Supreme Court New South Wales Medium Neutral Citation: R (Cth) v Pirrello, Pirrello & D'Agostino [2019] NSWSC 1838 Hearing dates: 02 December 2019 Date of orders: 02 December 2019 Decision date: 18 December 2019 Jurisdiction: Common Law Before: Wilson J Decision: Evidence of a summary chart containing telephone service information is admitted Catchwords: CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of the admissibility of summary evidence – s 50 Evidence Act – whether foundational evidence exists for some parts of the summary – whether the foundational evidence supports a valid inference as to user of telephone services used in the course of overt acts Legislation Cited: Criminal Code 1995 (Cth) Evidence Act 1995 (NSW) Category: Principal judgment Parties: Regina (Crown) Joseph D'Agostino (First Accused) Michael Pirrello (Second Accused) Francesco Pirrello (Third Accused) Representation: Counsel: Proceedings 2017/010927 P McGuire SC/B Anniwell (Crown) J Stratton SC/M Curry for (First Accused) Proceedings 2016/388954 P McGuire SC/B Anniwell (Crown) D McCallum (Second Accused) Proceedings 2016/388994 P McGuire SC/B Anniwell (Crown) G Brady SC (Third Accused) Solicitors: Proceedings 2017/010927 Solicitor for Public Prosecutions (Cth) (Crown) Mitchell and Co Lawyers (First Accused) Proceedings 2016/388954 Solicitor for Public Prosecutions (Cth) (Crown) Shoalhaven Lawyers (Second Accused) Proceedings 2016/388994 Solicitor for Public Prosecutions (Cth) (Crown) Shoalhaven Lawyers (Third Accused) File Number(s): 2017/010927; 2016/388954; 2016/388994 Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW). Judgment 1. HER HONOUR: During the course of the accused's trial for two counts of conspiracy to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code 1995, an issue arose as to the admissibility of a summary of evidence concerning users, or alleged users, of various telephone services connected with the events the subject of the trial. The Crown sought to tender the summary pursuant to s 50 of the Evidence Act 1995 (NSW), with the accused, Joseph D'Agostino, objecting to its admission. 2. Two co-accused tried jointly with the accused did not object to the evidence going to the jury in summary form, and took no issue with the accuracy of its contents. 3. At the conclusion of the evidence and legal argument on 2 December 2019 the evidence was ruled admissible, and it ultimately became Ex. BD in the trial. Not least because the jury had been left waiting in the jury room for an unexpectedly lengthy period whilst the issue was considered, I reserved reasons until a more convenient point in the trial proceedings. 4. These are my reasons for the decision made on 2 December 2019. 5. The Crown tendered Ex. VD G, a copy of the proposed summary, on the question of its admissibility. It is a document entitled "Telephone Subscriber and User Summary"; its contents provides information as to the mobile service number, the alleged user, the registered user and address, the dates of activation and cancellation of the service, and the service provider, for twenty-six telephone services, the use of which is relevant to proof of the charges. It is the column for "alleged user" with which the accused takes issue. 6. The accused disputes the Crown's attribution to him in the "Alleged User" column of use of three telephone services, the services numbered 0420***929, 0405***147, and 0451***937. He does not dispute being the user of services with numbers ending in 162, 456, 826, 384, 869 / 869407, and 790. 7. All but one of those services are subscribed falsely, with some repetition of subscriber details, or echoes of details, across the acknowledged and the disputed services, and some commonality of the sales point for the purchase of the services. 8. Two of the accused's acknowledged services were purchased at a particular retail store at Bondi Junction, as were two of the disputed services. Some of the false subscriber names echo aspects of other names, such as the names Barry Rodgers and John Ryan for two of the accused's services, and the name John Rogers for one of the disputed phones. 9. With respect to each disputed telephone service, the Crown relies upon a number of pieces of evidence which, when taken together, provides a sound basis for an inference that the accused possessed and used the particular service in pursuance of an agreement to import cocaine into Australia. The 929 Service 1. The service with the number ending in 929 is registered to John Rogers at an address at Coogee Bay Road, Coogee Bay, subscriber details that are false. The service was purchased at a Vodaphone Retail store, store A410, at Westfield Bondi Junction on 14 December 2014. The service was deactivated on 2 August 2016 (Ex. VD G). 2. A number of pieces of evidence relating to this service are contained in trial Ex. N. At pp. 466 – 468 in C2 are a series of surveillance photographs which capture images of the accused on the day the Eclipse left port on its voyage, on the Crown case, to meet a cargo of cocaine destined for Australian shores, 29 May 2015. 3. At about 9:38am the accused was seen by police to remove a red and white plastic shopping bag from a car parked on Pyrmont Street at Pyrmont, and walk to a café where he joined Joseph Pirrello. The accused was seen to remove two Virgin brand SIM card boxes from the bag and place them on the table. [REDACTED]. 4. At about 9.56am Mr Pirrello and the accused were seen departing the café; Mr Pirrello was holding the red and white plastic bag; he said in evidence, with the telephone he had been given inside it. 5. Trial Ex. U is a summary drawn from call charge records of some of the telephone calls made by Joseph Pirrello during and in the immediate aftermath of the voyage of the Eclipse, using a satellite telephone. [REDACTED]. 6. Ex. U establishes that Mr Pirrello attempted to place numerous calls to the +57 number when at sea, and also to the service ending in 929. [REDACTED]. All attempts to communicate with the incoming vessel or the accused failed. 7. There were calls placed by Mr Pirrello to the 929 number on 30 May 2015 at 10.10am, 2:51pm, 2:51pm (again), 4:22pm, 5:22pm, and 5:54pm, all of which were of short duration [REDACTED]. He also sent a number of text messages that day to the 929 number, at 11:04am, 11:06am, 2:31pm, and 6:12pm, with one incoming text message from the service at 11:06am on 30 May 2015. At 12:30pm and 12:41pm there were incoming text messages to Mr Pirrello aboard the Eclipse, and one further text message sent by him, at 12:40pm, all from or to a mobile telephone service number ending in 790, being a service registered in the false name of Julia McKenzie at a false Queensland address, but not disputed by the accused to be his number. [REDACTED]. 8. [REDACTED]. 9. Failing to reach the accused on 30 or 31 May 2015, Mr Pirrello made further attempts to reach him, as recorded in Ex. N. 10. At page 517 of C2 is a record of a call placed by the telephone service registered to Mr Pirrello to another of the telephone services that the Crown contends, and the accused disputes, was used by Joseph D'Agostino, that with the number ending in 147. The call was placed at 7:45am on 1 June 2015, but went to a generic voice mail announcement. 11. On page 525 of C2 is a record of a text message sent from Mr Pirrello to the 929 number at 2:01pm on 1 June 2015: "Please what going on". 12. Later that same day, between 2:40 and 2:50pm, Mr Pirrello was observed by surveillance officers to enter and remain inside the Downing Centre, that being the location of the Sydney District Court. [REDACTED]. He saw the accused, but could not speak to him as his matter had been called on, and so spoke with the accused's brother Frank instead, in an angry exchange about the Eclipse voyage. 13. He continued to pursue the accused, telephoning the accused's family home at 2:51pm on 1 June 2015, with the call going to voicemail (Ex. N, C2, p. 527); and again at 2:58pm (Ex. N, C2, pp. 528 – 529), speaking to the accused's father and asking that he have the accused call him. He told the accused's father, "I've been looking for Joe […]". At 6:05pm that day Mr Pirrello again telephoned the accused at his family home (Ex. N, C2, p. 530), telling the accused's father that he needed to talk to the accused. 14. At 7:20pm on 1 June 2015 the accused, using the undisputed Julia McKenzie service with a telephone number ending in 790, telephoned Mr Pirrello (Ex. N, C2, p.531). Although Mr Pirrello could not talk, he rang the accused back almost immediately, at 7:21pm, using the 790 service (p. 532 – 534). He told the accused in that conversation that he was not happy, giving the reason for his unhappiness as having "been hangin' out in the ocean mate […] without any contact from anybody". 15. In that call the accused did not express any surprise about Mr Pirrello's complaints, or appear to be under any confusion as to their cause. He appeared to be unwilling to discuss the matter on the telephone, repeatedly urging a meeting. He responded to Mr Pirrello's demands to know what was going on with an assurance that he would "chase it". The 147 Service 1. This service is subscribed in the name of John Carter, at an address at Bondi Road, Bondi Junction. It was purchased from the same store as the 929 number, on 19 January 2015, and was deactivated on 4 September 2016 (Ex. VD G). The subscriber details are false. 2. This number was used to send a text message on 28 May 2015 at 3:27pm to Joseph Pirrello, directed at setting up a meeting. The response was sent by Mr Pirrello to the 147 number at 3:30, "Yes sooner the better". The 147 number replied about four minutes later: Go out and try other number. And i see you at bq at six. Bring it. 1. There followed two further exchanges, "Ok tonight" and "Yes cheers" (Ex. N C2, p.434). A later message from the 147 number (Ex. N, C2, p. 436) varied the time of the meeting to 5:30. 2. [REDACTED]. 3. At about 5:01pm that same day, 28 May 2015, Mr Pirrello set out to walk towards the Antidote Café (Ex. N, C2, p.437). He had the satellite telephone in his possession. At the café, he was observed trying to use the satellite telephone and there is a record of an attempt to call the +57 Colombian number at Ex. N, C2, p.439). When the accused and his brother Frank joined him around 5:27pm, Mr Pirrello was seen (and filmed, Ex. Q) showing the accused the satellite phone, and evidently attempting to make calls. Pages 440, 442 – 445, and 448 contain still images of events at the Antidote Café that evening. It is clear from the images that it is the accused to whom Mr Pirrello showed the satellite phone, and the accused who had the device at his ear, rather than his brother Frank D'Agostino. 4. At p. 447, C2, Ex. N there is a record of an attempt to place a call from Mr Pirrello's satellite phone to the +57 number, which seems to have gone to a foreign language voice mail service. 5. [REDACTED]. The 937 Service 1. This number is subscribed in the name of Peter Jenkins, at the same false Bondi Junction address the 147 number subscribed in the name of John Carter used (Ex. VD G). 2. It was used on 8 March 2015 to send a text message to Joseph Pirrello confirming a meeting "at eight" (Ex. N, C2, p.155; see also Ex. BE). [REDACTED]. There follows an exchange of text messages between Mr Pirrello's telephone and the 937 service, between 7:41 am and 9:23am on 9 March 2015, altering the time of the meeting that day to 9:30am (Ex. N, C2, p.156). 3. Mr Pirrello arrived at the meeting place at the Antidote Café at 9:23am (Ex. N, C2, p.157). At 9:40am the accused and his brother joined Mr Pirrello at the café (Ex. N, C2, p. 158 – 159). 4. A voice call intercepted by the authorities monitoring the alleged conspirators recorded a person using the 937 service on 8 March 2015. That recording was tendered and played: Ex. VD H. 5. Having listened to many, many hours of recordings of Joseph D'Agostino's voice (and that of his brother Frank) Federal Agent Rivers was in a position to give ad hoc expert evidence of his opinion that the person speaking on the 937 service during that call was Joseph D'Agostino. [The officer later gave that evidence before the jury, and the short call, otherwise irrelevant, was tendered in the trial as Ex. BE.] Consideration 1. The Crown contended that there was a body of evidence which supported as the only rational inference a conclusion that it was the accused who used each of the three disputed telephone services. The accused argued that, [REDACTED] the evidence that remained was either insufficient to justify the inference the Crown would ask the jury to draw, or was equivocal, in that the user of the service could equally be Frank D'Agostino as Joseph D'Agostino. 2. The evidence is clearly relevant (s 55 of the Evidence Act), since it is capable of proving a fact in issue, being the identity of persons involved in communications concerning the alleged conspiracies, such communications being overt acts. 3. Section 50(1) provides a mechanism by which a summary of evidence can be admitted (conditional on those matters set out in s 50(2)): 50 Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. 1. I did not understand there to be any issue with the summary as such. 2. The question is whether the foundational evidence exists to justify the Crown's assertion as to user. In my view it does, and by a comfortable margin. 3. Each of the pieces of evidence relied upon by the Crown, when taken together and when put in the context of [REDACTED], clearly supports the conclusion that it was the accused who used the particular services. 4. [REDACTED]. 5. On those occasions when both D'Agostino brothers appear after the relevant service number had arranged a meeting, it is important to have regard not just to the fact of the attendance of both men, but to the evidence of their actions and demeanour during the meetings. During the meeting on 28 May 2015 Frank D'Agostino appears to be little more than a bystander; the exchanges are clearly between the accused and Mr Pirrello, and it is the accused to whom Mr Pirrello displays the satellite phone to demonstrate his inability to get through to the submarine. Frank D'Agostino plays no apparent role in what seemed to be animated discussions between Mr Pirrello and the accused about the phone. During the meeting of 9 March 2015 Frank D'Agostino again seems to be simply accompanying his brother; Mr Pirrello appears to direct his comments to Joseph D'Agostino. 6. The voice identification evidence able to be given by FA Rivers, if accepted by the jury, clearly points to the accused as the relevant user of that service. 7. Everything in the evidence overall points consistently to the accused as the user of the services that are in dispute; whether he is or not is a matter for the jury in my view. 8. The proposed document does no more than nominate the accused as the "alleged user". It will be for the jury to determine whether that allegation should be accepted or not. 9. Having reached that conclusion, the evidence was admitted in the trial. ********* Amendments 07 November 2024 - Typographical amendment to coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2024