R v Pirrello, Pirrello & D'Agostino

Consideration

1. The disclosure requirements that the Crown must meet are derived from both common law obligations, relevant statutory provisions, and delegated legislation. There are also prosecutorial guidelines or policies promulgated by all State Directors, and the Commonwealth Director of Public Prosecutions.
2. The courts in recent decades have recognised an obligation for the prosecution to disclose its case and any other relevant material to the accused: Grey v The Queen [2001] HCA 65; 75 ALJR 593; R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 (at [46]-[55] per Hodgson JA); R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 (at [20]); and Mallard v The Queen [2005] HCA 68; 224 CLR 125. By reference to English authority, the duty was described thus by Hodgson JA in Reardon (No 2), at [48]: "In R v Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376-7, with the comment that 'an issue in the case' must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence. However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses."
3. The statement of principles by Hodgson JA in Reardon (No 2), whilst obiter, was approved in Spiteri, and expanded upon in Cornwell v R [2010] NSWCCA 59 by Simpson J at [298]: "A prosecuting authority will be expected voluntarily to disclose material in its possession that, 'on a sensible appraisal', can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused, or subpoena issued by the court, such material, if a 'legitimate forensic purpose' for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14. It is hardly necessary to say that if, 'on a sensible appraisal', material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a 'legitimate forensic purpose' will have been demonstrated."
4. Whether the prosecution is under a duty to discover or create material not in its possession involves a further step. Citing a Victorian case, McColl JA (with whom Hislop J agreed at [126], RS Hulme J declining to agree with that part of the judgment at [125]) said in R v Richard Lipton [2011] NSWCCA 24; (2011) 221 A Crim R 384; (2011) 82 NSWLR 123] that the disclosure obligation could require the Crown to "make inquiries". The obligation to disclose includes, in an appropriate case, an obligation to make enquiries: AJ v R [2011] VSCA 215 (at [22]) per Weinberg and Bongiorno JJA (Buchanan JA agreeing).
5. Both Richard Lipton, and the Victorian decision of AJ v R there cited, concerned disclosure of information relating to the credibility of a witness. The brief statement of principle given in AJ v R is drawn from another Victorian decision, also concerning information about a witness, of R v Garofalo [1999] 2 VR 625, where Ormiston JA (with whom Tadgell and Charles JJA agreed) said, at 637: Consequently, at least for present purposes, the rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness's credibility. It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further.
6. It is clear from that passage in Garofalo that the "rule", restricted to "present purposes", did no more than make clear that the prosecution was not entitled to rely upon the fact that an individual prosecutor had no knowledge of any criminal convictions a significant witness may or may not have had to decline to disclose information of that nature. An inquiry (of police, and via that agency of the criminal records database) was mandated.
7. The rule formulated in Garofalo did not extend beyond information relevant to the credit of significant witnesses, and the decision, even as cited with apparent approval in AJ v R and Richard Lipton, does not establish a broader common law obligation on the prosecution to seek out information it does not have.
8. There does not appear to be any clear statement, in this jurisdiction or in Victoria, in which the type of enquiries the Crown might be obliged to make in fulfilment of its duty of disclosure, beyond enquiries relevant to witness credibility in certain circumstances, is fully defined, or even fully explored. It can be said that it does not extend to a duty to seek out from an international source confidential information not in the knowledge or possession of the prosecutor: Marwan v Director of Public Prosecutions [2019] NSW 161.
9. Statutory requirements of disclosure broadly echo the common law principles. They are found in the Director of Public Prosecutions Act 1983 (Cth) ("the CDPP Act"), the Criminal Procedure Act 1986 (NSW), and the New South Wales Legal Profession Uniform Conduct (Barristers) Rules 2015 ("the Barristers Rules") (the latter being delegated legislation).
10. Section 8 of the CDPP Act provides for the Commonwealth Attorney-General to issue directions and guidelines to the Director of Public Prosecutions, to which the Director is subject. Guidelines have been published (by the then Attorney-General Robert McClelland) which include guideline 8, concerning prosecution disclosure. The guideline refers to and incorporates a Statement on Prosecution Disclosure. That Statement requires disclosure of any material which can be seen on a sensible appraisal by the prosecution to be exculpatory, or of assistance to the accused in advancing a defence, or which might be relevant to the credibility of a material prosecution witness.
11. Paragraph 5 of the Statement imposes a precondition for disclosure, "that the material is in the possession of, or the information is known by, the prosecution".
12. Rule 87 of the Barristers Rules raises an obligation upon counsel for the prosecution to disclose "all material […] available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused".
13. Section 141 of the Criminal Procedure Act mandates the disclosure of a notice of the prosecution case, and a response to the defence notice where relevant. Section 142 provides for the contents of the notice: 142 Prosecution's notice (1) For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following - (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial, (c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript, Note. This paragraph does not require the prosecution's notice to contain copies of transcripts of recorded statements (within the meaning of section 289D) unless the prosecutor proposes to adduce such transcripts at the trial. (d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial, (e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that the prosecutor proposes to adduce at the trial, (g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial, (h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person, (j) a list identifying - (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated, (k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness, (l) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person, (m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.
14. Section 141(1)(c2) limits the obligation to disclose a transcript of a sound recording to situations where such a transcript is to be "adduced" at the trial.
15. The Crown does not intend to "adduce" any transcript of the disputed sound recordings beyond the summaries provided, and nothing in s 141 compels it to do so in the present circumstances. The sound recordings of the disputed conversations have been served on the accused, together with the summary documents of the content of each, giving - in a general way - voice attribution.
16. On my review of relevant statute and authorities, there is nothing that would oblige the Crown here to take steps to produce or have produced documents it does not have and does not intend to adduce or otherwise rely upon at trial.
17. The remaining question is whether it can be concluded that, were the Crown to adduce the evidence of the seventeen or twenty sound recordings, without having first provided the accused with a written transcript of each, the accused's trial would be rendered unfair. That is not a conclusion I can reach.
18. The primary evidence is the various sound recordings. They represent both the best, and the only, evidence. The jury will have nothing beyond the recordings and perhaps the summaries, and nothing that the accused has not himself had for many months. There can be no unfairness in that sense.
19. Mr Stratton argued that his client was prejudiced by the absence of transcripts, because without them it was not possible to know which words would be attributed to particular speakers by the Crown. The summary document, Ex VDD, gives broad attribution of voices, but is not specific as to all spoken words.
20. If that did cause a real difficulty, it is one which counsel can readily resolve.
21. Firstly, the recordings are in the accused's possession and, in the ordinary course of prudent and proper preparation, it is reasonable for the Court to conclude that the accused personally, and his solicitor or at least one of his counsel, have listened to the recordings. To allow a recording to be played in a jury trial that the relevant party and legal representatives had not listened to beforehand would be unwise to say the least.
22. The accused was either a participant in the conversations listed in Ex. VDD, or he would be well familiar with the voices of most of the persons alleged to be participants. Of the seventeen conversations the Crown has particularised, the accused was a participant of six, and is in a position to provide instructions to his lawyers as to who said what, or to dispute the identity of the speakers. Ten of the conversations are between the accused's brother and another person, or cousin and another person; the accused could readily identify one of the speakers, leaving the identity of the second voice clear by default; or dispute the identification. The final conversation is one between Mr Kai and the undercover operative. It seems likely on the evidence that Mr Kai speaks with an accent; the UCO does not. If that is correct, there should be little difficulty in picking the difference between the two voices. In any event, the conversation, of 12 December 2014, relates to count 1, a count to which the accused has pleaded guilty.
23. Secondly, if there is any doubt about which speaker in a conversation the Crown contends to have said a particular thing, it is always open to counsel to ask. Discussions between counsel can resolve many issues that might arise, and are to be encouraged.
24. It makes the job of legal representatives easier if a transcript of all electronic recordings is available; ease of preparation is not to be confused, however, with the right to a fair trial. There is no obligation on the Crown to create and provide material to an accused person because it would make preparing for trial easier for the accused, or to spare him or her the time and trouble of creating the material for him or herself.
25. I am satisfied that the Crown has met its obligation of disclosure, and there is no prospect of the accused's trial being unfair. On that basis, I declined to conditionally exclude the disputed recordings in the exercise of my discretion.

Amendments 07 November 2024 - Typographical amendment to coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2024