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

[2019] NSWSC 1834

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Pirrello, Pirrello & D’Agostino [2019] NSWSC 1834

Hearing dates:

07 November 2019

Date of orders:

07 November 2019

Decision date:

07 November 2019

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Application to discharge jury is refused.

Catchwords:

CRIMINAL PROCEDURE – trial – jury of eleven – offences related to conspiracy to import border controlled drugs – application to discharge jury – substantial miscarriage of justice considered – no risk of a substantial miscarriage of justice found – trial to continue

Legislation Cited:

Jury Act 1977 (NSW)

Cases Cited:

Wu v R (1999) 199 CLR 99; [1999] HCA 52

Category:

Principal judgment

Parties:

Regina (Crown)
Joseph D’Agostino (First Accused)
Michael Pirrello (Second Accused)
Francesco Pirrello (Third Accused)

Representation:

Counsel:

Proceedings 2017/010927
P McGuire SC/B Anniwell (Crown)
J Stratton SC/M Curry for (First Accused)

Proceedings 2016/388954
P McGuire SC/B Anniwell (Crown)
D McCallum (Second Accused)

Proceedings 2016/388994
P McGuire SC/B Anniwell (Crown)
G Brady SC (Third Accused)

Solicitors:

Proceedings 2017/010927
Solicitor for Public Prosecutions (Cth) (Crown)
Mitchell and Co Lawyers (First Accused)

Proceedings 2016/388954
Solicitor for Public Prosecutions (Cth) (Crown)
Shoalhaven Lawyers (Second Accused)

Proceedings 2016/388994
Solicitor for Public Prosecutions (Cth) (Crown)
Shoalhaven Lawyers (Third Accused)

File Number(s):

2017/010927; 2016/388954; 2016/388994

Publication restriction:

Judgment 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

1. HER HONOUR: This morning, during the course of the fourth week of the trial of the three accused before the Court, an issue has arisen leading to the discharge of a single juror.

2. The juror has been suffering from a long-term back condition and that condition has been exacerbated by her service in this Court. She has today produced a medical certificate certifying her unfitness on medical grounds to continue.

3. Having regard to that evidence, a short time ago I made an order, pursuant to s 53B(a) of the Jury Act 1977 (NSW), discharging that single juror because of her medical incapacity to continue to serve. The question now arises as to whether the Court should continue to hear the trial of the three accused with less than twelve jurors.

4. Section 53C of the Jury Act provides a discretion to continue with a trial, or to discharge the whole jury, where a single juror is discharged during the course of the trial. Section 53C(1)(a) provides that, in those circumstances, the Court must discharge the jury if the Court is of the opinion that to continue the trial with the remaining eleven jurors would give rise to the risk of a substantial miscarriage of justice; or, pursuant to subs (1)(b) if of the opinion that there is no such risk and, subject to s 22, order that the trial continue with a reduced number of jurors.

5. Senior Counsel for Mr D'Agostino has made an application that the jury be discharged. It is Mr Stratton's submission, on behalf of Mr D'Agostino, that there is a risk of a substantial miscarriage of justice arising should the proceedings continue with eleven jurors.

6. Mr Stratton has referred to the seriousness of the charges faced by his client and the fact that it would be unfair to him in facing such serious charges, carrying as they do very significant terms of imprisonment by way of maximum penalty upon conviction, for his fate to be determined by fewer than twelve jurors. He has pointed to the potential for further jurors to become either incapacitated or for some other reason unable to serve, particularly bearing in mind the time of the year.

7. We are in the first week of November. The trial is about halfway through the Crown case, but there remain an estimated four to six weeks to continue before it could be expected that the trial might be completed. If the trial runs to its full estimate, that is, a period of ten weeks, it would take the proceedings up to a matter of days before Christmas.

8. Mr Stratton has suggested that, in those circumstances, the possibility of an additional juror or additional jurors being unable to serve looms large and there is a prospect that the trial would face the loss of a further juror or jurors giving rise to a further risk, he submits, of injustice to his client.

9. Further, Mr Stratton notes that, whilst the trial has continued now for a number of weeks, it has a greater balance of time in which it is expected to continue and, taking all of those circumstances together, the Court should conclude that there is a risk of a substantial miscarriage of justice to his client should the trial continue and, on that basis, make an order discharging the balance of the jury.

10. Mr Brady SC for Francesco Pirrello did not wish to be heard in support of that application. It is Francesco Pirrello's position that he wishes to see the trial continue.

11. Mr McCallum for Michael Pirrello takes the same view as that of Mr Brady. His client, too, wishes to see the trial proceed to its conclusion.

12. The Crown opposes Mr Stratton's application. The Crown points to the fact that no specific bases of any risk of a substantial miscarriage of justice has been identified. The Crown reminds the Court that, in accordance with the High Court authority of Wu v R Wu v R 199 CLR 99; [1999] HCA 52, there is no right to a jury of twelve. Indeed, that right has been done away with, if it ever existed, by s 22 of the Jury Act which provides a basis upon which a Court can continue with as few as ten and, in some circumstances, fewer than that.

13. The question for the Court to determine is dictated entirely by the terms of s 53C of the Jury Act. It is a question of whether the Court forms the opinion that to continue with the remaining jurors would give rise to the risk of a substantial miscarriage of justice or not.

14. The application is made in what is the fourth week of a trial with an eight to ten week estimate. The Crown case is about halfway to its conclusion and the most significant of the Crown witnesses has completed his evidence-in-chief and is now in cross-examination by Mr Stratton on behalf of Mr D'Agostino.

15. The witness currently in evidence is the most significant of the witnesses with respect to all three accused and he has, I think it is reasonable to conclude, given the bulk of his evidence. It may be that cross-examination would exceed evidence-in-chief in length but, as a matter of ordinary experience, that is unlikely [REDACTED].

16. Of the remaining witnesses, an undercover police operative has evidence of some significance to Mr D'Agostino [REDACTED]. Certainly my conclusion is that the most significant part of the Crown case has been heard.

17. There are issues, as Mr Stratton has observed, of delay to the justice process proceeding and of the costs that accrue should there be delay. In another context, and much earlier in the trial, the Court had occasion to make inquiries as to the availability of a trial court to take this matter should the jury be discharged and the matter be unable to proceed in this listing. Those inquiries, preliminary as they were, suggested that it would be unlikely that any trial date could be fixed before the second half of 2020. That is a significant delay, certainly for Mr D'Agostino, who is in custody having been refused bail and notwithstanding that he is serving a sentence for unrelated matters. It is a significant delay for those of the accused who are on bail, not just because of the conditions of bail which each has had to observe now for almost three years, but also because of the stress, the anxiety and the expense of facing and answering criminal allegations.

18. Those features, on behalf of the accused persons, tend to favour the continuation of the trial. I say that even though Mr D'Agostino is an applicant for a discharge of the jury. It is in his interests, as it is in the interests of all accused persons in a general sense, to have speedy resolution of criminal charges against him. These proceedings have now been pending overall since December 2016. It is undesirable that the fourth anniversary of the proceedings turn over whilst the matters may still be unresolved.

19. There are stresses and costs associated with the prosecution of the matter on the Crown's part. There are a large number of witnesses involved in this case. Some of those witnesses have already given evidence in related proceedings; some of them will be required to give evidence in other proceedings. If this jury were to be discharged and this trial unable to continue, those witnesses would have to repeat the evidence they have already given to date in this Court. That results in a waste of time and resources for all witnesses.

20. Whilst it might perhaps be said that police witnesses, or those associated with police such as some of those from whom we have already heard, is of a lesser consequence in that giving evidence is part of their ordinary functions and duties, that still represents a significant cost to the community and the same could not be said in any sense for the evidence of [REDACTED], the most significant of the Crown's witnesses.

21. I think it is probably fair to say that any observant person in the courtroom would have observed the stress occasioned to [REDACTED], and that is a feature that the Court can consider. It is by no means determinative but it is a relevant consideration.

22. It is generally undesirable for any witness to have to give evidence on more than one occasion in the same proceedings and that would be required of [REDACTED] were this jury to be discharged.

23. Turning to those matters identified by Mr D'Agostino, he has referred to the fact that his fate with respect to significant charges could or will be determined by fewer than twelve jurors and could be determined by even less than that if some misadventure arises with respect to another juror. That is so, but I think the point made in Wu v R answers that to some extent. No matter how serious the charge, the legislature has seen fit to provide a mechanism by which an accused person's fate can be determined by fewer than twelve jurors and, in those circumstances, it is a less significant consideration that Mr D'Agostino's fate will be determined here by eleven jurors subject to any further eventuality leading to a reduction in number. That potential for a reduction in number is relied upon and, in particular, because Christmas is rapidly approaching, but it seems to me that that is to rely upon speculation to found an application for the Court to take a very serious step and I would not be minded to give much weight to those speculative considerations.

24. There is always a possibility that a juror, for some reason, will become unable to serve. We have already had one instance of that and all of those at the Bar table and myself are familiar with instances where more than one juror has been lost in succession due to some misadventure; but that can only be a matter of speculation at this stage.

25. There is the issue of Christmas, but the length of the trial, the fact that it would be approaching Christmas as the end of the trial approached; those were features which were very clearly pointed out to the jury panel during the empanelment process and I would have expected any juror who had a difficulty with the closeness of Christmas to the expected end point of the trial to raise that difficulty with the Court at that point. No jury panel member made an application to be discharged on that basis and it is reasonable to conclude that those persons now part of the jury had no particular issue with the approach of Christmas.

26. Although Mr D'Agostino relied upon the fact that there are still as much as six weeks to go with this trial, and that is a relevant consideration, I think it is outweighed by the fact that the most significant portion of the Crown's evidence has passed. We are at the halfway point for the Crown case and most of the evidence of the most significant witness has been given. Those are all considerations which, in my view, militate towards a continuance of the trial.

27. I also give significant weight to the fact that Mr Pirrello and Mr Pirrello, who have now been subject to these proceedings for some years with all of the stress and expense that that involves, wish to have their trial continue.

28. Having considered all of those considerations, I am not of the opinion that to continue with the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. The mere reduction in the numbers of jurors does not lead to a conclusion that there is such a risk and when one gives weight to all of the remaining features in considering whether the jury should be discharged, in my view the overwhelming weight of the material and the information before the Court favours a conclusion that there is no such risk. That is, I am of the opinion that there is no risk of a substantial miscarriage of justice and, that being the case, s 53C(1)(b) requires the Court to continue with a reduced number of jurors and that is the course the trial will take.

29. The application by Mr D'Agostino is declined.

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024