Supreme Court New South Wales Medium Neutral Citation: R (Cth) v Pirrello, Pirrello & D'Agostino [2019] NSWSC 1858 Hearing dates: 06 December 2019 Date of orders: 06 December 2019 Decision date: 18 December 2019 Jurisdiction: Common Law Before: Wilson J Decision: 1. Tendency evidence admitted in part 2. Shepherd direction declined Catchwords: CRIMINAL LAW – trial proceedings - conspiracy to import a commercial quantity of a border controlled drug – question of the admissibility of tendency evidence – tendency to act in a particular way – tendency to have a particular state of mind – evidence admitted for other purposes – question of use as tendency evidence – requirement for a Shepherd direction Legislation Cited: Criminal Code (Cth) Evidence Act 1995 (NSW) Cases Cited: Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Hughes v The Queen Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Shepherd v The Queen [1990] 170 CLR 573; [1990] HCA 56 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 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: At the conclusion of the evidence led at 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, two issues arose for determination prior to the commencement of the closing addresses of counsel. Those issues were, the use which could be made of evidence placed before the jury of the accused's participation in other conspiracies; and the question of whether the jury should be given a Shepherd Direction with respect to evidence led relevant to count 3. 2. Having heard argument on both issues orders were made on 6 December 2019 permitting the Crown to rely upon evidence of a tendency to have a state of mind, but not to do particular acts. The application by the accused for a Shepherd Direction was refused. I reserved my reasons for those decisions until now. The First Issue: the Question of Tendency Evidence 1. On the first day of his trial the accused was arraigned before the jury panel upon an indictment that charged him with three counts of conspiracy to import a commercial quantity of a border controlled drug. He entered a plea of guilty to the first count ("the Fiji conspiracy"), with pleas of not guilty entered to the second and third counts ("the Eclipse conspiracy" and the "Saxon Progress conspiracy" respectively). 2. Despite the plea to count 1, and without objection from Mr Stratton SC, the Crown led evidence of events connected with the Fiji conspiracy in its case against the accused for counts 2 and 3. The Crown argued, and Mr Stratton conceded, that the evidence was admissible on a number of bases. 3. Firstly, it provided essential background information to the Eclipse conspiracy, without which the jury may have struggled to understand some of the events connected with count 2, or to make sense of the many conversations that, on the Crown case, ranged across both the Fiji and Eclipse conspiracies, and were relevant to proof of count 2. Secondly, the nature of the relationships between some of the more significant alleged conspirators in counts 2 and 3 was established; and thirdly, the methods adopted to effect the object of the later alleged conspiracies had been developed during the Fiji events. 4. Another potential basis of admissibility – to rebut the accused's case that his interest in the movement of ocean going vessels in the relevant period was as a potential passenger rather than for transport for incoming drug cargos – was not ultimately relied upon by the Crown. 5. At the close of the evidence placed before the jury by the parties, the question arose for determination of whether the evidence connected with the Fiji conspiracy was also admissible as tendency evidence, and whether the evidence tendered respectively as relevant to count 2, and count 3, could be taken into account on a tendency basis by the jury when considering the other count. 6. On 23 September 2019 the Crown served a Notice in accordance with s 99 of the Evidence Act 1995 (NSW) ("the Act") advising the accused of its intention to adduce evidence pursuant to s 97(1) of the Act to prove that the accused had a tendency to act in a particular way, and to have a particular state of mind. 7. There is no question that the notice given satisfied the statutory and regulatory requirements. 8. As to the accused's asserted tendency to act in a particular way, the Crown advanced four tendencies: 1. A tendency to communicate with others about opportunities for importing border controlled drugs into Australia; 2. A tendency to use BlackBerry devices to communicate about importing border controlled drugs into Australia; 3. A tendency to avoid using mobile telephones, or have mobile telephones present, when communicating with others about importing border controlled drugs into Australia; and 4. A tendency to communicate with others in a way that avoids detection by law enforcement. 1. The Crown asserted that the accused had a tendency to have two particular states of mind, being: 1. A tendency to have an interest in the importation of border controlled drugs into Australia; and 2. A tendency to have an interest in effecting the importation of border controlled drugs into Australia using ocean going vessels. 1. The Crown argued that the particularised tendencies were relevant to proof of counts 2 and 3 because, in combination with other evidence they pointed to the accused's guilt of counts 2 and 3. 2. The accused conceded that the evidence relating to the Fiji conspiracy, and the evidence relating to each individual count, was admissible to prove that he had a tendency to have the two particular states of mind asserted against him, but not that it could be used to establish the asserted tendencies to act in particular ways. 3. Since the concession as to the accused's state of mind was sensibly made, and the evidence was in my view admissible for the further purpose of establishing those tendencies, argument focused on the tendencies to act in a particular way. 4. The Crown argued that the evidence was highly probative of a number of facts in issue; that is: 1. Whether the accused intentionally entered into agreements to import border controlled drugs into Australia; 2. Whether he intended to bring about the object of the agreements; and 3. Whether he committed acts in furtherance of the agreements. 1. That was particularly so, it was submitted, with respect to the evidence connected with the Fiji conspiracy, because the accused had acknowledged his conduct relevant to that conspiracy by his plea. That evidence was capable of establishing that the accused communicated with others about drug importations, routinely took steps to avoid electronic detection of his communications by, for example, not bringing any mobile telephone with him to meetings with alleged co-conspirators, evidently not trusting that the device would not be the subject of surveillance; and by using BlackBerry devices with encrypted communication software that could not be intercepted or accessed by law enforcement authorities. 2. It was argued that the accused's conduct in this regard was a common thread across all three charged conspiracies and, when taken together, pointed to his participation in a conspiratorial group, the illicit nature of the object of the conspiracy which required covert communication, and the necessity for secrecy in communications. 3. The accused submitted that covert communications and the use of covert communication methods by persons engaged in illegal activity was common, and common to all conspirators in the alleged conspiracies, and was thus without the level of probative value required to meet the test set out in s 97 of the Act. Further, it represented no more than an aspect of the states of mind the accused had of being interested in importing drugs by sea. 4. The starting point for any consideration of the admissibility of evidence as evidence capable of establishing that an accused person had a relevant tendency is s 97 of the Act. Section 97(1) provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 1. The question of the admissibility of tendency evidence has been, since the introduction of the uniform Act in 1995, a fraught one and one the subject of many appellate decisions, not all of which are consistent one with another. The differing interpretations of both the legislation and appellate decisions concerning the legislation was recently the subject of comment by the High Court in The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40. The Court was sufficiently concerned with the lack of clarity demonstrated by the case law as to resolve, at [47], to "put aside differences of opinion and speak with one voice on the subject" of the rationale underlying the admissibility of tendency evidence. Whilst Bauer was a sexual assault case, as were those of IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 and HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, the principles there enunciated have a more general application. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, the High Court said, at [16]: The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. 1. The tendency to use covert means of communications, even when taken in the context of the whole of the evidence, cannot, in my opinion, say a great deal about whether or not the accused conspired with others to import commercial quantities of border controlled drugs. In that sense, the disputed evidence cannot have the probative value required for its admission as tendency evidence. 2. There is little doubt on the evidence adduced during the trial that the accused regularly purchased or otherwise acquired "throw away" or "burner" mobile telephones that he used for relatively short periods, before securing another burner phone for his use. Ex. BD points strongly to that conclusion, accepting as I do for present purposes, that the accused was the user of all services attributed to him in the exhibit. There is similarly little doubt that the accused was in possession of and used, during the period covered by the indictment, a BlackBerry device or devices, which operated encryption software: [REDACTED]; evidence of Detective Senior Constable Grimes. 3. Ordinary experience would also suggest there is little doubt that burner mobile telephones and encrypted BlackBerry devices are in widespread use in the criminal milieu, with the intention of defeating electronic interception of communications connected with criminal activity. The use of such devices may be highly suspicious, and even point strongly to unlawful activity, but I cannot conclude that it has significant probative value on the question of whether an individual evidently moving within that milieu was using such methods of communication to facilitate particular criminal acts. 4. Even on the evidence known to the jury, the accused was involved in around the period of the indictment in drug related crime, and had failed to appear before a sentencing court with respect to drug crimes in October 2015, being at large for almost the whole of the period covered by count 3. It could hardly be surprising that such an individual would be careful about the means used for communication, and take measures to defeat electronic surveillance of mobile telephones and other similar devices. I accept the submissions of Mr Stratton in that regard. 5. Whilst the evidence does have some probative value, and is a circumstance that the Crown can rely upon in combination with other evidence in support of the charges, it does not have significant probative value, and is not admissible as tendency evidence. The Question of a Shepherd Direction 1. The accused submitted that, with respect to count 3, the jury should be given a Shepherd Direction concerning the agency of Frank D'Agostino to act on the accused's behalf. 2. It was argued that the only direct evidence of the accused's involvement in the events the subject of count 3 was of a single meeting between the accused and Simon Spero, where the use of boats for a drug importation was discussed in a general way, and an offer was made by the accused to introduce Mr Spero to Joseph Pirrello. It was submitted that the discussions at that meeting were too general to provide evidence of the specific agreement to import a commercial quantity of cocaine, and there was no other direct evidence to establish the accused's participation in the conspiratorial agreement. The Crown's real case, it was contended, rested on an acceptance that the words and actions of Frank D'Agostino were said and done on the accused's behalf and with his authority. 3. The Crown resisted the application for a Shepherd Direction, arguing that, whilst the accused was not seen as frequently as he had been prior to fleeing the jurisdiction of the District Court in October 2015 and "going into hiding", there was a wealth of evidence to establish that he was in direct communication with other alleged conspirators, together with evidence of overt acts by him, such that a Shepherd Direction was not required. There was, in addition, the evidence concerning Frank D'Agostino's words and conduct to advance the object of the conspiracy, admissible against the accused pursuant to the co-conspirator's rule. 4. Having considered the issue, I determined at the conclusion of the argument that a Shepherd Direction was not required. 5. A direction of the nature sought by the accused is derived from Shepherd v The Queen [1990] 170 CLR 573; [1990] HCA 56 wherein it was concluded that, where the Crown relies upon a combination of pieces of circumstantial evidence to prove its case against the accused, and any one or more of those pieces of evidence constitutes an indispensable link in a chain of reasoning, the jury should be directed that the indispensable fact must be proved beyond reasonable doubt. Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, said at 579: .. [I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable, it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore On Evidence, Vol 9 (Chadbourn Rev. 1981), par 2497 pp.412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 1. Ordinarily, a Shepherd Direction is more likely to be required where the pieces of inculpatory evidence available to support an inference of guilt are relatively few. McHugh J said, at 593: In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard. 1. Whether a fact or facts on which the Crown relies in a circumstantial case should be regarded as indispensable can be tested by considering whether, if there were no evidence of the fact, there would still be evidence sufficient to establish the case against the accused, even if that case was considerably diminished by the absence of the evidence in question: Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150, at [74]. 2. The conclusion I reached when asking that question of the present matter was that, even excluding evidence of the acts of Frank D'Agostino following the occurrence of the meeting between the accused and Simon Spero, there was a clear case against the accused capable of proving his guilt of count 3, some of which was established by direct evidence. 3. In Ex. N, C3, there is surveillance evidence, electronic and physical, capable of establishing that the accused was in regular communication with Richard Lipton, an alleged co-conspirator, for a period from around August 2015. The accused had a number of meetings with him (Ex. N, C3, p.13 for example), and communicated with him about having meetings. Having made contact with Lipton, there is also evidence (at Ex. N, C3, p.12, 22) that accused sought to meet with Joseph Pirrello. 4. Attempts to meet with Joseph Pirrello continued, with the accused meeting him on 4 September 2015 at a hotel in Prymont (Ex. N, C3, p.25). Subsequently, the accused and Lipton were in frequent communication until the point at which the accused went into hiding to evade the execution of a District Court Bench warrant for his apprehension. Whilst there is no direct evidence as to the subject matter of the conversations between the accused and Lipton, there is direct evidence that Lipton agreed with Simon Spero to draw on the accused's connections with boats to import drugs, and there is direct evidence that the accused engaged Joseph Pirrello for that purpose. 5. [REDACTED]. Mr Spero called Jonathon Cooper and it was agreed with Cooper that Cooper could facilitate the supply of cocaine for importation. Having reported to the accused that he had someone to supply cocaine, he and the accused discussed arranging a meeting with Joseph Pirrello. 6. Mr Spero subsequently met Joseph Pirrello. The accused, by then in hiding, did not attend the introductory meeting [REDACTED]; the accused's brother Frank D'Agostino attended. [REDACTED]. The accused gave Mr Spero his BlackBerry contact details and Mr Spero kept in contact with the accused through BlackBerry during the course of the conspiracy, using the contact that he had been given by him [REDACTED]. 7. Frank D'Agostino regularly passed on messages from the accused to other conspirators [REDACTED]. 8. Following any meeting with Joseph Pirrello or Frank D'Agostino or both for the purpose of advancing the conspiracy, Simon Spero contacted the accused by BlackBerry and gave him an update on the progression of the planned importation [REDACTED]. He also spoke with him on the telephone at least once [REDACTED], and passed on information as to matters such as delay to the shipment of drugs [REDACTED]. 9. [REDACTED]. 10. [REDACTED]. 11. [REDACTED]. 12. [REDACTED]. 13. [REDACTED]. 14. [REDACTED]. 15. This does not purport to be a comprehensive survey of the evidence available to the Crown to support its case against the accused with respect to count 3, but it is sufficient to demonstrate that there is a body of evidence over and above that relating to the agency of Frank D'Agostino, and which is sufficient to support the Crown's case. 16. [REDACTED]. Even the undisputed evidence about the accused's desperation for money in this period is a relevant fact, since it supports a conclusion that the accused had a motive to involve himself in the importation of substantial amounts of drugs, from which substantial profits could be made. 17. When the whole of the evidence is considered, including the evidence of the role of John Tobin in protecting the accused's interests, and the tendency evidence, there is in my conclusion a clear case to go to the jury for the accused's participation in an agreement to import a commercial quantity of cocaine, even in the absence of any agency relevant to the accused's brother. 18. That being so, a Shepherd Direction is not required, and would do no more than add needlessly to the already significant amount of law for the jurors to absorb and apply. ********* 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