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

1. 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.

2. 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.

3. The application does not directly affect either Michael Pirrello or Francesco Pirrello and neither wished to be heard in relation to the application.

4. Joseph D'Agostino, whose brother Frank is, opposes the application and the Court has heard from Mr Stratton SC and also from the Crown.

5. 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.

6. 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 are charged against Joseph D'Agostino, although to charges which have been differently framed to those averred against Joseph D'Agostino and, with respect to count 2, Michael and Francesco Pirrello.

7. Mr D'Agostino is to appear before the District Court in Sydney next month for sentence. Pending the next mention of the matter, he is at liberty subject to conditional bail. I am advised by the Crown that it is expected that he will be taken into custody on that next mention, later in November.

8. Mr D'Agostino is named as an alleged conspirator in each of the three counts against the accused in these proceedings, including counts 2 and 3, to which pleas of not guilty have been entered by the accused, Joseph D'Agostino. Frank D'Agostino will figure significantly in the evidence.

9. These are all matters of public record.

10. Yesterday, at the end of the day's proceedings, Senior Counsel for the Crown referred to the entry into, and the presence in, the courtroom of Frank D'Agostino, noting for the record the Crown's observations of the jury thereafter. The Crown Prosecutor's observations broadly conformed with my own.

11. Frank D'Agostino, to my observation, entered the courtroom shortly after a document had been electronically distributed to the jury which recorded information concerning the alleged co-conspirators, including a small photograph of each. Upon his entry, a number of the jurors looked at him, appeared to refer to their individual iPads on which the “Who's Who” document was contained. Some of these jurors looked again at Frank D'Agostino and looked at him not infrequently during the remainder of the period in which he was in the courtroom.

12. A number of jurors, in my observation, appeared to show facial expressions consistent with concern. In particular, there were two female jurors who looked anxious; one of whom looked, I thought, particularly anxious, and who looked at Frank D'Agostino repeatedly during the course of his time in the courtroom.

13. That is the material available to the Court upon which this application falls to be determined.

14. The Crown submits that, whilst there is no suggestion that Frank D'Agostino has conducted himself in an inappropriate manner to date, because of his close relationship with the accused and his own central role in the alleged conspiracies that are before this Court, a role which, unbeknownst to the jury, he has acknowledged, there is a very real risk that an outburst or some other unhelpful display of emotion could occur. That could be enough, in the Crown's submission, to lead to a question being placed over the continuance of the proceedings.

15. Further, the jury's awareness of Mr D'Agostino's presence could also give rise to the potential for very real problems to arise. There is the issue of the apparent concern with which some jurors appeared to react to Mr D'Agostino's presence and what, if anything, that may signify; and there is also the prospect of speculation by the jurors as to why he is in court, how and why he is able to be present, and what has happened to him in connection with these charges.

16. His presence, in the Crown's submission, could lead to a question which the Court might be asked by the jury, but which it could not answer without occasioning unfair prejudice to the accused. The Crown submits that Frank D'Agostino's exclusion is necessary to preserve the integrity of the trial and to ensure its fairness.

17. Mr Stratton SC submits that whilst the Court has the power to make an order or give a direction of the sort which the Crown seeks, that power is to be applied sparingly and only in compelling circumstances, where it is necessary to diminish the operation of the principle of open justice.

18. The Court has been referred to a number of decisions by Mr Stratton. The significant decision is that of 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. I will return to that decision in a moment, but that decision, together with some others to which Mr Stratton has referred, including a 1985 decision of Raybos v Jones (1985) 2 NSWLR 47 and some quite ancient decisions, all go to reinforce the fundamental principle that justice should be administered in an open court, and a court which is open to all persons who wish to observe the proceedings.

19. Mr Stratton highlights the fact that there is nothing to suggest that Mr D'Agostino has, and by inference would, conduct himself in such a way as to prejudice the administration of justice. There is nothing concrete upon which to conclude that members of the jury may be impeded in carrying out their function and, in light of that, it would be wrong for the Court to make an order excluding an individual member of the public, particularly so where that individual member of the public has what I think all could readily concede would be a greater interest than a casual observer in the proceedings.

20. Mr D'Agostino has been made aware of the application which the Crown has made today, through his solicitor, and the Court has been advised that he wishes to be present in court. Mr Stratton has provided some further information during the course of his submissions, which I accept, that goes to highlight the reasons why Mr D'Agostino wishes to be present.

21. Firstly, his parents are elderly and require some assistance with mobility in getting to and from court, and Frank D'Agostino was to be the person to provide that assistance to his, and of course Joseph D'Agostino's, parents.

22. Mr and Mrs D'Agostino were present in court and certainly it does seem that they would benefit from some family assistance. Another family member has been in court today, who I am advised is Nino D'Agostino, another of the accused's brothers. It is suggested that there was some possibility that Mr Nino D'Agostino could provide that assistance to his parents, but I am advised by Mr Stratton that that is not the case because Mr Nino D'Agostino works and is not in a position to daily assist his parents.

23. Further, Frank D'Agostino is desirous of physically being present in court, both to demonstrate his support to his brother, which I accept is an important matter for an accused standing trial on serious criminal charges, and to make available, should it be of use, his knowledge of the evidence in the case, necessarily drawn from proceedings against him and his familiarity with the brief of evidence and these events.

24. There is no question that he has a legitimate interest in the proceedings and I accept that, as a family member, he wishes to support and assist not just his brother but also his parents.

25. Determination of this application is both informed and governed by the principles of open justice to which both the Crown and Mr Stratton have referred. Those principles emphasise the primacy of court proceedings being open to any member of the public who wishes to observe them and can be physically accommodated in the courtroom. They emphasise the importance of justice being openly administered.

26. One of the earlier cases to which Mr Stratton has referred, that from 1649, Lieutenant-Colonel John Lilburne (1649) 4 How St Tr 1269 at 1273, perhaps highlights the importance of that principle. Justice which is conducted in secret, or by excluding persons, is justice which ordinarily is compromised, at least in the perception of members of the public.

27. The principles are clear and I do not propose to detail them at length. I have referred already to the decision of Fairfax v The District Court. A brief quotation from that case I think serves to guide this Court as to the primacy of the principles of open justice. At [18] and [19] the then Chief Justice, his Honour Spigelman CJ said:

“It is well-established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520–521, 532.) […]

It is also well established that the exceptions to the principles of open justice are few and strictly defined. (See, eg McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional restraints.”

28. There are occasions when those principles are mitigated or limited, when the Courts have had occasion to limit or restrict the application of the principles of open justice, because it is in the interests of justice to do so.

29. I do not doubt that the Court has the power to make the order or give the direction that the Crown seeks. The Court's inherent powers are wide and extend to making such orders as are necessary for the Court to carry out its functions, and to secure the proper administration of justice.

30. I have been referred to s 23 of the Supreme Court Act1970 (NSW) and that section codifies, in a sense, the inherent powers of the Court to make such orders and take such action as is necessary to administer justice.

31. There are some specific statutory provisions that permit the court to be closed and to exclude the public from its proceedings in certain circumstances, such as where a child is before a court accused of a criminal offence, or where a sexual assault complainant is giving evidence of a sexual offence. None of those statutory provisions apply here and the Court would accordingly, be exercising either its inherent powers, or s 23 of the Supreme Court Act, or both simultaneously, in making the order sought.

32. In the short time available, the Court has been referred to or considered two other authorities apart from those to which I have already made mention which have some relevance to the present application. They are R v Abdullah Chaarani [2018] VSC 287 and Ex parte Tubman; re Lucas [1970] 3 NSWR 41.

33. The Victorian case, Chaarani, dealt with an issue that arose when the wife of the accused person in a terrorism trial sat in the public galley during the course of the proceedings with her face obscured by a religious garment, a niqab. In that case, the principles of open justice and the corollary right of members of the public, whatever their religious beliefs, to fully participate in public life were restricted to the extent that persons with their faces covered were not permitted to be present in the public gallery.

34. In making that decision, Beale J was concerned that, in the stressful environment that frequently prevails in a criminal trial, there could be disruption to the proceedings, and a person whose face is covered, and thus is perhaps less amenable to immediate identification, may not be deterred from conducting themselves in such a way as to interfere with the proceedings. His Honour concluded at [23]:

“It is not good court management, in my view, to adopt a reactive approach, that is, to allow spectators to have their faces covered but eject them and refuse them re-entry if they are detected misbehaving. First, prevention is better than cure. Second, it is naive to think that misbehaviour would always immediately be detected by court security staff. A person to whom something improper is said or done may be too stunned or frightened to raise the alarm immediately, enabling the culprit to get away or there may not be sufficient court security staff on hand. Court security resources are limited and one cannot always predict which cases will generate problems in the public gallery.”

35. His Honour took the view that to permit members of the public to cover their faces was, at [26], "to significantly compromise court security".

36. The second case is a New South Wales authority from 1970. Although it is a case which deals with proceedings for contempt in the face of the court, the court being the then Magistrates’ Court, now the Local Court, some of the principles which are distilled in the judgment of the Court of Appeal are of relevance.

37. Then Chief Justice Herron in the Court of Appeal considered whether the Magistrates’ Court had the power to exclude members of the public from the proceedings before the court, concluding that there was such an inherent power. His Honour said, at 569:

“The discretion is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court. Its exercise should not be confined to cases where there is a strict necessity. It should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice.”

38. His Honour was there quoting from a decision of the Privy Council, O'Toole v Scott [1965] AC 939.

39. At [570] of that judgment, his Honour, again quoting from English authority, said:

“While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. The exceptions are themselves the outcome of a yet more fundamental principle, that the chief object of courts of justice must be to secure that justice is done. […] The burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must, as of necessity, be superseded by this paramount consideration.”

40. Later on that same page, his Honour, again referring to English authority, included the following extract:

“The Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder or the just apprehension of it would certainly justify the exclusion of all from whom such interruption is expected and, if discrimination is impractical, the exclusion of the public in general.”

41. His Honour concluded that it was well-established that those presiding in the Courts of Petty Session (obviously extending to a superior court such as the Supreme Court) have the inherent power where it becomes necessary, in order to administer justice, to exclude from the courtroom any person whose behaviour is a cause of, or is reasonably to be apprehended as, disrupting the orderly proceedings of the court.

42. It is a question of applying those authorities and principles to the facts of this case. There are a number of features which are of significance in those facts.

43. Firstly, I am conscious that Frank D'Agostino, as with any member of the public, ought to have the right to sit in a public court and listen to the proceedings. That is perhaps even more so where there is a familial connection which leads to a desire to demonstrate support for a family member.

44. However, Mr D'Agostino is a person who is more than just a family member; and I am conscious also of the fact that he is, recognisably to the jury, a person, at least in their knowledge, charged with very serious offences, and whose name will crop up probably almost daily in the course of these proceedings. Necessarily, that may well lead the jury to wonder and to speculate as to his presence here.

45. I am very conscious of the fact that at least one juror seemed, in my observation, to demonstrate some real anxiety at Mr D'Agostino's presence, and I am conscious of the Court's obligation to ensure that the jury is provided with an environment in which it can discharge its function.

46. I am also conscious of the fact that this is a lengthy trial with an eight week estimate. It is presently listed in the only remaining eight weeks prior to the Christmas vacation and, if something occurs such that the jury has to be discharged, inquiries made by the Court yesterday morning in another context reveal that there is no jury panel available to take a trial of this length, and nor could the Court's diary accommodate it, until probably the second half of next year.

47. Those are all significant factual matters which I bear in mind when determining this application. Some of them pull in opposite directions.

48. Ultimately the feature which has had most significance to me is the fact that Mr D'Agostino, despite his criminal connection with these events, conducted himself in a quiet and respectful way yesterday when he was present in the Court and did nothing to bring down upon himself an order from this Court excluding him from proceedings which will be otherwise open to members of the public.

49. I am also mindful of the submission from Mr Stratton that the Courts must proceed, can only sensibly proceed, on the basis that juries will accept and obey instructions and directions which are given to them by trial judges.

41. If Mr D'Agostino is to be present in court, it seems to me that it is necessary, subject to hearing from counsel, to craft a direction to be given to the jurors at an early stage as to his presence in court, to obviate the potential problems raised by the Crown from becoming a reality, and a reality which could lead to the very, very undesirable result of this jury being discharged and the trial being delayed for many, many months.

42. However, the principles of open justice are very important. I think it is important not just for members of the public to be able to see that justice is fairly administered, but also for family members of accused persons or, indeed, victims of crime, where there is a victim of crime, to be able to see justice being administered; and that applies here to Frank D'Agostino.

43. On all of the material before the Court, and although it is not without some misgivings, I have decided that the Crown's application should be declined. I make clear, however, that if Mr D'Agostino conducts himself in such a way as to cause me any concern, I will exclude him and I will do so very quickly.

44. It is open to the parties to revisit this question should there be any further development in the proceedings, whether that be a question from the jury or any other development. But I do not regard this matter as closed; it seems to me that it may well be a developing situation and it can be revisited.

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024