R v Pirrello, Pirrello & D’Agostino (No. 10) [2019] NSWSC 1837

Supreme Court New South Wales

Medium Neutral Citation: R v Pirrello, Pirrello & D'Agostino (No. 10) [2019] NSWSC 1837 Hearing dates: 11 December 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Common Law Before: Wilson J Decision: Application to discharge jury is refused Catchwords: CRIMINAL PROCEDURE – trial – jury of ten – offences related to conspiracy to import border controlled drugs – application to discharge jury – substantial miscarriage of justice considered - no risk of a substantial miscarriage of justice found – trial to continue 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: A short time ago the Court made an order pursuant to s 53B(d) of the Jury Act 1977 discharging a single juror in the trial which is now in its forty-second day. Having made that decision, there is a question of whether the Court is to continue with the trial, or discharge the whole of the jury. 2. Mr Stratton SC for Joseph D'Agostino has made an application that the whole of the jury be discharged. Mr Brady SC for Francesco Pirrello wishes to see the matter go to verdict with this jury, as does Mr McCallum, counsel for Mr Michael Pirrello. The Crown's position is in accord with that of Mr Brady and Mr McCallum. 3. The Crown submits that it is appropriate and in the interests of justice for the trial to proceed and that the Court should make a decision pursuant to s 53C(1)(b) that there is no risk of a substantial miscarriage of justice in the continuance of the trial with ten jurors. The Crown submits that the trial ought proceed. 4. These remarks assume a familiarity with an earlier decision taken by the Court, unpublished as yet to anyone other than the parties, but which was given on 7 November 2019. On that date there was, similarly, an application to discharge the balance of the jury, the Court having discharged a single juror due to medical incapacity that day. 5. It was then Mr Stratton's application and submission that to proceed with eleven jurors could give rise to a substantial miscarriage of justice and, thus, that the whole of the jury should be discharged. That application was not supported by either of the co-accused, and it was opposed by the Crown. 6. Mr Stratton's submissions this morning, as with these remarks, echo and draw upon his submissions made in early November. The remarks that I now make build, to some extent, on the remarks that I made on 7 November 2019. 7. Mr D'Agostino's submission is that it would be unfair to him and likely occasion a substantial miscarriage of justice for his trial to proceed to verdict before a jury of ten jurors only. He submits that the charges he faces, being two counts of conspiracy to supply a commercial quantity of a border controlled drug, each of which carry a life sentence by way of maximum sentence upon conviction are so serious that, for his fate to be dependent upon the verdicts of ten jurors as opposed to the more usual position of twelve, or even the better position that pertained until this morning of eleven jurors, is unjust. 8. Further, Mr D'Agostino submits that there is some reported evidence of remaining jurors being upset by this morning's events and that that could have an impact on their capacity to function as jurors. 9. All of that is perhaps compounded, in Mr Stratton's submission, by the fact that these proceedings are now very close to Christmas, today being 11 December. The trial was anticipated to finish on 20 December, that being the last day of the Court term and only days away from the Christmas festivities. 10. It is Mr D'Agostino's submission that the combination of those features, with emphasis on the unfairness to him of his fate being decided by ten individuals, that the Court should conclude that there would be or could be a substantial miscarriage of justice in the trial proceeding. 11. On 7 November I made a decision to continue with the trial proceedings, principally on the basis that I could see no basis to conclude that a jury of eleven individuals would be likely to do an injustice to Mr D'Agostino in determining their verdict. In so concluding, I referred to s 22 of the Jury Act, which makes provision for the Court to continue after the discharge of an individual juror or individual jurors, as long as the number of the jury members is not reduced below ten (subject to some other provisions requiring consent). It seemed to me then that in providing for the power to continue with fewer than twelve jurors, the legislature had made it clear that to proceed in that way would not, of itself, lead to a miscarriage of justice. 12. The question then, in my view, is whether that feature, that we now have even fewer than eleven, being ten jurors, when combined with their natural distress at the grief caused by this morning's events to a fellow juror, and the closeness of Christmas, is sufficient to tip the application into the area of a risk of a substantial miscarriage of justice. That is not my view. 13. That is particularly so when one notes the stage that the trial has reached. We have now heard all of the evidence for the Crown, the jury has heard evidence given and called by two of the accused men; they have heard the closing address from Senior Counsel for the Crown, the closing address from counsel for Michael Pirrello and they have heard perhaps a third or so of closing address from Senior Counsel for Francesco Pirrello. That is, we are almost at the point of sending the jury out on verdict to deliberate. 14. All of the observations that I made in November as to the efficiency of the trial process, the need to be observant of and conserve the Court's resources, the observations with respect to the potential impact upon witnesses who would have to testify twice apply again, but they apply even more profoundly than was the case a month ago. Further, two of the accused have no become witnesses themselves. 15. The jurors have been, by and large, apart from perhaps one occasion, very attentive to the evidence. They have been listening carefully. It is clear that they have been considering the issues because most of them take notes at various times. They have followed references by counsel to particular exhibits. They are clearly an engaged jury. 16. The loss of one further of their number does not, to my mind, mean that their prior diligence would be adversely affected. If that is correct, then there is no reason to conclude that proceeding with ten jurors poses a risk of unfairness to an accused person that is not posed by eleven jurors, or not posed by twelve jurors, where those ten jurors are clearly engaged with the proceedings, following them closely, and attentive to their duties. 17. Indeed, it perhaps bears mentioning, even if only in passing, that at the ninth week of a criminal trial we have not yet had a single day lost to juror absence. I think that is the first time that I have had that experience of a longer trial in decades of involvement in criminal trials. Generally at least one juror is sick on at least one day. That has not happened here and it seems to me that says a great deal for the diligence of these jurors. 18. Having considered all of those matters raised by counsel, I do not conclude that to continue with the remaining ten jurors would give rise to the risk of a substantial miscarriage of justice. In my view, there is no such risk and, having determined that, the trial will continue. I will make that order pursuant to s 53C(1)(b).