R (Cth) v Pirrello, Pirrello & D'Agostino
[2019] NSWSC 1835
•27 November 2019
|
New South Wales |
Case Name: | R (Cth) v Pirrello, Pirrello & D’Agostino |
Medium Neutral Citation: | [2019] NSWSC 1835 |
Hearing Date(s): | 27 November 2019 |
Date of Orders: | 27 November 2019 |
Decision Date: | 27 November 2019 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | See [32]. |
Catchwords: | CRIMINAL LAW – trial proceedings – conspiracy to import commercial quantity of a border controlled drug – question of the admissibility of evidence surrounding arrest of accused – exhibits – evidence to establish association between accused and co-conspirator – consciousness of guilt – question of potential prejudicial evidence |
Legislation Cited: | Drug Misuse and Trafficking Act 1985 (NSW) |
Cases Cited: | Meakin v R [2018] NSWCCA 288 |
Category: | Principal judgment |
Parties: | Regina (Crown) |
Representation: | Counsel: |
File Number(s): | 2017/010927; 2016/388954; 2016/388994 |
Publication Restriction: | Judgement previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW). |
EX TEMPORE JUDGMENT
HER HONOUR: An issue has arisen as to the admissibility of evidence of the circumstances surrounding the arrest of the accused Joseph D'Agostino on 8 September 2016.
Exhibit VD-F is before the Court and it provides the relevant information. The arresting officers were Detective Senior Constables Zadravec and Grime and the statement of each is before the Court. There is, further, an extract from a surveillance running sheet giving details of surveillance of a co-accused, John Tobin, on 6 September 2016. Finally, there is evidence of the issue of a warrant of apprehension from the District Court, that warrant having been issued on 14 October 2015 authorising the accused's arrest in relation to a number of State drug and drug-related offences, the most serious of which is a count of supplying a prohibited drug in not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW).
The Crown seeks to adduce the evidence of Mr D'Agostino's arrest on two bases.
The first of those bases is that the evidence is capable of establishing an association and, indeed, a close association between the accused and John Tobin. Mr Tobin was, although the jury is unlikely to know this, similarly arrested with respect to the Saxon Progress conspiracy and he has been dealt with for his part in that offence.
The Crown seeks to establish that there was, as has been asserted by one of the most significant Crown witnesses, [REDACTED], a close association between the accused and John Tobin. Such evidence would go to support [REDACTED] evidence that, during the voyage of the Saxon Progress, John Tobin was aboard the vessel as the representative of the accused, to ensure that the accused's interests were protected during the course of that alleged conspiracy.
The Crown will rely upon the observations of surveillance officers who saw Mr Tobin apparently delivering food to temporary accommodation in Manly where the accused was staying on 6 September 2016, that same address being the address at which the accused was apprehended two days later.
The evidence going to the apprehension of the accused is to the effect that he was stopped at the lodge at which he was residing and spoken to by plainclothes police who identified themselves as police officers, and produced their identification.
Their approach to the accused was something of a neutral approach. Detective Zadravec is said to have approached the accused and said, "Hey mate, just from the police, do you mind if we have a chat?" The officer asked for the accused's name. The accused asked why that information was sought, to which Detective Zadravec responded:
“You match the description of someone we are looking for with regard to an offence. I just want to check your identity to make sure you aren't wanted for anything.”
The accused then gave the name "John Tobin" as his name and, when asked for identification, retrieved a Medicare card from his room and provided that Medicare card to the police. He was subsequently asked for his date of birth and provided, in succession, two dates of birth, neither of which could be confirmed as the date of birth of John Tobin.
One of the officers made some observations of the accused as extremely nervous at the time at which he handed over the false identification information and gave the false dates of birth.
The Crown says that that evidence, collectively, not only establishes a close association between the accused and John Tobin, an alleged co-conspirator, but is also capable of proving the accused's consciousness of guilt of the offences charged against him, that is, counts 2 and 3 of the indictment.
Mr Stratton SC objects to the use of the evidence for the latter purpose only. He concedes, sensibly in my view, that the evidence is clearly admissible to go to proof of association between the two men, as a relevant circumstance in proof of the accused's guilt of the charged offences.
With respect to the use of the evidence as evidence of consciousness of guilt, Mr Stratton submits that the evidence is not capable of establishing the accused's consciousness of guilt because, at the time at which the false identification information was proffered to the police, the accused was at large, wanted by the warrant of apprehension from the District Court, and had been in hiding after his flight from the District Court with respect to those matters.
It is submitted that what would have been uppermost in his mind was the fact that he was wanted on warrants of apprehension, and the false identification is therefore explicable by reference to that. It falls short of establishing consciousness of guilt of the charged offences.
Mr Stratton submits that to permit the Crown to lead evidence of the accused's provision of false identification details is to permit prejudicial evidence to go before the jury in circumstances where the legitimate evidentiary needs of the Crown are met by the use of the evidence as evidence going to association.
The Court has been helpfully referred to Meakin v R [2018] NSWCCA 288 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. The decisions are of assistance, although neither is perhaps directly on point, since they each relate to charges of murder and the use that evidence could be put to to go to proof of murder.
Here, the situation is somewhat different because it is acknowledged in the evidence, and the jury is well aware, that the accused had been at large, wanted by the authorities, having fled the court before which he was due to appear in October 2015. There has been a degree of evidence about him “being on the run”, being “desperate” to get out of the country, and seeking to flee the jurisdiction. The jury has heard all of that evidence.
The evidence is clearly admissible on the first of the two bases on which it is advanced by the Crown, as Mr Stratton has conceded. It is evidence, and perhaps powerful evidence, of the strength of the association between the accused and John Tobin. It would be open to the jury to conclude that, if the accused was in possession of Mr Tobin's Medicare card in circumstances where Mr Tobin had been seen delivering food to the accused only two days before, that the Medicare card had been willingly handed over by Mr Tobin to the accused, perhaps for the purpose of the accused accessing medical treatment without the need to reveal his true identity.
That one individual would provide another with a valuable identification document such as a Medicare card is, in my view strong evidence of a very close association, and it is open to the Crown to point that out to the jury and to argue for this evidence as powerful evidence of the association between the two men.
To permit its use as evidence of consciousness of guilt is, in my view, a step too far having regard to the nature of the overall evidence.
The District Court warrant issued for the accused's apprehension in October 2015. His provision to the police of the false identification documents came after almost a full year, as has been said in the evidence, “on the run”, at large, having fled from the court before which he was to appear.
It seems that the accused, in all of the evidence available to the Court in this trial, had gone to quite significant lengths to avoid coming under notice. He had plainly left his residential address and was living in some sort of temporary accommodation in Manly. There is no evidence that the car associated with him was still in his possession as at the date of his arrest.
The most likely explanation for that, and in my view the compelling and likely only explanation for all of the steps that he had taken to the point of his arrest and including the provision of a false name and false dates of birth, is his desire to evade apprehension on the warrant. The accused would have been well aware that, once arrested on the warrant, he would be remanded in custody and would thereafter likely remain in custody for a significant period of time as has transpired.
The Crown accepts that the offences for which the applicant was at large are serious offences, but submits that they are less serious offences than those before this Court and, as a consequence, the jury could legitimately conclude that the accused would go to the lengths of providing false identification details to evade apprehension for the charged offences.
That may be so, but it seems to me that it would be unlikely to be a reasoned thought process for the accused to indulge in: to weigh up the seriousness of the very serious offences of supplying a prohibited drug in not less than the commercial quantity, an offence for which gaol is virtually inevitable upon conviction in each instance, and the comparative seriousness of a conspiracy to import offence. Whether the accused would even know the difference in penalty is a moot point; probably he did not.
In any event, I do not see it as unusual or out of proportion that the accused would provide false identification details in an attempt to evade apprehension on an arrest warrant for very serious State drug offences. He had already, it seems, gone to quite significant lengths to avoid arrest, including leaving the family home and, in that overall context, the provision of Mr Tobin's Medicare card as identification to police does not stand out as something extraordinary in the circumstances.
On that basis, I do not think the evidence of the provision of a false name says a great deal as to the accused's consciousness of his guilt of counts 2 and 3 of this indictment. At best, it would be equivocal evidence for the Crown but, in my view, the reality is that the evidence overall establishes that the accused was simply seeking to avoid being arrested, knowing, as he had for months, that a warrant was in existence for his apprehension.
Having reached that conclusion, the question then is whether the Crown ought to be permitted to adduce evidence of the provision of a false name, to go to evidence of association, but excluding it as evidence of consciousness of guilt.
I think it does have some bearing on the closeness of the association between the accused and Mr Tobin in that, when asked for his name, the first name that sprang to mind was that of, on the evidence, his close friend Mr Tobin. He did not make up a name. He did not offer the name of a brother or some other person. He offered the name of Mr Tobin. That does, in my view, say something about the nature of the relationship.
However, I take Mr Stratton's point that in a trial where there is already a mountain of evidence which could lead the jury to entertain some negative thoughts about the accused, to add to that evidence by presenting him as a person who would provide false details to police is perhaps to add needlessly to the number of nails present in the accused's case. The potential prejudice exceeds the probative worth of the evidence.
It would serve the Crown's purpose, in my view, for the Crown to be permitted to lead evidence of the surveillance evidence from 6 September, of the conversation from the police, by reference to Detective Zadravec's statement, to paragraph 5 up to the evidence where the officer says "I just want to check your identity to make sure you aren't wanted for anything". I would exclude the following conversation:
“My name is John Tobin.
All right John. Do you have any ID?
Yes, upstairs. I can go get it.
Yeah I'll come with you.”
The Crown is permitted to lead evidence consistent with the first sentence of paragraph 6 of Detective Zadravec's statement. I would exclude the second sentence of that paragraph, although the Crown, I think, can lead evidence that the accused produced a Medicare card from near his person and provided that Medicare card to the police, together with the details of the name on the card.
I do not think the accused's provision of two false dates of birth adds anything to the evidence of association and I would exclude that.
The balance of the police officers' evidence is admissible.
*********
0
4
1