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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1476
Decision Date: 28 October 2019

CaseChat Overview and Summary

The case of R v Pirrello, Pirrello & D'Agostino involved a dispute between the Crown and three defendants in the Supreme Court of Victoria. The defendants were charged with various offences, including drug trafficking. The primary legal issue before the court was whether the accused's right to confront their accusers was unduly diminished if they could not see a witness and the jurors simultaneously, and whether such a procedure amounted to a "Star Chamber" procedure. This issue arose from the requirement that an undercover police operative give evidence behind a screen, a measure taken to protect the operative's identity.

The court examined the principles of open justice and fair trial, weighing these against the need to protect an undercover police operative. It considered the potential prejudice to the accused if counsel could not see the witness and jurors at the same time. The court noted the practical disadvantages that might arise from such a procedure, including difficulties in cross-examination and the potential impact on the accused's ability to mount an effective defence. Balancing these considerations, the court concluded that the protection of the operative's identity and the integrity of the investigation outweighed the minor prejudice to the accused.

The court determined that the procedure did not amount to a "Star Chamber" trial and was permissible under the circumstances. It held that a direction to the jury should be given to remind them of the reasons for the operative's anonymity and the importance of the investigation. The court's decision affirmed that while the right to confront witnesses is significant, it must be balanced against the broader interests of justice and the need to protect law enforcement personnel. The final orders of the court confirmed the admissibility of the undercover operative's evidence and directed the jury appropriately.

Orders