R v Pirrello, Pirrello & D'Agostino - [2019] NSWSC 1426

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pirrello, Pirrello & D’Agostino [2019] NSWSC 1426
Hearing dates: 15 October 2019
Date of orders: 15 October 2019
Decision date: 21 October 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
Application to conditionally exclude evidence refused

Catchwords:
CRIMINAL PROCEDURE – trial – jury – offences related to conspiracy to import border controlled drugs – Crown’s disclosure obligations – recordings tendered without complete transcripts – recordings tendered without transcripts – whether the accused would be prejudiced by the absence of transcripts – application to conditionally exclude evidence – application refused

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1983 (Cth)
New South Wales Legal Profession Uniform Conduct (Barristers) Rules 2015

Cases Cited:
AJ v R [2011] VSCA 215
Cornwell v R [2010] NSWCCA 59
Grey v The Queen [2001] HCA 65; 75 ALJR 593
Mallard v The Queen [2005] HCA 68; 224 CLR 125
Marwan v Director of Public Prosecutions [2019] NSW 161
R v Garofalo [1999] 2 VR 625
R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Richard Lipton [2011] NSWCCA 24; (2011) 221 A Crim R 384; (2011) 82 NSWLR 123]
R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369

Category: Principal judgment
Parties: Regina (Crown)
Joseph D’Agostino (Accused)
Michael Pirrello (Accused)
Francesco Pirrello (Accused)
Representation:
Counsel:
Mr P McGuire SC with Ms B Anniwell for the Crown
Mr J Stratton SC with Ms M Curry for Joseph D’Agostino
Mr D McCallum for Michael Pirrello
Mr D Brady SC for Francesco Pirrello
Solicitors:
Ms C Egan for the Crown
Mr G Mitchell for Joseph D’Agostino
Mr T Neaves for Michael Pirrello
Mr T Neaves for Francesco Pirrello

File Number(s): 2017/010927, 2016/388954, 2016/388994
Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals.

Judgment

HER HONOUR: The second of two legal issues raised for the determination of the Court on 15 October 2019 is an objection taken by Joseph D’Agostino to the tender in the Crown case of a number of electronic recordings of conversations. Mr Stratton SC objects to the tender by the Crown of twenty (or seventeen) recordings until such time as transcripts of the recordings have been provided. He asks the Court to exclude the evidence, pending preparation and disclosure of transcripts. On 15 October 2019 the Court made an order declining to conditionally exclude the evidence. Reasons were reserved until today.
The Crown tendered Ex. VDD on the voir dire, a document which sets out in schedule form a list of the disputed recordings, each of which is to be tendered “without complete transcripts” or “without transcripts”. Twelve recordings fall in the former category, and five in the latter. The recordings are of conversations involving various individuals, an undercover police operative (“UCO”), or persons alleged to be conspirators, including the accused Mr D’Agostino, during the period 15 September 2014 at 9:34am, to 6…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1426
Decision Date: 21 October 2019

CaseChat Overview and Summary

In the case of R v Pirrello, Pirrello & D'Agostino, the defendants were facing charges related to conspiracy to import border controlled drugs. The dispute before the court revolved around the Crown's disclosure obligations in relation to the tendered recordings. Specifically, the court was tasked with determining whether the accused would be prejudiced by the absence of complete transcripts of the recordings, and whether the recordings should be conditionally excluded from the evidence. The defendants argued that the absence of complete transcripts would prejudice their right to a fair trial, as they would be unable to adequately cross-examine the witnesses and test the credibility of the recordings. The Crown, on the other hand, submitted that the recordings should be admitted, as the absence of complete transcripts did not prejudice the defendants' right to a fair trial.

The court considered the legal principles surrounding the Crown's disclosure obligations, and the right of the accused to a fair trial. It was established that the Crown must disclose all material evidence to the defence, including recordings, and that the accused must be given the opportunity to test the credibility of the evidence. However, the court also recognised that the right to a fair trial does not guarantee the right to perfect evidence, and that the absence of complete transcripts does not necessarily prejudice the accused's right to a fair trial. The court held that the absence of complete transcripts may prejudice the accused's right to a fair trial if it prevents them from adequately cross-examining the witnesses and testing the credibility of the recordings. However, this would depend on the specific circumstances of the case, and the court must consider the nature of the offence, the importance of the evidence, and the extent of the prejudice caused by the absence of complete transcripts.

In this case, the court found that the absence of complete transcripts did not prejudice the defendants' right to a fair trial. The court held that the defendants had been given sufficient opportunity to test the credibility of the recordings, and that the importance of the evidence did not outweigh the defendants' right to a fair trial. The court also found that the defendants had not demonstrated that the absence of complete transcripts had caused them any significant prejudice. Accordingly, the application to conditionally exclude the evidence was refused. The court emphasised that the absence of complete transcripts did not necessarily prejudice the accused's right to a fair trial, and that the court must consider the specific circumstances of each case when determining whether the absence of complete transcripts prejudices the accused's right to a fair trial.

Orders