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 refusedCatchwords: 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 1399Texts 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 PoliceRepresentation: Counsel:
Solicitors:
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
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.
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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…
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- Case
- [2019] NSWSC 1476
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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