R v Dunbar (No 1)

This is a revised version of a judgment delivered orally on 14 May 2025.

The accused's trial for murder is set to commence with a jury on Monday 19 May 2025. He is charged that on 7 January 2022, at Toongabbie, in the State of New South Wales, he did murder Mr Shane Naylor.

In short it is alleged that the accused fatally stabbed Mr Naylor, intending to kill him, and then left the scene shortly afterwards. The accused was arrested, with injuries to his head, about 45 minutes after the incident in a nearby vacant and unfurnished dwelling. He was taken to hospital for treatment whilst under arrest.

Mr Naylor was a man towards whom the accused had proven animosity. There was at least one other man, Mr Peter Henry, who was also having an altercation with the deceased, around the time of his death. Unusually, there was no connection between Mr Henry and the accused. The matter in contest is whether the Crown can prove beyond reasonable doubt that it was the accused who stabbed the deceased. A more detailed exposition of the alleged facts can be found in R v Dunbar (No 2) [2025] NSWSC 1160.

By way of a Notice of Motion filed in Court yesterday, 13 May 2025, the Commissioner of Police seeks to set aside certain paragraphs of a subpoena for production issued at the request of the accused dated 7 March 2025. The paragraphs relate to material sought in relation to two Crown witnesses known as "RS" and "Mr Henry".

The Notice of Motion also seeks pseudonym orders in relation to three witnesses, as well as non-publication orders, and seeks that the Court be closed during the taking of those witnesses’ evidence.

The Commissioner initially relied on two affidavits, that of Scott Cook (APM) sworn 22 April 2025 and Scott Whyte (APM) sworn 12 May 2025; two confidential envelopes marked "Exhibit 1" and "Exhibit 2 - NSW Police" were also handed up at the hearing relating, the Court was told, to items relevant to each of the witnesses.

The third affidavit was provided to my Chambers this morning sworn by Ms Lindsey Roberts, a solicitor within the New South Wales Crown Solicitor's Office, with a confidential affidavit sworn by Ms Roberts annexed. I have marked the third confidential affidavit contained within an envelope “Exhibit 3 - NSW Police”.

The accused relies on the affidavit of his solicitor, Mr Wilson Tighe, sworn 12 May 2025.

At my request, further material underpinning paragraph 6 of the accused's submissions was provided overnight. I was provided with Mr Henry's recorded interview with police of 9 June 2022, his statement of 20 June 2022, the recorded interview with the accused, Ms Roger's statement and Glenn Reilly's interview with police. I have marked that material "Exhibit 1 - Accused". Both parties provided helpful written submissions.

This matter was argued before me yesterday, 13 May 2025 and, because of the volume of material I needed to consider other than one aspect upon which I ruled yesterday, I reserved my decision until today at 2pm to consider the remaining issues.

First, I make some general observations. Whether or not to set aside a subpoena for abuse of process very much depends on the circumstances of the case. The overarching duty of a trial judge in a criminal trial is to ensure a fair trial, albeit this does not mean a perfect trial free from possible detriment or disadvantage of any kind or degree to the accused: McNamara v The King 280 CLR 201; [2023] HCA 36 at [42]; it is in this overarching context that a consideration of the setting aside of a subpoena should be considered.

In civil proceedings President Bell, as the Chief Justice then was, stated, in Secretary of the Department of Planning, History and Environment v Blacktown City Council [2021] NSWCA 145 at [65] and [68], that the issuing party needs to show apparent relevance, or that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. That has also been referred to by the Court of Appeal in Mohareb v The Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 at [20].

Whether the conceptualisation in Blacktown is appropriate for both criminal and civil matters, or indeed whether or not there is any real difference between the way the test has been expressed in Blacktown and the traditional criminal test, has yet to be clearly determined at an appellate level.

Whilst rigid adherence to legal tests has been rejected, it is accepted that in a criminal trial the issuing party must identify a legitimate forensic purpose and establish that it is on the cards that the documents will materially assist the case of the issuing party. A mere fishing expedition, where it is merely tenuously hoped that something will arise from the subpoena with no reasonable basis for that hope being shown, will not be sufficient. I shall now deal with each issue in turn.

I will deal first with the material sought relating to the witness identified, for the purposes of this judgment, as "RS".

"RS" is acknowledged by the Commissioner to be a registered source in relation to this matter and the Commissioner does not object to the disclosure within these proceedings of him being such a registered source, subject to orders being made to suppress his identity. In fact, as noted, the orders ultimately sought by the Commissioner are not suppression orders, but pseudonym orders, non-publication orders, and an order for a closed Court.

The contentious paragraphs of the subpoena in relation to “RS” are as follows, with the bases for objection made by the Commissioner also indicated:

"RS"'s role is set out in the Crown case statement at paragraphs [10]-[11] (together with some added additional details from elsewhere in the Crown case statement in order to explain the roles more clearly) as follows.

"RS" was a former partner of Erin Rogers, who was the partner of the deceased at the time of his death. RS knew the accused.

On 6 January 2022 "RS" saw the accused in Macquarie Street, Parramatta and had pizza with him. The accused spoke with "RS" about the deceased and Ms Rogers. The accused told "RS" that Mr Naylor had recently stood over and robbed a drug dealer. The accused told "RS" that “he”, the deceased, was going to get stabbed. The accused made a stabbing motion while saying this. The accused said that he was going to get him stabbed and that it would be a set-up. The accused made reference to how to get into the deceased’s house and stated:

It can be observed that this alleged admission was made the day before the alleged murder.

As I have already noted, I ruled in relation to one issue yesterday, that being paragraph 3(viii). The Commissioner's only basis for resisting that subparagraph was that there was no legitimate forensic purpose. As I indicated when I ruled on that paragraph, I was of the view there is a clear and legitimate forensic purpose based on Mr Tighe's affidavit. Mr Tighe’s affidavit included a portion of transcript of Local Court proceedings at Parramatta Local Court involving the sentencing of "RS" on or about 14 April 2022, which refers to "RS"'s barrister handing up a letter from NSW Police, which was not relied upon for a discount for assistance but, rather, as going to rehabilitation prospects. “RS”’s counsel said in closed Court:

The date of this transcript is relevant when read with "RS"'s criminal history. It can be seen that he was charged on 5 January 2022, with a contravene AVO on 17 February 2022. It is apparent that warrants were executed in relation to that and other matters.

On 13 April 2022 a $1,000 fine was imposed for an offence of affray.

On 14 April 2022 a s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) conviction with no other penalty was imposed for possess prohibited drug.

That chronology makes it clear that "RS" was in the sights of the police at the time and it can be inferred that "RS" would have wanted to mitigate the penalties he was facing by assisting the police. It can also be noted, in relation to the chronology, that "RS" provided a police statement in this current matter on 23 March 2022.

Given this chronology, in my view there is a clear legitimate forensic purpose in seeking the Police letter handed up at one of the sentencing proceedings in April 2022. It can also be noted that the Commissioner's barrister informed the Court yesterday that Police had told him that no such letter had been provided. I am not satisfied that this is correct, given the terms of the transcript referred to by Mr Tighe. For the above reasons, I determined yesterday that I would not set aside paragraph 3(viii).

As to the remaining materials sought in relation to "RS", I am of the view that there is a legitimate forensic purpose in seeking the information, for the reasons referred to above, and to allow the accused's representatives to otherwise explore this witness's relationship with the police.

I then turn to the issue of oppression.

I am not satisfied that the above remaining categories are oppressive. The Commissioner's affidavits have not set out the basis for making this claim, beyond stating the fact. It is clear that a sensible, rather than an overly technical, approach must be taken to the words of the subpoena, as is appropriate for a model litigant. I decline to set aside the categories on the basis of oppression.

In relation to two of the categories, 3(iii) and 3(vii), a claim is also made of what was previously referred to as public interest immunity but is now based on ss 130 and 131A of the Evidence Act.

I first note s130(1) of the Evidence Act reads as follows:

As discussed in Attorney General (NSW) v Lipton [2012] NSWCCA 156, the non-exhaustive matters which must be considered are set out in s 130(5) of the Evidence Act. These are as follows:

Section 130 is made applicable to the production of material on subpoena by s 131A(1) of the Evidence Act.

I take these matters into account. In particular I note that this this trial involves the most serious charge in the criminal calendar with a maximum penalty of life imprisonment; and the party seeking to adduce or obtain the evidence under subpoena is the accused. Conducting the balancing exercise as required and not, given the nature of the matter, being able to say too much about the material, in light of all of the evidence, including the confidential material, I am of the view that the material in "Exhibit 1 - NSW Police" produced in relation to "RS", pursuant to paragraph 3(iii), should be made available to the accused.

As to the material in Exhibit 3, that is the material I received in chambers today, having conducted the balancing exercise, noting particularly the criticality of the evidence of "RS" and that this is a murder trial, I am of the view that that material should be made available, but only to the accused's legal representatives, that being Mr Brock and Mr Tighe, on a strictly confidential basis, and not to the accused himself, at least at this stage. I also grant access to the Crown barrister, Mr Patch, and his instructing solicitor.

I note at this point that if any of this material needs to be aired in the course of the trial I will make appropriate orders, as required, if it is possible. I will hear at the end of this judgment from the parties in relation to photocopy access.

As to category 3(vii), I am of the view that that material should be made available to the accused on the same basis as the previous category, that is, on that restricted basis.

I now turn to the material relating to Mr Henry. Mr Henry was involved in an altercation with the deceased around the time of his stabbing and engaged in behaviour following the incident which, on one view, indicated he wanted to distance himself from his recent association with the deceased, capable of amounting to a consciousness of guilt. Further, Mr Henry was an initial suspect but later gave a recorded interview under inducement and then a witness statement to the police under inducement.

I note that the accused's submissions in relation to Mr Henry acknowledge that the basis for establishing legitimate forensic purpose is weaker than in relation to "RS", and indeed essentially flows from the apparent failures of Police disclosure in relation to "RS".

As for “RS”, the categories of materials sought from Mr Henry and the Commissioner's basis for resisting the categories are essentially the same.

Having considered all the material, I am not satisfied that the accused has shown there is legitimate forensic purpose in seeking the material in relation to Mr Henry and I set aside those paragraphs of the subpoena.

I now turn to the remaining orders sought in relation to the Notice of Motion.

I note there was no opposition to the pseudonym and non-publication orders sought by the Commissioner in relation to the three civilian witnesses and, in my view, it is clearly appropriate to make the orders sought on the bases set out.

Accordingly, I make the orders in accordance with paragraphs 6, 7 and 8 of the Notice of Motion and note that alternative pseudonyms will be selected by the Court.

I will also make an order that the Court should be closed for the hearing of the evidence of each of those witnesses, noting the sensitivity of the evidence and the question of safety to the witnesses.