R v Pirrello, Pirrello & D’Agostino

1. [1]

   HER HONOUR: The second of two legal issues raised for the determination of the Court on 15 October 2019 is an objection taken by Joseph D’Agostino to the tender in the Crown case of a number of electronic recordings of conversations. Mr Stratton SC objects to the tender by the Crown of twenty (or seventeen) recordings until such time as transcripts of the recordings have been provided. He asks the Court to exclude the evidence, pending preparation and disclosure of transcripts. On 15 October 2019 the Court made an order declining to conditionally exclude the evidence. Reasons were reserved until today.

2. [2]

   The Crown tendered Ex. VDD on the voir dire, a document which sets out in schedule form a list of the disputed recordings, each of which is to be tendered “without complete transcripts” or “without transcripts”. Twelve recordings fall in the former category, and five in the latter. The recordings are of conversations involving various individuals, an undercover police operative (“UCO”), or persons alleged to be conspirators, including the accused Mr D’Agostino, during the period 15 September 2014 at 9:34am, to 6 March 2016 at 11:12am.

3. [3]

   Mr Stratton referred to twenty recordings as in dispute, although there is no information as to any recordings other than those particularised by the Crown in Ex VDD. The discrepancy may be due to the merging of some recordings of more than one conversation.

4. [4]

   The issue is said to be one of disclosure. Mr D’Agostino contends that the Crown has not met its obligation of full disclosure of its case, and it is unfair to him to have to deal with evidence which has not been fully disclosed. It is not suggested that the accused is unaware of the contents of the recordings, since he has been served with copies of each of the recordings to be played to the jury, together with documents which set out the contents of each recording in summary form, and giving the attribution of voices of which the Crown expects to lead evidence. Rather, it is argued that, in the absence of a full transcript of each of the recordings, the accused is hampered in understanding and dealing with the Crown’s case. The accused asks that the recordings be excluded from evidence, unless and until the Crown transcribes the recordings, and serves the transcriptions.

5. [5]

   The Crown submits that it has met its obligation of disclosure by, at an early stage, serving electronic copies of the recordings on the accused, together with serving, on 8 July 2019, a Notice of the Crown Case which summarises the contents of the recordings and attributes significant comments to particular individuals, by way of voice attribution. No expert voice identification evidence is to be led, although it is anticipated that some witnesses, who were participants in particular conversations, will give evidence as to the persons speaking in them, supplemented by surveillance evidence which is expected to place particular persons together when recordings of some of the conversations were made. The Crown has advised the Court that there are no transcripts of the disputed recordings, full transcripts never having been made of the seventeen conversations.

Consideration

1. [6]

   The disclosure requirements that the Crown must meet are derived from both common law obligations, relevant statutory provisions, and delegated legislation. There are also prosecutorial guidelines or policies promulgated by all State Directors, and the Commonwealth Director of Public Prosecutions.

2. [7]

   The courts in recent decades have recognised an obligation for the prosecution to disclose its case and any other relevant material to the accused: Grey v The Queen [2001] HCA 65; 75 ALJR 593; R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 (at [46]-[55] per Hodgson JA); R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 (at [20]); and Mallard v The Queen [2005] HCA 68; 224 CLR 125. By reference to English authority, the duty was described thus by Hodgson JA in Reardon (No 2), at [48]:

3. [8]

   The statement of principles by Hodgson JA in Reardon (No 2), whilst obiter, was approved in Spiteri, and expanded upon in Cornwell v R [2010] NSWCCA 59 by Simpson J at [298]:

4. [9]

   Whether the prosecution is under a duty to discover or create material not in its possession involves a further step. Citing a Victorian case, McColl JA (with whom Hislop J agreed at [126], RS Hulme J declining to agree with that part of the judgment at [125]) said in R v Richard Lipton [2011] NSWCCA 24; (2011) 221 A Crim R 384; (2011) 82 NSWLR 123] that the disclosure obligation could require the Crown to “make inquiries”.

5. [10]

   Both Richard Lipton, and the Victorian decision of AJ v R there cited, concerned disclosure of information relating to the credibility of a witness. The brief statement of principle given in AJ v R is drawn from another Victorian decision, also concerning information about a witness, of R v Garofalo [1999] 2 VR 625, where Ormiston JA (with whom Tadgell and Charles JJA agreed) said, at 637:

6. [11]

   It is clear from that passage in Garofalo that the “rule”, restricted to “present purposes”, did no more than make clear that the prosecution was not entitled to rely upon the fact that an individual prosecutor had no knowledge of any criminal convictions a significant witness may or may not have had to decline to disclose information of that nature. An inquiry (of police, and via that agency of the criminal records database) was mandated.

7. [12]

   The rule formulated in Garofalo did not extend beyond information relevant to the credit of significant witnesses, and the decision, even as cited with apparent approval in AJ v R and Richard Lipton, does not establish a broader common law obligation on the prosecution to seek out information it does not have.

8. [13]

   There does not appear to be any clear statement, in this jurisdiction or in Victoria, in which the type of enquiries the Crown might be obliged to make in fulfilment of its duty of disclosure, beyond enquiries relevant to witness credibility in certain circumstances, is fully defined, or even fully explored. It can be said that it does not extend to a duty to seek out from an international source confidential information not in the knowledge or possession of the prosecutor: Marwan v Director of Public Prosecutions [2019] NSW 161.

9. [14]

   Statutory requirements of disclosure broadly echo the common law principles. They are found in the Director of Public Prosecutions Act 1983 (Cth) (“the CDPP Act”), the Criminal Procedure Act 1986 (NSW), and the New South Wales Legal Profession Uniform Conduct (Barristers) Rules 2015 (“the Barristers Rules”) (the latter being delegated legislation).

10. [15]

    Section 8 of the CDPP Act provides for the Commonwealth Attorney-General to issue directions and guidelines to the Director of Public Prosecutions, to which the Director is subject. Guidelines have been published (by the then Attorney-General Robert McClelland) which include guideline 8, concerning prosecution disclosure. The guideline refers to and incorporates a Statement on Prosecution Disclosure. That Statement requires disclosure of any material which can be seen on a sensible appraisal by the prosecution to be exculpatory, or of assistance to the accused in advancing a defence, or which might be relevant to the credibility of a material prosecution witness.

11. [16]

    Paragraph 5 of the Statement imposes a precondition for disclosure, “that the material is in the possession of, or the information is known by, the prosecution”.

12. [17]

    Rule 87 of the Barristers Rules raises an obligation upon counsel for the prosecution to disclose “all material […] available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused”.

13. [18]

    Section 141 of the Criminal Procedure Act mandates the disclosure of a notice of the prosecution case, and a response to the defence notice where relevant. Section 142 provides for the contents of the notice:

14. [19]

    Section 141(1)(c2) limits the obligation to disclose a transcript of a sound recording to situations where such a transcript is to be “adduced” at the trial.

15. [20]

    The Crown does not intend to “adduce” any transcript of the disputed sound recordings beyond the summaries provided, and nothing in s 141 compels it to do so in the present circumstances. The sound recordings of the disputed conversations have been served on the accused, together with the summary documents of the content of each, giving – in a general way – voice attribution.

16. [21]

    On my review of relevant statute and authorities, there is nothing that would oblige the Crown here to take steps to produce or have produced documents it does not have and does not intend to adduce or otherwise rely upon at trial.

17. [22]

    The remaining question is whether it can be concluded that, were the Crown to adduce the evidence of the seventeen or twenty sound recordings, without having first provided the accused with a written transcript of each, the accused’s trial would be rendered unfair. That is not a conclusion I can reach.

18. [23]

    The primary evidence is the various sound recordings. They represent both the best, and the only, evidence. The jury will have nothing beyond the recordings and perhaps the summaries, and nothing that the accused has not himself had for many months. There can be no unfairness in that sense.

19. [24]

    Mr Stratton argued that his client was prejudiced by the absence of transcripts, because without them it was not possible to know which words would be attributed to particular speakers by the Crown. The summary document, Ex VDD, gives broad attribution of voices, but is not specific as to all spoken words.

20. [25]

    If that did cause a real difficulty, it is one which counsel can readily resolve.

21. [26]

    Firstly, the recordings are in the accused’s possession and, in the ordinary course of prudent and proper preparation, it is reasonable for the Court to conclude that the accused personally, and his solicitor or at least one of his counsel, have listened to the recordings. To allow a recording to be played in a jury trial that the relevant party and legal representatives had not listened to beforehand would be unwise to say the least.

22. [27]

    The accused was either a participant in the conversations listed in Ex. VDD, or he would be well familiar with the voices of most of the persons alleged to be participants. Of the seventeen conversations the Crown has particularised, the accused was a participant of six, and is in a position to provide instructions to his lawyers as to who said what, or to dispute the identity of the speakers. Ten of the conversations are between the accused’s brother and another person, or cousin and another person; the accused could readily identify one of the speakers, leaving the identity of the second voice clear by default; or dispute the identification. The final conversation is one between Mr Kai and the undercover operative. It seems likely on the evidence that Mr Kai speaks with an accent; the UCO does not. If that is correct, there should be little difficulty in picking the difference between the two voices. In any event, the conversation, of 12 December 2014, relates to count 1, a count to which the accused has pleaded guilty.

23. [28]

    Secondly, if there is any doubt about which speaker in a conversation the Crown contends to have said a particular thing, it is always open to counsel to ask. Discussions between counsel can resolve many issues that might arise, and are to be encouraged.

24. [29]

    It makes the job of legal representatives easier if a transcript of all electronic recordings is available; ease of preparation is not to be confused, however, with the right to a fair trial. There is no obligation on the Crown to create and provide material to an accused person because it would make preparing for trial easier for the accused, or to spare him or her the time and trouble of creating the material for him or herself.

25. [30]

    I am satisfied that the Crown has met its obligation of disclosure, and there is no prospect of the accused’s trial being unfair. On that basis, I declined to conditionally exclude the disputed recordings in the exercise of my discretion.