R v Walker (No 1 – Suppression and related orders)

1. [1]

   On 24 and 26 March 2025, I made a number of orders sought by the Commissioner of Police of the NSW Police Force (“the Commissioner”) pursuant to a notice of motion filed on 21 March 2025. The motion initially came before me on 24 March 2025 on which date some, but not all, of the orders sought were made. On 26 March 2025, I made the balance of the orders sought. These are my reasons for making those orders.

2. [2]

   The accused, Gregory John Walker, is charged with four offences joined on the one indictment dated 16 October 2024. The accused was arraigned in this Court on that indictment on 1 November 2024, and again on 26 March 2025, due to a concern as to whether the indictment provided to the Court had been signed.

3. [3]

   By count 1, the accused is charged with the murder of the deceased on 29 June 1998. The deceased was a child at the time and cannot be named in these reasons pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). By count 2, the accused is charged with damaging property with intent to endanger the life of the occupants of 132 Walker Street, Waterloo on 9 April 1998. By count 3, the accused is charged with maliciously wounding Nathaniel Barker with intent to cause grievous bodily harm on or about 19 April 1998. By count 4, the accused is charged with maliciously inflicting grievous bodily harm upon Nathaniel Barker with intent to cause grievous bodily harm, also on or about 19 April 1998.

Order for production

1. [4]

   The first order sought was an order for production, directed to the Commissioner to produce documents responsive to two paragraphs of a subpoena issued by the Local Court on the application of the accused on 27 March 2024 and directed to the Commissioner. The material sought by the subpoena was not produced to the Local Court prior to the matter being committed to this Court. In the circumstances, it was uncontroversial that I should make the order for production, effectively avoiding the necessity of the accused re-issuing the subpoena in this Court. The order was, accordingly, made by me on 24 March 2025.

Further orders

1. [5]

   Further orders were sought by the Commissioner to protect certain information. I note that suppression orders and pseudonym orders had previously been made with respect to Witness B and Witness D.

2. [6]

   With respect to the further orders sought, the Commissioner relied on two affidavits of Assistant Commissioner Rashelle Conroy APM sworn 24 March 2025, the first being an “open” affidavit and the second a confidential affidavit.

3. [7]

   There was no objection to the affidavits of Assistant Commissioner Conroy, albeit the parties did not have the opportunity to see the confidential affidavit.

4. [8]

   Neither the Crown nor the accused opposed the orders sought.

5. [9]

   Orders 2 through to 4 sought by the Commissioner were for the suppression of certain information pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”).

6. [10]

   Order 2 sought that there be no disclosure beyond these proceedings, by publication or otherwise, of any information, evidence, document or submissions regarding the specific monetary amounts paid to or on behalf of persons known in these proceedings as Witness B and Witness C by the NSW Police Force. Order 3 provided an exception so as not to prevent disclosures being made during the proceedings, to the extent required for the proper preparation and conduct of the proceedings. Order 4 sought that order 2 apply throughout the Commonwealth of Australia and remain in force for the duration of the life of the accused.

7. [11]

   There was no issue that the Commissioner had standing to apply for the order: see s 9 of the Act.

8. [12]

   On the matter coming before me on 24 March 2025, I made an interim order pursuant to s 10(1) of the Act in the terms of the orders sought other than as to duration. Section 10(2) required me, having made the interim order to “determine the application as a matter of urgency”.

9. [13]

   The open affidavit of Assistant Commissioner Conroy sets out the background to the matter. In April 1998 there was a police investigation immediately following the fire that caused the death of the deceased, however that investigation failed to produce sufficient evidence to lay any charges. The investigation was reopened in 2019, leading to the arrest of the accused in August 2022 at which time he was extradited from Queensland and charged with murder and six counts of destroying and/or damaging property with intent to endanger life. Shortly after, he was charged with the wounding and infliction of grievous bodily harm offences.

10. [14]

    As part of the re-investigation, a reward was offered for information leading to the arrest and conviction of the accused. As a result, various witnesses came forward with information about the accused’s involvement in the fire. Some payments were made to Witness B and Witness C by police. Suppression orders, together with pseudonym orders were made by me with respect to the identities of Witness B and Witness D on 18 November 2024. The Commissioner, on the present motion sought further suppression orders with respect to the specific monetary amounts paid to Witness B and Witness C.

11. [15]

    Evidence of the particular payments were set out in a statement prepared by the Officer in Charge, Detective Sergeant Victor Lie. A suppression order was made in the Local Court in relation to the statement. The Commissioner’s concern was that the same evidence will, without further order, be given in Court and further disseminated. To be clear the objection was not to the proper use of the information in the proceedings which the Commissioner accepted may be necessary, but to that further dissemination.

12. [16]

    Power to make the order sought is contained in s 7 of the Act. The Act provides that a court may make both suppression and non-publication orders. A suppression order is defined in s 3 as an order “that prohibits or restricts the disclosure of information (by publication or otherwise)”. A non-publication order is less restrictive. It is “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. The term “publish” is defined to mean “disseminate or provide access to the public or a section of the public by any means”, with the definition providing common examples of what that includes, they being publication in a book, by radio or television broadcast, public exhibition or broadcast or publication by means of the internet.

13. [17]

    Section 6 of the Act provides that in deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. It is noted that the public interest in open justice is not said by s 6 to be either “the” primary objective or the “only” objective. It is “a” primary objective, meaning that there are other primary objectives of the administration of justice, or may well be, which should be taken into account: Rinehart v Welker and Ors [2011] NSWCA 345 at [38].

14. [18]

    The grounds for making an order are set out in s 8:

15. [19]

    The Commissioner relied on s 8(1)(a). It is unnecessary to provide a lengthy dissertation on the meaning of “necessary” as used in each paragraph of s 8(1). The following will suffice. Although it is not sufficient that the orders are merely reasonable or sensible, the word “necessary” should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], [46].

16. [20]

    The meaning of “necessary” does not mean that proof is required of some particular identifiable consequence in the event that an order is not made: see AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321 at [14].

17. [21]

    In John Fairfax Group Pty Ltd (Receiver and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131, Mahoney JA (in a passage later adopted by Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13] and by Bathurst CJ in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [8]) said (at [161B]):

18. [22]

    The Commissioner acknowledged that it would be disclosed in the course of the proceedings that monies had been paid to Witness B and Witness C as a result of their co-operation, including, in particular, their willingness to give the evidence indicated in their respective statements. The Commissioner raised no objection to the fact of payments having been made being made public. What the Commissioner sought to protect was the prospect of the particular amounts entering the public domain. Further, as noted above, the Commissioner accepted that it may be necessary in the conduct of the proceedings that the specific amounts paid be disclosed.

19. [23]

    The Commissioner’s reasons for seeking protection of this information were contained in the confidential affidavit of Assistant Commissioner Conroy. The Commissioner’s evidence was that payments are assessed on a case by case basis. The concern was that knowledge of the precise payments could lead to what might be described as an “open market” where information is valued by those providing or considering providing assistance to the police. In the nature of things, I accepted that it is undesirable that particular expectations are created leading to a prospect that individuals may decline to cooperate as they might over-value the nature of their assistance compared with that of another. Further, I accepted that in circumstances where the fact of payments is known, suppression of the specific amounts does little violence to the principle of open justice. I considered whether a non-publication order would be sufficient rather than the significantly more restrictive suppression order sought. Ultimately, I was persuaded that the harm sought to be prevented was likely to arise not only through general broadcast of the information but by the exchange of information by word of mouth justifying the making of a suppression order.

20. [24]

    In the course of submissions I asked counsel for the Commissioner why the Commissioner’s justification for seeking the suppression of the payment of the particular amounts was in the confidential affidavit and why that justification ought not appear in my reasons. The argument, as I understood it, was that an understanding of the reasons for the orders would tend to provoke the harm sought to be avoided. The argument for suppression, to the extent it is a good one, is based on rational inferences to be drawn from a knowledge of human affairs. This is not information. I do not think it needs to be protected. I will, however, as indicated to counsel for the Commissioner, provide these reasons to the Commissioner 24 hours before they are made public so that my decision to make this part of my reasons public can be challenged if thought appropriate.

21. [25]

    To the above I would only add that the Commissioner (and those acting for her), in matters where a confidential affidavit is to be relied on, has an important responsibility. Commonly there will be no objection to the affidavit or indeed to the orders sought. In busy courts, where there is inevitably an interest in returning to the substantive proceedings, the absence of a contradictor (or at the least a fully informed contradictor) is prone to lead to orders impinging on the open justice principle being made without lengthy deliberation. It is of importance, given this, that the Commissioner takes care to ensure no more information is included in a confidential affidavit than is necessary.

22. [26]

    An order was sought that the Court be closed when Witness B and Witness D give evidence. The purpose of the order was to give effect to the suppression order. It was accepted that the accused is well aware of the identities of the witnesses. There was, however, at the time I made the suppression order in relation to the identity of the witnesses, evidence before me that supported my conclusion that a suppression order was necessary with respect to the identity of those witnesses. The nature of the concerns leading to the application for the suppression order and the closed court order have been set out again in similar terms in the evidence before me on the current notice of motion.

23. [27]

    In the absence of an order for a closed court, there is clearly the potential for members of the public to enter the courtroom and observe for themselves the identity of the witnesses. Particular concerns regarding this were set out in the Assistant Commissioner’s confidential affidavit. I was satisfied that in order to give effect to the suppression orders already made, the Court should be closed for the evidence of Witness B and Witness D.

24. [28]

    There is in place a restricted retention order (“RRO”) made in the Local Court which applies to various documents. What was sought before me was, in effect, an extension of that order to further documents which had come into existence or had been produced in the proceedings since the making of the order in the Local Court. The further order was not sought to prevent the accused from having access to the documents. What was sought was a mechanism by which the material could not be further disseminated beyond the accused. Such an order was sought on the basis that the material is capable of identifying Witness B and Witness D. I accepted that for the various orders to be effective, a RRO was required thereby minimising the prospect of the dissemination of documentary evidence of the identities of the witnesses.

25. [29]

    In relation to the RRO, I was satisfied that the prejudice to the accused was limited. The accused is provided access to a laptop by Corrective Services NSW on the basis that the laptop is to contain a copy of the documents, the laptop can be accessed by the accused in a secure area, and the accused can access the laptop following reasonable requests to Corrective Services NSW. This arrangement was acknowledged in my order 7.

Orders

1. [30]

   For the reasons set out above, on 24 March 2025 I made order 1 in the orders provided by the Commissioner on her motion filed on 21 March 2025. On 26 March 2025, I made orders 2, 3, 4, 5 and 6 and noted the matter set out in order 7, in the orders provided by the Commissioner on her motion filed on 21 March 2025. For ease of understanding these reasons those orders are set out below:

   1. (1)

      Pursuant to the inherent jurisdiction of the Court, the Commissioner is required to produce the remaining subpoena documents responsive to paragraphs [3] and [6] of the Short Service Subpoena issued to the Commissioner by the Local Court of New South Wales on 27 March 2024 (save for any documents the subject of any claims of privilege or statutory restrictions) to the Supreme Court of New South Wales.

   2. (1)

      Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (CSNPO Act) and upon the grounds set out at ss. 8(1)(a), (b) and (e) there shall be no disclosure beyond these proceedings, by publication or otherwise, of any information, evidence, document or submissions regarding the specific monetary amounts paid to or on behalf of persons known in these proceedings as Witness B and Witness C by the NSW Police Force.

   3. (2)

      The foregoing orders do not prevent disclosures being made during the proceedings, to the extent required for the proper preparation and conduct of these proceedings.

   4. (3)

      Pursuant to ss 11 and 12 of the CSNPO Act, Order 2 is to apply throughout the Commonwealth of Australia and is to remain in force for the duration of the life of the accused.

   5. (1)

      The Court be closed during the reception of any evidence, submissions or discussions, that identifies or might tend to identify the Witnesses B and/or D, except for the following:

   6. (1)

      The accused shall not be permitted to retain a copy of the documents referred to in “Schedule A” to this Notice of Motion (the RRO).

   7. (2)

      The Court notes the accused is to be provided access to a laptop provided by Corrective Services NSW on the following bases: