R v Williams (No. 2)

1. [1]

   By notice of motion dated and filed on 28 August 2025, the NSW Commissioner of Police (“the Commissioner”) seeks orders pursuant to ss 130(1) and 131A of the Evidence Act 1995 (NSW), that the Commissioner be excused from producing certain documents, or parts of documents, in response to a supboena issued on behalf of the accused on 5 August 2025.

2. [2]

   That same order is sought in respect of the re-visiting, to the extent the Court will do so, of a subpoena issued on 8 October 2024 which was the subject of a ruling by Garling J on 21 October 2024, for reasons that are substantially the same as those set out by his Honour in his judgment in January 2024: R v Williams (No. 3) [2024] NSWSC 91.

3. [3]

   The solicitor for the accused has argued in email correspondence that there has been a relevant change in circumstances since Garling J’s ruling in October 2024, and so this Court should revisit that ruling.

4. [4]

   After reviewing the open and confidential affidavits, and considering the written and oral submissions provided by Mr Bhalla for the Commissioner, and Ms Carroll for the accused, I ordered that the Commissioner be excused from producing the material in issue (indicated by redactions in the produced documents), for the reasons that follow.

The trial, the evidence in support of the notice of motion, and relevant principles

1. [5]

   The accused, Bryce Mark Williams, is standing trial on a charge of murder. The trial began on Wednesday 3 September 2025.

2. [6]

   In support of the claim for public interest immunity made by the Commissioner, the Court has been provided with an open affidavit of Assistant Commissioner Peter Cotter sworn 28 August 2025. The Court has had regard to that affidavit which was served together with the notice of motion upon the Crown and the legal representatives for the accused.

3. [7]

   In the open affidavit, Assistant Commissioner Cotter refers to confidential exhibits which were provided separately and confidentially to the Court. I have examined those in accordance with the usual practice followed when claims of this kind are made, thus informing myself in a way I see fit, for the purposes of s 130(3) of the Evidence Act.

4. [8]

   Also provided confidentially was a sworn affidavit of Assistant Commissioner Cotter of 28 August 2025 which has been read by me, but is not available to the parties.

5. [9]

   Written submissions dated 17 September 2025 were provided by Mr Bhalla on behalf of the Commissioner in preparation for oral submissions and my determination of the issues. I have considered those submissions and marked them for identification on this application. I will not recount them, but accept the analysis Mr Bhalla has set out in pars 29 to 32 of his written submissions. I also agree with and embrace the remarks of Basten JA in Attorney General (NSW) v Lipton [2012] NSWCCA 156 at [39].

6. [10]

   On 1 September 2025, Ms Carroll provided the Court with helpful written submissions and a bundle of material that the accused asked the Court to consider on the question of whether the Court should revisit the ruling made by Garling J in October 2024 in respect of a particular class of documents.

7. [11]

   Given the wide non-publication orders in place, and the subject matter of the claim, the Court is obliged to express itself in the most general terms, and in a manner which respects and complies with the non-publication orders, as well as maintaining the material the subject of the claims: R v Francis [2004] NSWCCA 85; (2004) 145 A Crim R 233 at [22]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 3 at [185].

8. [12]

   I will adopt the neutral descriptions of documents used in Ms Carroll’s submissions: “first tranche of documents” produced on 18 October 2024 and “second tranche of documents” produced on 14 August 2025.

9. [13]

   There is a preliminary point to consider regarding the first tranche of documents and that is whether, under s 130A(3) of the Criminal Procedure Act 1986 (NSW), it would not be in the interests of justice for the order made by Garling J in October 2024 to be binding. Section 130A(1) arguably also applies to the ruling made by Garling J, but as the test is the same for both subss (1) and (3), nothing turns on this.

10. [14]

    As Ms Carroll correctly submitted, the onus to prove that matter is upon the party contending that is the case, and that needs to be established on the balance of probabilities: Hayne v R [2022] NSWCCA 11 at [71].

11. [15]

    Section 130A was considered by Beech Jones J in R v Obeid (No. 4) [2015] NSWSC 1442 (“Obeid”) relevantly at [11] and [12]:

12. [16]

    The material change in circumstances was argued to be demonstrated by certain matters set out in pars 8 to 14 of Ms Carroll’s written submissions. I will not repeat them in this judgment, but have had regard to them.

13. [17]

    Mr Bhalla submitted that the submission by Ms Carroll that s 130A(3) of the Criminal Procedure Act has any application here in respect of the October 2024 ruling by Garling J is “misguided”. He argued that there has been no material change in circumstances, but in any event, there should be no difference to the outcome of the Commissioner’s 2024 application, even if this Court chose to revisit it.

14. [18]

    Taking a practical approach, the Commissioner provided me with the material the subject of the October 2024 ruling and the affidavit material that was read by Garling J before his Honour upheld that claim. That comprised an open affidavit of Acting Assistant Commissioner of Police Weinstein sworn 21 October 2024 and a confidential affidavit of the same author, also sworn 21 October 2024 and confidential exhibit of the unredacted material.

Decision

1. [19]

   First, I accept that there was a legitimate forensic purpose for the accused issuing the subpoena(s) to the Commissioner of Police that he has. Second, I accept that there is a sound basis for the Commissioner’s claim of immunity.

2. [20]

   It seems to me that the situation outlined in Ms Carroll’s written submissions may amount to a change in circumstances, but more relevantly, I consider it to be in the interests of justice to examine the material produced in October 2024, against those additional details now disclosed in 2025, to ensure that a consistent approach to production, or protection from production, is taken by the Court to both the first and second tranches of documents. I consider such an approach to conform to the more nuanced analysis left open by the remarks of Beech-Jones J in Obeid at [12].

3. [21]

   The Court has inspected the material the subject of the claim made both in August 2025 and in October 2024 in unredacted form to allow a direct assessment of the claim, and to undertake the necessary balancing exercise under s 130(5) of the Evidence Act.

4. [22]

   That exercise requires the Court to balance the public interest in withholding the disclosure of information or the production of a document, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence.

5. [23]

   Section 130(5) of the Evidence Act sets out the (non-exhaustive) list of factors that a court should take into account for the purposes of the balancing exercise:

6. [24]

   Although it is necessary for the Court to be oblique in its reference to the material, I can state that I have carefully considered those parts of the material produced, comparing the redacted and unredacted versions. Obviously, the charge the accused faces is a profoundly serious one – and that is an important factor to consider – but there is nothing in the redacted portions of the responsive material produced which in my view would be of any material assistance to the accused, and in any event the balancing exercise would exclude its production.

7. [25]

   As part of my consideration, I note that I have not been shown any evidence that the substance of the redacted information has already been published.

8. [26]

   The balance clearly lies in favour of non-disclosure and so I made the relevant order to give effect to that conclusion on 19 September 2025.

9. [27]

   I have prepared this judgment in a form that refers to arguments made, rather than recounting them in detail, for the reasons set out in par [11] of this judgment, but if any party considers a confidential judgment should be prepared and placed on the court file, that can be provided on request.