R (Cth) v Pirrello, Pirrello & D'Agostino: Application by the Commissioner of Police

[2019] NSWSC 1399

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Pirrello, Pirrello & D’Agostino: Application by the Commissioner of Police [2019] NSWSC 1399

Hearing dates:

15 October 2019

Date of orders:

15 October 2019

Decision date:

15 October 2019

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Orders 1, 2, 3, 4, 8 & 9 granted

Orders 6 & 7 refused

Catchwords:

CRIMINAL PROCEDURE – application for orders preserving anonymity of undercover operative (UCO) – proposed orders for UCO evidence to be given by audio-visual link, or in-court with screens to prevent accused from identifying him – consideration of fairness of trial and interests of justice – disputed proposed orders not made – all other proposed orders made

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)

Cases Cited:

BUSB v R [2011] NSWCCA 39; (2011) 209 A Crim R 390; (2011) 80 NSWLR 170

Category:

Principal judgment

Parties:

Regina (Crown)
Joseph D’Agostino (First Accused)
Michael Pirrello (Second Accused)
Francesco Pirrello (Third Accused)
The Commissioner of Police

Representation:

Counsel:

Proceedings 2017/010927
P McGuire SC/B Anniwell (Crown)
J Stratton SC/M Curry for (First Accused)
Dr D Kell SC/R Coffey (The Commissioner of Police)

Proceedings 2016/388954
P McGuire SC/B Anniwell (Crown)
D McCallum (Second Accused)
Dr D Kell SC/R Coffey (The Commissioner of Police)

Proceedings 2016/388994
P McGuire SC/B Anniwell (Crown)
G Brady SC (Third Accused)
Dr D Kell SC/R Coffey (The Commissioner of Police)

Solicitors:

Proceedings 2017/010927
Solicitor for Public Prosecutions (Cth) (Crown)
Mitchell and Co Lawyers (First Accused)
Solicitor for the Crown Solicitors (The Commissioner of Police)

Proceedings 2016/388954
Solicitor for Public Prosecutions (Cth) (Crown)
Shoalhaven Lawyers (Second Accused)
Solicitor for the Crown Solicitors (The Commissioner of Police)

Proceedings 2016/388994
Solicitor for Public Prosecutions (Cth) (Crown)
Shoalhaven Lawyers (Third Accused)
Solicitor for the Crown Solicitors (The Commissioner of Police)

File Number(s):

2017/010927; 2016/388954; 2016/388994

Publication restriction:

Judgment previously restricted pending finalisation of all co-accused trials and related appeals.

Judgment

1. HER HONOUR: The accused men were charged with offences relating to the importation of border controlled drugs after a significant police investigation into their activities and those of others in the period 2014 to 2016. Part of the investigation deployed an undercover police operative (“UCO”). At the commencement of the trial of the accused on 14 October 2019 the Commissioner of Police moved the Court for orders intended to preserve the anonymity of the UCO. The orders sought are largely uncontroversial; there is however, objection to the requested orders 6 and 7, which would, if made, permit the UCO to give evidence to the jury in such a way as to prevent the accused from seeing him.

2. The Commissioner relied upon two affidavits of Assistant Commissioner Anthony Crandell, sworn on 11 October 2019. One affidavit was served on the accused; the second, because of the highly sensitive nature of the information it contained, was not. No objection was taken to that course.

3. The UCO is to be called as a witness in the Crown case against the accused. Although the Crown Prosecutor has not yet opened the case to the jury, from the material presently available to the Court, it appears that the UCO is to give evidence of meetings with two alleged conspirators, one of whom is the accused Joseph D’Agostino, during which discussions were had and arrangements were made for very substantial amounts of border controlled drugs to be imported into Australia.

4. As I understand it, the UCO’s evidence would principally go to establish the involvement of Joseph D’Agostino. Its relevance to Messrs Pirrello and Pirrello would be foundational, to establish the existence of a conspiracy which each is alleged to have joined subsequently. It is not suggested that the UCO ever met or dealt directly with either Michael Pirrello or Francesco Pirrello.

5. On 14 October 2019 the Court made orders 1, 2, 3, 4, 8, and 9 without objection. Those orders permitted the Commissioner’s Motion to be filed and heard immediately in a closed court, and operate to allow the UCO to give evidence in camera under a pseudonym, prohibiting the publication of any information that could identify him.

6. The disputed orders are those which would permit the UCO to testify from a remote location via audio-visual link (“AVL”) in such a way as to prevent the accused men from seeing him as he gives evidence (proposed order 6) or, alternatively, to position screens in the court room to prevent the accused from observing him (proposed order 7).

7. Mr Stratton SC objects to the proposed orders, arguing that the effect of either order would be to require counsel to cross-examine a witness neither they nor the accused could see, occasioning prejudice. It is submitted that the order is unlikely to achieve its object in any event, since Joseph D’Agostino has met the UCO and is familiar with his appearance. Counsel for Michael Pirrello and Francesco Pirrello also take objection to the orders.

8. Senior Counsel for the Crown also takes objection for practical reasons: it will be necessary to show the UCO documents and things during the course of his evidence in chief, and to play sound recordings to him, and this would be made extremely difficult if the UCO is not readily accessible in the court room, or if he was positioned such that his view was obstructed by a screen.

9. Neither Mr Brady SC for Francesco Pirrello nor Mr McCallum for Michael Pirrello wished to raise any matter beyond those concerns aired by Mr Stratton and the Crown Prosecutor.

10. The Commissioner argues that all of the orders are necessary to preserve the anonymity of the UCO, to protect his identity, and to protect his physical safety and that of those close to him.

Consideration

11. There is no question that the Court has the power to make the orders sought. Section 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) provides a specific power to do so, as follows:

34   Identity of certain persons not to be disclosed in legal proceedings

(1)  If, in proceedings before a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a person in respect of whom an authority is or was in force is in issue or may be disclosed, the court, tribunal, Royal Commission or other commission must, unless it considers that the interests of justice otherwise require:

(a)  ensure that such parts of the proceedings as relate to the identity of the person are held in private, and

(b)  make such orders as to the suppression of evidence given before it as, in its opinion, will ensure that the identity of the person is not disclosed.

(2)  In particular, the court, tribunal, Royal Commission or other commission of inquiry:

(a)  may allow a person in respect of whom an authority is or was in force to appear before it under the assumed name or under a code name or code number, and

(b)  may make orders prohibiting the publication of any information (including information derived from evidence given before it) that identifies, or might facilitate the identification of, any person who has been or is proposed to be called to give evidence.

(3)  A person must not contravene an order in force under this section.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

12. A further power which would permit the Court to make the orders sought by the Commissioner is found in s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on any one of the grounds referred to in s 8(1)(a), (1)(b), (1)(c), and (1)(e) of the Act.

13. The issue is whether the orders should be made.

14. The accused men and the Crown are entitled to a fair trial. The question is whether the parties can receive a fair trial if the disputed orders are made, and whether it is in the interests of justice to do so. BUSB v R [2011] NSWCCA 39; (2011) 209 A Crim R 390; (2011) 80 NSWLR 170.

15. It is not possible to detail the confidential evidence tendered in support of the application. Suffice to say that I accept that, together with other potential adverse consequences, the UCO’s safety could be compromised if his identity became known.

16. I am not, however, persuaded that that would be the outcome if the UCO were to testify in a closed court, with the benefit of a pseudonym and the protection of non-publication orders, albeit in the witness box without screens.

17. The proposed orders 6 and 7 are directed at the accused alone; it is not sought to have the jury, court staff and, subject to practicalities, legal representatives, prevented from seeing the UCO. Accordingly, any potential threat to the UCO must be seen as originating with the accused.

18. Joseph D’Agostino has had personal dealings with the UCO and can be presumed to have some general familiarity with him, subject to the changes that occur in an individual’s appearance with the passage of time. All three of the accused are aware of the name used by the UCO, as statements made by him bearing that pseudonym have been served on each.

19. Thus the only additional information about the UCO that the accused would receive is for Joseph D’Agostino to see the UCO’s appearance, incorporating the sort of changes that can be expected with the passing of years; and, for the remaining accused, to see him. The capacity of that information to be used to the detriment of the UCO, and the likelihood that it would be so used, is very limited in my view.

20. Joseph D’Agostino has been aware of the UCO’s appearance over a period of years; there is no evidence to support a conclusion that he has sought to do anything with that information in that period. Even if he had, or did in the future, a general description of an individual in the absence of any distinctive features is of little use in identifying a particular person. Details of hair colour, height, build, and so on will ordinarily apply to many people in the community, and not just the person described. There is nothing in the evidence before the Court to suggest that the UCO has any distinguishing features that would make it possible to identify him as an individual from a general description.

21. Although the remaining accused would have the opportunity to see the UCO for the first time, and to take note of his appearance, the same issue arises as to the utility of that information. There is no reason to suppose that either Michael Pirrello or Francesco Pirrello would be likely to, or even might, encounter the UCO by chance and have an opportunity to take some action against him. The description of him that either could give after seeing him in a court room setting, if passed on to others, is most unlikely to be sufficient to identify the UCO as an individual, such that others could take action against him.

22. Taking the evidence in a closed court, together with comprehensive suppression orders will prevent any information that could identify the witness from being published.

23. The risk that may arise to the UCO and more broadly to the administration of justice is, in my opinion, relatively remote. Those matters which could prejudice the trial fall to be considered against that risk.

24. The UCO is a significant witness, directly in relation to Joseph D’Agostino, and more broadly with respect to all accused, by establishing the existence of an agreement or agreements to import large quantities of a border controlled drug. There is likely to be considerable focus on his evidence, by the parties and by the jury.

25. As a general statement, it is at least desirable for all persons in the court room to be able to see a witness give his or her evidence, consistent with not just the right of an accused person to see those testifying against him or her, but more broadly with ordinary principles of open justice. Whilst neither consideration is to be applied without qualification or amelioration, where the evidence of a witness is significant, greater weight should be given to them.

26. Not to be able to see a witness can cause particular problems for counsel in leading evidence, or cross-examining a witness. Here, there are the practical problems connected with the tender of exhibits to which the Crown has referred. There are also the difficulties that flow in adducing or testing evidence from an unseen witness, whose gestures, facial expressions, and other potentially relevant movements, cannot be observed. The difficulty would be pronounced in the present instance, because – due to the configuration of the court room and the technicalities of the electronic resources therein, if proposed orders 6 or 7 were made, the only persons in the court room not able to see the witness would be the accused and counsel. The witness would be visible to the jury, the bench, and court staff.

27. AVL evidence is presented via two very large wall-mounted screens, one facing the jury box and one above the jury box, together with individual monitors in the jury box and on the bench. To prevent the accused from seeing the UCO as he gave evidence via the AVL facility, it would be necessary to deactivate the large screens. That would, however, prevent not just the accused from seeing the witness; counsel also would be unable to see him. That is undesireable in my view.

28. Screens are clumsy and the lines of sight are difficult to manage, but necessarily to prevent the accused from seeing the witness is also to prevent counsel from doing so, without requiring counsel to move to the press gallery to take or test evidence. In a trial of this nature, where the volume of documentary material required by counsel is large, and exhibits are electronically delivered to devices connected via the bar table, it is impractical, and I think unfair, to expect counsel to conduct their respective cases in such circumstances.

29. There is finally the question of prejudice that could foreseeably flow to the accused if these unusual arrangements were made, particularly where it would have to be plain to the jury that the arrangements had the effect of preventing the accused and counsel alone from seeing the witness. Directions could be given, but I am concerned that it may be impossible to prevent unhelpful speculation as to why such measures were necessary.

30. These questions are rarely straightforward. I am very concerned at the prospect that a police officer’s life could be endangered, or that the work of the authorities could be undermined. However, I think that the risk of that prospect eventuating is very slight. Against that the potential prejudice to the parties in conducting their respective cases must be measured.

31. I have concluded that it is the latter that must take precedence, and for that reason decline to make the proposed orders 6 and 7, to prevent prejudice to the parties and unfairness in the trial. All other orders sought by the Commissioner for the protection of the UCO are both sensible and necessary to protect him, and the administration of justice.

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024