Dicianni v R; Pintabona v R

Solicitors: J Hajje - Applicant Dicianni Andrew Scali Solicitors - Co-applicant Pintabona Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/54319; 2012/78797 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Dicianni and Pintabona [2013] NSWSC 1328 Date of Decision: 13 September 2013 Before: RS Hulme AJ File Number(s): 2010/54319; 2012/78797

Judgment

1. HOEBEN CJ at CL: Offences and sentences Giuseppe Dicianni (the applicant) stood trial with Josephine Pintabona (the co-applicant) before RS Hulme AJ and a jury upon two counts of murder. The two murders related to the killing of Mario and Albert Frisoli in their home at Rozelle on 6 May 2009. The applicant was alleged to be the principal offender and the co-applicant his accomplice.
2. It was the Crown case that the co-applicant was having an affair with the applicant, that she drove him to and from the home of the deceased and that she thereafter sought to assist him by providing a false alibi.
3. The trial commenced on 29 April 2013. His Honour directed verdicts of not guilty with respect to the co-applicant upon the two murder charges at the end of the Crown case on 28 May 2013. Thereafter on Friday 7 June 2013 the jury retired to consider their verdicts with respect to the applicant upon two murder charges, and with respect to the co-applicant upon two accessory charges. The jury returned with majority verdicts of guilty on all counts on Monday 24 June 2013.
4. The applicant was sentenced on count 1 relating to Mario Frisoli to a term of imprisonment with a non-parole period of 20 years, commencing 18 August 2010 with an additional term of 4 years. On count 2 relating to Albert Frisoli he was sentenced to a term of imprisonment with a non-parole period of 20 years commencing 18 August 2020 with an additional term of 4 years. The overall sentence comprised a non-parole period of 30 years, commencing 18 August 2020 with an additional term of 4 years.
5. The co-applicant was sentenced as an accessory after the fact to the murder of Mario Frisoli to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing 13 March 2013 with a further term of 9 months. As an accessory after the fact to the murder of Albert Frisoli, she was sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing 13 March 2014 with an additional term of 1 year. The overall sentence comprised a non-parole period of 3 years with a balance of term of 1 year, so that the co-applicant would be eligible for parole on 13 March 2016.
6. The applicant has appealed against conviction on a single ground: Ground 1 - The verdicts of the jury were unreasonable and could not be supported by the evidence.
7. The co-applicant has appealed against conviction on the following grounds: Ground 1 - His Honour erred in admitting into evidence the appellant's statements to the police on 17 June 2009 and 20 July 2009. Ground 2 - The verdicts of the jury were unreasonable and could not be supported by the evidence. CROWN CASE
8. The Crown case against the applicant and co-applicant was as follows.
9. The murders were the culmination of longstanding acrimony arising from the breakdown of a business relationship between the applicant and Albert Frisoli that had been deteriorating since 2002 after the applicant was diagnosed with bowel cancer and his involvement in the business became more limited. Thereafter, the relationship was marred by court disputes, threats and restraining orders. Ten days before the killings, criminal proceedings instituted upon the applicant's complaint that Albert Frisoli had forged his signature on documents were withdrawn and the prospects of success in related civil proceedings, upon which the applicant had spent almost $400,000, appeared unlikely.
10. On 6 May 2009 the applicant used a disguise to gain entry to the Frisoli home and to avoid detection by security cameras which he believed to be operative, but which were not, so that he could kill Albert Frisoli. He first killed Mario Frisoli and later Albert Frisoli. Albert Frisoli was aged 57 and his brother Mario was aged 51. They lived together at 17 Goodsir Street Rozelle. Mario was a pensioner and spent most of the day at home. Albert ran a successful construction business out of premises at Wetherill Park and after May 2006 at Seven Hills.
11. At about 5.15pm on Wednesday 6 May 2009 a neighbour saw what he thought to be an elderly lady wearing a cloak, hood or scarf slowly walking along Goodsir Street and cross the road towards the front door of the Frisoli home. Shortly after the neighbour heard sounds of what appeared to him to be a person being pushed against a wall, bodies coming together, breaking glass and thumping.
12. At about 6.35pm CCTV showed that Albert Frisoli attended a BP Service Station at Seven Hills on his way home. He was wearing a short sleeved shirt and no scarf. At 7.15pm he spoke briefly on his mobile phone to his girlfriend, Natasha Kourea, and told her that he was just parking his truck at home and would call her back shortly. He did not do so and did not respond to an SMS message she sent him at 9.40pm. Witnesses heard thudding noises emanating from the Frisoli home and at 7.20pm a witness standing in front of 17 Goodsir Street heard a loud banging noise and a male voice scream. It was the Crown case that Albert Frisoli had been murdered shortly after he entered the house.
13. The bodies of Mario and Albert were found the following day (7 May 2009) by Mr Mirko Naidofski. There was no sign of forced entry into the premises, except for the damage caused by Mr Naidofski. Mario lay on his back in the lounge-dining room next to the couch to the immediate left of the entrance from the hallway. Albert Frisoli lay face down in the same room near the dining furniture. Both had been stabbed fatally - Mario 21 times and Albert 27 times. Albert had also sustained significant injuries to the head - his jaw and nose had been broken and one of his dislodged teeth lay underneath his body. In addition to the clothing which he had been wearing in the CCTV footage taken at the BP garage, a black scarf was found partly wrapped around his right arm.
14. Bloodied footprints were identified in and around the deceased bodies which Luminol revealed led up the driveway of the Frisoli home into Goodsir Street, through a park and along George Street. The footprints continued to the gutter, suggesting that the killer entered a vehicle from the passenger side and that the vehicle had been correctly parked for that side of the road.
15. On 9 May 2009 the police spoke to the applicant under caution. He denied any involvement in the deaths and said that he had not been feeling well and had spent the previous days at home with his wife.
16. On 11 May 2009 the applicant made arrangements to urgently obtain an Australian passport, to meet his accountants and his lawyers, to obtain a referral from his GP to a medical practitioner in Italy and to obtain tickets to Italy for himself and the co-applicant. On 12 May 2009 he collected his passport and the tickets. Police spoke to him, his son Robert and the co-applicant at Sydney International Airport on 12 May 2009 just before he and the co-applicant flew out of Australia. The applicant never voluntarily returned to Australia. He was extradited on 29 July 2011.
17. Investigations were lengthy and involved forensic analysis of the crime scene and in particular, the scarf found on Albert's body. There were fibres on each body which police believed to be consistent with coming from a cape or a wig. The scarf contained DNA consistent with that of the applicant and the co-applicant.
18. The Crown case against the co-applicant was that she had driven the applicant away from the murder scene and provided him with a false alibi. She did return to Australia on a couple of occasions and when first spoken to by the police on 17 June 2009, gave an account of events on 6 May 2009 which provided the applicant with an alibi. Later she confirmed that on 6 May 2009 she alone had driven her car, a silver Hyundai, which she subsequently sold on 24 July 2009. She too was extradited and arrived in Sydney on 31 August 2012. EVIDENCE IN THE CROWN CASE Police and forensic investigations
19. Ms Ellen Konza of the Forensic Services Group was of the opinion that the body of Mario Frisoli had been moved. She based this on various bloodied marks on the floor.
20. At a later date Ms Konza examined the co-applicant's silver Hyundai. Although numerous areas on the car seat, door trim and boot resulted in a positive reaction to Luminol spray, none of those areas produced a positive result for blood using a Hemastix test strip. An area of the fabric from the passenger seat, which had been positive to Luminol, was removed and sent for further examination. In cross-examination Ms Konza agreed that a Motorola ear-piece belonging to Albert Frisoli and a tea-towel were found to have her DNA on them, despite her having worn a protective suit to avoid such a possibility. She was not able to say how or when that contamination might have happened, or if it happened at the scene or later back at the laboratory. It was the only time in 11 years that she had deposited DNA on an evidentiary item.
21. Detective Elliott gave evidence that the use of Luminol resulted in the development of an extensive trail of bloodied footwear impressions from the front door mat at 17 Goodsir Street to the northern end of George Street, a distance of approximately 284 metres. The footprints entered a park and made a trail over the grass. The footprints continued for a further 18 metres into George Street and stopped at the western kerb, about 12 metres from the northern end of the George Street and Reynolds Street intersection.
22. Detective Brady, who had also followed the Luminol blood trail, gave evidence as to shoe comparisons with that blood trail. On 20 November 2009 he received and examined images of the shoe impressions in blood from the crime scene and compared them with shoes belonging to the applicant and co-applicant. He was able to rule out the co-applicant's shoes as being similar in any way to the bloodstained impressions. In relation to the shoes belonging to the applicant, he was able to say that the particular shoes did not match the pattern of the soles found at the scene but the size, length and width of the outsole was "similar". He explained that by "similar" he meant that the shoes did not have an "identical" pattern but were similar in length and size to the impressions at the crime scene. He thought that the impressions from the scene indicated a handmade shoe, rather than something synthetic such as a jogger.
23. In cross-examination Detective Brady agreed that there were differences between the measurements of the applicant's feet and the partial shoe impressions and that the similarities he spoke of were within the scope of variation of foot sizes for people generally of that size. He agreed that there were many people in the community who had that foot size.
24. Professor van Vuuren, a forensic pathologist, gave the cause of death for Mario Frisoli as multiple stab wounds. She described 35 injuries, being either stab wounds or incisions. She distinguished between a wound and an incision in that a stab wound was caused by a stabbing motion and an incision was more likely to occur by a slashing type of motion. There were eight defensive wounds to the hands of Mario.
25. For Albert Frisoli the cause of death was described as "multiple stab wounds". He was aged 57, with a body weight of 93 kgs. Professor van Vuuren described 34 injuries. There were no obvious self-defence injuries. There were several blunt force injuries to the head and face, including a fracture of the jaw with loose teeth, bruising to the left eye, a broken nose, lacerations to the head and subarachnoid haemorrhage and contusions of the brain.
26. Professor Duflou, a forensic pathologist, gave evidence in relation to an axe handle which had been found in the garage of the home of the co-applicant. He was of the opinion that the injuries to the face of Albert Frisoli, such as the broken jaw and broken nose, could have been caused by a blunt object including the axe handle. Because of the limited amount of bleeding from some of the stab wounds, Professor Duflou thought that those stab wounds were inflicted at about the time of death or a very short time before death when the heart was unable to pump blood. He thought that the blunt force injuries to the head were probably sustained before death, whereas at least some of the stab wounds were sustained after those injuries. He thought that some of the blunt force injuries could have caused unconsciousness. It was his opinion that Albert Frisoli's death was due to stabbing and the blunt force injuries. Professor Duflou disagreed that there would necessarily have been DNA or saliva deposited on the axe handle from a single blow to the face.
27. Detective Searles, a fingerprint expert, gave evidence that no fingerprints of the applicant or co-applicant were found at 17 Goodsir Street.
28. Detective Sergeant Crimmins commenced an examination of the co-applicant's car on 6 August 2009. Luminol was sprayed throughout the interior of the vehicle. When using Luminol he wore a full disposable suit with boot covers, gloves, eye-mask and a breathing apparatus that fully encapsulated the face and was attached to his back. Areas that reacted to the Luminol were circled with crayon, as shown in photos taken at the time. A presumptive test for blood using a Hemastix test strip was positive for the floor mats. The floor mats, seat covers and door trim were removed and sent for further examination. Swabs were taken of the door handles and also sent for further examination. He said that protective clothing was worn because Luminol was carcinogenic and in order to prevent contamination.
29. Ms Friedman from the Division of Analytical Laboratories at Lidcombe was an expert on DNA. She gave evidence concerning her examination of items and DNA testing. She said that the black scarf found with Albert Frisoli tested positively for human blood. There were 13 locations on the scarf tested for DNA. Three of those areas of the scarf produced significant results. In area 6 there was a mixture of DNA types. The profiles of Albert Frisoli, the applicant and co-applicant could not be excluded as contributors to that mixture. The effect of those results was that it was approximately 13 billion times more likely that the DNA profile originated from Albert Frisoli, the applicant and co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.
30. The result for area 9 was the same. There was a mixture of DNA types. Albert Frisoli was the major contributor. The applicant and co-applicant could not be excluded as minor contributors to that mixture. It was approximately 13 billion times more likely that this mixed profile originated from Albert Frisoli, the applicant and co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.
31. In area 11 there was a mixture of DNA types. Once again it appeared to be a mixture of Albert Frisoli, the applicant and co-applicant. On this sample it was approximately 1.2 billion times more likely that the DNA profile originated from Albert Frisoli, the applicant and the co-applicant than if it originated from Albert Frisoli and two unknown, unrelated individuals in the general population.
32. Ms Friedman said that she tried to test areas on the scarf where there appeared to be minimal staining from blood. In two of those areas the major contributor was the co-applicant. She thought that the most likely way for someone's DNA to get onto an object like a scarf would be through wearing it and it would also depend on how the scarf were worn. If the scarf were worn around the neck, talking, coughing or sneezing could also deposit DNA onto the scarf.
33. Ms Friedman used another system in addition to Profiler Plus to test the scarf for DNA. This was the Y-STR system. This system targeted only male DNA. Ms Friedman explained the results of using that system as follows: "Q. In relation to your major report, which you did before you received Ms Pintabona's buccal swab with her DNA, what were the results of the Y filer testing? A. The Y-STR profile recovered from area 6 of the scarf, which is item 214, is a mixture that appears to originate from two male individuals. One of them could be Albert Frisoli. Assuming Albert Frisoli is the one contributor then Giuseppe Dicianni has the same Y filer profile as the second contributor. This result provides additional support for the hypothesis that Giuseppe Dicianni is one of the male contributors." (T.345.25)
34. Ms Friedman also examined the trim near the front passenger seat of the co-applicant's silver Hyundai motor vehicle. Her evidence in relation to that testing was: "Q. What I'd like you to do is to go to the areas that you examined in your findings? A. We examined four separate areas on the trim. In area (i) the screen test for blood gave a positive result, although we did know it was a fairly weak result and we attached the caveat that, just explaining as the test is not specific for human blood. The result indicates only the blood may be present and if so, is not necessarily human blood; it doesn't distinguish between animal blood and human blood. Although we got a positive result we subjected that area to DNA testing and we recovered a DNA mixture originating from more than one individual. However, we could not determine the profiles of the individual contributors. In area (ii) we recovered, we got a positive result of the screen test for blood and the DNA testing recovered a DNA mixture originating for more than one individual. One of the contributors to that mixture has a combination of DNA types possessed only by Albert Frisoli, Holden Frisoli and Atlanta Frisoli among the individuals who provided reference samples for this case. The profile of this one contributor is expected to occur in approximately 1 in 20 unrelated individuals in the general population." (T.247.34 - 248.2) (Holden and Atlanta Frisoli are the children of Albert Frisoli.)
35. Ms Friedman further explained the results of the testing of the door trim of the car as follows: "Q. Just in relation to the profile we're talking about, if you go to the approximate occurrence in the general population, you gave evidence, did you not, that the profile in this one contributor, of this one contributor is expected to occur in approximately 1 in 20 unrelated individuals in the general population? A. Yes. Q. Can you explain what that means, particularly when you consider, say, the approximate occurrence in the general population referred to in, say, the scarf can be grossly different? A. The problem with the result that we obtained for the swab from the vehicle was, number one, as his Honour pointed out, there's only a small amount of DNA there. There also is a contribution of DNA from more than one individual and it appears that there's DNA from at least three people to this particular mixture. We have been extremely conservative in our working out who the possible contributors are. And it makes it extremely difficult, for the very reason I have given, because the low levels of DNA and the number of contributors, however, what cannot be contested is that one of the contributors to this mixture has that 7.3 at D7, because it comes up; it's there. It has to have come from somebody. Somebody has to possess that 7.3. The difficulty, then, is trying to link that 7.3 with what's occurred at the other areas, and the only result that we are particularly confident with is the result at VWA which is on the top line in the middle where you can see there's quite a large contribution of 16. And in my opinion and my experience from dealing with thousands upon thousands of mixtures, I believe it is irrefutable that whoever possesses that 7.3 at D7 has to possess a 16 at VWA. I'm not saying they have to be 16, 16. I'm just saying they have to at least have a 16 at VWA, and the figures for one in 20 simply refer to the combination of somebody in the population who is both a 7.3 at D7 and 16 at VWA. That is all. I have used nothing else because I'm unable to, with confidence, determine what their profiles are at the other areas because there are a number of contributors and I can't be sure that what I'm seeing of those other areas doesn't come from the other contributors. So I am looking at, first of all, my determinations that he can't be excluded as a contributor to the mixture. I know whoever has contributed to this mixture has to possess a 7.3 at that last area at D7 and possess a 16 at VWA. And looking at the figures of what percentage of people in the population have that combination, just that combination of those two results, is why the figures are not as significant as for a full profile. Q. In relation to a full profile, and indeed in your report, let's say in relation to the scarf where there are far greater figures mentioned, can you indicate to the jury why that is? A. When we look at the results from the scarf there's a lot more DNA, there is a lot more information and we're looking at a full profile because I know that with the amounts of DNA that I have recovered, I'm seeing all the information at all the nine areas from all the contributors. It appears that there is a mixture of three people in the mixtures where I have reported statistics. And we're looking at the likelihood of finding, first of all, an individual who fits that mixture and it would, there would be quite a few people in the population that would fit into that mixture because there is a mixture of three people. To go at random and find a second person who in combination with the first person and then the third person, who in combination with the other two, gives you that mixture that we have seen from the scarf and nothing else. So you first have to find somebody who fits in. Not that difficult. Then a second person who fits in, and then a third person who, the three in combination will give you that particular mixture that we are recovering from the car. That's why the figures are that much more, that much greater than just looking at two particular areas because you're working with limited information. But within the scarf we got a lot more information." (T.252.28 - 253.39)
36. Ms Friedman carried out testing on the axe handle found in the co-applicant's garage. The results of her testing were: "Q. Item 246 is the axe handle. In relation to the screening test for blood firstly, what was the result of that? A. The results for that are positive. However once again we stated due to the weakness of the result and where it was from that as the test is not specific for blood this result indicates only that blood may be present and if so it's not necessarily human blood. … A. After carrying out some further testing, we tested three areas of the axe handle. The DNA testing in two of those areas was unsuccessful. However, DNA from the third area we recovered DNA that was a mixture that originated from more than one individual. Due to the low levels the DNA the profiles of the individual contributors could not be determined. We also received some swabs said to have been taken from an axe handle and we recovered a DNA profile from those swabs. It was a partial DNA profile, but what was recovered was a partial profile that had the same profile as Giuseppe Dicianni. We conducted statistics on the DNA that we did recover and determined that that partial profile is expected to occur in approximately 1 in 1.3 million individuals in the general population." (T.255.34-T.256.7)
37. Ms Friedman was cross-examined on three research papers regarding the secondary transfer of DNA. She agreed that DNA could be conveyed to an item via an intermediary but only under "very specific circumstances". She agreed that she was well aware of the risk of contamination in the laboratory. They had the profiles of all their current staff and all their past staff as well. She was aware that in this case there had been contamination of a tea-towel and a mobile phone earpiece by Crime Scene Officer Konza.
38. Dr Susan Bennett gave evidence concerning fibres which were found at 17 Goodsir Street and on the bodies of the deceased. She was not able to draw any useful conclusions from those fibres other than there was a possibility that the fibres came from something like a wig. Civilian witnesses
39. Mr Moss lived at 19 Goodsir Street. At about 5.15pm he saw what he described as an elderly lady walking down the street on the opposite footpath. She was walking down the hill from his left. He observed her to walk diagonally across the road towards number 17, which was next to his house. His evidence was: "Q. What did you see her do then, or that person do then? A. As she was diagonally walking across the road, I noticed her turn and gaze to, what appeared to be towards me, just momentarily, and directed her attention back towards number 17; continued to walk to number 17, through the gate. I lost sight of her momentarily because of the trees. And then I am able to see again once she walked passed the trees as she walked towards the front door of the house. Q. You described this person as an elderly lady. Can you remember what it was about her, or the clothing, that you can recall? A. Yes. She had what I would describe as a cloak, a cloak on, something that came forward and covered the face. Plus her - I guess the way she walked, just the demeanour of the person appeared to be an old, elderly lady to me, yep." (T.313.30" (T.313.30)
40. Mr Moss described the cloak as a "red riding hood" cloak of a dark colour. Initially the old woman appeared to be walking slowly but when she crossed the road, she did so more purposefully. It was a "steady purposeful pace". He had never seen her before.
41. Shortly thereafter he heard noises from number 17. Mr Moss described those noises as follows: "A. … They were sort of muffled, like very muffled. Sounded a bit to me like, at the time I thought it sounded like bodies against a wall, perhaps being hit against a wall. But it was quite muffled. And after a short amount of time I heard, to me it sounded like glass breaking, maybe a bar or something of that dimension breaking. I heard a little bit more of a muffled, muffled noise. And then I heard another object break again. It sounded like glass. The noise wasn't as loud as the previous one. A little bit more muffled noise and then silence." (T.315.29)
42. Mr McDougall lived in Goodsir Street, a few houses down and across the street from the Frisolis. On the evening of 6 May 2009 he went outside to pick up his fiancée. His evidence was: "Q. What time, are you able to say? This particular incident, what time was it? A. About 20 past 7. Q. Did you go outside your place to go and get into your car; is that right? A. That's correct, yes. Q. Can you indicate what you heard or what you saw? A. Well, as I was putting my key into the car door I heard like a loud banging sound. And right on top of it, around about the same time, a male voice screaming. It was a loud thumping bang and a male voice screaming. Q. The noise that you heard, are you able to describe that more? A. Well, it was like a startled scream, a startled scream, a surprise. And I've never heard a scream like that before, so it was a new experience to me. Q. The bang, the loud bang you heard, what was that like? A. It was like two bits of heavy material coming together, like yeah. I work a lot at sea and we do a lot of banging and it was like that, yeah. Q. How long did this scream go on for? A. It would have been about five seconds at the most. Q. What was your reaction to that? A. Well I thought, crikey. It startled me. It actually startled me and scared me a little bit, because it was out of the blue. I didn't expect that. I thought, crikey, what was that? And I waited for about 10 seconds to see if there was anything. I turned straight to where I thought I heard the sound." (T.339.20)
43. He was able to say that the incident happened at 20 past 7 because he had been trained in the military to look at his watch when anything startled him.
44. Mr Naidofski was a builder by trade and worked for Albert Frisoli. On 7 May 2009 at about 7.40am he tried ringing Albert but there was no response. He was not able to contact either Albert or Mario. He spoke to Albert's partner, Natasha, and decided to go over to Rozelle. When he rang the doorbell and tried to ring the phone there was no answer. He went down the passageway between the houses and looked in the window. He could see a person lying face down on the ground. He told Natasha to call for an ambulance and he would dial 000. He asked a handyman nearby for his crowbar and forced the front door open. He found Mario lying on his back with his eyes open and Albert was lying face down. Both of them felt cold to the touch. He observed several pools of blood and a knife lying on the floor about a metre away. He went back outside without touching anything. The business relationship between the applicant and Albert Frisoli
45. Ms Natasha Kourea was the de facto partner of Albert Frisoli. Their romantic relationship had commenced in 2000. Albert Frisoli and the applicant entered into a business relationship in 1997. The partnership performed building and concrete work. Ms Kourea met Albert when she was employed in the business.
46. In about 1999 the applicant was diagnosed with bowel cancer and had surgery and chemotherapy. The applicant stopped working at that time and never returned to fulltime work. She said that although the applicant was cleared of cancer by about 2002, he continued to suffer from pain in the stomach from the surgery which he had undergone.
47. In 2002 the relationship between the applicant and Albert Frisoli changed for the worse. The issue was a claim by the applicant that Albert Frisoli owed him money and that having sold a unit which he received from a client, he had not properly accounted to the applicant for the proceeds of sale. Ms Kourea described a particular incident in February 2006 when the applicant came to Albert's office and she could hear raised voices. She observed the applicant pushing Albert against the wall with Albert saying "stop pushing me, I've got a sore neck, stop pushing me".
48. A further confrontation occurred in March 2006 which resulted in Ms Kourea calling the police. After that incident, Ms Kourea and Albert Frisoli applied for an AVO against the applicant and his son Robert. The relations between the applicant and Albert Frisoli continued to be hostile during 2006 and 2007. At one point the applicant was charged with breaching the AVO. In 2006 Albert and his company commenced a civil action against the applicant's company.
49. In October 2008 the police spoke to Albert Frisoli and Ms Kourea concerning an alleged fraud. The applicant alleged that Albert had forged his signature on a share transfer and that Ms Kourea had witnessed the forged signature. On 27 April 2009 the criminal proceedings came on for hearing at the Downing Centre Local Court. Discussions took place between Ms Kourea, Albert Frisoli and the police prosecutor concerning the opinion of the handwriting experts about the forged document. Following those discussions, the police prosecutor withdrew all of the charges against Albert Frisoli and herself. The applicant, his son Robert and the co-applicant were present at the court on that day.
50. Ms Kourea gave evidence that during the time that she had known Albert Frisoli she had not known him to wear a scarf, except when he went skiing. He always wore the same one which was grey and white with black stripes. She did the washing for Albert and Mario and that was the only scarf she had ever seen. She had not known Mario to wear a scarf. When she was shown the black scarf found on Albert's body she said that she had never seen Albert or Mario wearing a scarf like that.
51. She said that for a period of time before the falling out between the applicant and Albert Frisoli, the co-applicant had been doing the cleaning of the office at Wetherill Park which the partnership used. During that time she could not recall Albert Frisoli wearing a scarf. She said that it had to be very cold for him to even wear a jumper or a jacket. She did not remember the co-applicant doing the cleaning after the dispute between the applicant and Albert Frisoli commenced.
52. In cross-examination she agreed that Robert did become involved in the concrete business until about 2002. She said that the applicant was worried about Robert, who had a problem with drugs, and that there was a fair bit of tension between him and Robert. They had become estranged for a period of time in 1999 or 2000. She agreed that Robert was a very volatile character and was quite irrational on occasions. She denied that she had exaggerated the level of the dispute between Albert Frisoli and the applicant, particularly as to what happened in February and March 2009.
53. Evidence was given by Mr Aloisi, who worked as a concreter, for a company that Albert Frisoli partly owned. He described an incident in early March 2006 when he arrived at work and found that the applicant was in Albert Frisoli's office. He said that the applicant took him into Albert's office and was holding a diary and a briefcase. The applicant said in a very loud voice "This diary's going to give me all the proof I need and I'm going to kill the bastard and his kids". He adhered to this testimony under cross-examination.
54. Mr Banks operated a business from an office next to that being used by Albert Frisoli and the applicant. He said that in February 2006 he was at work when he heard a commotion coming from the kitchen. Ms Kourea came in and said that there was some real trouble in the kitchen and could he come. When he entered the kitchen, he saw that the applicant was pushing Albert Frisoli into the corner and they were pretty much face to face. The applicant was saying that there was money missing from their business partnership and he was holding Albert Frisoli responsible for it. Mr Banks got between them and pushed them apart. He said that he had to intervene on two more occasions and he was aware that the police had attended the office in relation to some of the arguments. Mr Banks said that when he left work at 6.10pm on 6 May 2009 Albert Frisoli and Ms Kourea were still there working.
55. Detective Sergeant Winter from the Fraud Squad laid charges against Albert Frisoli and Ms Kourea after the applicant alleged that they had forged his signature on a change of company detail form and on a transfer of shares form. He was at court on 27 April 2009 when the matter was fixed for hearing. It was on that day that the applicant disclosed certain information to the police in relation to the signature used for comparison purposes by the handwriting experts. In particular, the applicant was not sure whether he had signed certain documents which the handwriting experts relied on for their opinion. He said that the applicant became very angry on a number of occasions after the police informed him that the prosecution case was now weak. Later that day, the prosecution was discontinued with the police withdrawing the charges against Albert Frisoli and Ms Kourea.
56. In cross-examination Detective Winter agreed that Robert was quite volatile with the police and appeared to be a hot headed young man. He agreed that Robert was the one trying to push for the prosecution to proceed.
57. Mr Moio, solicitor, was acting for the applicant in his civil proceedings against Albert Frisoli. He was present at the Downing Centre on 27 April 2009 when the criminal proceedings were withdrawn. It was on that occasion that he informed the applicant that the civil proceedings which he had brought against Albert Frisoli were also unlikely to be successful. Location of Robert Dicianni on night of 6 May 2009
58. Mr Hogan was the manager of the Breakfree Motel in Bankstown. He gave evidence that on 6 May 2009 Robert Dicianni booked into room 232 at 4.03pm using his driver's licence as photo ID. Information from the door lock showed that there were five occasions when the door card was used to enter the room: 17.32, 18.09, 22.52, 22.01 and 22.09. There were two entries for room service, noted as "dinner", at 18.12 and 20.17. Robert was visible on the motel CCTV in the foyer and the basement car-park. In cross-examination he agreed that he was not sure if the times recorded allowed for daylight saving, but he could work it out if necessary.
59. Ms Bacaling was in a relationship with Robert Dicianni as of 6 May 2009. She said that in July 2009 Robert and the co-applicant were going overseas to Italy. Ms Bacaling purchased the co-applicant's silver Hyundai, which was two years old with 36,000 kms on the clock, on 24 July 2009 for $3,000. The Hyundai had been purchased by the co-applicant in July 2007 for $17,000. On 26 July 2009 she drove Robert and the co-applicant to the airport for their trip to Italy. Shortly after that date, she had the car washed at a carwash place. She said that the car was pretty clean when she bought it, but she wanted it to be clean and shiny. She said that no-one asked her to have the car washed.
60. In cross-examination when she met Robert he told her about a legal case that he had against a business partner, who owed him something like a million dollars. He later told her that he had lost the case and he was upset about it. She said that because her flatmate did not like Robert coming back to her place, they decided to stay at a motel on the night of 6 May 2009. He was driving his green Monaro that day. They arrived at the Breakfree Motel in Bankstown at about 4pm, checked in and watched some TV. She said that Robert left the room at 7pm to buy a bottle of wine from Woolworths down the road and returned shortly before 7.30pm. She was able to remember those times because the TV show "Home and Away" was just starting when he left, and he returned shortly before it finished.
61. Detective Whitehouse attended the Breakfree Motel and viewed the CCTV footage for 6 May 2009. Detective Whitehouse was able to establish that Robert Dicianni arrived at the motel at 3.52pm in a lime green Holden Monaro and at 7.20pm he could be seen speaking with staff at the front counter. The applicant's state of health
62. Dr Fulham was a colorectal surgeon who performed a low anterior resection for carcinoma of the rectum of the applicant on 5 September 2000. Afterwards, the applicant was referred to an oncologist for chemotherapy. Dr Fulham saw the applicant on various occasions, between 29 August 2000 and 6 March 2009. The applicant presented with lower abdominal pain, but investigations showed no evidence of any recurrence of his colorectal cancer. Dr Fulham referred him to Dr Salmon for management of his chronic abdominal pain. On 23 February 2009 Dr Fulham performed a gastroscopy and colonoscopy. The results were normal and there was no evidence of any recurrence of his tumour. Dr Fulham was of the opinion that by February 2009 the applicant had made a full recovery from his bowel cancer.
63. Dr Fulham examined the medical records for the applicant from a hospital in Calabria Italy. These showed that he was admitted on 4 February 2011 and discharged himself on 9 February 2011. He was admitted for generalised weakness with low level malnutrition and asthenia. The medical history was recorded as a right hemi-colectomy which was incorrect. Dr Fulham said that the medical records from the hospital admission in 2011 indicated a number of tests had been performed, but there was no evidence that he was suffering from cancer.
64. Dr Romeo was a specialist in pain management. He treated the applicant for chronic abdominal pain from 23 June 2003 until 2009. He said that the applicant experienced pain after the resection of his bowel in 2000. In 2007 the applicant had expressed frustration regarding the ongoing pain and asked Dr Romeo to write him a referral letter to a professor in Medina Italy. Succeeding consultations with Dr Romeo included acute episodes of renal colic due to kidney stones. Dr Romeo saw the applicant on 4 May 2009 and gave him a prescription for Tremal for pain management, and Normacol Plus granules for constipation. On 11 May 2009 the applicant attended his medical centre between 7.18 and 7.44pm and advised that he was going back to Italy for pain management and requested an updated letter of referral to the same specialist in Italy as in the 2007 referral. Dr Romeo agreed in cross-examination that no matter what he said, the applicant had a fear that the cancer was in him and eating him. The co-applicant's actions on 6 May 2009
65. Ms Baker had known the co-applicant since high school. In 2009 they were "good friends" and she had arranged for a furniture maker in her building to make two bedside tables for the co-applicant. On 6 May 2009 she was trying to contact the co-applicant to tell her that they were ready. She rang the co-applicant several times in the morning and again throughout the day. She had never had trouble getting through to the co-applicant previously and became worried about her. Ms Baker's husband tried to call the co-applicant as well, but could not get an answer.
66. Ms Baker went bowling that evening and finished at about 8.30pm. She decided to go to the co-applicant's residence in Fairfield and thought that she arrived at about 8.40pm. There was no answer at the doorbell. Eventually, another occupant let her into the building, and she and her husband went to the co-applicant's front door together. They knocked on her door but there was no answer. After about 10 minutes, Ms Baker gave up waiting and left. Just as she got outside the building, the co-applicant pulled up in her silver Hyundai. Ms Baker said "Where have you been?" to which the co-applicant replied "out". Ms Baker described this response as "Said it in an angry way, in an abrupt way like you know why did I ask". Ms Baker said "What do you mean "out", where out?". The co-applicant did not reply. Ms Baker told the co-applicant that now that she knew that she was safe, she would go home to which the co-applicant replied "Aren't you coming in for coffee?".
67. They went inside and Ms Baker asked the co-applicant where her phone was to which she responded that she must have left it at home. The co-applicant went to her bedroom and asked Ms Baker to ring her phone. The next minute the co-applicant came out and said "Oh, here it is" and she had her phone in her hand. Ms Baker remembered this particular day because she used to bowl every Wednesday night and this was the first Wednesday night after the co-applicant told her that their court case was adjourned. Ms Baker said it was probably about 9pm when the co-applicant arrived home.
68. The following Monday the co-applicant rang and asked Ms Baker to meet her downstairs. The co-applicant was crying and said that she had to go to Italy. When Ms Baker asked "why", she said "I need to get away". The co-applicant said she was going with the applicant, who had an appointment in Italy with a specialist for cancer. The co-applicant said that they were leaving the next day and that she would be away for three or four weeks, but she did not know. Ms Baker said "Why are you going in such a hurry?" to which the co-applicant responded "I just need to get away". Ms Baker observed that the co-applicant was upset.
69. Phone records showed that on 6 May 2009 Ms Baker made eighteen unanswered calls to the co-applicant between 16:06:50 and 20:52:31.
70. In cross-examination Ms Baker agreed that she had not checked the times on her phone records when she made her statement to the police on 31 July 2009. The times which she had given in the statement had been a "rough estimate". Ms Baker disagreed that she did not start to call the co-applicant until 16:06:50. Ms Baker worked in a call centre and had tried to call the co-applicant from her work phone a couple of times that day.
71. In cross-examination Ms Baker agreed that she "probably" left the co-applicant's unit before the telephone records showed that the co-applicant had made a call to the applicant at 20:55:18 for 31 seconds. Ms Baker agreed that the two calls recorded as coming from her phone to the co-applicant's phone at 20:52:25 and 20:52:31 were probably the call or two calls that she made to the co-applicant's phone when she was in the unit and the co-applicant was looking for her phone. Ms Baker also agreed that two later attempted phoned calls by her to the co-applicant's phone at 20:56:15 and 20:56:21 were probably made when she was on her way home in her car. Ms Baker said that she was not in the co-applicant's unit for very long (T.551.45 - 552.44). On the basis of that material, the following was put to Ms Baker: "Q. You see, what I want to suggest to you is that Ms Pintabona was home, was at the unit in the driveway no later than 8.45 pm? A. Yes. Q. Do you agree that's possible? A. Possible." (T.554.30)
72. Ms Baker agreed that the co-applicant had said that she had her nails done that day, but said that she had not noticed whether they had been freshly done or not. When asked about the later conversation with the co-applicant before she went to Italy, Ms Baker gave the following evidence: "Q. In any event, she told you that Giuseppe needed medical attention for his cancer? A. That's correct. Q. And that she was going to go and assist him? A. No, she didn't say she was going to assist him. She said she needed to get away and they needed a break and they were going away and he had a doctor's appointment in Italy because he had cancer." (T.559.45)
73. Detective Sergeant Hollows said that he and Detective Ogilvy attended the apartment building where the co-applicant lived on 17 June 2009. Detective Hollows identified himself and the co-applicant buzzed them into the building. When he asked if they could enter and speak to her, the co-applicant said "no" because her house was too messy. She agreed to provide a statement but wanted to speak to her solicitor first. Detective Hollows' statement continued: "I said, 'Yes that's fine. Do you mind if I ask you some questions now and I will record them in my notebook as we go'. Pintabona said, 'Yes, that's fine'. I said, 'We are investigating a murder of Albert and Mario Frisoli that happened on 6 May 2009. How do you know Giuseppe Dicianni?' Pintabona said, 'He's just a friend and I've known him for about 10 years. I was his support person when I went to Italy with him on 12 May 2009'. I said, 'Those happened on Wednesday 6 May 2009, do you know what you were doing on that day?' Pintabona said, 'Yes I remember'." (T.813.9)
74. Detective Hollows then read out what he had written in his notebook at that time: "Stated that Giuseppe came past her place in the morning at Fairfield by himself. He wasn't well when he came. Dropped off some food, some green vegetables that he grows then from his yard. Didn't stay long at all. About 10 to 15 minutes. It was between 8 to 8.30am. Left before 9am. I have known him for about 10 years. He was too sick that day and he went home. Then about 6.30pm I went past his house in Edensor Park by myself and he brought some sauce he made to me in a car. I did not go down to his house. I then left. I came back from Italy last Monday night at 8pm with Thai Airways. He is very sick over there. Has prostate cancer, I think. Live by myself and if you want a statement I am happy to supply one, but I have to speak with my solicitor, Vince Macri. I will get back to you. I work part time at Bossley Park Deli. I remember that it was a Wednesday morning that he came over and dropped off the greens. In any case I keep a diary and when I get permission from my solicitor I will bring it with me when I give a statement. The Wednesday was the week before I left for Italy on the 12th of the 5th 2009. It was a Tuesday. And signed by Josephine Pintabona. Dated the 17th of the 6th, 2009." (T.814.39)
75. On 18 January 2010 Detectives Hollows, Doueihi and Bradley attended Sydney International Airport for the arrival from Italy of the co-applicant. Detective Hollows advised her that she was required by law to provide the name and address of the driver and passengers for her car between 4pm and 9pm on 6 May 2009. She said "Yes, I was driving on 6 May 2009, no-one was in my car as far as I know". She indicated that she was willing to take part in an interview but wanted to speak to her solicitor first. The co-applicant said that she had a 2009 diary, but she could not remember where it was.
76. Detective Bradley gave evidence that she attended the co-applicant's place of work on 20 July 2009 and spoke to her. The co-applicant said that the reason the applicant left Australia for Italy was because he was very ill with cancer. She said that she was his support person when she travelled to Italy with him on 12 May 2009.
77. Senior Constable Button gave evidence concerning the telephone records of various individuals which had been compiled into several spread-sheets covering the period 1 April 2009 - 10 May 2009. Those phone records showed that the applicant and the co-applicant were in regular contact with each other, making several calls a day leading up to 6 May 2009. On 6 May 2009 the co-applicant had her phone turned off, or not in use, between 1.26pm - 8.49pm. On 6 May 2009 the applicant made only one call at 8.49pm when he called the co-applicant.
78. In cross-examination Constable Button agreed that the co-applicant's phone could have been switched on but simply not answered. This answer was qualified when he said that usually when a phone was turned on but not answered, the call was forwarded to another number. Accordingly, from what records were available it appeared that the phone was off and not answered.
79. Detective Inspector Doueihi provided a chronology setting out the Apprehended Violence Orders between Albert Frisoli and the applicant. He agreed that on 9 March and 24 May 2006, the applicant had made threats to harm Albert Frisoli and Natasha Kourea. The AVO's granted to Albert Frisoli and Ms Kourea were against both the applicant and his son, Robert.
80. Detective Doueihi attended the applicant's residence on 14 July 2009 with a search warrant. Because the applicant was not home, he spoke to the applicant's wife, Carolina, and agreed to wait until Robert arrived. He made a note as to what happened thereafter as follows: "Whilst waiting arrival of Robert speak to Carolina regarding Josephine Pintabona travel to Italy with her husband. Carolina claims not to know Pintabona and that her husband travelled overseas to seek treatment. Further claim that Pintabona may have travelled with her husband as a support person as she could not travel due to her illness. Ask about her movements and her husband's movements on 6/5/09. Could not confirm her husband's movements, but indicated she was home all day". (T.958.26) In cross-examination Detective Doueihi strongly disagreed with the proposition that the applicant's wife might have said "we" were home all day.
81. Ms Danz gave evidence, through a Vietnamese interpreter, that she worked at the Wakeley Perfect Nail Salon. She examined the salon's appointment book and there was no appointment entered for Josephine Pintabona on 6 May 2009. Ms Danz did not remember if the co-applicant telephoned or attended that day. There was an entry for "Josephine" on 9 July 2009 with a tick next to it, which meant that the person attended. There was also an entry for "Jo" on Monday 11 May 2009, but Ms Danz did not know whether that referred to Josephine.
82. Ms Tat gave evidence, through a Vietnamese interpreter, that she also worked at the Wakely Perfect Nail Salon. She knew the co-applicant, who had been a customer for a few years. She could not remember if the co-applicant came to the shop on 6 May 2009. She could not remember if the co-applicant had telephoned the shop that morning. The applicant's note during trial
83. Court Officer Cassidy was standing near the dock on 6 May 2013 at 9.55am when the applicant and the co-applicant entered the dock. She saw the applicant pass a piece of folded up paper with some lines on it to the co-applicant. The co-applicant took it with her hand and immediately put the folded up paper with some other papers she was holding.
84. Corrections Officer Hammerton was in court when Ms Cassidy told him what she had seen. At 10.35am he asked the co-applicant whether the applicant had passed her some paper to which she replied "yes". The co-applicant handed over a piece of notepaper that had been folded over at least four times. Mr Hammerton unfolded the paper and saw that it was written in a foreign language.
85. Senior Corrections Officer Beguely received the notepaper and spoke to the applicant while he was alone in his cell asking whether he knew that it was an offence to pass or receive anything from the outside while in custody. The applicant responded "Can I have it back, I'm sorry". Mr Beguely took the note to the Sheriff's office where a photocopy was made. The original was handed to Detective Whitehouse.
86. Mr Stevanoni, an accredited translator in the Italian language, translated the note from Italian to English. Its content was as follows: "You must tell your lawyer that in addition to cleaning the office each week you used to take home towels, napkins, rugs and other rags from the office in order to wash them in your own washing machine. Moreover, you always parked your car in front of the office, along the footpath in front of the entrance to the office. And when Mr Frisoli Alberte (sic) used to light up a cigarette, he did not smoke inside the office, but rather went outside and sat or leaned against your car as it was always parked in front of the office. When you came to clean the office on many occasions you would pick up Mr Frisoli's black scarf from the kitchen table or chairs and take it to his office" (Exhibit UU). The scarf
87. In cross-examination Ms Kourea disagreed that people left clothes lying around the office area. She "supposed" somebody might put their coat down in the open area but she could not remember any occasion when, after his surgery, the applicant came into the office and put down a coat, or similar garment, on a chair or table in the general office area. She agreed that the co-applicant would come and clean the office when the office was at Wetherill Park but disagreed that the co-applicant took home tea-towels or other items that might be lying around, to be cleaned. She disagreed that Albert Frisoli had scarves other than the one she had described. She disagreed that a black scarf, like the one found on Albert Frisoli's body, was left in the house when they all worked there together.
88. Detective Whitehouse obtained the CCTV footage from the BP Service Station at Seven Hills and extracted still images at 6.33pm and 6.36pm from it. These showed Albert Frisoli entering and leaving the service station shop wearing a short sleeved shirt and no scarf. The clothing he was wearing was exactly the same as when he was found murdered, except for the addition of a black scarf draped over his body.
89. He said that of the 16 people that can be seen on the CCTV footage, 13 of them were wearing either short sleeves or light clothing. None were wearing scarves, beanies, gloves or clothes consistent with cold weather. On 6 May 2009 the temperature was recorded by the Australian Government Bureau of Meteorology at Seven Hills as 16.7 degrees Celsius at 6.30pm and by Sydney Observatory at 19.3 degrees Celsius at 6.30pm (Exhibit WW).
90. In cross-examination Detective Whitehouse agreed that he had spoken to Atlanta Frisoli who said that her father was not a person who wore scarves. She said that her father had scarves but was simply not in the habit of wearing them. She had seen him wearing a scarf, but only in very cold weather and only very rarely. Detective Whitehouse had also spoken to Holden Frisoli who said that as far as he was concerned, his father did not wear scarves. Applicant's travel plans
91. Mr Labozetta was the manager of Marconi Travel Agents in Fairfield. He gave evidence that just after 9am on Monday 11 May 2009 the applicant and co-applicant booked two tickets to Italy. The applicant said that he needed to travel to Italy urgently because he needed an operation for cancer. Mr Labozetta was able to arrange a flight on Thai Airways for them, leaving the next day. He then assisted the applicant to apply for an urgent renewal of his passport.
92. Later that day, the co-applicant came to the shop at about 6pm and paid for one of the tickets. She paid $2000 cash and $1233 by EFTPOS. The next morning, 12 May 2009, the applicant and his son Robert came to the travel agency and paid the outstanding amount of $2840. The applicant collected his ticket and the co-applicant's ticket. The tickets were for departure from Sydney on 12 May 2009 and departure from Rome on 13 July 2009. At some point before 13 July 2009 the co-applicant changed the return ticket for the applicant to 14 September 2009.
93. There was independent evidence that the applicant collected his Australian passport on 12 May 2009 at 11.45am. Thai Airways confirmed that the applicant failed to board the Thai Airways aircraft on 14 September 2009 and in doing so, forfeited his ticket.
94. Mr Antoniou, a solicitor, had been acting on behalf of the applicant since September 2007 in a civil dispute he had with his ex business partner. It related to an alleged fraudulent transfer of company shares while the applicant was ill. He said that in early 2009 the applicant came to his office and collected all the files relating to those proceedings. He said that on 11 May 2009 he was working in his office when Gino Cassaniti, an accountant in his building, asked if he would witness a General Power of Attorney document that he had prepared for the applicant and his son Robert. After Mr Antoniou explained the consequences of the Power of Attorney document to the applicant and Robert, he witnessed their signatures.
95. Mr Joubert was the principal of a corporate insolvency business. On 11 May 2009 he received a call from Gino Cassaniti about an urgent potential insolvency matter for Aian Investments. Mr Joubert drafted the documents necessary for a director of Aian Investments to appoint a voluntary administrator. Later that day, he met with Mr Cassaniti and the applicant who told him that the company owned a block of land at Wetherill Park and was owed debts by various people. The applicant appeared in a hurry to get the paperwork completed. When the property was sold on 23 February 2010, the proceeds were distributed to creditors and shareholders. It was a 60/40 split between a company associated with the applicant and his family, and 40% to a company associated with Albert Frisoli. The money payable to Albert Frisoli was still in his trust account at the time of the trial.
96. Detective Sergeant Chambers attended the applicant's home at 10am on 9 May 2009. He observed that the applicant was wearing dress shoes of a size considerably smaller than his own size. Detective Chambers read into evidence his statement as to what happened on that occasion. The statement included: "…. Did you kill Albert or Mario Frisoli?" He said, "No." I said, "Were you involved in the murder?" He said, "No." I said, "Did you arrange these murders?" He said, "No." I said, "Do you know who murdered them?" He said, "No, but Albert had a great many enemies." I said, "What were your movements this week?" He said, "I was home all week from Monday to Friday. I'm sick. I have cancer and take a high dosage of medication." I said, "Did you go anywhere at all this week?" He said, "I only go out once a week to take my wife to the club for lunch." Detective Sergeant Furia said, "Are you referring to the Marconi Club?" … Detective Sergeant Furia said, "Did you take your wife to the club for lunch this week?" He said, "No, we are both sick. We just stayed home this week." Detective Sergeant Furia said, "Can anyone verify your story?" He said, "Just my wife. We were home alone all week." Detective Sergeant Furia said, "Did you have any visitors?" He said, "No."" (T.679.14)
97. On 12 May 2009 Detective Chambers received information that the applicant was planning to leave the country. At about 2pm he and Detective Sergeant Furia drove to the international airport. The applicant and the co-applicant had checked in and were sitting in a café. Detective Chambers' evidence about what happened next was: ""I said, "Why are you going to Italy?" Josephine Pintabona said, "He is a sick man and going for cancer treatment." She opened her carry on bag and showed me some tablets. I said, "When will you be back?" Dicianni said, "In a month." Detective Sergeant Furia said, "Where are you going?" Dicianni said, "Turin. I am seeing a doctor who has been treating me for years."" (T.682.16)
98. Detective Sergeant Furia gave evidence that on Tuesday 12 May 2009 he attended the international airport with Detective Chambers. They located the applicant and co-applicant and spoke to them. Detective Furia spoke to the applicant in Italian: "Hi, I'm Fabio Furia from the police again. You never told me that you were going to Italy. Why didn't you call me. Giuseppe Dicianni said "Don't be sly with me, I know you made inquiries with the travel agent … Detective Sergeant Chambers said: "When will you be back?" Giuseppe Dicianni said "in a month". I said "Where are you going?" Giuseppe Dicianni said "Turin, I'm seeing a doctor who has been treating me for years". I said in Italian "Why should we believe you, you never told us you were leaving Australia?" Giuseppe Dicianni said in Italian "Listen, I know what game you guys play. I was once in the Carabinieri in Italy. If you think I killed Albert and his brother, prove it." I directed a comment to Josephine, I said "Did you get my card with a message to call me?" She said "Yeah, I was going to call you when I got back". I said "Giuseppe are you going to come and see me when you come back?" Giuseppe Dicianni said, "I'll be back in a month and I will come and see you". Giuseppe Dicianni shook my hand with a promise gesture. There continued to be some more general talk between the four of us before Detective Chambers and I left Josephine Pintabona and Giuseppe Dicianni at the airport." The route from the crime scene
99. Detective Sergeant Hollows with Detective Doueihi drove an unmarked police vehicle on 9 December 2009 from 1 George Street, Rozelle to the applicant's home in Edensor Park and then to the co-applicant's home in Fairfield. They left George Street at 7.30pm and arrived at Fairfield at 9pm. They did not travel on any toll roads. Detective Hollows read onto the transcript the following from his police notebook (Exhibit QQ). "At 7.30pm on Wednesday 9 December 2009, with Detective Doueihi and I drove an unmarked police vehicle from outside 1 George Street, Rozelle, to xx xxxxxx xxxx Edensor Park, the home residence of Giuseppe Dicianni. Detective Doueihi being the driver and I was the passenger. From this location Detective Doueihi and I drove to xxx xxxxxxxxx xxxxxx Fairfield. I recorded the exact route we took being the following from 1 George Street, Rozelle." (T.815.40)
100. Detective Doueihi said inquiries made with the M4 Tollway showed that no Etag activations were recorded against the applicant's or co-applicant's vehicle. In May 2009 the tolls were still taking cash or coins. If someone paid by cash, there would be no record of the vehicle having used the tollway. The only detection would be if the driver violated the toll then a camera image would be taken of the vehicle.
101. In cross-examination Detective Doueihi agreed that the route which he took on 9 December 2009 was from George Street, left into Reynolds Street, left into Evans Street and then down to Victoria Road. He took what he thought was the most direct route, without going through any tolls and sticking to the speed limit. He took 90 minutes to go from George Street to Edensor Park and then to Fairfield. He agreed that he did not check what traffic conditions were like on 6 May 2009 and that is why he maintained that there could be variations in time. He was aware of the CCTV camera outside 33 Ewell Street which showed a vision of cars as they turned from Reynolds Street into Evans Street. He had viewed the footage, but considered the quality very poor. A similar vehicle, or a dark vehicle may be seen, but it was not possible to make out any registration numbers.
102. It was established that the Ewell Street camera was motion activated and could be activated by light, headlight, car movement, pedestrians or even shaking the camera. Detective Doueihi agreed that there were other CCTV cameras in the vicinity but that the majority of them were for the protection of businesses and not all of them recorded vehicles on the road. He was questioned as to the most "logical" way to travel towards Victoria Road: "Q. I want to put to you the most logical way out for an offender parked in George Street as you postulated was the way you travelled when you did your re-creation? A. No I don't agree with that. The offender could have taken any route, any other different route. As I said there are different, there are a lot of variables to the route I took. The offender could have driven down to Victoria Road and turned right, gone all the way up Victoria road and hooked on to the M4 that way. The offender could have jumped straight on to the M4 freeway and that could have knocked fifteen minutes off the time. I did an estimation of what I believed to be the most direct route and it is purely suggestive of what my opinion is. Q. You just said it might have knocked ten or fifteen minutes off the trip? A. If the offender accessed the M4 from the beginning of the M4 at Concord that would certainly speed things up. I don't know how long, I did not try that route. Q. You are just guessing? A. I am not guessing, it is common sense if you hit the M4 freeway at Concord some ten kilometres before I joined the M4 it certainly would reduce the time that I would have arrived at Edensor Park." (T.992.8)
103. Detective Doueihi agreed that the footage from the Ewell Street camera had portions of footage missing, due to it being motion activated. There was one long gap from 19:11:42 through to 20:39:44. It was put to him that the camera times shown on the footage were an hour fast, meaning the gap was from 6.11pm through to 7.39pm, but he did not agree. It was put to him that on either view of the times, and for whatever reason, the co-applicant's car was not captured by the Ewell Street camera leaving the area. Detective Doueihi maintained that there were two other possible ways of exiting the area without turning down Evans Street. Evidence as to cars parked around Goodsir Street
104. Mrs Sinclair lived at the top end of Goodsir Street near Evans Street and knew Mario and Albert Frisoli. About 10am on Saturday 2 May 2009 she noticed an iridescent bright green coloured sedan parked outside the hardware store near where she lived. She noticed that the licence plates started with "BAZ". The car was there on Sunday and Monday as well. The car was there when she left for work on the morning of Monday 4 May 2009 but was gone when she arrived home. She did not see anyone inside the car. It was common ground that the number plate on Robert Dicianni's green Monaro started with the letters "BAZ".
105. Mr Sinclair on the Sunday before 6 May 2009 saw a metallic greenish-yellowish type of small late model car parked on the street. He recalled the licence plate began with "BAZ". The car was there Sunday and Monday. He did not go out on Monday, but when his wife came home she said "That little car has gone". He particularly noticed the car because of the colour. He had never seen that car in the street before.
106. Statements were taken from local residents of Goodsir Street. One of those was Helen Tilly. Her statement was dated 12 May 2009. Relevant parts of that statement were: ""On Monday 4 May or Tuesday 5 May 2009 …As I was locking the screen security grill I noticed a mulberry/red coloured late 80s or early 90s coupe style sports car travelling towards Evans Street in Goodsir Street. … As the car went past it would have been less than five metres from where I was standing. It was travelling slowly, even given that it was only a small narrow street. It was travelling much slower than normal traffic in the street. It was not a car that I have seen before in the street and seemed uncharacteristic for the street. … I think the driver was the only person in the vehicle. I couldn't be 100 per cent of that. I could see the driver was intensively observing both sides of the street. The driver had dark hair. His hair was about two inches long and appeared to be thick and full. He had dark features. I remember the dark eyes and eyebrows. He had a light olive coloured skin, which made the dark eye features prominent. I think he would have been in his mid to late 20's. I am not sure if I would recognise this person if I saw them again." (T.925.19)
107. It was common ground that the applicant owned a red Honda Prelude coupe at that time. THE DEFENCE CASE
108. It was the applicant's case that Albert and Mario Frisoli had plenty of other enemies and that the Crown had not ruled out other people seen around the vicinity of Goodsir Street. He was at home all afternoon and on the evening of the murders, as attested by both his wife and the co-applicant. He was a weak, sick man and could not have committed the murders. He went to Italy for urgent medical treatment.
109. The co-applicant's case was that she was not involved in any way. She was having her nails done that afternoon and she spoke to her friend. She drove past the applicant's house at 6.30pm, saw him at home and collected some cooked food he had prepared for her. The applicant's evidence
110. The applicant said that he had been born in Italy, had never been to school and had taught himself to write. He came to Australia in 1972 when he was aged 26 with his first wife and three year old son Robert. He started working for himself in about 1983/84 doing concreting, formwork and steel work. He met Albert Frisoli in about 1984/85 when he was the general manager of Wintertons, which was a construction company for whom the applicant did some jobs. They first discussed starting a business together in about 1996 or 1997. By then he had known Albert for 12 years. In about 1997/98 they formed a company called Rostsun Civil. The applicant and Albert were 40% shareholders and his son Robert had a 20% share. The company did concrete formwork and steel. They purchased a block of land at Wetherill Park and built an office on it.
111. In September 2000 he was diagnosed with bowel cancer. After he was operated on, the cancer was gone but pain and going to the toilet remained a continuing problem. He was taking six Tramadol a day for the pain. After the operation, his relationship with Albert was not very good. From the end of 2005 he asked him a few times to show the paperwork for where the money went. Albert would reply "maybe next week" or "maybe next month". The applicant said that he never got to see the books and he was suspicious that Albert was hiding something. The longer the delay, the more suspicious he became. He said that the language between them became more heated over time. The applicant said that he came from Calabria and it was just a normal part of the Italian culture to talk more with his hands and sometimes push a little bit and touch. He might have said things to Albert like "I'll kill you", but in Italian culture that can be used at any time. He said that even his wife said that to him in conversations.
112. The applicant said that after 2005 he had suspicions that Albert was keeping information from him. He never had any proof that he was keeping money, assets or information from him but the information he wanted related to State Concrete which was operated by Robert and Albert. He said that the pumps used by State Concrete were owned by Robert and that the two concrete pumps were worth $500,000 and $800,000. They were used on large construction jobs and earned a lot of money, sometimes $100,000 a week. He had invested about $800,000 in the pumps from his own assets. On the day that he was at the Wetherill Park office and spoke to Mr Aloisi, he had just found the book with the addresses to where the pumps had been sent. He had then said to Mr Aloisi "I got the proof where the pump be located every day. Now I can fight with Albert to show work not listed". That conversation took place towards the end of 2005.
113. The applicant said that State Concrete started operating in about 2000-2001 and that at that time Robert was mixing with the wrong people and was a heavy drug user. Robert stopped working in 2005 and he lost everything - his house, his family and his pumps. After Robert's marriage broke down in 2005, he lived in the front section of the applicant's house. The applicant bought the $800,000 pump for Robert and tried to get him jobs and find labour. Despite this, Robert abandoned the business and the applicant had no contact with him for six or seven months.
114. The applicant said that the incident with Albert Frisoli on 23 February 2006 did not involve him threatening Albert with a syringe. He went to the kitchen area and brought with him a lease agreement for the yard and a document to remove Albert from the company. He had a 60% shareholding and he could do that. The applicant said that when he gave Albert the papers, he became agitated and went to get up from his chair causing him (the applicant) to hold him by the arm and tell him to sit down. They started talking loudly and screaming at each other. Chris Banks came in and the three of them talked and that was the end of it.
115. After that incident, Albert and Natasha Kourea took an AVO out against him. A couple of weeks later, the applicant took out an AVO against Albert. When the applicant breached the AVO, he did not think he was doing anything wrong by going to his own office. He did not understand the implications of the AVO. The applicant admitted going to Wetherill Park and cutting the padlocks after the AVO orders had been made final on 16 May 2006 at a time when he knew that he was in breach of the AVO orders.
116. After his operation in 2000, the applicant met the co-applicant and became intimately involved some six or seven months later. The co-applicant would help him visit doctors and specialists and would help him with his English. They saw each other every day. The applicant's wife did not know about them until they went to Italy together. The applicant went to the Wetherill Park office from 1998 to 2005 and was very familiar with it. Although he had never seen Albert Frisoli with a scarf on his neck, he had seen that black scarf (Exhibit D) in the office. When they got to the office in the morning, they would take off their jackets, coats and things and put them on the table. When clients came, one of them would pick up everything and move it to a chair or somewhere else.
117. The applicant said that Albert Frisoli had forged some signatures and the matter went to the Supreme Court. Separate criminal charges were also brought against him over the forged signatures. Both these cases collapsed in 2009. The applicant was not happy about it but when he found that it was not true that the signatures were forged, he accepted it and said okay. The forensic experts said that they believed the signatures were not forged and were in fact, his. He had a recollection of signing the documents in question but did not recognise the signature as his. At the time he was on six Tramadol a day and had over $5 million or $6 million dollars in assets, without including three properties in Italy worth $1.5 million each.
118. The applicant did not know how much Albert might have been keeping from him. He wanted Albert to show him the paperwork and to be fair. The applicant had his wages paid by the company for two years when he was sick. He said that he thought that he might have owed the company money and wanted to give money back if that were the case.
119. The applicant's health was very poor in 2009. He could not do physical work and he could not bend because of two herniated discs in his back. He denied killing Albert and Mario Frisoli - "absolutely not". He did not arrange for either of them to be killed. He said that he had not set one foot in Rozelle after his cancer surgery. He denied using the sledge hammer handle to hit anybody. He said that he had given the handle, to the co-applicant for her protection and that was why it was found in her garage with his DNA on it.
120. The applicant said that in early 2009, some friends made an appointment for him to see a doctor in Moderna, Italy. He could not remember the date of the appointment but it was arranged three or four months before. Some police came to his house and spoke to him on Saturday 9 May 2009. His wife was in bed at the time but after a while she joined them. He told Detective Chambers that on 6 May 2009 he was at home with his wife. He told the police that he was in bed at about 1pm on 7 May 2009 when his son Robert came and told him about the deaths of Albert and Mario Frisoli. He told the police that he had been at home and that he and his wife had been home all week. He said that his wife was sick and that he was not well that week either. He told them that he had cancer but that was an expression which he used. He did not specify that it was the problem of living caused by the cancer to which he was referring. He used the word "cancer" as a shortcut to avoid talking about the related problems.
121. The applicant said that he did go out on Wednesday morning, 6 May 2009, to buy some vegetables and the Italian Forum newspaper. He was back at home by 10am. He did not leave the house again that day.
122. The applicant said that he had originally planned to travel to Italy with his wife but she was too sick. She had bone marrow cancer and needed a bone marrow transplant, so he went to Italy with the co-applicant. He went to his house in his home town. While he was in Italy he sought medical treatment for his pain and problems with the toilet. He told the police that he would be back in a month. When he did not come back as planned, he got a solicitor in Italy to send a letter to Vince Macri, his Australian solicitor, with his contact details in case the police needed to speak to him. In Italy he was at his home address at 9 Via Poneicello, San Marco, Argenagino, Cosenza. He said that it was not a secret address and that everyone knew that he was living there.
123. The applicant agreed that he had written a note which he handed to the co-applicant in the courtroom. He said that he only wrote the note to remind her not to forget things. All the things he reminded her about were true things. He explained himself as follows: "Q. Why did you write that note? A. I write this one here to remember Josephine make sure not forget what job she do in the office, which staff put on the card from the office and she, because was lady cleaning office and remove stuff from the table on the chair, she know black scarf will come from the office some time and so she's know, I just remember, that was my intention but because I never go to school no Italian and no in Australia that is the way I write. Q. In that note in the first part? A. Yes. Q. I don't know what the Italian words are but the translation is said to be in part "Each week used to take home towels, napkins, rugs and other rags from the office in order to wash them in your own washing machine" was that a reflection of the truth that Josephine used to do those things? A. Yes. Q. In the next bit you say you always parked, according to the translation, you always parked your car in front of the office. Was that a reflection of the truth? A. Yes. Q. The next section is Frisoli Albert, used to light up a cigarette and sat or leaned against your car. It was always park in front of the office? A. Yes. Q. Was that a reflection of what the truth was? A. Yes. My son and Albert used to go from office on the car, sit there and talking, because Josephine parked the car in front of the office. Q. Picking up of Frisoli's black scarf from table or chairs and take it to his office, was that a reflection of the truth? A. Yes." (T.1105.7)
124. In 2007 Dr Romeo wrote the applicant a referral to take to Dr Silvestri in Italy because of the terrible pain he was in. He did not go to see Dr Silvestri in 2007, but he saw him in May 2009. The applicant said that he suffered from terrible pain and constipation. His medications included using a small plastic tube to insert liquid into his anus to provoke a bowel movement. He bought the tubes from the chemist and would always have one or two in his pocket.
125. In cross-examination by the co-applicant the applicant agreed that the co-applicant did not ask him to write the note which he handed to her during the trial. He agreed that she never took clothes or rugs home to wash. He disagreed that he mentioned anything about washing scarves in the note. He agreed with the proposition that the co-applicant did not own the silver Hyundai in 2006 and only acquired that car in the second half of 2007. He maintained that he saw scarves in the office and that Albert was in the habit of wearing a scarf. His evidence was: "Q. Mr Dicianni, Ms Pintabona, when she used to clean the premises, used to also tidy item of clothes from various areas? A. Yes. Q. Not specifically a black scarf? A. No, no. Q. What were you trying to say when you put that in the note? A. I tried to say make sure you remember if you move this thing from the chair on the table, because few times this scarf was on the table." (T.1115.17)
126. The applicant agreed that he was a keen cook and used to provide the co-applicant with his cooking on a regular basis. He said that he went to the co-applicant's apartment on the morning of 6 May 2009 and that they made arrangements for later in the day: "Q. You have given evidence that you attended Ms Pintabona's apartment on the morning of 6 May 2009, is that right? A. Yes. Q. You said you were there for half an hour? A. Yes. Q. Did you make any arrangements at that time with her for later in the day? A. Yes. I say to Josephine, I leave you some sauce on the same spot on the side of my garden where is the gate and on the Wednesday night, I take the sauce on this stand and you go there to leave in that spot. A lot time I leave this stuff, I want to go in and Josephine come through and I just see her. It was about a quarter, 20 past 6, on Wednesday 6 May. Q. You told her to come around about 6.30, didn't you? A. Yes, but she comes a bit earlier. Q. You said to my learned friend you didn't go outside of your house that day? A. Yes. Q. Or that afternoon, I should say? A. Yes. Q. I suggest to you that you did come outside the house to her car that evening? A. Sorry? No just before the gate. That's the gate and that's my garden in the front because I got the automatic gate and just on my property. I never go out from the gate, never. Q. But you went out of the house? A. On the garden, yes. Q. To give her the sauce? A. Yes." (T.1116.18)
127. The applicant said that at about 7 or 8pm on Sunday 10 May 2009 he spoke to the co-applicant about joining him on a trip to Italy. He asked her if she would go with him to help him and she agreed. She stayed with him at his house in San Marco and some of the time at his sister's house, less than a kilometre away. The co-applicant had trouble opening a bank account so the funds she had transferred from Australia were put into his account.
128. In cross-examination by the Crown, the applicant agreed that when he left to go to Italy in May 2009 he knew that he did not have a recurrence of cancer. He said that he knew this because Dr Fulham had performed a gastroscopy and a colonoscopy on 23 February 2009. Dr Fulham had advised him in February 2009 that he did not have cancer.
129. The applicant agreed that when police came to his home on 9 May 2009 he told them that he was home all week from Monday to Friday, that he was sick with cancer and took a high dosage of medication. He agreed that the next day he contacted his friend, Mick Labozetta from Marconi Travel, and told him that he needed to travel to Italy urgently for an operation because he had cancer. The applicant agreed that he lied to them both. He was somewhat vague about the date of the appointment with Dr Silvestri in Italy.
130. The applicant disagreed that he was bitterly angry and disappointed when the criminal proceedings for forgery were withdrawn. He said he was a "little bit disappointed". He agreed that he gave information to the police on 27 April 2009 that it may well have been his signature on the documents. He disagreed that he would have been more than a little upset after he had expended such an enormous amount of money.
131. He said that when the police spoke to him at the airport, Detective Furia asked him "Where are you going?" and he said "Turin. I'm seeing a doctor who has been treating me for years". The applicant agreed that although Dr Silvestri was in Modena, that is not what he said. He said "Turin" by mistake because it was where he used to live with his wife before. He agreed that Modena and Turin were a long way from each other. The applicant agreed that he did not fly to either Turin or Modena, but to the south of Italy to his home in Calabria.
132. The applicant cancelled the appointment with Dr Silvestri because he was sick, but arranged to go the next day. He had a receipt for seeing the doctor. His wife put the money in an account in Australia because Dr Silvestri had an account in Australia. He was not able to give a date when he in fact saw Dr Silvestri. He disagreed that he went to Italy in a rush because the police wanted to talk to him about the Frisoli murders. He said that his court cases were all finished and he was in a rush to help his wife. He wanted to get to Dr Silvestri to see if he could help his wife find a compatible donor. In the end, there was no time because his wife needed a transplant as soon as possible.
133. The applicant denied that he had to be extradited back to Australia. He said that he wanted to come back but just did not make it. He sent a letter to his solicitor in Australia with his contact details. He said that after his arrest on 18 August 2010 he was admitted to the prison hospital because he was malnourished. The reason he was not eating was because he was in a cell with eight other people. He needed to use the toilet 20 times a day and was embarrassed. He agreed that his health had improved since he had been back in Australia but that was because Dr Silvestri had given him a cure. He said that over eight months his pain went from eight or nine and a half to four or four and a half.
134. It was put to the applicant that the day that he wrote the note to the co-applicant was the day that Ms Friedman, the DNA analyst, was to give further evidence. He disagreed that the note related directly to Ms Friedman's evidence and the DNA on the car and the scarf. His explanation was: "Q. Why would you bother with the note; why would you bother? A. I was just to remember Josephine because she's very, is a simple woman, make sure was telling the solicitor what's she's done in the office. What was job of, which stuff to move, which stuff, touch all this thing. I was just, something to give it to her, like this (indicated.) That's why I give in front of table and front of everybody. I was thinking nothing was it the truth." (T.1136.44) The applicant said that Ms Friedman gave evidence that his DNA and that of the co-applicant were on the scarf because from 1996 to 2006 the scarf was in the same office.
135. The applicant denied that he had ever said to Mr Aloisi "I got all the evidence I need against Albert Frisoli. I'm going to kill the bastard and his kids". He denied that he had ever threatened Albert with a syringe during an argument in early 2006. He said it was a plastic plunger. "It was the plastic thing in front of the syringe. Not the syringe. It was plastic" (T.1143). He denied that he had an arrangement to meet the co-applicant in George Street Rozelle after the murders. He agreed that he owned all leather shoes, but said that he had never used the type of shoe shown in the footprints. He had never been in that little park. He had only been in Rozelle three times in his life and not since 2000. He did not get into the co-applicant's car. He denied taking the axe handle to Goodsir Street in order to bludgeon Albert Frisoli and subdue him. The handle had his DNA on it because he put it in the co-applicant's garage himself. He had given it to the co-applicant because young men were hanging around the back of the garages where she lived and she was afraid. The applicant agreed that the co-applicant did not report the problem to the police and nor did he.
136. The applicant said that he did not "go outside" his home on the afternoon of 6 May 2008. He said that he gave the sauce to the co-applicant inside the fence line to his property. He did not take the sauce to her car on that day. When asked to explain the evidence of the co-applicant that he had brought some sauce which he had made to her in the car, he said: "Q. Did you pick up the sauce and take it out to her in the car? A. No I put it just there, just there. Josephine just jumped from the car like this and take it."
137. The applicant denied that at 6.30pm that day he was waiting inside the Frisoli house, having killed Mario. He agreed that he knew from the committal proceedings what the DNA evidence from Ms Friedman would be. He denied that he was trying to influence the co-applicant to give a false story.
138. Mr Macri, the solicitor who was retained by the applicant and Robert, said that it was well known where the applicant was living in Italy. In August 2009 he received a letter and a medical certificate relating to the applicant, from a lawyer in Italy. Those documents confirmed where the applicant was and why he was there. Following the receipt of that letter, Mr Macri remained in contact with the police right up to the extradition process and the applicant's return to Australia. He ceased to act for the applicant in about April 2012.
139. The applicant's wife was aged 66 and lived with him at Edensor Park. His son, Robert, lived there in separate accommodation within the house and sometimes came and went without them knowing. She said that in 2000 the applicant was diagnosed with bowel cancer and had surgery. Afterwards he was in constant pain and could not empty his bowels. She was diagnosed with multiple myeloma in 2003. In May 2009 she was very sick. She was taking Thalidomide tablets for the cancer treatment and was undergoing chemotherapy. In September 2009 she was admitted to Liverpool Hospital for a stem-cell transplant.
140. She said that she became aware that Albert and Mario were dead on 7 May 2009. The police came to the house two days later. She recalled being in the kitchen when the police talked to her husband. She remembered being sick during the week before and at home all week. The applicant was sick too, and was looking after her. She said that the applicant had left the house on the morning of 6 May 2009 for one or two hours, but had then returned home and was with her for the rest of the day.
141. She planned to go to Italy in 2009 to see Dr Silvestri but she was not well enough to travel. She subsequently learned that the applicant had gone to Italy with the co-applicant. She knew the co-applicant from the Marconi Club, but she did not know that she was "going with him, you know what I mean".
142. She denied that she had ever spoken to Detective Doueihi about the whereabouts of her husband on 6 May 2009. Her evidence was: "Q. Do you remember that in about mid July 2009 police came to your house to do a search? A. Yep. Q. And Mr Doueihi was one of the police officers; do you remember that? A. I don't remember that. Q. Putting names aside, do you remember talking to police officers? A. No. Q. Was there an occasion where you were asked what your husband's movements were on the 6th of May 2009? A. No. Q. Did you tell police on any occasion where you and your husband were on the 6th May 2009? A. No." (T.1182.31)
143. In cross-examination by the Crown the applicant's wife agreed that on 14 July 2009 police came to search her house but agreed to wait until her stepson, Robert, came home. She did not remember the police speaking to her about the co-applicant. She did not say that the co-applicant travelled with her husband as a support person because she was too ill. That was not true. She agreed that the police asked her about her husband's movements on 6 May 2009. She denied that she told the police she could not confirm his movements on that day. She said that on 6 May 2009 her husband went out shopping in the morning for three-quarters of an hour to one hour, that was all, for the rest day they stayed home together. (T.1196) She gave this evidence: "Q. What did you do actually at home? A. I was sick and he was sick. He was look after me. He cook for me. He look after me and we then stay home together. Q. Were you in bed, were you asleep? A. I lay down, yes, on the lounge, on the couch. Q. In the afternoon do you remember your husband leaving? A. No. Q. I suggest that he did leave in the afternoon, did he not? A. No. Q. He didn't come home until much later that night, did he? A. He didn't leave the house. He was with me. Q. You have been in contact with your husband in Australia, in Sydney, whilst he has been in gaol, haven't you? A. Here? Q. Yes? A. Yes. Q. Did you go out or did he telephone you? Does he telephone you every few days? A. Every day. Q. Do you go out to see him sometimes? A. Every Monday." (T.1197.1)
144. The co-applicant gave evidence. She met her husband in 1979 and they had two children. They separated in 1999. She met the applicant just after this separation in 2000. They became close friends and then more intimately involved. She used to go with him to the doctors and she would put the appointment times in her diary.
145. At some point she started doing the cleaning work at the Wetherill Park offices and she came to know Albert Frisoli. She recalled seeing Albert wearing scarves during that time when it was really cold. As part of the cleaning, she used to take home the tea-towels, cleaning cloths and towels from the bathroom and wash them. There were a number of men working at the offices and they used to leave clothes lying around everywhere. She would collect them when she was cleaning and either put them in the corner or in a cupboard. She was shown Exhibit D (the black scarf) and she recalled seeing similar scarves at the office, although she could not identify exactly that scarf. She did not ever own that scarf. She did not own a scarf like it.
146. She said that she first told her solicitor about there being similar scarves at the Wetherill Park office late the year before. She did not need to be reminded about seeing scarves at the office so the note which the applicant passed her during the trial was "a bit silly". She went with the applicant to the office in February 2006. The applicant did not push Albert Frisoli against the wall. He took a plunger out of his pocket, not a hypodermic needle. It was the plastic part in a wrapper, not the actual metal needle.
147. The co-applicant was living in a block of ten units in Fairfield in 2009. The garages were at the rear and after leaving the garage, she had to walk through an open area to the backdoor. In early 2009 when she came home, there were three young men there who came close to her, just before she closed the garage door. She wanted to try to scare them away but she did not have anything with her. When she told the applicant about it, he gave her the axe handle to use. It was to use for her own protection so that no-one would touch her. She used to keep it downstairs so that once she drove in, she would carry it up with her and then in the morning, she would carry it back down.
148. The applicant was involved in two court cases against Albert Frisoli. When the cases stopped, the applicant was not too happy about it "but it was just another court case that he lost". In about the first week of April the applicant told her about his plans to travel to Italy for an appointment with the specialist. She made a booking at a Blacktown travel agent in the company of a girlfriend. When the applicant said he was going with his wife, she cancelled.
149. She said that Wednesday 6 May 2009 was her day off. The applicant came to her place in the morning and dropped off some greens, but did not stay long. He went home because he was not feeling well. On that morning she made an appointment to get her nails done. The appointment was for 4pm, but she had to wait. She gave this evidence: "Q. Do you recall what you did after you left the nail place? A. It was about 20 past 6 or quarter past whatever it was I went past Dicianni's place, it was around that time. Q. Was there an arrangement made for you to go there at that time? A. Yes in the morning. Q. Why did you go there? A. I picked up some food he'd cooked for me, he usually cooked for me all the time on a regular basis, he'd cook for me and I go and pick it up. Q. Why make an arrangement for a time to go over then and pick it up? A. Because said to me he was not well but if he was feeling okay to come and he would do it for me. Q. Were you in the habit of driving past any way? A. Yes I would drive past after work if I had a bit of spare time I would go in my car and if he was in the garden I would sort of wave. Q. Can you explain why you would randomly just go over there? A. Because he was sick all the time and I was worried. Q. What did you do other than that, like before I get there, did you see him when you went over there to his place? A. Yes, I did. Q. How far approximately was your place from his place? A. Drive wise? Q. Yes? A. About fifteen minute drive, fifteen or twenty minute drive if you get the lights. Q. What sort of driver are you? A. Just a normal driver. No offences until now touch wood.
150. On 7 May 2009 the co-applicant learned of the deaths of Mario and Albert in the late afternoon or evening. She could not remember whether it was the applicant or Robert who rang her. She was very shocked. She remembered that Sunday was Mothers Day and that her daughter came to visit with her family. The co-applicant said that she had had her nails done for Mothers Day and that is why she remembered it. When her daughter left, she rang the applicant. It was in that call that he spoke to her about going to Italy. Her evidence was: "Q. What did he say? A. Well, he said that his wife is not well, she's not going to go overseas now, and he asked me if I'd like to go. Q. What did you say? A. I said, "Well, if she's not coming", I said, "I will come over and I can assist you." Q. And he told you before that he was planning to go there? A. With his wife. Q. In relation to? A. His sickness. Q. Seeking treatment? A. That's right. Q. Did you agree to go with him? A. Yes, I did. Q. The next day did you make arrangements to go to Italy for the Tuesday? A. Yes, we did. Q. Did you consider that a rush? A. No, not really. Q. Did you pay for your own ticket? A. Yes. Q. Now, on the Monday did you have your nails done? A. Definitely not. I had them done on Wednesday so I wouldn't have gone again on Monday of course; too short of a period. Q. What name did they call you? A. She used to call me Josephine. They never used to call me Jo." (T.1215.49)
151. The co-applicant explained the blood found on the passenger seat of her car. She said that just before Easter in 2009, she had bought some rump steak. She was driving home and had to slam on the brakes. The meat "landed in the front" and the plastic split. When she picked it up and put it on the seat, she found that it was leaking blood. She also said that she was a normal driver who did not speed and that it would take her between 15 - 20 minutes to drive from her place to the applicant's.
152. In cross-examination the co-applicant disagreed that she had told Ms Baker that the applicant was going to Italy because he had cancer. What she said was that he was going to Italy for medical reasons. She agreed that at the airport she told Sergeant Chambers "He's a sick man and going for cancer treatment" and opened her bag and showed him tablets. She agreed that in February 2009 the applicant had a colonoscopy and that everything went okay and that there was no recurrence of the cancer. She said that it was not that he had cancer, but that he kept worrying about his cancer and whether it had recurred.
153. The co-applicant was cross-examined as to the positive presumptive test for blood in her car. "Q. Two of the possibilities for that presumptive test were human blood or animal blood, two of other possibilities, you remember that, don't you? A. Yes. Q. What you're saying to this Court is that a piece of rump steak leaked on to that seat, are you? A. There's more than one piece that I bought that day, it was two pieces." Q. Two pieces? A. That's right, but they weren't small pieces. They were nice big pieces." (T.1227.20)
154. The co-applicant was cross-examined as to the results of the DNA analysis by Ms Friedman. "Q. Given that's the evidence of Virginia Friedman, the DNA analyst, that they got,? "A positive result for a screen test for blood and the DNA recovered a DNA mixture originating from a combination of DNA types possessed only by Albert Frisoli, Holden Frisoli and Atlanta Frisoli, among the individuals who provided reference samples for this case and that that contributor is expected to occur in approximately 1 in 20 unrelated individuals in the general population." If we say that was the DNA of as described by Virginia Friedman, how did that - that your car? A. I don't know. Q. What explanation have you got for that? A. There is no explanation. I can't give you an explanation." (T.1231.43 - T.1232.6)
155. The co-applicant denied being in Rozelle on 6 May 2009. She denied giving the applicant a scarf to aid in his disguise. She denied waiting for him in Rozelle and driving him home. She agreed that police came to her home and spoke to her on 17 June 2009. She agreed that Detective Hollows made notes in his police notebook and that she initialled each page and signed it at the end. She disagreed that she told Detective Hollows that the applicant had prostate cancer. She said "He has a lump near his prostate". She disagreed that she did not mention a lump but said that the police just did not write it down correctly. She denied that on 17 June 2009 she gave the applicant a false alibi to protect him and that she was still lying on his behalf when giving this evidence at the trial. She responded "definitely not".
156. Ms Zvetanka Raskov (aka Zoov) gave evidence. She used to regularly see the co-applicant outside her house. She was not able to say where she (Raskov) was on 6 May 2009 or if she saw the co-applicant. She was not able to say what she did that day. She remembered going with the co-applicant to a travel agent when the co-applicant booked a ticket to Italy. The co-applicant did not pay for the ticket at the time.
157. Ms Francesca di Vola was the sister of the co-applicant. She knew about the co-applicant's relationship with the applicant and was not happy about it. She did not know that the co-applicant was going overseas until she saw her on television going overseas. The co-applicant lived in a block of units owned by the family. She knew about the trouble at the back of the block of units with young people taking drugs. She remembered the co-applicant telling her about a time that meat had leaked in her car. She thought it was a time before she saw the co-applicant on television. She said that the co-applicant did not like violence or blood. She said that the co-applicant was a slow driver. In cross-examination she agreed that she did not communicate with her sister all that regularly after she was with the applicant. The usual reason for them communicating was to do with their mother or the family property.
158. Mrs Lisa De Filippi was the daughter of the co-applicant. She recalled her mother telling her about the trouble she was having at the back of the block of units with young people and drugs. She had never seen her mother wear a scarf like the black scarf found near Albert's body. She said that her mother had told her about having some meat leaking onto the passenger seat of her car but could not remember whether she had told her about that before or after the murders. She said that the co-applicant used to keep to the speed limit when driving. She said that there were occasions when the co-applicant did not answer the phone or when she had forgotten her phone and left it at home. In cross-examination she agreed that she had discussed the case with the co-applicant before she came back from Italy. She agreed that her mother could have had a black scarf with tassels on it like the one found next to Albert. Application to adduce new evidence
159. Both the applicant and co-applicant sought to rely upon new evidence in the appeal. This evidence was set out in an affidavit of the applicant's solicitor, sworn 18 June 2015. It comprised the results of inquiries which he had made of Transport for NSW as to traffic incidents which had occurred on 6 May 2009 between midday and 8pm on the following roads: 1. City West Link, westerly direction. 2. Parramatta Road, West of Ashfield. 3. M4 heading West. 4. Cumberland Highway, westerly direction.
160. The results of those inquiries were that at 8.27pm one lane in Parramatta Road heading west was blocked because of a gas leak in Bland Street Ashfield. That was the only incident which could have had any relevance to the driving of the co-applicant's vehicle between 7.30pm and 9pm. The other traffic incidents recorded in the data attached to the affidavit occurred at times or in locations which were irrelevant to the issue relied upon by the co-applicant, i.e. that road conditions were such as to make it impossible, or highly unlikely, that she would have been able to drive between Rozelle and her home via Edensor Park between 7.30pm and 8.45pm on 6 May 2009. Even the relevance of the lane closure in Parramatta Road at Ashfield is problematic, given the time at which it occurred and its location which is not on the most direct route from Rozelle to Edensor Park..
161. The Crown objected to the applicants relying upon the information in the affidavit on the basis that such inquiries could have been made before trial and relied upon at the trial and that the material in the affidavit was not of such cogency as would affect the deliberation of this Court. Given the contents of the affidavit, as set out above, the Crown's objection must be upheld. The information in the affidavit is of peripheral relevance and of only slight probative value. The application to rely upon this evidence should be rejected. THE DICIANNI APPEAL Applicant's submissions
162. The applicant submitted that it was a fundamental part of the Crown case against him that the co-applicant drove him from George Street following the murders. He acknowledged that in the case against him, that matter only had to be established on the balance of probabilities but submitted that for the co-applicant to have been convicted of the accessorial offence, the jury had to be satisfied of that fact beyond reasonable doubt. He submitted that the jury could not have been so satisfied on either test.
163. He further submitted that if it were not open to the jury to find that the co-applicant drove him from the murder scene, then credence should have been given to her evidence that she saw him at his home at 6.30pm on 6 May 2009 so that he could not have committed the murders.
164. In support of that proposition, the applicant noted that in the sentencing judgment (R v Dicianni and Pintabona [2013] NSWSC 1328) the trial judge found: "18 … In the way the case was put to the jury, their guilty verdicts against her carry with them the conclusion that Ms Pintabona did pick up Mr Dicianni."
165. This was despite the fact that in the written direction to the jury, the actions constituting the accessorial offending were identified as: "(ii) That Ms Pintabona intentionally assisted Mr Dicianni by - 1. On 6 May 2009 meeting him and providing transport from George Street Rozelle. OR 1. On 17 June 2009 informing Detectives Hollows and Ogilvy that on 6 May 2009 at about 6.30pm Mr Dicianni was at his house in Edensor Park …" The applicant noted that at [22] of the sentencing judgment, the trial judge found as a fact that at the time the co-applicant drove him from the murder scene, she did not know that he had committed that offence but by 17 June when she provided the "alibi" for him she was so aware.
166. The applicant submitted that a reasonable jury could not have found beyond reasonable doubt that the co-applicant's car was in Rozelle at the relevant time so as to be able to pick him up, nor indeed that she had enough time to be in Rozelle at the time of the death of Albert Frisoli at approximately 7.20pm and be home in the driveway of her apartment block no later than at 8.45pm. He submitted that the evidence was not sufficient to find beyond reasonable doubt that she had driven him away from George Street following the murders. He submitted that if the jury could not have been so satisfied, this removed an important link in the case against him between him and the murders.
167. The applicant submitted that there was not enough time to enable the co-applicant to pick him up from George Street, take him to his home in Edensor Park and then drive to her apartment block in Fairfield. He submitted that the evidence of Mr McDougall should be accepted as to the timing of Albert Frisoli's death, i.e. about 7.20pm. That was consistent with Albert Frisoli talking on the phone to Ms Kourea at about 7.15pm while he was parking his car outside his home. He submitted that an analysis of the telephone records in Exhibit BB, together with the evidence of Ms Baker, made it clear that the co-applicant had arrived at her apartment in Fairfield at about 8.45pm, give or take a couple of minutes. This was because she had spoken to him at 8.49pm when Ms Baker was not present, and probably after she had left.
168. The applicant submitted that when one had regard to the evidence of Detectives Hollows and Doueihi that on 9 December 2009 it took Detective Doueihi 90 minutes (7.30pm to 9pm) to drive from George Street, where the car was suggested to have been, via his home at Edensor Park, to the co-applicant's apartment, there was not enough time for her to have completed that journey in one hour and fifteen minutes. The test drive conducted by Detectives Hollows and Doueihi was carried out taking the most direct non-tollway route, adhering to speed limits and other traffic restrictions. This was done because the co-applicant's car was not identified as paying a toll on any of the available tollways between those destinations and received no infringement notices from relevant speed or red light cameras.
169. In support of that proposition, the applicant relied upon the following: 1. The co-applicant was not known to be a fast driver. 2. For her to have completed the journey in one hour and fifteen minutes, she would have to have exceeded the speed limit and if so there was a reasonable probability that she would have received an infringement notice or have been recorded by a red light camera. 3. It was speculative to suggest that she might have been able to use a different route, which was faster than that taken by the detectives. It was not suggested by the detectives that there was a quicker, non-tollway route. 4. It was speculative to suggest that the co-applicant may have dropped him at a location other than at his home. 5. There was no evidence of traffic conditions on the night of 6 May 2009 such as would indicate that they would have been any better than they were on 9 December 2009. It followed that on the available evidence, ninety minutes was the minimum time available for this journey and that this was not capable of being achieved by the co-applicant within the parameters set out by the detectives in the time available on the night of 6 May 2009.
170. The applicant submitted that the DNA evidence found on the passenger side of the co-applicant's vehicle did not exclude that conclusion. This was because there was a serious risk of contamination of the area tested in the motor vehicle and because the DNA result suggested a commonly available profile expected to occur in approximately one in twenty unrelated individuals in the general population. The applicant submitted that this evidence was of little weight when one had regard to the timing evidence.
171. The applicant submitted that there was another body of evidence which made it unlikely that the co-applicant's vehicle had been involved in the offence in the way alleged by the Crown. This evidence was the available CCTV footage of Evans Street Rozelle and the independent witness evidence as to vehicles in the proximity of where the blood trail ended on the night of 6 May 2009. The available CCTV footage did not show the co-applicant's vehicle. CCTV footage from other cameras in the area had not been checked. The CCTV camera directed to traffic in Evans Street, covered the most logical exit route for a vehicle parked at the location where the blood trail ceased. In summary, there was no evidence of a vehicle consistent with that of the co-applicant's observed in the vicinity of the murders, including George Street, at the relevant time. Most significantly a vehicle or vehicles quite inconsistent with that of the co-applicant were observed before and after 5pm on 6 May in the approximate position in George Street where the blood trail ended. The observations were of a male sitting in the driver's seat of that vehicle.
172. The applicant submitted that the overwhelming inference to be drawn from all of the evidence relating to this issue was that it could not establish that the co-applicant drove the murderer away from 1 George Street on 6 May 2009 so that a jury properly instructed should have had a reasonable doubt.
173. The applicant challenged other aspects of the Crown's circumstantial case against him. He submitted that there was no real evidence of him having carried out any kind of reconnaissance of the victims' home in Goodsir Street. He submitted that while the statement of Ms Tilly described a vehicle, which in some general features was similar to his red Honda Prelude, there was no identification in this regard. He noted that she described the driver as a male in his twenties, whereas he was aged 63 at the time.
174. He submitted that the evidence of Mr and Mrs Sinclair of seeing a vehicle which was very like his son's car, parked near the victims' house on the weekend before the murders, could not give rise to an inference of his involvement. He submitted that it was never part of the Crown case that his son, Robert, was an accomplice. He was not responsible for what his son did. He acknowledged, however, that the Crown did suggest that without having any responsibility for the murders, Robert may have been involved in some observations of Goodsir Street on behalf of the applicant.
175. The applicant submitted that, on the contrary, one of the hypotheses consistent with his innocence which the Crown had not negated was that his son, Robert, may have independently arranged for the murder of the Frisolis. He noted that Robert had his own grievances with Albert Frisoli and had threatened to kill him. The applicant submitted that it may well have been the case that his son Robert had deliberately put himself in front of a security camera at the Break Free Hotel at the time Albert Frisoli was killed in order to provide himself with an alibi. The applicant noted that Robert had done so after a series of unidentified phone calls. The applicant submitted that the possible presence of his son's vehicle in Goodsir Street on the weekend before the murders could not implicate him.
176. The applicant submitted that both he and the co-applicant had provided a reasonable explanation for how their DNA came to be on the scarf found with Albert Frisoli. He submitted that the leaving of the scarf with their DNA upon the body of Albert Frisoli (if it were not the deceased's scarf) was more consistent with it being left there deliberately by an offender seeking to implicate him [the applicant] and divert attention from the true identities of those responsible for the murders. He submitted that contrary to the evidence of Ms Kourea, there was evidence that Albert Frisoli owned scarves and that at the time of the killing, the weather was cold enough for Mario to be wearing a sweater.
177. The applicant submitted that there was no evidence that the axe handle was involved in the incident. No axe handle was seen to be carried into the house by the old woman, or a person disguised as an old woman. There was no evidence that the handle had been cleaned and no DNA consistent with that of the deceased was found on it.
178. The applicant submitted that his wife [who had no reason to be favourably disposed to him] gave evidence that on 6 May 2009 he was at home with her in the afternoon and the evening. He noted that the evidence by police that she could not account for her husband's movements when spoken to on 9 May 2009 was not tape recorded nor the subject of a signed statement and was a conversation that had occurred without an interpreter. He submitted that as a result, little weight should have been given to it.
179. The applicant submitted that the evidence with respect to flight was equivocal in that there was ample evidence to indicate that he was suffering health problems at the time. Even though he did not have cancer, he had a genuine fear that it might recur and was suffering pain and disability related to the treatment he had received for cancer. He submitted that the note which he had passed to the co-applicant had been adequately explained by him in his evidence and was simply intended as a reminder, to jog her memory as to what had occurred.
180. The applicant submitted that the trial judge's entry of a verdict by direction in favour of the co-applicant, taken with her apparent attendance at the nail salon to have her nails in-filled at around 4pm meant that she could not have driven him to the vicinity of Goodsir Street before the murders. This was because the old woman was observed to approach the victims' house at around 5.15pm. The applicant submitted that if the co-applicant did not drive him there, it was much less likely that she would have come afterwards to pick him up. The applicant submitted that this should be taken with the failure of any of the CCTV cameras in the surrounding streets to show a vehicle of the kind driven by the co-applicant.
181. The applicant submitted that upon the whole of the evidence, a jury properly instructed should have entertained a reasonable doubt as to his guilt and should have acquitted him upon both counts. Consideration
182. On this ground the question for the Court is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v R [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said: "7 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. …"
183. This test has been re-stated to reflect the terms of s 6(1) of the Criminal Appeal Act 1912 (NSW) in MFA v R [2002] HCA 53; 213 CLR 606 at [58]. McHugh, Kirby and Gummow JJ said that the reference to "unsafe or unsatisfactory" in M v R is to be taken as "equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported having regard to the evidence". These principles were more recently re-affirmed by the majority of the High Court in SKA v R [2011] HCA 13; 243 CLR 400.
184. While this ground of appeal requires the Court to consider for itself the sufficiency of all the evidence led at trial, the burden of persuading the Court that the jury verdict is wrong lies on the applicant: McKenzie v R [1996] HCA 35; 190 CLR 348 at [370].
185. As a starting point it needs to be kept in mind that a circumstantial case such as this must be evaluated in its entirety not considered on a piecemeal basis when assessing whether there is an inference consistent with innocence reasonably open on the evidence. That is, in effect, what the applicant has done in this case. He has sought to identify various aspects of the Crown case and to demonstrate that on each of these issues, there was a reasonable hypothesis open which was consistent with innocence. That, of course, is not the correct way to approach a circumstantial case. The features of a circumstantial case brought against an accused should not be looked at in isolation from the evidence as a whole. In particular, it is wrong to examine each piece of circumstantial evidence, as a stand-alone issue, to see whether there exists an explanation which is inconsistent with guilt.
186. The correct approach to a circumstantial was considered by the High Court in R v Hillier [2007] HCA 13; 228 CLR 618 where the plurality (Gummow, Hayne and Crennan JJ and with whom Gleeson CJ agreed) said: "46 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. … 48 Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]: "At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen. Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited." And as Dixon CJ said in Plomp: "All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done." (emphasis added)""
187. It is necessary therefore that the applicant's submissions and the verdict of the jury be assessed on the basis of the whole of the evidence adduced at trial. For example, for a reasonable hypothesis consistent with innocence to exist, the hypothesis must possess some degree of acceptability or credibility and not be fanciful, impossible or incredible. By way of illustration, the applicant's submission at trial and again on appeal that the scarf was planted by an unknown killer to falsely implicate him and presumably the co-applicant, is a submission which can only be regarded as fanciful and incredible.
188. An important part of the applicant's submissions was the proposition that if the jury could not be satisfied that it was the co-applicant who had driven the applicant away from the murder scene, then not only was the case against him substantially weakened the defence case was also substantially strengthened because the co-applicant's evidence of having seen the applicant at his home at 6.30pm on 6 May should be accepted. That reasoning is incorrect.
189. Moreover, it does not follow as a matter of logic that because the jury may not have been satisfied on the balance of probabilities (in the case against the applicant) or beyond reasonable doubt (in the case against the co-applicant) that she drove the applicant from the murder scene, her evidence on other issues should automatically have been accepted. All that such a finding means is that the jury may not have been satisfied that the Crown had proved that part of its case to the requisite standard. It does not mean that the jury were positively satisfied as to the honesty or reliability of the co-applicant on other issues.
190. In any event, as was properly conceded on the appeal as against the applicant, the jury only had to be satisfied on the balance of probabilities that the co-applicant drove him from the crime scene.
191. At trial the Crown relied upon the following circumstances when taken together as establishing the applicant's guilt beyond reasonable doubt. Some circumstances are more persuasive than others but it is their total effect which has to be considered. 1. The applicant and Albert Frisoli were in a business partnership. 2. There was a history of threats by the applicant towards Albert Frisoli. Albert Frisoli and the applicant had an acrimonious relationship. 3. Albert Frisoli and Natasha Kourea were granted AVOs against the applicant. The applicant breached these AVOs and continued to approach and threaten Albert Frisoli and Natasha Kourea. 4. The applicant was convinced that Albert Frisoli was defrauding him. Civil proceedings were instituted in 2006. On 18 June 2008 Albert Frisoli was charged with fraud offences as a result of allegations by the applicant. In October 2008 Natasha Kourea was charged. 5. The applicant spent hundreds of thousands of dollars in proceedings against Albert Frisoli. 6. The criminal charges against Albert Frisoli were withdrawn on 27 April 2009. The applicant was advised shortly after by his solicitor that due to the withdrawal of criminal charges, the civil proceedings had little chance of success. 7. The applicant conducted surveillance of the area around 17 Goodsir Street Rozelle in the days leading up to 6 May 2009. That was the evidence of Ms Sinclair in relation to the bright green coloured sedan with the registration number BAZ. The applicant's son, Robert, owned a bright green Holden Monaro with number plate BAZ. Helen Tilly at 8.20am on 4 or 5 May 2009 noticed a mulberry/red coloured late 80's or early 90's coupe style sports car travelling slowly along Evans Street into Goodsir Street. The driver had dark hair about two inches long which was thick and full. The person had dark features with dark eyes and eyebrows. He had light coloured olive skin. The applicant owned a red Honda Prelude coupe. 8. There were CCTV cameras outside the residence of 17 Goodsir Street, later determined to be dummy cameras. There was also a video intercom system at the front door. 9. On 6 May 2009 Anthony Moss saw what appeared to be an elderly female walk into 17 Goodsir Street just after 5pm. He thought it was an old lady due to the person's slow walk and clothing. He could not see the person's face due to something covering the person's head and face. 10. Anthony Moss heard muffled noises and breaking noises at approximately 5.15pm. 11. Darren McDougall heard a loud bang "like two bits of heavy material coming together" and a male screaming at 7.20pm. 12. Albert and Mario Frisoli were found dead at about 9am on Thursday 7 May 2009 by Mirko Naidofski, who forced entry. Apart from the forced entry by Naidofski, there was no other damage to the premises and nothing outside the living area and the kitchen was disturbed. 13. Fibres were found on the bodies of Albert and Mario Frisoli, as well as the scarf, which were consistent with wig fibres. 14. The DNA of both the applicant and co-applicant was found on the scarf lying on Albert Frisoli's body. 15. CCTV from the BP Service Station at Abbot Road Seven Hills at approximately 6.30-6.35pm showed Albert Frisoli not wearing a scarf. Natasha Kourea said that Albert Frisoli very rarely wore scarves. The CCTV footage showed him to be wearing a short-sleeved shirt at the time. 16. The footprints inside the premises at 17 Goodsir Street were consistent with the foot size of the applicant. 17. The footprints were likely made by hand-made leather shoes. The applicant owned many pairs of leather shoes. 18. The Luminol trail of bloodied footprints revealed a deliberate, planned route leading up to a point just north of 1 George Street. The strong Luminol impression on the kerb suggested that the murderer entered the passenger seat of a vehicle. 19. DNA consistent with Albert Frisoli's DNA was found on the trim near the foot well on the passenger side of the co-applicant's vehicle where his bloodied shoes would have come into contact with the car. That DNA was weak DNA. 1. The post-mortem revealed that Albert Frisoli suffered from blunt force trauma from a long cylindrical object, resulting in tramline bruises to his back. A blunt instrument was also used to break his jaw and his nose. He had suffered a blunt force trauma to the back of the head. 2. The applicant's DNA was found on the axe handle, which was located in the co-applicant's garage. 3. On 6 May 2009 Ms Baker tried to contact the co-applicant on the telephone during the day. None of her calls were answered. She witnessed the co-applicant arrive home at her unit at Fairlight Avenue, Fairfield at around 9pm. When Ms Baker questioned the co-applicant as to her whereabouts, she replied "out". 4. The drive from Rozelle to Fairlight Avenue Fairfield, via Kalang Road Endensor Park, took approximately 90 minutes give or take 10 to 15 minutes. 5. The co-applicant and applicant did not contact each other at all by telephone on 6 May 2009 until 8.49pm when the applicant made a short call to the co-applicant for 31 seconds. This was unusual as call charge records revealed the applicant and co-applicant generally contacted each other several times a day. 6. On 9 May 2009 the applicant indicated to Detectives Chambers and Furia that he was at home for the entire day on 6 May 2009. On 14 July 2009 the applicant's wife indicated to Detective Doueihi that she was at home all day on 6 May 2009, but she could not account for her husband's movements. These accounts are inconsistent. 7. The applicant made urgent arrangements to leave the country under the guise of obtaining treatment for cancer in Italy. On 11 May 2009: 1. He at 7.18 - 7.44am saw Dr Romeo at Edensor Park Medical Centre to seek a referral to Dr Silvestri in Italy for pain management. 2. He at 9am attended a meeting with Cassinitis, Macri, Gerondis and Joubert to organise the liquidation of his companies. He also arranged a power of attorney to be given to his son Robert. That document was witnessed by Peter Antoniou. 3. He attended with the co-applicant Marconi Travel and booked tickets for Italy. 4. He lodged an application for an urgent passport. 5. At 6pm the co-applicant attended Marconi Travel to pay for one of the tickets. 6. The co-applicant crying, told Ms Baker that she was going to Italy the following day because she needed to get away and that the applicant had an appointment in Italy with a specialist for cancer. She said she was unsure how long she was going to Italy for. On 12 May 2009: 1. He attended Marconi Travel to pick up his tickets. 2. He picked up his expedited passport from the Passport Office. 3. The co-applicant informed her employer she was going to Italy that same day. 4. He at 3.30pm departed with the co-applicant on a flight for Italy. 1. The applicant indicated to Mick Labozetta that he was travelling to Italy to have an operation for his cancer. The co-applicant indicated to police at the airport that the applicant was travelling to Italy for cancer treatment. These statements were untrue. 1. As at February 2009 the applicant was no longer suffering from cancer. Italian medical records from 2011 did not disclose any evidence of treatment for cancer or that he was suffering from cancer. 2. On 12 May 2009 the applicant spoke to Detectives Furia and Chambers at the airport and indicated that he would return to Australia in a month. He failed to return and was ultimately extradited. 3. On 17 June 2009 the co-applicant spoke to Detective Hollows and Ogilvy at her unit. She indicated that on 6 May 2009 between 8am and 8.30am the applicant came past her place at Fairlight Avenue Fairfield and dropped off some green vegetables. She said that at 6.30pm she drove to the applicant's house and he brought some sauce to her car and that she did not go down to his house. This is consistent with the applicant's account of his movements on this day. 4. On 24 July 2009 the co-applicant sold her vehicle to Ms Bacaling for $6000 but only received $3000. She had purchased the car two years earlier for approximately $17000. 5. On 18 January 2010 the co-applicant spoke to police at the airport in response to a s14 LEPRA form of demand. The co-applicant said she was driving her car on 6 May 2009 and no-one else was in the car. 6. On 16 April 2010 the co-applicant travelled to Italy again. She did not return and was ultimately extradited. 7. On 6 May 2013 the applicant passed a note to the co-applicant in court when Ms Friedman was about to be called to give further DNA evidence. The note provided the co-applicant with a version of events to explain away her DNA on the scarf found on Albert Frisoli's body and to explain away the DNA consistent with Albert Frisoli in her car.
192. I have concluded that the matters relied upon by the applicant to challenge the Crown's contention that the co-applicant drove his him from the crime scene, while important, are not decisive.
193. It can be accepted that the time available to the co-applicant to drive from Rozelle via Edensor Park to Fairfield was between 1 hour and 15 minutes and 1 hour and 20 minutes. The evidence of Mr McDougall and the telephone call from the applicant to her at 8.49pm fix those parameters. Within those parameters, however, there are a number of variables. Firstly, the time taken of 1½ hours by Detective Doueihi to complete that journey on 9 December 2009 should not be taken as some kind of immutable standard. There are a number of reasons why this is so. His Honour identified some in his summing up. Although there was evidence that the co-applicant was not a fast driver under normal circumstances, these were not normal circumstances. If she were the driver, this was a highly emotional not to mention dangerous activity, which might well have led to her driving at faster speeds than was her norm. Traffic conditions may well have been different on the two nights. Since we do not know what means was used by the murderer to reach Rozelle, it should not be assumed that if the co-applicant did drive him away from the crime scene, that she drove him to his home at Edensor Park, rather than to some other place or vehicle closer to Rozelle.
194. There were routes other than those taken by Detective Doueihi. Most particularly, as Detective Doueihi said in his evidence, had the co-applicant used the tollway and paid in cash, not only would there be no record of her having used the tollway, but the journey would have been significantly shortened. That, it seems to me, is a significant alternative for the journey taking less than 1½ which was hours relied upon by the Crown.
195. Little support is provided for the applicant's hypothesis by the observations of cars in George Street before and at the time of the murders. The timing of the observation made is well before 7.30pm and assumes that the pick up vehicle for the murderer must have remained in the assumed location in George Street for some considerable time. That is not necessarily so. Because parking in that area was difficult, the pick up vehicle could have been moving and not parked at all or some timing for the pick up could have been previously agreed.
196. Similar considerations apply to the CCTV footage. It is put on behalf of the applicant that the CCTV cameras from the Welcome Hotel and Ewell Street failed to show a vehicle of the kind owned by the co-applicant. The coverage by those cameras, however, was not comprehensive. They would have recorded one means of exit from where the murderer was apparently picked up, but there were at least two others which were reasonable and which were identified by Detective Doueihi in evidence. Neither would have been recorded by the Ewell Street camera. Moreover, the Ewell Street camera was motion activated, which meant that its coverage was not continuous. According to the timings recorded on the film there was one long gap from 7.11pm until 8.39pm. This encompassed the very period when one would have expected the vehicle carrying the murderer to have departed.
197. There was an issue as to the correctness of the timing recorded on the Ewell Street CCTV film. It was put to Detective Doueihi that the timings were 1 hour fast. He did not agree with that proposition and it remained an unresolved matter of controversy in the trial. However, as his Honour pointed out in his summing up, it mattered not whether the timing on the CCTV film was an hour fast or not. Even if it were an hour fast, the gap in time would have extended from 6.11pm to 7.39pm which again would have encompassed the very time one would have expected the vehicle carrying the murderer to have departed from George Street.
198. There is nothing in the evidence concerning the co-applicant's attendance at the beautician's to have her nails done which impacts on that issue. While there is evidence of a telephone call from her to the salon at 10am, if she did in fact attend the salon to have her nails done that day, there is no evidence other than her own testimony that she did so at 4pm. There is no notation to that effect in the records of the salon and the two persons from the salon who gave evidence at trial had no independent recollection of whether she attended on 6 May 2009 or not.
199. The conclusion I have reached is that the Crown theory that the co-applicant picked up the applicant in the vicinity of the intersection of George Street and Reynolds Street Rozelle at about 7.30pm was not undermined by the matters to which the applicant has referred. It is largely irrelevant that there were other CCTV cameras in the area, which could have been checked by the police but which were not. This is particularly so when the majority of those cameras were intended to protect businesses, rather than provide coverage of roads.
200. The DNA evidence and the evidence of blood found in the co-applicant's car are in a location where one would have expected there to have been some blood had the car been used to take the murderer from Rozelle. It is true that had the DNA profile been less common, it would have made the Crown case stronger but it remained as a link, albeit not a particularly strong one, between Albert Frisoli and the car. That connection was strengthened because of the positive presumptive test for blood, even though the blood was not proved to be human. As to whether the co-applicant's explanation that at some time before the murders blood from meat had dripped onto that part of her car was accepted, was very much a jury matter. While there was a potential for contamination in that the handprint of one of the investigating police officers was found on the outside of the car, this would not have affected the positive result for blood. In relation to the DNA testing of the car, this was carried out by Ms Friedman who set out the precautions taken by her and by her organisation to prevent contamination. There was no evidence of any contamination having occurred in relation to the DNA testing in this case.
201. The evidence of the co-applicant that Albert Frisoli would lean against her car when smoking in the car park outside the office premises when the relationship between him and the applicant still existed, did not explain the possible presence of Albert Frisoli's DNA in her motor vehicle. This was because the co-applicant's vehicle was purchased in July 2007 and could not have been the vehicle with which Albert Frisoli was said to have come in contact.
202. Accordingly, that DNA evidence remained available as a circumstance which could be taken into account by the jury in linking the co-applicant to the departure of the murderer from George Street.
203. The absence of any contact by telephone between the applicant and the co-applicant until 8.49pm is significant because they normally contacted each other by telephone several times a day. There was, of course, no issue that Ms Baker had tried to contact the co-applicant by telephone throughout much of the day but had been unsuccessful. Whether that was because the co-applicant had left her phone at home or had turned it off was a jury question.
204. Even though it was not necessary to the Crown case against the applicant that the jury be satisfied on balance that the co-applicant had driven him from George Street following the murders, there was ample evidence to enable them to do so and I am myself satisfied on balance, on the whole of the evidence, that such was the case.
205. As was appreciated by the parties, the most important piece of evidence against the applicant was the scarf found wrapped underneath Albert Fisoli's arm. The photographs of the BP service station in which most people were in shirt sleeves or light clothing and which clearly showed Albert Frisoli so dressed and not wearing a scarf, were powerful evidence that he was still dressed in the same way when he entered his home and was murdered, i.e. he was not wearing a scarf. Inferentially, therefore, the scarf came from the murderer. An available inference is that the scarf was part of the disguise used by the murderer. The scarf presented a major problem for the applicant given the DNA findings by Ms Friedman.
206. There was no challenge to the findings of Ms Friedman insofar as the scarf was concerned. There were strong indicia connecting the scarf to both the applicant and co-applicant. To the suggestion that the DNA could have been placed there by an intermediary, Ms Friedman said that while she could not rule it out, the chances were less, given the number of areas and the amount of DNA recovered. Ms Friedman conceded that DNA could persist on an item for months or years under certain conditions, but the conditions to which she referred were never explored in evidence.
207. The hypothesis put forward on behalf of the applicant was that the scarf was owned by Albert Frisoli and had been worn by him at the time he was murdered. The explanation for the presence of both the applicant's DNA and that of the co-applicant was that they may have come in contact with the scarf at the office some four to seven years previously when the scarf was placed with other items of clothing and had been moved from time to time by the co-applicant when she was cleaning those premises. Both the applicant and co-applicant gave evidence that they had seen the scarf at the office and that it had been handled in that way.
208. As to whether they accepted that evidence by the applicant and co-applicant was a matter quintessentially for the jury. There was another dimension to the evidence, however, given the large quantities of the co-applicant's DNA on the scarf. A real issue was before the jury as to whether this hypothesis was reasonable or as I believe, borders on the incredible.
209. The effect of Ms Friedman's evidence was that in two areas, 1 and 10, the major contributor to the DNA was the co-applicant. In four areas, 2, 3, 4 and 11, she made a minor contribution. In three areas, 6, 7 and 9, the applicant was a minor contributor. I find this to be persuasive evidence that the scarf belonged to the co-applicant, rather than belonging to someone else, and which she only used from time to time and had given to the applicant.
210. I agree with the applicant that some of the circumstances relied upon by the Crown are weak and can be ignored. The presence of the applicant's DNA on the axe handle goes nowhere. Similarly, the evidence of Ms Tilly as to the presence of a mulberry/red coloured sports car in Goodsir Street before the killing is also problematic. The same, however, cannot be said about the other circumstances relied upon by the Crown.
211. I have already referred to the evidence connecting the co-applicant to driving the applicant from the murder scene and to the scarf. In addition, there was a clear and obvious motive. The enmity between the applicant and Albert was of long standing and had involved some violence. The applicant believed he had been wronged and matters had been brought to a head with the dismissal of the criminal proceedings and probable abandonment of the civil proceedings some 10 days before. The observation of a vehicle belonging to the applicant's son on the weekend before the murders would appear to be more than coincidence. The combination of the vehicle's unusual colour and the letters BAZ satisfy me that this was Robert's vehicle. Even though it is not known who was driving the vehicle, it seems apparent that Goodsir Street was under observation if not by the applicant by someone having a connection to him.
212. There is the applicant's hurried departure from Australia and the passing of a note to the co-applicant during the trial. It may be true that the applicant told people that he still had cancer because it saved him the trouble of going into more detail about the pain he was suffering. Whether that was a truthful explanation, however, was a matter for the jury. Certainly, nothing was identified as having occurred in either late April or early May 2009 which indicated that the pain from the effects of his cancer was any worse at that time than it had been during the preceding four years. There was no proper explanation to explain his precipitate departure from Australia. The strong inference is, as the Crown submitted, that it was directly connected to the murders. The sudden settling of his business affairs supports that and also that he was intending to stay in Italy for some time.
213. The evidence of the applicant's wife at trial is significantly undermined by what she told Detective Doueihi when he attended her residence on 14 July 2009 with a search warrant. At that time she said that she was home all day but could not confirm the applicant's movements. It was a matter for the jury as to which version they accepted.
214. Having read and examined all of the evidence, I have concluded that the Crown case against the applicant was strong and that it was open to the jury to find beyond reasonable doubt that he was guilty of the two murders. I have no doubt myself that such is the case. This ground of appeal should be dismissed. THE PINTABONA APPEAL Ground 1: His Honour erred in admitting into evidence the applicant's statements to the police on 17 June 2009 and 20 July 2009.
215. Evidence on this issue was taken on 22 - 24 April 2013 and his Honour delivered judgment allowing the admission of the evidence on 24 April 2013. The basis for the co-applicant's objection was s 281 of the Criminal Procedure Act 1986. In raising this ground, the co-applicant accepted that the principles in House v R [1936] HCA 40; 55 CLR 499 applied. The co-applicant submitted that his Honour had mistaken the facts, did not take into account relevant considerations and his decision was unreasonable and plainly unjust.
216. Section 281 of the Criminal Procedure Act 1986 relevantly provides: "281(1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or …"
217. It was common ground that no such recording had been made of what the co-applicant said on those occasions. The issue before his Honour was whether in terms of s 281(1)(a) at the time when the statements were made Ms Pintabona "was or could reasonably have been suspected" by the police of having committed an offence. Although there was an issue as to whether the statements made by the co-applicant were "admissions", the matter proceeded on the basis that they were.
218. The factual background was briefly set out as follows by his Honour: "On 17 June 2009 Detectives Hollows and Ogilvy attended at Ms Pintabona's residence. They sought entry. This was refused on the alleged ground that the premises were too messy. They asked Ms Pintabona to make a statement; she said she would but wanted to talk to her solicitor first. Detective Hollows then said to her, "Do you mind if I ask you some questions now and I will record them in my notebook as we go." Ms Pintabona said, "That's fine." And the conversation recorded in the notebook then occurred. Ms Pintabona was asked to sign the notebook after the conversation finished and did so. On 17 July 2009 police conducted a search of Ms Pintabona's apartment pursuant to a warrant and a number of items were seized. On 20 July 2009 Detectives Bradley and O'Brien spoke to Ms Pintabona at her place of work. Again, she was asked to participate in a formal interview or make a formal statement and again she declined, except in the presence of her solicitor. Detectives Bradley and O'Brien continued to converse with Ms Pintabona. In the course of that conversation she made a number of statements. The Crown wishes to adduce in evidence the conversation of 17 June 2009 as recorded in Detective Hollows' notebook and of Ms Pintabona's remarks made to Detectives Bradley and O'Brien on 20 July. On neither of the occasions were the conversations tape recorded, nor has the Crown suggested that there was a reasonable excuse why a tape recording could not have been made. On neither occasion did the police give Ms Pintabona a formal caution or recite to her the terms of the jurat, invariably to be found at the beginning of formal statements taken by the police."
219. At trial no attention was paid to what was said on 20 July 2009. There was, however, a focus on what the co-applicant said to police when she was alone at her apartment two days after her return from Italy on 17 June 2009. Notes of that conversation were recorded by Detective Hollows in his official notebook. Relevantly, his statement read as follows: "At 7.15am on Wednesday 17 June 2009 Detective Sean Ogilvy and I attended unit xxxxxx Fairlight Avenue, Fairfield, being the residence of Josephine Pintabona. At this location I pressed the unit xx doorbell at the front of the building, which was answered by a female voice. I said "Hi, I'm after Josephine Pintabona", the female said "Yes, that's me". I said "My name is Robert Hollows, I am from the police. I just want to speak to you about a matter can you let me in please?" The female voice said "Yes" and she buzzed me in. Detective Ogilvy and I entered the building and walked up a couple of flights of stairs and approached Unit xx. I knocked on the door before it was opened by a female who identified herself as Josephine Pintabona. At this point in time Detective Ogilvy was standing next to me and I said "Josephine my name is Detective Robert Hollows and this is Detective Sean Ogilvy from the police. We would like to talk to you about the death of Mario and Albert Frisoli. Can we come in and have a chat?" Pintabona said "No, my house is too messy at the moment". I said "Okay that's fine". What I propose to do is obtain a statement from you regarding your relationship with Giuseppe Dicianni and why you travelled overseas with him". Pintabona said "I will give you a statement but I will have to speak with my solicitor first to see if it's all right to do that". I said "Yes that's fine. Do you mind if I ask you some questions now and I will record them in my notebook as we go". Pintabona said "Yes, that's fine". I said "The murder happened on 6 May 2009, do you know what you were doing that day?" Pintabona said "Yes I remember". As a result of my conversation with Pintabona I commenced to make some contemporaneous notes in my official police notebook and recorded most of what Pintabona was saying. The notes are as follows: "7.15am 7.6.2009 location xx Fairlight Avenue, Fairfield re: Josephine Pintabona stated Giuseppe came past her place in the morning at Fairfield by himself. He wasn't well when he came, dropped off some food, some green vegetables, grows them from his garden. He didn't stay long at all, about 10 to 15 minutes. It was between 8 to 8.30am left before 9am. I have known him for about 10 years. He was too sick that day and he went home. Then about 6.30pm I went past his house in Endensor Park by myself and he brought some sauce he made for me in the car. I did not go down to his house. I then left. I came back from Italy on last Monday night 8pm with Thai Airways. He was very sick over there. Has prostate cancer I think. I live by myself and if you want a statement I am happy to supply one but I have to speak with my solicitor Vince Macri. I will get back to you. I work part time at Bossley Park Deli. I remember that it was a Wednesday morning and he came over and dropped off the greens. In any case, I keep a diary and when I get permission from my solicitor I will bring it with me when I give the statement. On Wednesday, it was the week before, I left to Italy on 12.5.2009. It was a Tuesday." "How do you known Giuseppe Dicianni?" Pintabona said "He's just a friend and I have known him for about ten years. I was his support person when I went to Italy with him on 12 May 2009'."
220. The co-applicant challenged the following findings by the trial judge at pp 3.5-6.3 of his judgment: "In cross-examination they were challenged on that evidence and taken through a variety of events which had occurred during the course of the police investigation prior to the conversations with which I am presently concerned. They adhered to their position. It was submitted that Detective Hollows, in particular, was evasive in his responses. That is not my impression though I would add that even if he was, that does not, of itself, convert his denial into a positive. It is also, I think, appropriate in any consideration of the evidence that the police gave to recognise the, in some respects, fine but significant distinction between suspicion on the one hand and a request on the other. Counsel for Ms Pintabona referred me to a number of previous decisions of judges including R v JG (No 2) [2009] NSWSC 105 and R v Frangulis [2006] NSWCCA 363 but there being no issue as to the relevant operation of the terms of s 281, I do not think I need canvas those decisions. Benefit is, however, to be obtained by having regard to remarks made by Justice Kitto in Queensland Bacon Pty Ltd v Reece (1966) 115 CLR p 266, quoted in George v Rocket (1990) 170 CLR 104 at 115: "A suspicion that something exists is more than a mere idle wondering whether it exists or not. It is a positive feeling of actual apprehension or mistrust amounting to a "slight opinion but without sufficient evidence" as Chambers Dictionary express it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence." Lest it be thought I have overlooked the fact I should expressly acknowledge a recognition that s 281 differs from some earlier similar sections in its use of the term "could reasonably have been suspected". Returning to the evidence before me I am satisfied that at the relevant time that the police involved in the investigation, I include all who gave evidence, not merely the four police officers who spoke to Ms Pintabona, did not suspect Ms Pintabona of having committed an offence. The next question which arises is whether, whatever the police subjective views may have been, Ms Pintabona "could reasonably have been suspected" of having committed an offence. Mr Dicianni was undoubtedly, at the times with which I am concerned, suspected of having been involved in the murders. Ms Pintabona was, as I have said, a close friend. She also accompanied him to Italy a few days after the murders, though as I have indicated, a month or so later she returned. Of themselves the matters to which I have just referred would clearly raise a question whether Ms Pintabona was involved. There was evidence which would justify the conclusion that the principal offender was at least driven from the scene by a second person, though Ms Pintabona was by no means the only person who could have fulfilled that accessorial role. However, the mere raising of a possibility that Ms Pintabona, as Mr Dicianni's girlfriend, or another person such as his son, is not, as Justice Kitto pointed out, the same as suspicion. Emphasis was placed on Ms Pintabona's failure to cooperate with police requests in a number of respects. She did not respond to a card having been left for her asking her to call police. She went overseas with Mr Dicianni and, as the police believed at the time, though I understand mistakenly, she may have paid for his fare. That said, such inferences adverse to her, as might have been raised by her leaving Australia, at least to a significant degree, were logically weakened by her return. She refused the police admission to her premises. She would not consent to a formal interview or statement until after she had spoken to her solicitor. However, in any consideration of what inferences should be drawn from her conduct, one must bear in mind her relationship with Mr Dicianni. There are many people who, faced with a possible conflict between police and someone with whom they are very friendly, take the view that they will not take the side of the police, adversely to their friend or relative. I have referred to what I think are the more salient, or more important matters on which counsel have relied, but I am conscious that a number of others were canvassed, particularly during the course of cross-examination. In my view, when regard is had to all of the matters upon which counsel for Ms Pintabona has, - the conclusion should not be drawn that at the relevant time Ms Pintabona could reasonably have been suspected of having committed an offence. Accordingly, on the material canvassed in this voir dire application, I see no basis for excluding the evidence the subject of the action." Co-applicant's submissions
221. The co-applicant submitted that his Honour erred in his the assessment of the facts and did not refer to the evidence of Detectives Ogilvy, Bradley and Furia. She submitted that this evidence supported the proposition that the investigating police suspected that she had available to her information regarding the murders. She submitted that any failure to volunteer such information would have constituted the charge of concealing a serious offence at the very least.
222. The co-applicant submitted that the objective grounds for suspicion relating to the offences of being an accessory after the fact and/or concealing a serious offence were as follows: 1. She was one of the principal suspects and she was considered to be his girlfriend and supporter. 2. Within two days of the applicant being spoken to by police and questioned as to whether he was involved in the murders, he and she made arrangements on 11 May 2009 to leave the country on 12 May 2009. 3. By a note left at her apartment, the police requested that she contact them but she did not do so. She was confronted by the police at the airport with the applicant when leaving for Italy. 4. The applicant made it clear in her presence that he understood that the police suspected he was responsible for the murders. She sought to maintain the trip was made at such short notice because of the co-accused's health and when questioned as to why she had not contacted the police, she asserted that she would do so on her return. 5. The police believed as of 15 - 17 June 2009 that she had paid for the applicant's sudden trip to Italy. 6. An immigration alert was put on her movements and an intelligence report with respect to her was commenced. 7. She did not contact the police upon her return. 8. The police were directed to interview her, not just about the co-accused's movements on 6 May 2009, but also her movements that day and her association with the co-accused. 9. It was directed that she should be investigated and all her known associates and family members interviewed. 10. When spoken to by the police on 17 June 2009 she said she did not want them to come inside because the unit was too messy. Detective Hollows made the assumption that she had something to hide. 11. When told that Detective Hollows proposed to take a statement from her, she said "I will give you a statement but I'll have to speak to my solicitor first to see if it's all right to do that".
223. The co-applicant submitted that it was clear in the course of this investigation that suspects were being spoken to by police without recording devices being used as required by s 281, e.g. the evidence of Detective Furia regarding the conversation with the applicant on 10 May 2009 and the evidence of Detective Doueihi regarding the conversation with her at the airport on 18 January 2010.
224. The co-applicant submitted that Detective Hollows was evasive regarding the affidavit in support of the search warrant dated 16 July 2009. She submitted that the contents thereof further demonstrated the escalating suspicions which he and the other investigating officers had regarding her involvement, at least after the offence. Consideration
225. In order to assess the co-applicant's submissions, it is necessary to summarise the evidence given on the voir dire. Detective Hollows started with the task force investigating the murders on 1 June 2009. On 17 June 2009 he was tasked by Detective Doueihi to locate and interview Josephine Pintabona and obtain an account of her and Dicianni's movements on 6 May 2009. On 17 June 2009 he attended at her apartment with Detective Ogilvy and events occurred as set out above at [218] - [219] above.
226. He said that as of 17 June 2009 he believed Pintabona to be a witness. He was aware that Pintabona had left Sydney with Dicianni on 12 May 2009 and had returned a few days before 17 June 2009. He regarded her as a witness that might be able to assist in their inquiries. He was not aware of any information or intelligence that could have elevated her position from a witness to that of a suspect. It was too early in the investigation.
227. He was not sure if he knew all the details relating to the telephone calls between Pintabona and Dicianni, as outlined in his affidavit of 16 July 2009, when he spoke to Pintabona on 17 June 2009. On 17 June 2009 he believed her when she said that she had seen Dicianni outside his house at 6.30pm on 6 May 2009. He knew when he was typing his affidavit on 16 July 2009, but not when speaking to Pintabona, that the account she gave on 17 June that she had seen Dicianni at 6.30pm on 7 May, was contradictory to the phone records but he did not realise that she was providing an alibi for Dicianni. He could not recall if he thought she was lying when he created his affidavit on 16 July 2009 - she may have got her times wrong. When preparing his affidavit, his thinking was that items of clothing worn in the offence may be stored in her unit unknown to her. He did not consider when he was typing his affidavit that it was possible that Pintabona was knowingly hiding items. It was his experience that boyfriends stored items involved in the commission of offences in girlfriends' homes without their knowing of their existence or fabricated a story to keep the items there. He said that if he thought she was a suspect, he would have administered a caution or jurat.
228. Sean Ogilvy gave evidence that he was involved in the investigation from its outset and was the Exhibits Officer at the crime scene. He was also involved in the execution of a search warrant at Pintabona's home on 17 July 2009. He was tasked with Detective Hollows to speak with Pintabona and attended her home at Fairfield on 17 June 2009, as has been set out. At the time he considered her to be a person of interest, but not a suspect. He was not aware of any information that police had that could have implicated her in either of the murders. At that time, however, Dicianni was considered to be a suspect.
229. He knew and it was not a concern, that she had gone overseas with Dicianni shortly after the murders, as it was well known that she was his support person. The police kept an open mind. There was a possibility that she assisted him to leave after he was involved in the murders. His knowledge of the times of death were such that when they spoke to her on 17 June, he appreciated that she was potentially providing an alibi to Dicianni and that it was a possibility that she may have been untruthful in that regard.
230. Detective Furia gave evidence. He spoke to Dicianni and his son on Saturday 10 May 2009 and each denied that they had any involvement in the murders. He spoke to them again at the airport, together with Pintabona, shortly before they left for Italy. He said that from the outset Dicianni was a suspect. When first spoken to, Dicianni said he was home sick and when he attended the police station, he gave a 'no comment' interview after the caution. Detective Furia agreed that his initial conversation with Dicianni was not electronically recorded and that in hindsight it should have been.
231. When he learned that Dicianni and Pintabona were preparing to travel overseas together, he was of the belief that Dicianni wanted to take their relationship overseas and leave everything behind. He saw her as the applicant's girlfriend. When he learned that she had paid for the tickets, it prompted him to speak to her but she did not answer the door or call him after he left his card asking her to do so. His suspicions in relation to Dicianni heightened when he learned that he was leaving Australia so he went and spoke to him at the airport. There Pintabona told him that Dicianni was a sick man and was going for cancer treatment. He did not suspect that she was covering for him as a ruse but simply saw her as Dicianni's girlfriend. At that stage he knew that Dicianni had had cancer a number of years before and had no medical records to prove otherwise. His belief was that Dicianni may be using his health as a ruse.
232. He had a suspicion that Pintabona understood that Dicianni was a suspect in relation to the deaths of the Frisoli brothers since Dicianni had challenged him to prove the allegations in front of her at the airport. That line of inquiry had to wait until they returned. He left the investigation on 1 June 2009 and handed over the investigation to Detective Doueihi. He suspected that Pintabona may have information in relation to Dicianni's involvement in the Frisolis' deaths and that he told that to Detective Doueihi.
233. Detective Doueihi became the officer in charge (OIC) of the investigation after 1 June 2009. He was responsible for allocating various tasks to the investigators. He had been told that Pintabona was Dicianni's girlfriend and he tasked his investigators with carrying out some background checks on her and to obtain some information from her in relation to her association with him and about their movements on 6 May 2009. As of that date, he had no evidence, information or intelligence indicating that she was a suspect in the murders.
234. Police became aware of her intended return from Italy from records of the Department of Immigration. There was no pressing need to speak to her at the airport and no attempt was made to do so. There was no information that would suggest that she was involved in the murders. He regarded her as purely an associate of Dicianni who was the suspect at the time. The police did wish to speak to her and obtain a version from her as to her association with him and whether she could provide any information as to his movements on 6 May. On or about 17 June 2009 he learned that Detectives Hollows and Ogilvy had spoken to her.
235. One of the tasks he allocated was that a search be organised of Pintabona's residence and that occurred on 17 July 2009. The task stated "suspect that she is in possession of documentation and possible clothing in regard to Giuseppe Dicianni". As at the date of that search as the OIC, he had no suspicions that she was involved in any way in the murders. The search warrant was purely to locate clothing and items belonging to Dicianni. She did become a suspect after Detective Bradley obtained a statement from Tony Aloisi on 23 July 2009. That statement raised the issue that her vehicle may have been involved in either driving the applicant to or from the murder scene.
236. He said that the task allocated to the detectives on 17 June 2009 was not to obtain a statement on the doorstep of her home. It was to arrange to obtain a statement from her. When the record was made of the conversation, it was not intended that this would be used against her. He said that statements were not obtained from suspects. At that stage he was interested in her movements on 6 May and tasked that she be spoken to as she was closely associated with Dicianni as his girlfriend. The further inquiries and background checks were a matter of being thorough.
237. Detective Doueihi appreciated that she had facilitated their departure to Italy. He said that such things were quite common and happened all the time. When a person committed a crime his de facto or wife or partner was often oblivious to what has happened. When he learned that she had paid for the trip at short notice, it crossed his mind that she might have been involved "but I didn't put too much weight on it at all".
238. As Pintabona appreciated, for her to succeed on this ground she needed to demonstrate something more than that the decision of the trial judge was arguably wrong. She had to establish that his Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account or give sufficient weight to a relevant consideration or arrived at a result so unreasonable or unjust as to bespeak error.
239. The relevant test is not in doubt. In R v Taouk [2005] NSWCCA 155; 154 A Crim R 69 Hall J (with whom James and Hislop JJ agreed) said: "158 The "trigger" for the application of the protections afforded by s 281 is the moment when a police officer to whom a confession or admission has been made, suspected or could reasonably have suspected the appellant to have committed an offence. Accordingly the legislation excludes from protection confessional statements made before that level of suspicion is reached." Hall J went on to say: "160 It is also necessary to identify the subject matter of suspicion. The basis of the suspicion referred to in s 281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise. … it is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence. … 161 In summary, the suspicion must be one which could reasonably have been held by an investigating officer at the relevant point in time, namely, the time when the admission was made. Whether the suspicion satisfies the specified requirement as to reasonableness, is to be determined by the existence of grounds for the suspicion, which grounds must be based on or sourced in facts that do or tend to implicate the accused in possible criminal conduct of the relevant kind, an indictable offence, and that therefore are capable of giving rise to or supporting the requisite state of mind. It follows that a mere possibility that a person referred to in s 281(1)(a) could have committed an offence is insufficient."
240. In essence, what has to be shown is some reasonable factual basis for the suspicion. In this case, each officer who was a party to the conversation and those who had tasked them to attend at the co-applicant's premises gave evidence that they did not suspect her of having committed an offence. There was nothing irrational or objectively unbelievable in that evidence. His Honour was entitled to accept it as true.
241. Moreover, the evidence was that the co-applicant became a suspect after the statement was obtained from Mr Aloisi on 23 July 2009 which suggested she may have driven her vehicle to the murder scene with the applicant. As of that date, as far as Detective Doueihi was concerned and despite the fact that the information was unverified, the position of the co-applicant had been elevated to that of a suspect. The distinction between his state of knowledge at that time and the state of knowledge of police as of 17 June 2009 is clear.
242. The effect of the submissions made to the trial judge and in the appeal is that the factual basis for the suspicion with respect to the co-applicant arose because she was the girlfriend of a suspect. Absent other evidence, that could never be sufficient. There must be something pertaining to that individual to form the factual basis for the relevant suspicion. As of 17 June 2009 nothing had occurred which could provide a basis for the police to reasonably suspect that the co-applicant had committed an offence. The indicia and the evidence show that she was being treated as a witness as at 17 June and 20 July 2009. At no time was she the subject of police detention nor was she required to attend the police station to make a statement.
243. While his Honour did not analyse the evidence in detail, he was not required to do so. His summary of the effect of the evidence was accurate and he applied legal principle in accordance with the authorities. The co-applicant has failed to demonstrate that his Honour acted upon a wrong principle in the House v R sense, or otherwise fell into error. His Honour did not err in admitting the evidence. This ground of appeal has not been made out. Ground 2: The verdict is unreasonable and cannot be supported by the evidence. Co-applicant's submissions
244. It was fundamental to the co-applicant's submissions in support of this ground that for her to be convicted of the accessorial offences, the jury had to be satisfied beyond reasonable doubt that she drove the applicant from the murder scene on the evening of 6 May 2009. This was contrasted with what had to be proved in the Crown case against the applicant. There, the co-applicant accepted that the standard of proof in relation to whether or not she drove him from the murder scene, was on the balance of probabilities. The basis for this proposition seems to be that the only way the Crown could prove her knowledge that the applicant had committed the murders was if she had driven him from the scene.
245. She relied upon the same submissions which had been put in the applicant's appeal to the effect that she could not have driven him from the murder scene - i.e. insufficient time for the journey, the weakness in the connection between the murder and her car and the other evidence, including her own, as to what she was doing on that day. Implicit in her case on appeal was that even if (which was not conceded) it was open to the jury to be satisfied on the balance of probabilities that she had so driven the applicant, it was not open to the jury to be satisfied beyond reasonable doubt on that matter. Consideration
246. I do not agree that the jury had to be satisfied beyond reasonable doubt that the co-applicant drove the applicant from the murder scene. It was sufficient that they be satisfied on the balance of probabilities. My reasoning is as follows.
247. Although this Court is not bound by remarks or observations made by a trial judge when sentencing (SKA v The Queen, Crennan J at [110] - [115], with whom the plurality agreed) I find the analysis of RS Hulme AJ at [19] and [22] of the sentence judgment to be persuasive. I agree with his Honour that the finding of the jury of the accessory offence is more likely to have been that on 17 June 2009 the co-applicant informed Detectives Hollows and Ogilvy that on 6 May 2009 at 6.30pm the applicant was at his house in Edensor Park and at the time of providing that information, she was aware that he had murdered the deceased. For the reasons set out by the trial judge, the evidence did not establish that at the time she drove the applicant from the murder scene, she knew that he had committed the murders.
248. When one has regard to the elements of the offence of accessory to murder which have to be proved beyond reasonable doubt, on the facts of this case they do not include that the co-applicant drove the applicant from the scene of the murders. The only element of the offence to which that finding was relevant was her state of knowledge at the time she sought to mislead the police and give the applicant an alibi on 17 June 2009. The fact that she drove him from the murder scene, but did not at that time realise that he had committed the murders, was a circumstance to be taken into account with other circumstances, to establish beyond reasonable doubt the element of knowledge on 17 June 2009. Those other circumstances include her knowledge that he no longer had cancer, his precipitate departure for Italy when he realised he was a suspect, his settling of his affairs before so departing and that she was not telling the truth when she said he was at home at 6.30pm on 6 May 2009. By reference to that latter circumstance, it must follow from the jury verdicts that they rejected both the evidence of the applicant and co-applicant as to what happened on 6 May 2009. It was the total effect of those circumstances which allowed the jury to find beyond reasonable doubt that as of 17 June 2009 when she spoke to the police, the co-applicant was aware that the applicant had committed the murders.
249. In carrying out that analysis, I am mindful that the trial judge in his summing up (SU p 11) told the jury that the two things that the co-applicant was asserted to have done (driving him away and lying to the police on 17 June) were to be seen cumulatively because of the way the Crown put the case. That is confirmed when one looks at the way in which the Crown addressed the jury (T.1277.43 - 1278.3, 1299.39, 1307.2 and 1316.41 - .46). The effect of the address and the trial judge's summing up is that what was put to the jury (at least implicitly, if not expressly) was that they had to be satisfied beyond reasonable doubt on both issues, i.e. the driving him away and lying to the police on 17 June, before the co-applicant could be convicted. All that means is that the Crown was imposing on itself a requirement to prove beyond reasonable doubt something which as a matter of law, was not necessary. It is clear from their verdict that the jury was satisfied of those matters to the higher standard.
250. For those reasons and the reasons set out in relation to the application for leave to appeal by the applicant, I am satisfied that it was open to the jury to find beyond reasonable doubt that the co-applicant deliberately sought to mislead the police on 17 June 2009 so as to provide the applicant with an alibi and that she was aware that he had committed the murders at that time.
251. Should I be incorrect in my finding that it was only necessary for the jury to decide whether the co-applicant drove the applicant from the scene of the murders on the balance of probabilities, and that this circumstance needed to be established beyond reasonable doubt, I am so satisfied.
252. As already indicated, implicit in the jury verdicts was their rejection of the evidence of the applicant and co-applicant, at least as to the events of 6 May 2009 and in the case of the co-applicant, the spillage of blood from meat in her car. The assessment of that evidence was very much a jury question in which the jury had the considerable advantage of both seeing and hearing the applicant and co-applicant which this Court did not have.
253. Apart from that advantage, the evidence of the applicant and co-applicant was objectively improbable. The suggestion that the DNA of Albert Frisoli could have been found on the trim on the passenger side of the co-applicant's vehicle as a result of him leaning against it some time before 2006 was not only fanciful, it was established to be false. The evidence of the Roads and Traffic Authority was that the co-applicant acquired her vehicle in July 2007, well after she had ceased attending the offices of the partnership. The evidence as to the ownership of the scarf and what may have happened to it at those offices in the years 2002 - 2006 while not being capable of specific disproof, was highly unlikely and verged on the fanciful insofar as it sought to explain the high level of the co-applicant's DNA on it.
254. It follows that I have concluded that not only was it open to the jury to substantially reject the evidence of the applicant and co-applicant because of their position of advantage, but there were other factors which pointed strongly to such an outcome.
255. Once the explanations put forward by the applicant and co-applicant are taken out of the equation, the circumstantial evidence linking the co-applicant to the departure of the murderer from the scene of the murders becomes compelling and in that regard it was open to the jury to find such a connection beyond reasonable doubt.
256. It follows that this ground of appeal has not been made out and should be dismissed.
257. I have read the judgment of Davies J in the applications for leave to appeal against sentence. I agree with his Honour's conclusions and the orders which he proposes. Proposed Orders 1. In the application by Giuseppe Dicianni for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. 2. In the application by Giuseppe Dicianni for leave to appeal against sentence, leave to appeal is granted but the appeal is dismissed. 3. In the application by Josephine Pintabona for leave to appeal against conviction, leave to appeal is granted but the appeal is dismissed. 4. In the application by Josephine Pintabona for leave to appeal against sentence, leave to appeal is granted and the appeal is allowed. 5. The sentence imposed on 13 September 2013 is quashed and in lieu thereof Ms Pintabona is sentenced as follows: 1. (a) For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016; 2. (b) For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016. 3. (c) Direct that the co-applicant be released to parole forthwith.
258. PRICE J: I have read the judgment of Hoeben CJ at CL. Having made my own independent assessment of the evidence, I am satisfied that the applicant and co-applicant were rightly convicted.
259. However, I find myself in respectful disagreement with the Chief Judge's assessment of the standard of proof required in the case of the co-applicant, to establish that she drove the applicant from the scene of the murders. The Chief Judge is of the opinion that the Crown was not obliged to prove that the co-applicant did so beyond reasonable doubt (see [249] above).
260. At trial and in this Court, the Crown accepted that the prosecution was obliged to prove this matter of fact beyond reasonable doubt. The reason for the Crown's acceptance of the high criminal onus, was that the co-applicant's driving of the applicant from the scene was the sole evidence upon which the Crown relied to prove that she was aware of all the essential facts and circumstances that gave rise to the murders. As the trial judge told the jury (SU 11): "The only evidence in the case relied on by the Crown as showing relevant knowledge on the part of [the co-applicant] is the evidence that she picked [the applicant] up in George Street after the murders."
261. In my opinion, this was an intermediate fact which constituted an indispensable link in the jury's chain of reasoning towards an inference of guilt: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579 (Dawson J). The jury could not be satisfied that the co-applicant had the relevant knowledge unless they found beyond reasonable doubt that she drove the applicant from the scene.
262. In any event, the Chief Judge is satisfied, as am I, that it was open on the evidence for the jury to be satisfied beyond reasonable doubt, that the co-applicant did so (see [251] above).
263. In the conviction appeals, I agree with the orders proposed by the Chief Judge.
264. I have also read the judgment of Davies J in the applications for leave to appeal against sentence. I agree with his Honour's reasons and the orders proposed.
265. DAVIES J: I have read the judgment of Hoeben CJ at CL. I agree with his Honour's reasons and the orders his Honour proposes. Since, however, the appeals against conviction rely on the ground that the verdicts in each case were unreasonable I wish to add a few remarks of my own. Conviction Appeals

(a) Appeal by Dicianni

1. The Crown's case was a circumstantial one. It is necessary in those circumstances to consider the whole of the evidence even if particular weaknesses can be identified in some of the circumstances relied upon: Shepherd v The Queen [1990] HCA 56; 170 CLR 573at 579-580; R v Hillier at [48].
2. A matter emphasised at the hearing of the appeal was whether the co-applicant drove the applicant from the scene on the night of 6 May 2009 and, in her appeal, the standard to which that fact had to be proved. Senior Counsel accepted that, in the applicant's case, that fact had only to be proved on the balance of probabilities but he submitted that the jury could not have been satisfied even to that standard. For reasons that will appear when I come to deal with the appeal of the co-applicant I am entirely satisfied that it was open to the jury to have been satisfied of that fact beyond reasonable doubt.
3. In any event, there are a number of other compelling circumstances that meant that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the murders charged. The matters that pointed strongly towards such a conclusion are the prior relationship between the applicant and Albert Frisoli including the aborted criminal and civil proceedings brought against Albert, the scarf found at the scene containing DNA of the applicant, the flight and false basis stated for it and the note passed by the applicant to the co-applicant in Court shortly before the DNA expert was to give evidence.

(b) Appeal by Pintabona

1. The central matter argued in relation to this appeal was whether proof of the co-applicant's driving the applicant from the murder scene had to be established beyond reasonable doubt or simply on the balance of probabilities.
2. As Hoeben CJ at CL has pointed out the only relevant element of the offence of accessory after the fact to murder was the co-applicant's state of knowledge at 17 June 2009 when she misled the police. She might have acquired that knowledge from driving him away from the scene but that was not the necessary source of her knowledge. Inferences were available that she acquired her knowledge independently of her driving him from the scene. Certainly, her involvement in his travelling to Italy the week after the killings and the false reasons she gave to the police at the airport provided such a basis.
3. The written directions given to the jury provided two alternative bases for a finding that the co-applicant was an accessory. The second of those did not require the jury to accept that she had driven the applicant from the scene. The Crown's closing address did not make clear whether its case was that her knowledge by the time of the false alibi on 17 June 2009 was derived from her driving the applicant from the scene. However, the Crown's address did not suggest that the jury could conclude that her knowledge by 17 June was obtained otherwise. That, no doubt, led the trial judge to tell the jury that the two matters were to be seen cumulatively.
4. Hoeben CJ at CL has said at [249] that the Crown unnecessarily imposed on itself a requirement to prove the driving away from the scene beyond reasonable doubt. Price J has held at [259]-[261] that such proof was necessary. In my respectful opinion, by reason of the way the Crown put the matter to the jury and as it was clarified by the trial judge in his summing-up, the driving from the scene became (as Price J has said) an indispensable link in the chain of reasoning towards an inference of guilt. The jury, therefore, had to be satisfied beyond reasonable doubt that the co-applicant drove the applicant from the scene even if the Crown had placed the bar too high.
5. My own assessment of the evidence satisfies me that it was open to the jury to conclude beyond reasonable doubt that the co-applicant drove the applicant from the scene. The circumstances relevant to that conclusion are the blood and DNA in her car, the evidence of Ms Baker, the evidence of her phone being switched off all day, her evidence of making an appointment to have her nails done that day with the evidence from the employees at the nail salon, and Mrs Dicianni's statement to the police that she could not account for husband's movements on 6 May 2009. Leave to appeal against sentence

Dicianni appeal

1. The applicant was sentenced for the murder of Mario Frisoli to a term of imprisonment comprising a non-parole period of 20 years commencing 18 August 2010 and expiring 17 August 2030 with an additional term of 4 years expiring 17 August 2034. For the murder of Albert Frisoli he was sentenced to a term of imprisonment comprising a non-parole period of 20 years commencing 18 August 2020 and expiring 17 August 2040 with an additional term of 4 years expiring 18 August 2044: R v Dicianni and Pintabona [2013] NSWSC 1328.
2. The sole ground of appeal is that the sentences imposed were excessive. In the written submissions filed for the applicant that was said to be based on two matters, namely: (i) The level of accumulation was excessive; and (ii) His Honour erred in failing to find special circumstances and impose a longer than usual parole period.
3. The applicant accepted that the fact that there were two murders required a significant level of accumulation. However, they occurred in the one course of criminal conduct and were closely connected in time and circumstances. There was only one entry to one house. In those circumstances an accumulation by 10 years of the second to the first was excessive and the overall result of 30 years was excessive when totality was considered.
4. Further, it was submitted that while s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not require that the non-parole period for each of the aggregate sentences, in the absence of special circumstances, amount to three quarters of the overall sentence, the overall non-parole period should have been at least no more than three quarters of the overall term.
5. It was submitted that there should have been a finding of special circumstances on the basis that it was the applicant's first time in custody, because of the applicant's age and ill-health and because there was a significant level of accumulation between the two offences. It was submitted that his Honour erred in failing to provide reasons why he did not find special circumstances and why he applied a higher non-parole period than the usual ratio.
6. In relation to these matters Hulme AJ made the following observations in his Remarks on Sentence: [38] Having regard to the age Mr Dicianni will be when he is released from prison, three of the purposes of punishment, viz. personal deterrence, protection of the community and probably rehabilitation do not have anything like the same weight they have in the case of most murders. … [39] One argument that was advanced on Mr Dicianni's behalf was that the sentence otherwise appropriate should be reduced on account of his age. It was submitted that the sentence should be limited so that there remained the prospect that he would be released from custody prior to his death. I do not find the argument as so advanced persuasive. While I accept that there are cases where such an approach has been taken and the prospect of dying in custody is calculated to increase the weight of a sentence, an offender who suffers that fate does not have the continuing disadvantage that someone who emerges after a very lengthy sentence does. The ramifications of such a sentence, e.g. its impact on the prospects of, or relationship with, a family, or on the likelihood of a person suffering it obtaining the capital to acquire a home or valuable or satisfying employment, continue long after release from custody. [40] I of course accept that it would be proper to take into account any particular circumstances that lead to the view that Mr Dicianni's sentence would weigh more heavily upon him than is usually the case and this principle clearly invites attention to his age. However, one really has no idea whether he will become a frail old man or, at the other extreme, die relatively young and suddenly from a heart attack or stroke. In the result I see no occasion, on account of the matters referred to in this or the immediately preceding paragraph, to reduce Mr Dicianni's sentence from that otherwise appropriate. … [50] Given the remarks I have made concerning Mr Dicianni, and notwithstanding the total non-parole period to be imposed, it is appropriate to reduce the balance of term of the second sentence he must serve. The balance of term of the first sentence is somewhat academic and as a matter of convenience I propose to reduce that too. These matters provide no grounds for reducing the non-parole period of either sentence.
7. Earlier in his remarks at [6] and [27] Hulme AJ made reference to the applicant developing cancer. However, the evidence at the trial was that the applicant's cancer was cured although he had some residual problems.
8. It is significant that the applicant put nothing before, and said nothing to, the Sentencing Judge about his health. Nor was any submission made about a finding of special circumstances. In fact, all that was said to the Sentencing Judge about the applicant's subjective matters and the issue of accumulation was this: BODOR: However your Honour structures it, whether the sentences are concurrent or whether there's an element of cumulation (sic), in my submission, your Honour would recognise that whilst these are heinous crimes, there ought to be for a man who is now approaching elderly and will no doubt not be released before he is an old man, there ought to be some element of hope that he may walk one day outside the walls of prison. I say that because it is the purpose of incarceration to punish, first of all, but also to rehabilitate and send a message out to the community that rehabilitation is also part of the punishment process. HIS HONOUR: That becomes hard and difficult with someone who is approaching old age, if I can put it that way. BODOR: I appreciate that. HIS HONOUR: One can pick an age at which one can say almost any sentence is going to be a life sentence. BODOR: I appreciate that but balanced against that is the fact Mr Dicianni (sic) will certainly, if he lives that long, will be serving 20 plus years in any event so he is going to be an old man. Obviously there is no issue of protection of the community to be considered in this case. The only focus of any criminality, from a practical point of view, is Mr Albert Frisoli. That is one of the features that would militate against a life sentence. I recognise that anybody over 50 who commits a murder or multiple murders is facing the prospect of dying in gaol. That is unarguable. But it should, in my submission, it is not necessary it be inevitable and the fact that there is some flicker of light remaining does augur for a productive period in gaol and for some hope. I can't put it any higher than that. It would be facile for me to put it any higher. I don't wish to insult the court but, notwithstanding his convictions, he is a member of this community and he is entitled to the same sentencing considerations as any member of the community, I don't put it any higher than that, for the crimes he has committed. I don't think I can say anything more. Unless there is something that exercises your Honour's concern.
9. It is difficult to see how there can be said to be error by the Sentencing Judge's failing to take matters into account when no submissions about those matters were made. This Court has made clear in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [75] to [81] that, ordinarily, if a matter has not been put to the Sentencing Judge, this Court will be unlikely to find error by reason of the matter not being referred to in the remarks on sentence unless some serious injustice can be shown from the failure to raise the matter in the court below.
10. No such injustice is shown in the present case. It is apparent from his Honour's remarks that he considered both the applicant's age and health. The discussion about the applicant's age and what appears at [50] of the remarks demonstrate that his Honour was, in substance, considering the matter of special circumstances. A reduction in the balance of the term necessarily involves a consideration of whether there are special circumstances because it would be inappropriate to reduce the balance of term if special circumstances existed.
11. As the applicant acknowledged by his reference to R v XX [2009] NSWCCA 115; 195 A Crim R 38, questions of accumulation are, subject to the application of established principle, discretionary. The principles are set out by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 and reproduced in XX at [52].
12. No error of the House v The King [1936] HCA 40; 55 CLR 499 type is demonstrated in the Sentencing Judge's consideration of the issues of accumulation and totality. His Honour considered that both murders were marginally above the mid-range of objective seriousness, they both occurred in the victims' homes, they were frenzied and prolonged attacks and Mario was killed simply to facilitate or at least remove an impediment to the killing of Albert Frisoli. It is not suggested that any of these considerations were not appropriate nor that there was anything else about the killings that his Honour failed to take into account. There is nothing inherently unreasonable or unjust in an accumulation period of ten years in the circumstances of these murders.

Pintabona appeal

1. The Sentencing Judge sentenced the co-applicant as an accessory after the fact to murder of Mario Frisoli to a term of imprisonment consisting of a non-parole period of 2 years and 3 months commencing 13 March 2013 with a further term of 9 months, and as an accessory to the murder of Albert Frisoli to a term of imprisonment of 2 years commencing 13 March 2014 with an additional term of 1 year. She is eligible for parole on 12 March 2016.
2. The sole ground of appeal is that the sentences imposed were excessive.
3. The co-applicant submitted that a sentence of 3 years for each of the offences was excessive as was the overall sentence comprising a non-parole period of 3 years with an additional term of 1 year. She submitted that Hulme AJ did not give sufficient weight to the following matters: (1) That her involvement was motivated by her relationship with Mr Di Cianni; (2) There was no suggestion that she considered Mr Dicianni was a continuing threat to any other members of the public after the event; (3) There was no evidence of aggravating features such as helping to dispose of bodies or cleaning the crime scene; (4) The actual level of offending was more in line with that in R v Tan Do (Unreported - Court of Criminal Appeal - 7 May 1997) and R v Waters [1999] NSWSC 893; (5) The assistance provided by available statistics; (6) The offender's criminality was in the lower level of objective seriousness for cases of the kind for which he was charged.
4. The co-applicant further submitted that while the level of partial accumulation was appropriate in the circumstances a period of 1 year was excessive. She also submitted that Hulme AJ should have found a greater level of special circumstances on the basis of it being her first term of imprisonment and her condition of anxiety and depression. Consideration
5. Hulme AJ said at [44] that he accepted that the co-applicant's's conduct would have been deserving of greater punishment if his Honour had found that at the time of driving the applicant away from Rozelle she had known of his offending. His Honour found, nevertheless, that her false statement to the police on 17 June was both deliberate and important. If her statement had been accepted, or not able to be disproved, the applicant might well have not been charged or might have been acquitted.
6. His Honour had regard to the Judicial Commission statistics and to a summary of some 37 cases provided by the Crown prosecutor. His Honour noted that he had been informed by all of that material but he went on to say at [47]: The cases demonstrate that, as was said by Gleeson CJ in R v Farroukh (Court of Criminal Appeal, 29 March 1996, unreported), there is a wide variation in the possible degrees of moral culpability of persons convicted of the offence. There is also a wide variation in the circumstances of offending, in the subjective circumstances bearing on the sentences imposed and in those sentences. In the result, I do not think that there is anything to be gained by detailing here the facts of, and sentences imposed in, those prior cases. I have found none which do not have significant differences from the facts here. Nevertheless, I have sought to be informed by the totality of the material to which I have referred.
7. In relation to the accumulation of the offences his Honour said at [49]: And although Ms Pintabona's offending was committed by the one statement to the police, her offending was worse for the fact that she was aware that Mr Dicianni had committed 2 murders. It is appropriate therefore for the sentences to be imposed on her to also be partially accumulated. To the extent to which there was commonality in the ingredients of her 2 offences, that will be sufficiently accommodated by the degree of concurrency in the sentences I intend to impose upon her.
8. A submission that insufficient weight has been given to matters is an acknowledgment that the matters identified have been considered by the Sentencing Judge. In Mallet v Mallet [1984] HCA 21; 156 CLR 605 Gibbs CJ said (at 614): The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham C.J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519, as follows: "If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court." (See also per Kitto J., at pp.533-4.) In Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513, the principle was similarly expressed by Stephen J., at pp 519-520, and Aickin J., at pp.534, 537-8; see also per Mason and Wilson JJ., at p.525. In the present case it was clear that Bell J. did not overlook any of the factors to which the Full Court referred. He said nothing to indicate that he did not give them adequate weight. The conclusion reached by the Full Court that he had failed to give them proper weight can only be explained by the fact that their Honours disagreed with his conclusion. However the mere fact that they themselves would have made a more liberal provision for the wife was no justification for substituting their own exercise of discretion for that of the primary judge.
9. The submission that the co-applicant's involvement was motivated by her relationship with the applicant does not lessen the seriousness of the offence. In R v Ward [2004] NSWSC 420 R S Hulme J said: [49] Undoubtedly, insofar as her actions were the result of threats by, and fear of Craig Reid, her subjective criminality is lessened. However it is not avoided. Very commonly if not almost universally, participation in offending by accessories after the fact is inspired by some emotional relationship with a principal offender, e.g. love, affection, loyalty or fear. Such offending commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally. [50] It did so in this case. It is implicit in the Prisoner's actions that she preferred to help Mr Reid, who she knew had bashed one woman with a hammer and slit her throat, to avoid detection and to remain in the community where he could do the same again, as he, to her knowledge, seemed willing to contemplate, than to either tell the truth when asked or remain silent. (I do not of, course suggest that, at least so far as the offence of being an accessory after the fact is concerned, the Prisoner was obliged to speak, either to the relatives or friends of the deceased or the police.) [51] And in that such emotions are liable to induce conduct which renders the perpetrator an accessory after the fact, society has an interest in providing a substantial disincentive to those tempted to so offend. General deterrence has a substantial part to play in the determination of any punishment. Retribution is also not without appreciable significance.
10. In the present case as the Sentencing Judge noted, there was nothing to suggest that the co-applicant was pressured in any way by the applicant to act in the way that she did. If that had been the case her criminality may have been lessened: Ward at [49].
11. In relation to the submission that there was no suggestion that the co-applicant considered the applicant to be a continuing threat, there was simply no evidence of this matter at all.
12. In R v Tan Do (Unreported - Court of Criminal Appeal - 7 May 1997) this Court had to consider a Crown appeal against concurrent fixed terms of 12 and six months imprisonment to be served by way of periodic detention for two counts of being an accessory after the fact to murder. The facts of that case bear no relationship to the present. The principal asked the offender to provide him with accommodation to which request he acceded. He also asked the offender to agree to provide him with an alibi and to retain some $1,500 which was stolen at the time of the murder. It was not suggested that the offender was actively concealing the principal during the time the principal stayed with him. Nor did he provide an alibi because by the time he was spoken to by the police the principal had confessed his involvement in the crime.
13. That is to be contrasted with the present case where the co-applicant provided a false alibi which, if it had been accepted or not have been able to be disproved, the applicant might well not have been charged or might have been acquitted, as the Sentencing Judge noted..
14. Nor do the facts in R v Waters [1999] NSWSC 893 nor the circumstances of the offender in that case bear any relationship to the present case. There are a number of significant matters which might be thought to have justified the period of periodic detention. The offender in that case was 20 years of age at the time of the offending. He offered assistance from the time of his arrest, there were delays in bringing him to justice and he was found to have taken significant steps towards rehabilitation.
15. However, I consider that error has been demonstrated with regard to his Honour's treatment of accumulation and totality. The only matter that resulted in the co-applicant's being found guilty as an accessory was the lie she told to the police on 17 June 2009. It was one act and its significance should not be minimised because it gave the applicant an alibi for two murders. Nevertheless, the fact that two murders were cloaked by her false statement cannot be seen in the same way as the applicant committing two murders. At least as far as her position as an accessory was concerned those murders were committed as part of the same criminality on the applicant's part. She was giving him an alibi for the one period of time during which he committed the two murders which were, in any event linked.
16. As the co-applicant accepts, it was appropriate that the sentence for each of her offences was not entirely comprehended by the other. However, an overall sentence of 4 years with a non-parole period of 3 years is plainly unjust for her involvement in the offending. She was certainly in the sort of relationship with the murderer where some leniency is considered appropriate. In R v Dileski [2002] NSWCCA 345; 1323 A Crim R 408 Hidden J (with whom Adams J agreed) said: In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences.
17. I consider that the co-applicant should be re-sentenced as follows: (a) For the offence of being an accessory after the fact to the murder of Mario Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 March 2013 and expiring 12 March 2015 with an additional term of 12 months expiring 12 March 2016; (b) For the offence of being an accessory after the fact to the murder of Albert Frisoli sentenced to a term of imprisonment comprising a non-parole period of two years commencing 13 June 2013 and expiring 12 June 2015 with an additional term of 12 months expiring 12 June 2016. (c) Direct that the co-applicant be released to parole forthwith.

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