R (Cth) v Pirrello, Pirrello & D'Agostino

In the case of R (Cth) v Pirrello, Pirrello & D'Agostino, the respondents were charged with conspiracy to import a commercial quantity of a border controlled drug. The trial judge admitted evidence of prior arrests and charges, including the seizure of a commercial quantity of heroin, as well as the seizure of a quantity of heroin and cocaine from the respondents' residence. The respondents objected to the evidence being admitted as tendency evidence and argued that it was inadmissible for that purpose. The High Court was asked to determine the proper approach to the admissibility of evidence of prior arrests and charges as tendency evidence in criminal trials.

The Court considered the principles governing the admissibility of tendency evidence and whether evidence of prior arrests and charges could be admitted as tendency evidence. The Court held that the evidence of prior arrests and charges was admissible for other purposes, such as to prove knowledge, intention, or absence of mistake. The Court further held that if the evidence was to be admitted for other purposes, it was necessary to consider whether it could also be used as tendency evidence and, if so, whether a direction under Shepherd v The Queen was required. The Court held that a Shepherd direction was required if the evidence had significant tendency to prove a particular fact in issue and the probative value of the evidence outweighed its prejudicial effect.

The Court allowed the appeal and set aside the convictions of the respondents. The Court held that the trial judge had not considered whether the evidence of prior arrests and charges could be used as tendency evidence and had not given a Shepherd direction. The Court held that the evidence of the seizure of a commercial quantity of heroin had significant tendency to prove that the respondents had the requisite intention to import a commercial quantity of a border controlled drug. The Court held that the trial judge should have given a Shepherd direction, and that the failure to do so was a significant error that affected the fairness of the trial. The Court held that the convictions of the respondents should be set aside and the matter should be remitted to the trial judge for a new trial.

The final orders of the Court were that the appeal be allowed, the convictions of the respondents be set aside, and the matter be remitted to the trial judge for a new trial. The Court held that the trial judge should receive a direction that the evidence of prior arrests and charges could be used as tendency evidence, and that a Shepherd direction should be given if the evidence had significant tendency to prove a particular fact in issue and the probative value of the evidence outweighed its prejudicial effect.