that they had to be satisfied beyond reasonable doubt on both issues, i.e. the driving him away and lying to the police on 17 June, before the co-applicant could be convicted. All that means is that the Crown was imposing on itself a requirement to prove beyond reasonable doubt something which as a matter of law, was not necessary. It is clear from their verdict that the jury was satisfied of those matters to the higher standard.

250. For those reasons and the reasons set out in relation to the application for leave to appeal by the applicant, I am satisfied that it was open to the jury to find beyond reasonable doubt that the co-applicant deliberately sought to mislead the police on 17 June 2009 so as to provide the applicant with an alibi and that she was aware that he had committed the murders at that time.

251. Should I be incorrect in my finding that it was only necessary for the jury to decide whether the co-applicant drove the applicant from the scene of the murders on the balance of probabilities, and that this circumstance needed to be established beyond reasonable doubt, I am so satisfied.

252. As already indicated, implicit in the jury verdicts was their rejection of the evidence of the applicant and co-applicant, at least as to the events of 6 May 2009 and in the case of the co-applicant, the spillage of blood from meat in her car. The assessment of that evidence was very much a jury question in which the jury had the considerable advantage of both seeing and hearing the applicant and co-applicant which this Court did not have.

253. Apart from that advantage, the evidence of the applicant and co-applicant was objectively improbable. The suggestion that the DNA of Albert Frisoli could have been found on the trim on the passenger side of the co-applicant’s vehicle as a result of him leaning against it some time before 2006 was not only fanciful, it was established to be false. The evidence of the Roads and Traffic Authority was that the co-applicant acquired her vehicle in July 2007, well after she had ceased attending the offices of the partnership. The evidence as to the ownership of the scarf and what may have happened to it at those offices in the years 2002 – 2006 while not being capable of specific disproof, was highly unlikely and verged on the fanciful insofar as it sought to explain the high level of the co-applicant’s DNA on it.

254. It follows that I have concluded that not only was it open to the jury to substantially reject the evidence of the applicant and co-applicant because of their position of advantage, but there were other factors which pointed strongly to such an outcome.

255. Once the explanations put forward by the applicant and co-applicant are taken out of the equation, the circumstantial evidence linking the co-applicant to the departure of the murderer from the scene of the murders becomes compelling and in that regard it was open to the jury to find such a connection beyond reasonable doubt.

256. It follows that this ground of appeal has not been made out and should be dismissed.

257. I have read the judgment of Davies J in the applications for leave to appeal against sentence. I agree with his Honour’s conclusions and the orders which he proposes.

Proposed Orders

1. In the application by Giuseppe Dicianni for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed.

2. In the application by Giuseppe Dicianni for leave to appeal against sentence, leave to appeal is granted but the appeal is dismissed.

3. In the application by Josephine Pintabona for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed.

4. In the application by Josephine Pintabona for leave to appeal against sentence, leave to appeal is granted and the appeal is allowed.

5. The sentence imposed on 13 September 2013 is quashed and in lieu thereof Ms Pintabona is sentenced as follows:

1. (a)   For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016;

2. (b)   For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016.

3. (c)   Direct that the co-applicant be released to parole forthwith.

258. PRICE J: I have read the judgment of Hoeben CJ at CL. Having made my own independent assessment of the evidence, I am satisfied that the applicant and co-applicant were rightly convicted.

259. However, I find myself in respectful disagreement with the Chief Judge’s assessment of the standard of proof required in the case of the co-applicant, to establish that she drove the applicant from the scene of the murders. The Chief Judge is of the opinion that the Crown was not obliged to prove that the co-applicant did so beyond reasonable doubt (see [249] above).

260. At trial and in this Court, the Crown accepted that the prosecution was obliged to prove this matter of fact beyond reasonable doubt. The reason for the Crown’s acceptance of the high criminal onus, was that the co-applicant’s driving of the applicant from the scene was the sole evidence upon which the Crown relied to prove that she was aware of all the essential facts and circumstances that gave rise to the murders. As the trial judge told the jury (SU 11):

“The only evidence in the case relied on by the Crown as showing relevant knowledge on the part of [the co-applicant] is the evidence that she picked [the applicant] up in George Street after the murders.”

261. In my opinion, this was an intermediate fact which constituted an indispensable link in the jury’s chain of reasoning towards an inference of guilt: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579 (Dawson J). The jury could not be satisfied that the co-applicant had the relevant knowledge unless they found beyond reasonable doubt that she drove the applicant from the scene.

262. In any event, the Chief Judge is satisfied, as am I, that it was open on the evidence for the jury to be satisfied beyond reasonable doubt, that the co-applicant did so (see [251] above).

263. In the conviction appeals, I agree with the orders proposed by the Chief Judge.

264. I have also read the judgment of Davies J in the applications for leave to appeal against sentence. I agree with his Honour’s reasons and the orders proposed.

265. DAVIES J: I have read the judgment of Hoeben CJ at CL. I agree with his Honour’s reasons and the orders his Honour proposes. Since, however, the appeals against conviction rely on the ground that the verdicts in each case were unreasonable I wish to add a few remarks of my own.

Conviction Appeals

(a)   Appeal by Dicianni

266. The Crown’s case was a circumstantial one. It is necessary in those circumstances to consider the whole of the evidence even if particular weaknesses can be identified in some of the circumstances relied upon: Shepherd v The Queen [1990] HCA 56; 170 CLR 573at 579-580; R v Hillier at [48].

267. A matter emphasised at the hearing of the appeal was whether the co-applicant drove the applicant from the scene on the night of 6 May 2009 and, in her appeal, the standard to which that fact had to be proved. Senior Counsel accepted that, in the applicant’s case, that fact had only to be proved on the balance of probabilities but he submitted that the jury could not have been satisfied even to that standard. For reasons that will appear when I come to deal with the appeal of the co-applicant I am entirely satisfied that it was open to the jury to have been satisfied of that fact beyond reasonable doubt.

268. In any event, there are a number of other compelling circumstances that meant that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the murders charged. The matters that pointed strongly towards such a conclusion are the prior relationship between the applicant and Albert Frisoli including the aborted criminal and civil proceedings brought against Albert, the scarf found at the scene containing DNA of the applicant, the flight and false basis stated for it and the note passed by the applicant to the co-applicant in Court shortly before the DNA expert was to give evidence.

(b)   Appeal by Pintabona

269. The central matter argued in relation to this appeal was whether proof of the co-applicant’s driving the applicant from the murder scene had to be established beyond reasonable doubt or simply on the balance of probabilities.

270. As Hoeben CJ at CL has pointed out the only relevant element of the offence of accessory after the fact to murder was the co-applicant’s state of knowledge at 17 June 2009 when she misled the police. She might have acquired that knowledge from driving him away from the scene but that was not the necessary source of her knowledge. Inferences were available that she acquired her knowledge independently of her driving him from the scene. Certainly, her involvement in his travelling to Italy the week after the killings and the false reasons she gave to the police at the airport provided such a basis.

271. The written directions given to the jury provided two alternative bases for a finding that the co-applicant was an accessory. The second of those did not require the jury to accept that she had driven the applicant from the scene. The Crown’s closing address did not make clear whether its case was that her knowledge by the time of the false alibi on 17 June 2009 was derived from her driving the applicant from the scene. However, the Crown’s address did not suggest that the jury could conclude that her knowledge by 17 June was obtained otherwise. That, no doubt, led the trial judge to tell the jury that the two matters were to be seen cumulatively.

272. Hoeben CJ at CL has said at [249] that the Crown unnecessarily imposed on itself a requirement to prove the driving away from the scene beyond reasonable doubt. Price J has held at [259]-[261] that such proof was necessary. In my respectful opinion, by reason of the way the Crown put the matter to the jury and as it was clarified by the trial judge in his summing-up, the driving from the scene became (as Price J has said) an indispensable link in the chain of reasoning towards an inference of guilt. The jury, therefore, had to be satisfied beyond reasonable doubt that the co-applicant drove the applicant from the scene even if the Crown had placed the bar too high.

273. My own assessment of the evidence satisfies me that it was open to the jury to conclude beyond reasonable doubt that the co-applicant drove the applicant from the scene. The circumstances relevant to that conclusion are the blood and DNA in her car, the evidence of Ms Baker, the evidence of her phone being switched off all day, her evidence of making an appointment to have her nails done that day with the evidence from the employees at the nail salon, and Mrs Dicianni’s statement to the police that she could not account for husband’s movements on 6 May 2009.

Leave to appeal against sentence

Dicianni appeal

274. The applicant was sentenced for the murder of Mario Frisoli to a term of imprisonment comprising a non-parole period of 20 years commencing 18 August 2010 and expiring 17 August 2030 with an additional term of 4 years expiring 17 August 2034. For the murder of Albert Frisoli he was sentenced to a term of imprisonment comprising a non-parole period of 20 years commencing 18 August 2020 and expiring 17 August 2040 with an additional term of 4 years expiring 18 August 2044: R v Dicianni and Pintabona [2013] NSWSC 1328.

275. The sole ground of appeal is that the sentences imposed were excessive. In the written submissions filed for the applicant that was said to be based on two matters, namely:

(i)   The level of accumulation was excessive; and

(ii)   His Honour erred in failing to find special circumstances and impose a    longer than usual parole period.

276. The applicant accepted that the fact that there were two murders required a significant level of accumulation. However, they occurred in the one course of criminal conduct and were closely connected in time and circumstances. There was only one entry to one house. In those circumstances an accumulation by 10 years of the second to the first was excessive and the overall result of 30 years was excessive when totality was considered.

277. Further, it was submitted that while s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not require that the non-parole period for each of the aggregate sentences, in the absence of special circumstances, amount to three quarters of the overall sentence, the overall non-parole period should have been at least no more than three quarters of the overall term.

278. It was submitted that there should have been a finding of special circumstances on the basis that it was the applicant’s first time in custody, because of the applicant’s age and ill-health and because there was a significant level of accumulation between the two offences. It was submitted that his Honour erred in failing to provide reasons why he did not find special circumstances and why he applied a higher non-parole period than the usual ratio.

279. In relation to these matters Hulme AJ made the following observations in his Remarks on Sentence:

[38]   Having regard to the age Mr Dicianni will be when he is released from prison, three of the purposes of punishment, viz. personal deterrence, protection of the community and probably rehabilitation do not have anything like the same weight they have in the case of most murders. …

[39]   One argument that was advanced on Mr Dicianni's behalf was that the sentence otherwise appropriate should be reduced on account of his age. It was submitted that the sentence should be limited so that there remained the prospect that he would be released from custody prior to his death. I do not find the argument as so advanced persuasive. While I accept that there are cases where such an approach has been taken and the prospect of dying in custody is calculated to increase the weight of a sentence, an offender who suffers that fate does not have the continuing disadvantage that someone who emerges after a very lengthy sentence does. The ramifications of such a sentence, e.g. its impact on the prospects of, or relationship with, a family, or on the likelihood of a person suffering it obtaining the capital to acquire a home or valuable or satisfying employment, continue long after release from custody.

[40]   I of course accept that it would be proper to take into account any particular circumstances that lead to the view that Mr Dicianni's sentence would weigh more heavily upon him than is usually the case and this principle clearly invites attention to his age. However, one really has no idea whether he will become a frail old man or, at the other extreme, die relatively young and suddenly from a heart attack or stroke. In the result I see no occasion, on account of the matters referred to in this or the immediately preceding paragraph, to reduce Mr Dicianni's sentence from that otherwise appropriate.

…

[50]   Given the remarks I have made concerning Mr Dicianni, and notwithstanding the total non-parole period to be imposed, it is appropriate to reduce the balance of term of the second sentence he must serve. The balance of term of the first sentence is somewhat academic and as a matter of convenience I propose to reduce that too. These matters provide no grounds for reducing the non-parole period of either sentence.

280. Earlier in his remarks at [6] and [27] Hulme AJ made reference to the applicant developing cancer. However, the evidence at the trial was that the applicant’s cancer was cured although he had some residual problems.

281. It is significant that the applicant put nothing before, and said nothing to, the Sentencing Judge about his health. Nor was any submission made about a finding of special circumstances. In fact, all that was said to the Sentencing Judge about the applicant’s subjective matters and the issue of accumulation was this:

BODOR: However your Honour structures it, whether the sentences are concurrent or whether there's an element of cumulation (sic), in my submission, your Honour would recognise that whilst these are heinous crimes, there ought to be for a man who is now approaching elderly and will no doubt not be released before he is an old man, there ought to be some element of hope that he may walk one day outside the walls of prison.

I say that because it is the purpose of incarceration to punish, first of all, but also to rehabilitate and send a message out to the community that rehabilitation is also part of the punishment process.

HIS HONOUR: That becomes hard and difficult with someone who is approaching old age, if I can put it that way.

BODOR: I appreciate that.

HIS HONOUR: One can pick an age at which one can say almost any sentence is going to be a life sentence.

BODOR: I appreciate that but balanced against that is the fact Mr Dicianni (sic) will certainly, if he lives that long, will be serving 20 plus years in any event so he is going to be an old man. Obviously there is no issue of protection of the community to be considered in this case. The only focus of any criminality, from a practical point of view, is Mr Albert Frisoli.

That is one of the features that would militate against a life sentence. I recognise that anybody over 50 who commits a murder or multiple murders is

facing the prospect of dying in gaol. That is unarguable. But it should, in my submission, it is not necessary it be inevitable and the fact that there is some flicker of light remaining does augur for a productive period in gaol and for some hope. I can't put it any higher than that. It would be facile for me to put it any higher.

I don't wish to insult the court but, notwithstanding his convictions, he is a member of this community and he is entitled to the same sentencing considerations as any member of the community, I don't put it any higher than that, for the crimes he has committed. I don't think I can say anything more. Unless there is something that exercises your Honour's concern.

282. It is difficult to see how there can be said to be error by the Sentencing Judge’s failing to take matters into account when no submissions about those matters were made. This Court has made clear in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [75] to [81] that, ordinarily, if a matter has not been put to the Sentencing Judge, this Court will be unlikely to find error by reason of the matter not being referred to in the remarks on sentence unless some serious injustice can be shown from the failure to raise the matter in the court below.

283. No such injustice is shown in the present case. It is apparent from his Honour’s remarks that he considered both the applicant’s age and health. The discussion about the applicant’s age and what appears at [50] of the remarks demonstrate that his Honour was, in substance, considering the matter of special circumstances. A reduction in the balance of the term necessarily involves a consideration of whether there are special circumstances because it would be inappropriate to reduce the balance of term if special circumstances existed.

284. As the applicant acknowledged by his reference to R v XX [2009] NSWCCA 115; 195 A Crim R 38, questions of accumulation are, subject to the application of established principle, discretionary. The principles are set out by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 and reproduced in XX at [52].

285. No error of the House v The King [1936] HCA 40; 55 CLR 499 type is demonstrated in the Sentencing Judge’s consideration of the issues of accumulation and totality. His Honour considered that both murders were marginally above the mid-range of objective seriousness, they both occurred in the victims’ homes, they were frenzied and prolonged attacks and Mario was killed simply to facilitate or at least remove an impediment to the killing of Albert Frisoli. It is not suggested that any of these considerations were not appropriate nor that there was anything else about the killings that his Honour failed to take into account. There is nothing inherently unreasonable or unjust in an accumulation period of ten years in the circumstances of these murders.

Pintabona appeal

286. The Sentencing Judge sentenced the co-applicant as an accessory after the fact to murder of Mario Frisoli to a term of imprisonment consisting of a non-parole period of 2 years and 3 months commencing 13 March 2013 with a further term of 9 months, and as an accessory to the murder of Albert Frisoli to a term of imprisonment of 2 years commencing 13 March 2014 with an additional term of 1 year. She is eligible for parole on 12 March 2016.

287. The sole ground of appeal is that the sentences imposed were excessive.

288. The co-applicant submitted that a sentence of 3 years for each of the offences was excessive as was the overall sentence comprising a non-parole period of 3 years with an additional term of 1 year. She submitted that Hulme AJ did not give sufficient weight to the following matters:

(1)   That her involvement was motivated by her relationship with Mr Di    Cianni;

(2)   There was no suggestion that she considered Mr Dicianni was a    continuing threat to any other members of the public after the event;

(3)   There was no evidence of aggravating features such as helping to    dispose of bodies or cleaning the crime scene;

(4)   The actual level of offending was more in line with that in R v Tan Do    (Unreported – Court of Criminal Appeal – 7 May 1997) and R v Waters [1999] NSWSC 893;

(5)   The assistance provided by available statistics;

(6)   The offender’s criminality was in the lower level of objective    seriousness for cases of the kind for which he was charged.

289. The co-applicant further submitted that while the level of partial accumulation was appropriate in the circumstances a period of 1 year was excessive. She also submitted that Hulme AJ should have found a greater level of special circumstances on the basis of it being her first term of imprisonment and her condition of anxiety and depression.

Consideration

290. Hulme AJ said at [44] that he accepted that the co-applicant’s's conduct would have been deserving of greater punishment if his Honour had found that at the time of driving the applicant away from Rozelle she had known of his offending. His Honour found, nevertheless, that her false statement to the police on 17 June was both deliberate and important. If her statement had been accepted, or not able to be disproved, the applicant might well have not been charged or might have been acquitted.

291. His Honour had regard to the Judicial Commission statistics and to a summary of some 37 cases provided by the Crown prosecutor. His Honour noted that he had been informed by all of that material but he went on to say at [47]:

The cases demonstrate that, as was said by Gleeson CJ in R v Farroukh (Court of Criminal Appeal, 29 March 1996, unreported), there is a wide variation in the possible degrees of moral culpability of persons convicted of the offence. There is also a wide variation in the circumstances of offending, in the subjective circumstances bearing on the sentences imposed and in those sentences. In the result, I do not think that there is anything to be gained by detailing here the facts of, and sentences imposed in, those prior cases. I have found none which do not have significant differences from the facts here. Nevertheless, I have sought to be informed by the totality of the material to which I have referred.

292. In relation to the accumulation of the offences his Honour said at [49]:

And although Ms Pintabona's offending was committed by the one statement to the police, her offending was worse for the fact that she was aware that Mr Dicianni had committed 2 murders. It is appropriate therefore for the sentences to be imposed on her to also be partially accumulated. To the extent to which there was commonality in the ingredients of her 2 offences, that will be sufficiently accommodated by the degree of concurrency in the sentences I intend to impose upon her.

293. A submission that insufficient weight has been given to matters is an acknowledgment that the matters identified have been considered by the Sentencing Judge. In Mallet v Mallet [1984] HCA 21; 156 CLR 605 Gibbs CJ said (at 614):

The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows:

"If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court."

(See also per Kitto J., at pp.533-4.) In Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513, the principle was similarly expressed by Stephen J., at pp 519-520, and Aickin J., at pp.534, 537-8; see also per Mason and Wilson JJ., at p.525. In the present case it was clear that Bell J. did not overlook any of the factors to which the Full Court referred. He said nothing to indicate that he did not give them adequate weight. The conclusion reached by the Full Court that he had failed to give them proper weight can only be explained by the fact that their Honours disagreed with his conclusion. However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge.

294. The submission that the co-applicant’s involvement was motivated by her relationship with the applicant does not lessen the seriousness of the offence. In R v Ward [2004] NSWSC 420 R S Hulme J said:

[49]   Undoubtedly, insofar as her actions were the result of threats by, and fear of Craig Reid, her subjective criminality is lessened. However it is not avoided. Very commonly if not almost universally, participation in offending by accessories after the fact is inspired by some emotional relationship with a principal offender, e.g. love, affection, loyalty or fear. Such offending commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally.

[50]   It did so in this case. It is implicit in the Prisoner’s actions that she preferred to help Mr Reid, who she knew had bashed one woman with a hammer and slit her throat, to avoid detection and to remain in the community where he could do the same again, as he, to her knowledge, seemed willing to contemplate, than to either tell the truth when asked or remain silent. (I do not of, course suggest that, at least so far as the offence of being an accessory after the fact is concerned, the Prisoner was obliged to speak, either to the relatives or friends of the deceased or the police.)

[51]   And in that such emotions are liable to induce conduct which renders the perpetrator an accessory after the fact, society has an interest in providing a substantial disincentive to those tempted to so offend. General deterrence has a substantial part to play in the determination of any punishment. Retribution is also not without appreciable significance.

295. In the present case as the Sentencing Judge noted, there was nothing to suggest that the co-applicant was pressured in any way by the applicant to act in the way that she did. If that had been the case her criminality may have been lessened: Ward at [49].

296. In relation to the submission that there was no suggestion that the co-applicant considered the applicant to be a continuing threat, there was simply no evidence of this matter at all.

297. In R v Tan Do (Unreported – Court of Criminal Appeal – 7 May 1997) this Court had to consider a Crown appeal against concurrent fixed terms of 12 and six months imprisonment to be served by way of periodic detention for two counts of being an accessory after the fact to murder. The facts of that case bear no relationship to the present. The principal asked the offender to provide him with accommodation to which request he acceded. He also asked the offender to agree to provide him with an alibi and to retain some $1,500 which was stolen at the time of the murder. It was not suggested that the offender was actively concealing the principal during the time the principal stayed with him. Nor did he provide an alibi because by the time he was spoken to by the police the principal had confessed his involvement in the crime.

298. That is to be contrasted with the present case where the co-applicant provided a false alibi which, if it had been accepted or not have been able to be disproved, the applicant might well not have been charged or might have been acquitted, as the Sentencing Judge noted..

299. Nor do the facts in R v Waters [1999] NSWSC 893 nor the circumstances of the offender in that case bear any relationship to the present case. There are a number of significant matters which might be thought to have justified the period of periodic detention. The offender in that case was 20 years of age at the time of the offending. He offered assistance from the time of his arrest, there were delays in bringing him to justice and he was found to have taken significant steps towards rehabilitation.

300. However, I consider that error has been demonstrated with regard to his Honour’s treatment of accumulation and totality. The only matter that resulted in the co-applicant’s being found guilty as an accessory was the lie she told to the police on 17 June 2009. It was one act and its significance should not be minimised because it gave the applicant an alibi for two murders. Nevertheless, the fact that two murders were cloaked by her false statement cannot be seen in the same way as the applicant committing two murders. At least as far as her position as an accessory was concerned those murders were committed as part of the same criminality on the applicant’s part. She was giving him an alibi for the one period of time during which he committed the two murders which were, in any event linked.

301. As the co-applicant accepts, it was appropriate that the sentence for each of her offences was not entirely comprehended by the other. However, an overall sentence of 4 years with a non-parole period of 3 years is plainly unjust for her involvement in the offending. She was certainly in the sort of relationship with the murderer where some leniency is considered appropriate. In R v Dileski [2002] NSWCCA 345; 1323 A Crim R 408 Hidden J (with whom Adams J agreed) said:

In many cases of this kind the offender’s conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences.

302. I consider that the co-applicant should be re-sentenced as follows:

(a)   For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016;

(b)   For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016.

(c)   Direct that the co-applicant be released to parole forthwith.

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Decision last updated: 31 July 2015