R v Pirrello, Pirrello & D'Agostino - [2019] NSWSC 1427

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pirrello, Pirrello & D’Agostino [2019] NSWSC 1427
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
Application by the Crown refused

Catchwords:
CRIMINAL PROCEDURE – trial – jury – application by Crown for exclusion of co-conspirator from public gallery – co-conspirator appeared in “Who’s who document” – co-conspirator family member of accused – consideration of principles of open justice – reactions of jury members to co-conspirator – co-conspirator watching proceedings quietly and respectfully – application refused

Legislation Cited:
Supreme Court Act 1970 (NSW), s 23

Cases Cited:
Ex parte Tubman; re Lucas [1970] 3 NSWR 41
John Fairfax Publications Pty Ltd and Anor v The District Court of New South Wales and Ors [2004] NSWCA 324; (2004) 148 A Crim R 522
Lieutenant-Colonel John Lilburne (1649) 4 How St Tr 1269
O'Toole v Scott [1965] AC 939
Raybos v Jones (1985) 2 NSWLR 47
R v Abdullah Chaarani [2018] VSC 287

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: During the course of the Crown Prosecutor's opening address yesterday and in the presence of the jury, Francesco, or Frank, D'Agostino entered the courtroom and sat in the public gallery. He was seated with a woman who was clearly known to him and he quietly observed the proceedings thereafter. He was present for much of the remainder of the day, to my recollection.
The Crown now seeks a direction or an order from the Court to exclude Frank D'Agostino from the proceedings, relying upon what is submitted to be the very real possibility that his presence in the courtroom will prejudice the trial.
The application does not directly affect either Michael Pirrello or Francesco Pirrello and neither wished to be heard in relation to the application.
Joseph D'Agostino, whose brother Frank is, opposes the application and the Court has heard from Mr Stratton SC and also from the Crown.
No evidence was tendered in support of the application but, since all relevant facts are either matters of public record or can be determined by the Court on the basis of what occurred in the face of the Court, that is not in my view necessary.
Frank D'Agostino is the younger brother of the accused Joseph D'Agostino. Significantly, he is also a person who has pleaded guilty to his involvement in the conspiracies which…

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.

Continue reading R v Pirrello, Pirrello & D'Agostino

Details

AGLC: R v Pirrello, Pirrello & D'Agostino [2019] NSWSC 1427
Case: [2019] NSWSC 1427
Decision Date: 17 October 2019

CaseChat Overview and Summary

The case of R v Pirrello, Pirrello & D'Agostino involved three accused individuals who were on trial for various criminal offences. The Crown sought to exclude a co-conspirator from the public gallery during the trial, citing concerns about potential prejudice to the jury and interference with the principles of open justice. The co-conspirator had appeared in a document referred to as the “Who’s who document” and was also related to one of the accused. The case came before the court to determine whether the application should be granted.

The court had to consider several legal issues, including the principles of open justice and whether the presence of the co-conspirator in the public gallery would unduly prejudice the jury. The court also needed to assess whether the co-conspirator's conduct was respectful and whether there was a risk of influencing the jury. The accused argued that the co-conspirator had the right to be present at the trial, while the Crown argued that the potential for prejudice outweighed this right.

After considering the arguments and evidence presented, the court ruled that the application to exclude the co-conspirator from the public gallery should be refused. The court found that the co-conspirator was watching the proceedings quietly and respectfully, and there was no evidence to suggest that the jury members had reacted to the co-conspirator in a prejudicial manner. The court also noted that the principles of open justice were not infringed by the co-conspirator's presence. Consequently, the co-conspirator was permitted to remain in the public gallery.

The court made no orders regarding the exclusion of the co-conspirator from the public gallery. The trial proceeded with the co-conspirator present in the public gallery, and the accused were given the opportunity to continue their defence.

Orders