R v Pirrello, Pirrello & D'Agostino [2019] NSWSC 1408 (15 October 2019)

Last Updated: 7 November 2024

Supreme Court New South Wales

Case Name:	R v Pirrello, Pirrello & D’Agostino
Medium Neutral Citation:	[2019] NSWSC 1408
Hearing Date(s):	15 October 2019
Date of Orders:	15 October 2019
Decision Date:	15 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 – three conspiracies alleged – Crown opening address to jury – proposed use of documents by Crown as aide-mémoires – whether documents would prejudice the trial – use of visual and documentary aid in jury trials generally – documents amended and provided to jury
Cases Cited:	R v Dirani (No 19) [2018] NSWSC 1135
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: Prior to the Crown opening address to the jury being given, an issue has arisen as to the use during that opening of two documents. The first is a "Who's Who" document which operates as a list of those involved in some way in the alleged conspiracies, or said to be so involved. The second is a chronology of relevant events.
2. Neither Mr Brady SC nor Mr McCallum take objection to the use of the documents. Mr Stratton SC for Joseph D'Agostino does take objection to both documents.
3. The Crown intends to provide the documents to the jury as an aide-mémoire to the opening to assist the jury in following and understanding the opening address, and to prevent the jurors from becoming "lost in a sea of detail and names". The Crown submits that the information each contains is a benign summary of evidence which the jury will hear during the course of the trial and having access to it in both the opening address and subsequently during the trial can only assist the jury to carry out its function.
4. Mr Brady and Mr McCallum agree broadly with the Crown's submission. Mr Stratton submits that the proposed course is an unusual one, not justified by the length or complexity of the proceedings, and which could occasion prejudice to his client.
5. Setting aside issues of names, addresses, telephone numbers and dates of birth (which were resolved during submission and discussion), the "Who's Who" document, it is submitted, contains assumptions that the evidence may not establish as well-founded, the column headed "Background" contains statements concerning the relationships between individuals which is in dispute, and it is prejudicial to allow the material to go to the jury.
6. The chronology, it is argued by Mr Stratton, is prejudicial of itself: information which is complex has been presented out of context in summary form, and points the jury at the outset to conclusions which the accused may contend are not open; errors or coloured summaries within the document compound the problem.
7. As a general statement, my own view is that jurors should be given as much information and assistance as is possible, always subject to and consistent with the obligation of the Court to ensure that the parties receive a fair trial. Particularly in longer trials, any documentary aid which can be made available should be made available. Too often, in my observation over the decades, jurors flounder with information which is presented to them in an unfamiliar format, in an environment which is not necessarily conducive to clear understanding.
8. In the present age of information technology, few members of the community would feel comfortable with the receipt of often dense information studded with detail important to comprehension, delivered by voice alone, without visual or documentary aid. That it has always been done thus does not mean it should always be done in that manner. As a general statement then, documentary aids to understanding and prompts to memory should be available wherever possible. Whilst that has not historically been a common course, it is not unheard of, as Johnson J observed in R v Dirani (No 19) [2018] NSWSC 1135 at para [14].
9. In my own view, it should be more common than it is. Jury trials are no longer two or three day affairs with straightforward issues for determination. They are now more typically complex, with difficult evidentiary and legal concepts to be grasped by jurors who may not have education beyond the level of the school certificate, and who are unlikely to be familiar or comfortable with oral delivery of dense information.
10. The question here is whether the two documents in their present form, or at all, would prejudice the accused's trial.
11. Having considered the competing submissions and such authority as has been accessible in the short time available, I do not conclude that they would. Rather, with some modification to address some specific issues, I think they could only facilitate the jury's understanding of the issues in the trial and the matters it is likely to be required to resolve.
12. A written aid to an opening address will have no greater status than would the Crown's opening address or that of defence counsel. A direction can be given to the jury at the outset to that effect, with emphasis on the valid use to be made of the document by the jurors and highlighting the primacy of the evidence.
13. It will be clear already to the jury from observing the arraignment process yesterday that the accused men dispute their guilt. The mere provision of summary documents to jurors in the Crown's opening address cannot detract from that, particularly when a direction of the sort I have referred to is given contemporaneously with their distribution.
14. In some ways the written document will simply replace or supplement any notes that individual jurors may have made of the address, in the absence of any aide-mémoire. It will have the advantage over notes of being a document the contents of which the parties have had an opportunity of considering and correcting as necessary.
15. Where there are three conspiracies before the jury involving a different configuration of alleged participants in each instance, some note as to those involved is likely to be very useful to aid in understanding and recall. In a trial with an estimate of ten weeks, where the evidence will come piecemeal through multiple recordings and witnesses and out of chronological order - simply through the ordinary practicalities of assembling witnesses and the overlap of evidence between witnesses - a chronology is also likely to be of considerable assistance to the jury.
16. Obviously the documents must represent a fair and accurate summary of the evidence which it is expected will be led. That may require some amendment to the detail of the documents, although it is not possible for the Court to determine that on the information made available today.
17. Although it is something which I would expect counsel will be able to resolve, a hand-amended copy of each of the disputed documents will be provided to the parties shortly, following the delivery of these reasons, with such amendments as I think should be made. The amendments made in the annexures to the reasons have been made to eliminate any possible misuse of the document by the jury.
18. It is, of course, open to the parties to agree upon further amendments or to refer any dispute as to the content to the Court. I have endeavoured in the amendments that I have made to ensure that nothing but factual material that the Crown can, without question, establish by reference to surveillance evidence, physical or electronic, is included.
19. I also think it is important that the documents should be capable of use by the jurors as their own documents. To that end, the version to go to the jury should be formatted to provide space for jurors to make their own notes of evidence or observations each may individually make. A column for the jurors to add exhibit numbers, where appropriate, should also be added to aid the jury during the course of the trial to navigate through what I expect will be the numerous exhibits.
20. Documents in this form can do no prejudice to the accused in my conclusion, but could materially aid the jury in understanding the issues and in carrying out its task.
21. The second issue which has arisen before the Court this morning concerns the tender by the Crown of 17, or 20, recorded conversations for which no transcript has been provided. Whilst I will give further written reasons in due course, certainly during the early part of the trial, I do not propose to accede to the request from Joseph D'Agostino to exclude the playing of those recordings from evidence.
22. In short form, my view is that the Crown’s disclosure obligations have been met. The Crown proposes to play recordings of conversations. Those recordings have been served. They have been served with a summary document which makes attribution of voices, or at least the attribution for which the Crown contends, plain. That is sufficient, in my view, to meet the requirements of disclosure, but I will publish some further reasons in due course.

Amendments

07 November 2024 - Typographical amendment to coversheet.