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Supreme Court 6 September 2021

R v Wiggins (No 2)

[2021] NSWSC 1127

Assault & violenceHomicide
PUBLICATION ORDERS WHETHER ORDERS IN PUBLIC INTEREST ORDERS GRANTED

Citation: R v Wiggins (No 2) [2021] NSWSC 1127
Court: Supreme Court of New South Wales
Date: 6 September 2021
Judge(s): N Adams J

Background

The accused, Matthew Wiggins, faced trial for the murder of Darko Janceski and the intentional infliction of grievous bodily harm on the deceased's father. The Crown alleged that on 14 April 2012, the accused rode to the deceased's parents' home on a trail bike, shot the deceased, and then physically assaulted the deceased's father when he came outside to intervene.

Among the potential Crown witnesses was a person referred to throughout the judgment as "Mr X." Mr X had provided a three-page statement to police in May 2019, and his evidence related to conversations about the source of items used in the shooting, including the motorbike, helmet, and balaclava. That evidence had the potential to undermine the evidence of another Crown witness, Derek Ferguson.

The Commissioner of Police applied for suppression and non-publication orders to protect Mr X's identity, along with an order that Mr X give evidence in a closed courtroom. The application was not opposed by the accused.

  • Whether the court was satisfied that a suppression and non-publication order was necessary under one or more of the grounds in s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW), specifically:
  • To prevent prejudice to the proper administration of justice (s 8(1)(a))
  • To protect the safety of a person (s 8(1)(c))
  • Because the public interest in making the order significantly outweighed the public interest in open justice (s 8(1)(e))
  • Whether a closed-court order was warranted for the duration of Mr X's evidence
  • Whether a 99-year duration for the non-publication order was appropriate under s 12 of the Act

Decision

Adams J noted that although the application was uncontested, the court was still required to be independently satisfied that an appropriate balance was struck between protecting Mr X's safety, ensuring a fair trial, and upholding the principle of open justice. The judgment engaged directly with s 6 of the Act, which requires courts to treat open justice as a primary objective when considering any suppression order.

On the threshold question of "necessity," the court applied the well-established principle from Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim that the word "necessary" in this context does not carry a narrow meaning. Drawing on earlier authority, the court confirmed that orders of this kind are justified where publication would create unacceptable consequences, such as deterring an informant or cooperative witness from giving evidence, or discouraging others from assisting police in future investigations.

The court accepted the Assistant Commissioner's evidence that Mr X, while not a formal rollover witness, was "akin" to one and had received an indemnity against prosecution in relation to assistance provided in other matters. Publication of his identity risked exposing him to intimidation or violence and would likely discourage both him and others from cooperating with police in future prosecutions. Adams J was satisfied that all three nominated grounds under s 8(1) were established.

On the closed-court order, the court accepted that allowing public access to the courtroom during Mr X's evidence would undermine the non-publication orders, since observers could identify him by sight. In relation to the 99-year duration, the court noted the Court of Appeal's guidance in DRJ v Commissioner of Victims Rights that orders should not be open-ended, and was satisfied that specifying a fixed 99-year term met the requirement in s 12 that orders operate for no longer than reasonably necessary.

Orders Made

  • The Crown witness (Mr X) is to be referred to by a pseudonym in these proceedings, except for proper purposes of the proceedings.
  • No publication beyond the proceedings of information tending to reveal the witness's true identity, physical appearance or other identifying features, or place of residence or work (pursuant to s 7, on grounds in ss 8(1)(a), (c) and (e)).
  • The non-publication order does not apply to disclosures made by the Commissioner and officers of the NSW Police Force.
  • The non-publication order applies throughout the Commonwealth of Australia (pursuant to s 11).
  • The non-publication order has effect for 99 years from the date of the orders, subject to further order.
  • The court is to be closed for the duration of the witness's evidence.

Key Takeaways

  • The "necessity" test in s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) does not require that proceedings would otherwise be unable to continue; it is sufficient that publication would produce consequences that are unacceptable, such as intimidation of a cooperative witness or deterrence of future informants.
  • A witness who is "akin" to a rollover witness, having received a prosecution indemnity in exchange for assistance in other matters, may qualify for identity suppression on grounds of personal safety and the public interest in maintaining police cooperation.
  • Granting suppression by consent does not remove the court's obligation to independently assess whether an appropriate balance is struck between witness protection, fair trial rights, and the principle of open justice.
  • A closed-court order may be warranted alongside a non-publication order where public attendance at the hearing would otherwise allow observers to identify a protected witness by sight, defeating the purpose of the suppression regime.
  • Under s 12 of the Act, suppression orders must not operate longer than reasonably necessary, but a fixed 99-year term satisfies that requirement where the confidential affidavit material supports a lengthy period of protection and the order is not expressed as open-ended.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 12
- Evidence Act 1995 (NSW), s 38

Cases:
- AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
- Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- Hamzy v R [2013] NSWCCA 156
- John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
- R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245