R v Pirrello, Pirrello & D'Agostino

[2019] NSWSC 1476

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Pirrello, Pirrello & D’Agostino [2019] NSWSC 1476
Hearing dates:	25 October 2019
Date of orders:	25 October 2019
Decision date:	28 October 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Orders 1, 2, 4, 5 & 6 of the Motion granted Order 3 of the Motion refused
Catchwords:	CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles -  whether diminution of accused’s "right" to confront accusers amounts to a “Star Chamber” procedure – question of prejudice to an accused if counsel cannot see a witness and jurors simultaneously – practical disadvantages that might arise – need to balance the interests of the accused in seeing a witness with the need to protect an undercover police operative – direction to be given to the jury
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Procedure Act 1985 (NSW) Evidence (Audio and Audio-visual Links) Act 1998 (NSW) Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	BUSB v The Queen (2011) 80 NSWLR 170 Commissioner of Police for NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643 Dodds v R 194 A Crim R 4018; [2009] NSWCCA 78 Lodhi v R (2006) 65 NSWLR 573 R v Hawi & Ors (No 2) [2011] NSWSC 1648 R v Hughes [1986] 2 NZLR 129 R v Khaja (No 1) [2017] NSWSC 1578 R v Khaja (No 2) [2017] NSWSC 1853 R v Pirrello, Pirrello & D’Agostino: Application by the Commissioner of Police [2019] NSWSC 1399
Texts Cited:	“The Court of Star Chamber”, Edward P Cheyney, The American Historical Review, Volume 18, No. 4, July 1913 “The Last Years of the Court of Star Chamber, 1630 – 1641”, Transactions of the Royal Historical Society, 4th series 21, (1930)
Category:	Principal judgment
Parties:	Regina (Crown) Joseph D’Agostino (Accused) Michael Pirrello (Accused) Francesco Pirrello (Accused) The Commissioner of Police
Representation:	Counsel: Mr P McGuire SC with Ms B Anniwell for the Crown Mr J Stratton SC with Ms M Curry for Joseph D’Agostino Mr D McCallum for Michael Pirrello Mr D Brady SC for Francesco Pirrello Mr D Kell SC with Mr R Coffey for The Commissioner of Police   Solicitors: Ms C Egan for the Crown Mr G Mitchell for Joseph D’Agostino Mr T Neaves for Michael Pirrello Mr T Neaves for Francesco Pirrello Ms R Cao for 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.

1. HER HONOUR: By further Notice of Motion of 24 October 2019 the Commissioner of Police moved the Court for orders permitting an undercover police operative (“the UCO”) to give evidence in such a way as to prevent the accused from seeing him or, alternatively, to prevent those of the accused who have never before seen him to be prevented from doing so. On 25 October 2019 the Court made a number of orders, but reserving reasons. These are my reasons for the orders then made.

2. The Motion was supported by an affidavit of Assistant Commissioner Anthony Crandell of 25 October 2019, described as “the open affidavit”; a further affidavit of the same date from the same deponent, described as “the confidential affidavit”; and an affidavit of Lisa Turner affirmed on 24 October 2019. No objection was taken to any of the evidence, including that which was made available only to the Court, being the confidential affidavit. None of the deponents were required for cross-examination.

3. There is some background to the Motion, in the Court’s refusal to earlier make similar orders: R v Pirrello, Pirrello & D’Agostino: Application by the Commissioner of Police [2019] NSWSC 1399 (“R v Pirrello & Ors”). The Commissioner sought leave to file a fresh Motion, on the basis that inquiries had been made to identify measures that might satisfy the concerns expressed by the Court in declining to make the proposed orders 6 or 7 of the first Motion. The present Motion relies upon information obtained in the interim that addresses the practicalities of achieving the outcome the Commissioner desires in the particular circumstances of the trial court, Courtroom 1 at Darlinghurst; and which gives more specific information as to the risk that may be occasioned to the UCO if his appearance is disclosed to the accused.

4. Each of Assistant Commissioner Crandell (in the open affidavit) and Ms Turner has provided evidence concerning inquiries made about means by which the UCO could give evidence in the trial without disclosing his appearance to the accused, but which would permit counsel to see the witness. Whilst a number of options were explored, the option highlighted by Mr Kell SC, the Crown Advocate for the Commissioner, involved the use of the courtroom audio-visual system coupled with the installation of additional monitors at the bar table.

5. Assistant Commissioner Crandell, in the confidential affidavit, also provided a detailed account of the personal and professional circumstances of the UCO, and the basis upon which police assert that there are very real fears for his safety and that of his family, and for the integrity of on-going police operations, should the witness’ appearance be disclosed.

6. The only opposition to the orders sought was from Mr D’Agostino.

7. Senior Counsel for the Crown accepted that it was appropriate to make the orders, since the concerns the Crown had earlier raised relevant to the first Notice of Motion had largely been addressed in the Commissioner’s proposal, or could be addressed. Senior Counsel for Francesco Pirrello and Counsel for Michael Pirrello were content for the orders to be made, on the basis that no distinction was made in their application to the three accused, screens were not used, and the jury was not misled.

8. Mr Stratton SC argued that the proposed procedure for the taking of the evidence of the UCO was “a Star Chamber type procedure” (T539:35) and to be decried for that reason alone. It was submitted that any course which denied the accused the right to confront his accuser in person was to proceed as a Star Chamber and that the UCO, as a mature man whose job it was to confront criminals, should be prepared to come into the court room and “show his face” (T542:20).

9. When pressed to identify what prejudice might be occasioned to the accused if the orders sought by the Commissioner were made, Mr Stratton pointed to the difficulties for counsel during the evidence in having to attend to three things during the course of evidence: the screen showing the witness; the brief and other documentary material on the bar table; and the jury, in circumstances where in the ordinary course, it would be possible to observe both the jury and the witness at once, only having to divert attention to from them to consult documents. He also pointed to the practical problem of showing the witness documents from a brief that extended to some 1800 pages, or play audio, or audio-visual recordings to him, when he was located remotely.

Consideration

10. No issue was taken with the Court’s power to make orders of the nature of those sought by the Commissioner, with that authority derived from the Court’s broad inherent powers to do that which is necessary to effect and protect the administration of justice; coupled with the relevant provisions of the Supreme Court Act 1970 (NSW) (s 23); the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) (“the Law Enforcement Act”) (s 34); the Evidence (Audio and Audio-visual Links) Act 1998 (NSW) (s 5B); and the Court Suppression and Non-publication Orders Act 2010 (NSW) (ss 7 and 8).

11. Orders of this nature are not unknown, and the Court was helpfully referred to a number of authorities: Commissioner of Police for NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643; Lodhi v R (2006) 65 NSWLR 573 at 35; Dodds v R 194 A Crim R 4018; [2009] NSWCCA 78; BUSB v The Queen (2011) 80 NSWLR 170; R v Hawi & Ors (No 2) [2011] NSWSC 1648; R v Khaja (No 1) [2017] NSWSC 1578; and R v Khaja (No 2) [2017] NSWSC 1853. They are all of assistance in resolving the competing considerations.

12. The Commissioner argues that the concerns identified by the Court in R v Pirrello & Ors can be addressed by the technological solution advanced in support of the Motion. Counsel would be able to see the witness as he gives his evidence through monitors installed at the bar table, and exercise the right of the accused to test the evidence with the benefit of observations made of the demeanour of the witness; but without compromising the safety of the witness, and the work in which he is involved.

13. Mr D’Agostino’s arguments are jurisprudential, and practical. As to the former, there are two concepts referred to by Mr Stratton which warrant exploration, that of the “Star Chamber”, and the “right” of an accused to confront an accuser in court.

14. The Court of Star Chamber was a court that evolved from the medieval procedure for the English King’s council to hear petitions. The name by which it only later became known was derived from the camera stellata or la chaumbre esteillee, the Westminster Chamber in which the court sat for two days of each sitting week. The court was more formally instituted in the reign of Henry VII, and operated as a supplementary court to those under common law. The court’s authority was derived directly from the sovereign power of the King. It was a court of justice with a settled body of precedent and practice. Its members were drawn from the sovereign’s Privy Councillors, the chief justices of the Courts of Kings Bench and Common Pleas, and other justices of the law courts. The Attorney-General and the Principal Law Officer of the Crown were usually present. The court’s procedures were formal and its sittings were, ordinarily, open to the public. Its jurisdiction was limited only by any unwillingness of the court to exercise it, and it could impose any penalty short of the death penalty.

15. At least for the first seventy-five or so years of its operation the Court of Star Chamber was seen as being above the corruption and ineffectiveness of the courts of common law. It was not until the later Stuart period that the term “Star Chamber” began to be associated with cruelty, oppression, and injustice. The court was used by Charles I particularly to prosecute Puritan dissenters, and the court’s conduct of summary trials without a jury, and the infliction of arbitrary and cruel punishments gave it the more sinister reputation it now has. The court was abolished in 1641 by the Long Parliament. [1]

    1. “The Court of Star Chamber”, Edward P Cheyney, The American Historical Review, Volume 18, No. 4, July 1913, pp. 727 – 750, OUP; “The Last Years of the Court of Star Chamber, 1630 – 1641”, Transactions of the Royal Historical Society, 4th series 21, (1930), 103 – 31.

16. The right of an accused to confront those who accuse him or her does not appear to be a “right” at all. It is a principle of long standing, but not one which is unqualified or immutable. The history and operation of the principle concerning the confrontation of witnesses by the accused is the subject of an interesting discussion by R A Hulme J in Hawi (No 2), in particular at [24] – [38]. His Honour there cited a New Zealand decision of R v Hughes [1986] 2 NZLR 129, where, at 149, Richardson J said,

The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility may be in issue.

17. In that decision, the right to information permitting an accused to ascertain “the true identity” of a witness arose where there were issues of credit. The Court has not been advised of any issue to be taken with the credit of the UCO. Since his evidence appears to be substantially, if not entirely, supported by recordings of all of the conversations he had with Mr D’Agostino and others, it is likely that his credit is not an issue.

18. The right to identifying information once routinely led to the provision to an accused of a witness’ name and address, and often his or her occupation, a practice which ceased after statutory amendment: s 149B Criminal Procedure Act 1985 (NSW). There would be few in current times who would argue that a witness must disclose his or her address, unless that address had a particular significance, such as being the locus of the commission of the alleged crime. Some accommodation of the safety and right to privacy of witnesses has been made over time.

19. More direct measures are sometimes taken by the courts for the protection of witnesses, representing a further inroad on the right of an accused to know identifying information concerning witnesses. The need to ensure the safety of police undercover operatives is a particular instance where such measures are routinely taken, by permitting the witness to give evidence with the protection of a pseudonym, in a closed court, and even, as here, with his or her appearance obscured from the accused persons. In Dodds v R, referring to s 14 of the Law Enforcement Act, McClellan CJ at CL said at [54] (with the agreement of Simpson and Harrison JJ),

Section 14 is provided for the obvious purpose of protecting the identity of relevant law enforcement officers. That their identities should be protected could not be in doubt. Both the safety of the officer and that person's continuing capacity to operate as an effective "undercover" officer are at risk if the true identity of the officer becomes known. Although there are many categories of information which in the public interest require protection, but which may be disclosed to counsel with appropriate undertakings, the true identity of an "undercover" officer has a particular sensitivity.

20. The need to protect the identity of the UCO, and through that his personal safety and the continuation of the work in which he is involved, is the principal reason for the orders the Court made on 25 October 2019, coupled with the newly devised capacity to allow counsel to observe the witness.

21. Although these reasons will not sufficiently explain that conclusion to the parties in the trial, who did not have access to the material in the confidential affidavit, I was persuaded that there is a real threat to the UCO that could readily, and disastrously, manifest if his identity is disclosed to the accused. I make clear that that is not because of any suggestion of malignity on the part of any of the accused men; it is connected with other circumstances and, to some extent, happenstance.

22. The Court must balance the interests of the accused in having full access to every aspect of the evidence against them, including the appearance and identity of a witness, with the need to protect witnesses who face a genuine and serious threat to life and safety and, more broadly, to the administration of justice. If the courts do not take appropriate and necessary measures to protect witnesses in that situation, the judicial process is undermined, bearing in mind that the “administration of justice is to be regarded as a ‘continuous process not confined to the determination of the particular case’” at hand (reference omitted): BUSB at [28].

23. As to the practical disadvantages that Mr Stratton has identified as arising to his client’s prejudice should the court make the orders sought, I do not regard either as particularly compelling, or as truly leading to prejudice. The first complaint is that it will be difficult for counsel to keep both the jury and the witness under observation, whilst consulting notes, if the witness is viewed through a monitor.

24. The level of difficulty posed by the use of a monitor upon which to see a witness must be contrasted with the level of difficulty that would arise with a witness giving evidence in the courtroom. Bearing in mind the configuration of the trial court, I see little or no difference in the respective exercises.

25. In Courtroom 1 at Darlinghurst the bar table faces the jury box, and is at right angles to the witness box. To examine or cross-examine a witness in the courtroom, it is necessary for counsel to turn away from the jury, presenting his or her left side to the jury when facing the witness, or his or her right side to the witness if facing the jury. There is some capacity to observe one when looking at the other, but only by using the field of peripheral vision; there would not be a complete view. In either case, to read notes would require counsel to look away from both witness box and jury box and down to the bar table or lectern.

26. Where a witness is seen via a monitor on the bar table, to look at the witness will require counsel to face in the direction of the jury, with at least some capacity to take in both, the jury probably peripherally. To read notes would require a diversion of attention away from both monitor and jury.

27. I see no prejudice to the accused in either method of taking the evidence of the UCO. The simple fact is that counsel cannot see everything at once, no matter where the witness is located.

28. Nor can I see any prejudice to the accused arising from the location of the UCO in the remote room. With some forethought there need be no difficulty in this procedure. During the course of submissions Mr Stratton was not able to confirm that he would in fact need to show the UCO any document or thing, or play any recording to him. If that is in fact necessary, any document or item to be shown to the witness can be provided to the Sheriff’s Officer who will be in the remote room, and given by the officer to the witness as required. Any recording can be played either through the courtroom audio-visual system, or via a microphone on the bar table.

29. There may be some inconvenience in a witness giving evidence via AVL, but inconvenience falls well short of prejudice, and even less so unfairness. There may be some disadvantage to an accused person who does not see the face of a witness giving evidence, but where counsel can undertake that role on an accused’s behalf, such disadvantage as may arise falls well short of prejudice, much less impermissible prejudice. It will be important to manage the mechanics of the process. If managed in a particular way, there will be no prejudice in my view.

30. In BUSB Spigelman CJ said, at [83]-[84],

The overriding principle is the right to a fair trial. What degree of impingement upon that right arises from a screening order will vary from case to case.

Furthermore, the prosecution, representing the community, is also entitled to a fair trial and, in that regard, can properly request steps for the protection of witnesses, including steps without which some witnesses would not be prepared to give evidence at all.

31. To compare the procedure suggested by the Commissioner for the evidence of the UCO to be taken to the operation of the Star Chamber is, in my respectful opinion, both inapposite and hyperbolic.

The Mechanics

32. The witness will give that evidence via the Court’s AVL system from a remote location. The two large screens in the courtroom will be turned off. The witness will be visible to the jurors on the individual monitors in the jury box; the bench also has an individual monitor. As raised in the affidavit evidence, the Commissioner should be permitted through appropriately qualified staff to install monitors at the bar table so that all counsel can see the UCO give his evidence.

33. It will be necessary to say something to the jury as to the deactivation of the large screens. Subject to input from counsel I propose a direction along the following lines:

Members of the jury the next witness is the undercover operative about whom we have heard, and I need to say something to you about the way in which he will give his evidence. The UCO will be giving evidence via the AVL system. You have already seen some evidence taken in that way, from Federal Agent Matthew Byles, who was in Virginia in the United States and gave his evidence via the audio-visual system from there. You will recall that I said to you then that his evidence was to be treated in the same manner as evidence given in the witness box; it acquired no greater or lesser importance because of the use of the AVL system.

The same is true of the UCO. He will be giving evidence via the AVL system, and his evidence is also to be assessed by you in the same way you would assess a witness present in the courtroom.

His evidence, however, is not being given via the AVL system because he is in another country. The evidence will be taken in that way to protect him and the work that he does as an undercover operative. I’m sure you will understand that the UCO is involved in many investigations other than this one, and his work continues. During this trial there are a number of people in the court room apart from those directly involved in it. Ordinarily, anyone in the court room can see a witness giving evidence via AVL giving evidence on the large screens. For the evidence of the UCO, those screens will be deactivated, so that only those people who need to see him give his evidence will be able to see him. We all have individual monitors, and will see the UCO give his evidence on our individual screens. In that way, his identity as an undercover police operative is protected.

34. A direction given in these terms highlights only the need to protect the future work of the UCO, and does not single out the accused as persons who cannot see the witness. It is likely that the jurors, if they think about it at all, will simply assume that, like them, counsel and me, the accused have monitors mounted in the dock. I see no need to disabuse them of that assumption, if it is made.

35. Should counsel wish it, I will say something to the jury about the accused being unable to see the witness, and direct them not to draw any adverse conclusions from that fact, but in my view, such a direction simply serves to mark out the distinction between the accused and others involved in the trial.

ORDERS

36. The Court made the following orders:

1. The Court be closed for the purpose of hearing this application.

2. The witness permitted to give evidence under the assumed name "Aaron" ('the witness”), be permitted to give evidence in a manner that prevents the witness from being observed by any of the accused persons.

3. Subject to oversight by the trial judge, the Commissioner of Police (through his legal representatives and officers) have liberty to make arrangements with the Registry, court officers and Sheriff's office is to facilitate the witness giving evidence in the manner ordered, including but not limited to:

1. the temporary transfer of this trial for the evidence of the witness to be heard in a court room other than Court 1 at the Darlinghurst Court complex;

2. the provision of audio-visual link facilities;

3. the temporary installation of additional monitors at the Bar table and/or the dock;

4. the placement of screens within the court room; and/or

5. the assistance of NSW Police officers and/or solicitors of the Crown Solicitor's Office at any remote location attended by the witness while giving evidence and/or within the court room.

4. The confidential affidavit of Anthony Crandell sworn on 25 October 2019 be returned to the Commissioner of Police (through his legal representative) on the basis that the Crown Solicitor will retain the original confidential affidavit for production on request of the Court.

5. The Commissioner be informed of any application to vary or revoke all or any of orders 2 and 3 herein, and be permitted reasonable time in which to appear and be heard in respect of such application.

Endnote

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024