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

[2019] NSWSC 1836

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

Decision last updated: 07 November 2024