R v Pirrello, Pirrello & D'Agostino (No. 9)

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pirrello, Pirrello & D’Agostino (No. 9) [2019] NSWSC 1836
Hearing dates: 11 December 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
Juror discharged under s 53B(d) of Jury Act 1977 (NSW)

Catchwords:
CRIMINAL PROCEDURE – trial – jury of eleven – offences related to conspiracy to import border controlled drugs – juror’s ability to perform the functions of a juror affected – juror discharged

Legislation Cited:
Jury Act 1977 (NSW)

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.

EX TEMPORE Judgment

HER HONOUR: During the course of this morning, today being the forty-second day of trial proceedings against Joseph D'Agostino, Francesco Pirrello and Michael Pirrello, and during the course of a short break, the Court received information through the officer-in-charge of the Office of the Sheriff at the Taylor Square Court Complex that one of the jurors serving on this trial had received news from her sibling, very sadly, that their father had, it seems to some extent rather unexpectedly, died. That has only just happened.
The Office of the Sheriff permitted the juror to speak with her sister and, as anyone would expect, the juror is now in a state of great distress. Because of her distress and because of the tragic family event that had occurred, I permitted the Sheriff's Office to allow the juror to leave, and to facilitate transport for her to wherever she needed to go, and she has now left the complex.
The question is whether that juror should be discharged. I have raised that subject with counsel and counsel agree that there is no other course reasonably available than to discharge the member of the jury pursuant to s 53B(d) of the Jury Act because of her incapacity to continue as a member of the jury of this trial.
There is not only the fact of her evident distress today which justifies that decision, but also an inquiry made by the Sheriff's Office of the juror, perhaps insensitively - and, for that, the Court must take the blame since it was at my request - but an inquiry has been made of the juror as to the possibility that she may be able to continue if given some time, but the juror expressed the firm view that that would not be possible.
The juror has advised the Office of the Sheriff that, from her discussions with her sister, she believes that her sister will struggle to cope with the loss of their father, that the burden of making the necessary arrangements and supporting family members is likely to fall on the juror, and that she will be needed for the foreseeable future, at least in terms of the next week or two, to directly attend to family business connected with their father's death. That is entirely understandable, but it is appropriate in those circumstances to discharge the juror.
Section 53B(d) of the Jury Act provides that where it appears to the Court that for any other reason affecting the juror's ability to perform the functions of a juror the juror should not continue to act, that that juror can be discharged. Clearly, in this instance, the juror will be so affected by grief and distress at her father's death that her ability to function in terms of concentration on the addresses, in terms of concentration during the course of the summing-up, and in deliberation with her fellow jurors, would be impaired and likely significantly so.
On that basis, the juror should be discharged and I make that order pursuant to s 53B(d), discharging an individual juror because of a matter affecting her ability to perform her functions.

Amendments

07 November 2024 - Typographical amendment to coversheet.

The case involved three defendants, Pirrello, Pirrello, and D'Agostino, who were on trial for conspiracy to import border controlled drugs. The trial was conducted in the Supreme Court of New South Wales before a jury of eleven. The defendants challenged the jury's composition, arguing that one juror's ability to perform their functions was impaired due to health issues, leading to their discharge from the jury. The defendants contended that this necessitated a discharge of the jury and a retrial with a new jury.

The central legal issue before the court was whether the discharge of a juror due to their impaired ability to perform their functions warranted a discharge of the entire jury and a retrial. The defendants argued that the discharge of a single juror, particularly under the circumstances presented, was a significant event that could not be remedied by simply replacing the juror. They submitted that the discharge disrupted the integrity and impartiality of the jury, necessitating a new trial with a fully constituted jury. The prosecution, on the other hand, argued that the discharge of a juror did not inherently compromise the jury's ability to deliver a fair and impartial verdict, and thus a retrial was not required.

The court considered the legal principles governing the discharge of a juror and the consequences thereof. It noted that while the discharge of a juror was an uncommon occurrence, it did not automatically lead to the discharge of the entire jury. The court held that the discharge of a juror did not necessarily invalidate the proceedings or the verdict, provided that the remaining jurors were capable of delivering a fair and impartial decision. The court emphasised that the discharge of a juror was not an event that inherently compromised the jury's integrity or impartiality, unless it was shown that the remaining jurors could not continue to deliberate effectively. In this case, the court found that the remaining jurors were capable of continuing to perform their functions and that the discharge of the juror did not necessitate a discharge of the jury or a retrial.

The court ordered that the trial would continue with the remaining ten jurors. The defendants' application for a discharge of the jury and a retrial was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v Pirrello, Pirrello & D’Agostino (No. 9) [2019] NSWSC 1836
Hearing dates:	11 December 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Juror discharged under s 53B(d) of Jury Act 1977 (NSW)
Catchwords:	CRIMINAL PROCEDURE – trial – jury of eleven – offences related to conspiracy to import border controlled drugs – juror’s ability to perform the functions of a juror affected – juror discharged
Legislation Cited:	Jury Act 1977 (NSW)
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.