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

Citation: R v Walker (No 1 – Suppression and related orders) [2025] NSWSC 298
Court: Supreme Court of New South Wales
Date: 1 April 2025
Judge(s): Dhanji J

Background

The accused faces four charges on a single indictment: the 1998 murder of a child, damaging property with intent to endanger life, and two counts involving malicious wounding and grievous bodily harm against a named victim. Police first investigated the fire that caused the child's death in April 1998 but could not gather sufficient evidence to charge anyone at that time. The investigation was reopened in 2019, and the accused was arrested and extradited from Queensland in August 2022.

As part of the re-investigation, police offered a reward for information leading to the accused's arrest and conviction. Several witnesses came forward, and monetary payments were made by the NSW Police Force to two of them, referred to throughout the proceedings as Witness B and Witness C. Suppression and pseudonym orders protecting the identities of Witness B and Witness D had already been made by the court in November 2024.

The NSW Police Commissioner filed a notice of motion on 21 March 2025 seeking several further orders: an order for production of subpoenaed documents, suppression orders covering the specific monetary amounts paid to the witnesses, a closed court order, and a restricted retention order. Neither the Crown nor the accused opposed the orders sought.

Legal Issues

• Whether an order for production should be made to give effect to a Local Court subpoena that had not been complied with before the matter was committed to the Supreme Court.
• Whether suppression orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) should be made to prohibit disclosure of the specific monetary amounts paid to Witness B and Witness C.
• Whether "necessary" under s 8(1) of the Act requires a narrow construction, and which grounds under s 8(1) were satisfied.
• Whether the reasons supporting the suppression orders, contained in a confidential affidavit, should themselves be protected from disclosure.
• Whether a closed court order and a restricted retention order were justified.

Decision

Order for production: The court found it uncontroversial that a production order should be made. Because the subpoenaed material had not been produced before the matter was committed from the Local Court, this order avoided the need for the accused to re-issue the subpoena in the Supreme Court. That order was made on 24 March 2025.

Suppression orders: Dhanji J considered the statutory framework carefully. Section 6 of the Act requires a court to take into account that open justice is "a primary objective" of the administration of justice, but the use of the article "a" rather than "the" signals that other primary objectives may also exist and must be weighed. The word "necessary" in s 8(1) does not call for a narrow construction, though it demands more than merely reasonable or sensible. The Commissioner relied on s 8(1)(a) (prevention of prejudice to the proper administration of justice), and the court also found grounds under ss 8(1)(b) and (e) to be satisfied. The concern was not with use of the payment information within the proceedings, which the Commissioner accepted may be required, but with its further public dissemination. Accordingly, the court made suppression orders covering the specific monetary amounts, with an express exception permitting disclosure to the extent necessary for the proper preparation and conduct of the proceedings.

Confidential affidavit: The court decided to disclose its reasons rather than protect them within the confidential affidavit. The judgment sets out the reasoning in open form, consistent with the principle that the basis for suppression orders should, where possible, itself be transparent.

Closed court and restricted retention orders: The court made a closed court order limiting attendance during evidence, submissions, or discussions that might identify Witness B or Witness D. A restricted retention order was also made preventing the accused from retaining copies of certain documents, including expert reports and produced subpoena material, while ensuring the accused retains supervised access to those materials via a Corrective Services NSW laptop in a secure area.

Orders Made

• Order for Production: The Commissioner is required to produce documents responsive to paragraphs [3] and [6] of the Local Court subpoena dated 27 March 2024, save for any documents subject to privilege or statutory restrictions.

• Suppression Order: Under s 7 of the Act, on grounds in ss 8(1)(a), (b), and (e), there shall be no disclosure beyond the proceedings, by publication or otherwise, of any information, evidence, documents, or submissions regarding the specific monetary amounts paid to or on behalf of Witness B and Witness C by the NSW Police Force. This order does not prevent disclosure within the proceedings to the extent required for their proper preparation and conduct. The order applies throughout the Commonwealth of Australia and remains in force for the duration of the accused's life.

• Closed Court Order: The court is to be closed during reception of evidence, submissions, or discussions identifying or tending to identify Witness B or Witness D. Those permitted to remain include the judge and court staff, the accused, legal representatives for all parties, relevant NSW Police Force investigating officers (unless later required to give evidence), and staff of Corrective Services NSW and the NSW Sheriff's Office.

• Restricted Retention Order: The accused is not permitted to retain copies of the documents in Schedule A (comprising a neuropsychological report, an expert opinion statement, and produced subpoena documents). The accused is to have supervised access to those documents via a Corrective Services NSW laptop in a secure area, upon reasonable request.

Key Takeaways

• Under s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW), open justice is described as "a primary objective" of the administration of justice, not the only one. The Supreme Court confirmed this language signals that other primary objectives exist and must also be weighed when courts consider suppression applications.

• The word "necessary" in s 8(1) of the Act does not attract a narrow construction. It requires more than that an order be merely reasonable or sensible, but the threshold is not as high as strict necessity in an absolute sense.

• Suppression orders directed at the specific monetary amounts paid to cooperating witnesses can be grounded in s 8(1)(a) (prejudice to the administration of justice), s 8(1)(b) (national or state security interests), and s 8(1)(e) (public interest significantly outweighing open justice), depending on the circumstances.

• A suppression order of this kind does not necessarily prevent the suppressed information from being used within the proceedings themselves. The court drew a clear distinction between internal disclosure for the conduct of proceedings and broader public dissemination.

• Restricted retention orders can be structured so that an accused retains meaningful access to sensitive documents, such as through supervised use of a secure laptop, without holding physical copies, balancing procedural fairness against legitimate security concerns.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 9, 10, 11, 12
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)

Cases:
- AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- John Fairfax Group Pty Ltd (Receiver and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131
- R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245
- Rinehart v Welker and Ors [2011] NSWCA 345