The State of Western Australia v BW
[2024] WASC 163
•10 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BW [2024] WASC 163
CORAM: MITCHELL J
HEARD: 30 APRIL 2024
DELIVERED : 10 MAY 2024
FILE NO/S: INS 24 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BW
Accused
Catchwords:
Criminal law - Practice and procedure - Suppression orders - Where acquitted accused is a police office charged with murder - Where a suppression order was made at the time the prosecution was commenced prohibiting the publication outside the courtroom of the identity of the accused - Whether the court is satisfied that it is in the interests of justice to continue the order - Whether suppression order ought to be discharged
Legislation:
Criminal Procedure Act 2004 (WA), s 171(4)(b)
Result:
Suppression orders discharged
Category: B
Representation:
Counsel:
| Prosecution | : | No appearance |
| Accused | : | J D MacLaurin SC |
| State Coroner of Western Australia | : | R Young SC and J P Tiller |
| B A Clarke | : | K Heath |
| Commissioner of Police | : | G M Mullins |
| L A Jones and C S A Jackson | : | A J Crocker |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Tindall Gask Bentley Lawyers |
| State Coroner of Western Australia | : | Office of the State Coroner |
| B A Clarke | : | Aboriginal Legal Service of Western Australia |
| Commissioner of Police | : | State Solicitor for Western Australia |
| L A Jones and C S A Jackson | : | Banks-Smith & Associates |
Case(s) referred to in decision(s):
AW v Rayney [No 4] [2012] WASCA 117
Hill v The State of Western Australia [No 2] [2022] WASCA 149
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Hopley v The State of Western Australia [2014] WASCA 30
John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131
Prisoners Review Board v Freeman [No 2] [2010] WASCA 167
Re s 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210; (2020) 56 WAR 209
The State of Western Australia v BW [2021] WASC 326
The State of Western Australia v Edwards [No 6] [2020] WASC 22
Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; (2008) 72 NSWLR 577
West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
Contents
Summary
Background
Eyewitness accounts and BW's evidence
The criminal proceedings
The inquest into JC's death
Applications to vary or discharge the suppression order
Variation of the Identity Suppression Order on 30 April 2024
Position of the parties as to vacation of the Identity Suppression Order
Power to make, vary and discharge the Identity Suppression Order
Operation of the Identity Suppression Order
Reference to 'publication'
Fact that BW remains a police officer
Location at which BW is currently serving as a police officer
Practical effect of the Identity Suppression Order
General principles
Evaluation of the interests of justice in the present case
Factors counting against continued suppression of BW's identity
Potential stifling of public discussion about an important issue
Impact of the Identity Suppression Order on community and family
Distrust of police
Community perceptions of the court's impartiality
Factors which are neutral or of limited significance
Factors counting in favour of the suppression of BW's identity
The interests of justice in this case
Orders
MITCHELL J:
Summary
On 17 September 2019, a young Yamatji woman, who in accordance with her family's wishes I will refer to as 'JC', was walking along a suburban street in Geraldton carrying a knife and a pair of scissors. After a passer-by made a 000 call, JC was surrounded by police officers in four police vehicles. One of those officers, who I will refer to as 'BW', exited one of the vehicles and, about 16 seconds after doing so, discharged a single shot from his police issued pistol into JC's abdomen. Despite receiving medical attention, JC died in hospital later that evening from the injuries inflicted by the gunshot wound.
On 20 February 2020, BW was charged with murdering JC. On that day, suppression orders were made prohibiting the publication outside the courtroom of information or particulars likely to identify BW as the accused in the proceedings. On 22 October 2021, BW was acquitted of murder, and the alternative offence of manslaughter, after trial by jury. The suppression orders remained in force after the conclusion of the trial.
On 21 September 2022, I made orders by consent which consolidated the suppression orders which remained in force at that time. Order 1(b) of those orders (Identity Suppression Order), made under s 171(4)(b) of the Criminal Procedure Act 2004 (WA), provided:
The publication outside of the courtroom of the image, name, address, and any particular or information that is likely to identify the accused is prohibited.
Members of JC's family now seek the vacation of the Identity Suppression Order. BW and the Commissioner of Police oppose that application.
For the following reasons, I am not satisfied that it is currently in the interests of justice for the Identity Suppression Order to continue in operation. I will therefore discharge the Identity Suppression Order and other orders relating to the suppression of BW's identity as the accused in these proceedings.
Background
JC was shot in the abdomen by BW during an incident that occurred on Petchell Street, Geraldton, in the early evening of 17 September 2019. The following facts emerge primarily from CCTV footage taken from a camera located at a house in a nearby street,[1] recordings of police VKI dispatch radio transmissions[2] and a recording of a 000 call made at the time of the incident.[3] The following facts were not controversial at trial.
[1] Exhibits P6, P7.
[2] Exhibit P14.
[3] Exhibit P16.
At 6.20 pm on 17 September 2019, JC was walking along Petchell Street carrying a large, serrated bread knife in her right hand and some small pink handled scissors in her left hand. A 000 call had been made by a member of the public as JC walked towards Petchell Street. As JC walked along Petchell Street, a police vehicle driven by Senior Constable Walker, with Constable Cleghorn as a passenger, drove up onto the verge on JC's left-hand side and behind her. Senior Constable Walker shouted instructions at JC to drop the knife. He also indicated that she would be tasered if she did not drop the knife. JC ignored these instructions and continued walking along Petchell Street with the knife, at one point looking over her shoulder and shrugging her shoulders in an exaggerated movement.
The police vehicle driven by Senior Constable Walker then drove further along Petchell Street and parked across the street blocking JC's direction of travel. Three other police vehicles entered Petchell Street at about that time. A marked police vehicle driven by Senior Constable Bird, in which Constable McLean was a passenger, also parked on Petchell Street ahead of the direction in which JC was walking. An unmarked police vehicle driven by Senior Constable Cooney, in which BW was a passenger, stopped behind JC, as did a vehicle driven by Senior Constable Caracatsanis, in which Senior Constable Barker was a passenger.
Senior Constable Barker got out of his vehicle and approached within approximately 2 m of JC with his hands empty and at least one hand outstretched. BW got out of his car and ran or walked towards JC holding his police issued firearm in the ready position and pointed in the vicinity of JC's waist region. Constable McLean exited his vehicle and held his Taser in the ready position pointed at JC. The officers who were out of their vehicles shouted at JC to put the knife down.
As JC's direction of travel was blocked by police vehicles, she stopped and turned around to face BW. Both BW and Constable McLean were within about 3 m ‑ 4 m of JC. Having stopped, JC did not take a step in any direction. She did not move her right hand to any degree that is detectable on the CCTV footage taken from the nearby street. However, the point at which JC was standing was about 66 m away from the CCTV camera. Evidence of Mr Gordon McMeikan, a digital forensics analyst called by BW as an expert witness, was to the effect that the low pixel rate would limit the ability of the system to depict movement at that distance.[4]
[4] ts 1495 - 1498.
BW then fired a single shot from his service Glock pistol into JC's abdomen which caused her death. The evidence of Senior Constable Powell indicated that the bullet struck JC in the abdomen at about a perpendicular angle.[5] This is consistent with the evidence of various witnesses at the scene that JC was facing BW when the shot was fired.
[5] ts 1218.
The CCTV footage taken from the nearby street indicates that Senior Constable Barker exited his vehicle at 18:20:18. BW exited the unmarked police vehicle in which he was a passenger at 18:20:20. Senior Constable McLean exited his vehicle at about 18:20:28 and was behind the car drawing his Taser at 18:20:30. JC stopped at 18:20:33. BW discharged his firearm at 18:20:36 (some 16 seconds after exiting his vehicle).
Eyewitness accounts and BW's evidence
Evidence was led at trial of the eyewitness accounts of the police officers in attendance and many civilian witnesses. Some of the eyewitnesses reported seeing some movement of JC's arm at the time she was shot. Because the eyewitness accounts were inconsistent and controversial at trial, it is unnecessary to summarise them here. However, I summarise the general effect of BW's evidence at trial in the following paragraphs, noting that some aspects of the evidence (such as BW shouting that JC was under arrest) is not supported by the evidence of any other eyewitness.
BW's evidence was that, as he drew his firearm, he shouted at JC 'put the knife down and get on the ground'. JC took two or three steps across the road and turned to her right facing BW for a brief moment. She then stepped backwards and BW shouted 'you're under arrest. Get on the ground'.[6] At the time he shouted this, BW suspected that JC was going armed in public so as to cause fear and was arresting her for that offence.[7]
[6] ts 1388.
[7] ts 1409.
BW's evidence was that JC then walked away from him across the road towards the houses on the other side of the street. BW shouted 'put the fucking knife down' but there was no reaction. JC then stepped up on the kerb, turned around, stepped down from the kerb and faced BW. She had 'squared off' in a fighting stance with her feet spread and one foot back a bit and was hunching forward a little bit. Her right arm was holding the knife down near her hips with the knife pointed towards BW. The scissors were held in the same manner in the other hand. Her teeth were clenched. She was about 3 m or a little bit less away from BW. As JC stepped off the kerb, BW yelled 'drop it drop it', and started to step back away from JC.[8]
[8] ts 1388 - 1389, 1401.
BW's evidence was that he then saw Senior Constable Barker making a beeline for JC with his hands stretched outwards and his fingers spread apart. Senior Constable Barker was not holding anything in his hand and, at that point, BW said that he thought that Senior Constable Barker was going to try and grab JC. At this point, BW stopped stepping backwards and shouted 'don't'. BW shouted this at JC because she was squared up as if she was going to attack him. At this point BW also thought that Senior Constable Barker was going to get himself stabbed.[9]
[9] ts 1390.
BW gave evidence that, directly after he yelled 'don't', JC raised the knife up and thrust it out and her body came forward towards BW as if she was going to lunge at him. BW's evidence was that he thought that he was going to be stabbed when he shot JC.[10]
[10] ts 1390 - 1391.
The criminal proceedings
On 20 February 2020, BW was arrested and charged with murdering JC.
At BW's first appearance in the Magistrates Court on 20 February 2020, Magistrate Millington made an order that 'the publication/disclosure to any other person of the name, address, image or any other particular which would enable the identification of the accused is prohibited until further order'. BW applied for bail, and Corboy J heard his bail application on 20 February 2020. On that date, Corboy J made an order, under s 171(4)(b) of the Criminal Procedure Act, prohibiting publication outside of the courtroom of the image, name, address, and any information or particular that is likely to identify the accused.
I was the presiding judge at BW's first trial before a jury, which commenced on 4 October 2021 at the District Court building in Perth. At that time there was no restriction on members of the public sitting in the public gallery of the trial courtroom. The public gallery of a large trial courtroom was filled on the first day of the trial. The proceedings were live streamed to a courtroom in Geraldton so that members of the public could view the trial from that location.
During the prosecution opening, the Director of Public Prosecutions played to the jury the CCTV footage of BW shooting JC. Before that occurred, I cautioned persons in the public gallery as to the content of the video and gave them an opportunity to leave the court if they felt that they were going to find the content too distressing.[11] I had previously cautioned members of the public gallery of the importance of them remaining quiet, and leaving the public gallery if they felt they could not do so.[12]
[11] ts 192.
[12] ts 176 - 177.
What followed was described by BW's trial counsel in the following terms, which the Director of Public Prosecution and I accepted were accurate:[13]
[D]uring the course of her opening address Madam Prosecutor put on to the screen a video which depicted the shooting of the deceased.
At the point of time at which the shot was apparently fired as could be seen by the video there were audible gasps by members in the gallery, loud sobs of tears, people becoming both, I would suggest, agitated, potentially angry and distressed, a combination of all of them.
There were at least I would have thought seven or eight people from my observations. People started getting up. Some people started calling out things from the back of the court directed at the accused.
I was unable to make out the precise words but they were clearly derogatory and abusive matters that were being yelled out. This was as security were doing their best to get the people out of court.
The transcript records unidentified persons in the public gallery calling out 'murderer' and saying that BW 'could have used a Taser gun'.[14]
[13] ts 198.
[14] ts 194.
As a result of the emotional outburst from the public gallery, the first trial was aborted. I gave the following reasons for aborting the trial:[15]
The circumstances giving rise to that application were described by counsel in the argument and it may well be that that description was incomplete. There are a number of things which were shouted at the accused by members of the public gallery, not all of which were heard by everyone, but some of which may well have potential to prejudice a jury.
I have some understanding of those who reacted in a very emotional way to the footage which they may not have expected to see and it was very difficult for them to control their emotions and that is understandable.
However, I am concerned that the reaction of members of the public gallery and some of the things which were shouted at the accused might have been heard by the jury and may have the capacity to prejudice the fair trial of the accused.
Had this been later in the trial I may not have aborted the trial, because I could direct the jury that they are to decide the matter, putting aside emotions, and that they should not be influenced by what occurred. However, a jury will be able to be re-empanelled tomorrow morning and so that the time that is lost is minimal and on balance it does seem to me to be in the interests of justice to discharge the jury.
[15] ts 204.
The second trial commenced on the following day, 5 October 2021. During the second trial, the persons who could attend the public gallery in the trial courtroom was restricted. The attendance of those who did not have a particular role in the trial was restricted up to 10 persons nominated by each of the parties' representatives. The trial was livestreamed to a courtroom in the Supreme Court at Stirling Gardens, Perth in addition to the courtroom in Geraldton. Close friends and family members of JC who attended the second trial in the public gallery in the trial courtroom conducted themselves in a calm and dignified manner which allowed the jury to focus on its task.
BW's name was used in open court during the trial. Both in the dock and in the witness box, he was clearly visible to those sitting in the public gallery of the trial courtroom. He was generally not visible, either when sitting in the dock or when giving evidence, to persons in the courtrooms to which the proceedings were livestreamed.
On the afternoon of 22 October 2021, the jury delivered a verdict of not guilty of murder and not guilty of the alternative count of manslaughter.[16]
[16] ts 1808 - 1809.
In light of my directions to the jury and the evidence at trial, the verdicts indicate that the jury must not have been satisfied beyond reasonable doubt either that BW was not acting in self-defence under s 248 of the Criminal Code (WA) when he shot JC, or that BW shooting JC was not authorised by s 16 read with s 127 and s 128(2) of the Criminal Investigation Act 2006 (WA). I addressed the elements of these 'defences' (which the prosecution bears the onus of negativing) in a pre-trial ruling.[17] The provisions of the Criminal Investigation Act relevantly make special provision authorising the use of force by a police officer exercising the officer's statutory power of arrest.
[17] The State of Western Australia v BW [2021] WASC 326 [29] - [35], [39] - [44].
I directed the jury that, to prove that BW was not acting in self-defence, the State needed to prove one or more of the following matters beyond reasonable doubt:
1.The accused did not believe that discharging the firearm pointed at [JC] was necessary to prevent [JC] from stabbing or cutting someone with the knife and/or scissors she was holding[.]
2.There were no reasonable grounds for the accused to believe that discharging the firearm pointed at [JC] was necessary to prevent [JC] from stabbing or cutting someone with the knife and/or scissors[.]
3.Discharging a firearm pointed at [JC] was not a reasonable response by the accused in the circumstances as he believed them to be[.]
4.There were no reasonable grounds for the accused's belief as to the circumstances referred to in question 3[.]
I directed the jury that to prove that BW's conduct was not authorised by the Criminal Investigation Act, the State had to prove that:
Shooting [JC] was not reasonably necessary in the circumstances to overcome resistance to an arrest that:
a.was offered; or
b.the accused honestly and reasonably believed was being offered; or
c.the accused reasonably suspected would be offered,
by [JC] in resisting an arrest by the accused[.]
After the jury delivered its verdicts, the Director of Public Prosecutions submitted that the suppression order relating to BW's identity (which had been made when he was charged on 20 February 2020) needed to remain. I indicated that I had done nothing, and had not been asked to do anything, to vary the suppression order. I indicated that the suppression order operated until discharged and that I was not proposing to discharge the order on the court's own motion. Neither the prosecution nor BW sought a discharge or variation of the suppression order relating to BW's identity at that time.[18]
[18] ts 1809 - 1810.
Various suppression orders were made during the criminal proceedings, many of which had lapsed or been varied or discharged by the end of the trial. On 21 September 2022, I made an order by consent which consolidated the various suppression orders that remained in force at that time. The consolidated order was in the following terms:
1.Until further order, and subject to the exceptions specified in sub-paragraphs 1(c) and (d) below, under s 171(4)(b) Criminal Procedure Act 2004 (WA):
a) The publication outside the courtroom of evidence in these proceedings which discloses the residential addresses of the witnesses identified at items 8 ‑ 23 (inclusive) of annexure A to the State's application dated 23 August 2021, other than:
a. in any video-link from the courtroom;
b. to the parties or their legal representatives; or
c. to an officer or employee of the court,
is prohibited.
b)The publication outside of the courtroom of the image, name, address, and any particular or information that is likely to identify the accused is prohibited.
c)Subject to sub-paragraph d) below, the orders in sub-paragraphs a) and b) shall not apply to the provision of the trial transcript and the trial exhibits to any counsel or solicitor who have been retained or instructed for the purpose of providing legal advice to Mrs Anne Leslie Jones, in her personal capacity and in her capacity as putative next friend of Caesar Jackson (a minor).
d)The counsel and the solicitors referred to in sub-paragraph c) above shall not publish or provide to their clients or cause any other person to publish any of the evidence, information or particulars prohibited from publication by sub-paragraphs a) and b).
2. There be liberty to apply.
Paragraph 1(b) of these orders is the Identity Suppression Order, which reflected the terms of the suppression order made by Corboy J on 20 February 2020.
The inquest into JC's death
The State Coroner is required to hold an inquest into JC's death by s 22(1)(b) of the Coroners Act 1996 (WA). This is on the basis that JC's death appears to be a Western Australian death that was caused, or contributed to, by a member of the police force.
The State Coroner was notified of JC's death on 17 September 2019. The coronial investigation was postponed while the criminal proceedings against BW were underway.
On 11 May 2022, the State Coroner received a police coronial report which was accompanied by a large volume of evidentiary material. The coronial report and the attached material identified BW but did not refer to or include the suppression orders which had been made on 20 February 2020. In November 2023, the inquest was listed for hearing from 1 - 12 July 2024. The State Coroner proposes to conduct the hearing in Geraldton. Although the State Coroner subsequently became aware of the Identity Suppression Order, an inquest brief was inadvertently distributed to solicitors for parties who had been granted leave to appear at the inquest. Documents in the inquest brief identified BW.
Applications to vary or discharge the suppression order
On 28 February 2024, the State Coroner applied for an order vacating or varying the Identity Suppression Order. I subsequently programmed that application for a hearing on 30 April 2024. Pursuant to the programming orders, notices of intention to be heard were filed by:
1.BW;
2.the Commissioner of Police;
3.Bernadette Clarke, who is JC's sister; and
4.Anne Jones, who was JC's foster mother, and Caesar Jackson, who is JC's son.
The State Coroner initially applied for an order vacating the Identity Suppression Order. Subsequently, the State Coroner's application was confined to seek a variation of the Identity Suppression Order. That variation was to permit publication to legal representatives of persons appearing at the inquest into the death of JC and to persons in the hearing room at the Coroner's Court during the inquest. Leave was sought retrospectively to regularise earlier inadvertent disclosure of material likely to identify BW to some legal representatives. The Commissioner of Police also sought retrospective leave to provide identifying information to the State Coroner and her staff. Ultimately, no one appearing at the hearing on 30 April 2024 opposed the court making the orders referred to in this paragraph.
JC's family members continued to press for a vacation of the Identity Suppression Order. On 29 April 2024, Bernadette Clarke filed an application seeking to vacate the Identity Suppression Order.
Variation of the Identity Suppression Order on 30 April 2024
After hearing argument on 30 April 2024, I was satisfied that it was in the interests of justice to vary the Identity Suppression Order substantively in the manner proposed by the State Coroner and the Commissioner of Police. The proposed orders had the following effect:
1.Disclosure, including past disclosure, of information which identifies BW to the State Coroner and her staff and to lawyers acting for parties who have been given leave to appear at the inquest is permitted.
2.BW's identity can be revealed in the courtroom in which the inquest is held, as occurred in the trial of the present proceedings.
3.The Identity Suppression Order will continue to prohibit broader dissemination of information likely to identify BW as the accused in this matter by persons who receive identifying information pursuant to the proposed orders.
No party opposed the court making orders having this effect.[19] I was satisfied that variation of the Identity Suppression Order in the manner proposed was necessary to enable the proper conduct of the inquest into JC's death. I was also satisfied that making orders substantively in those terms would not compromise the purposes for which the Identity Suppression Order was made or expose BW or his family to any unacceptable risk of harm. I accepted that past disclosure of identifying information was made inadvertently and was of a nature which should be permitted to enable the proper conduct of the inquest. I considered it appropriate to make orders varying the Identity Suppression Order in advance of determining whether the Identity Suppression Order should be vacated, to avoid impeding the ability of any party to prepare for the inquest into JC's death.
[19] ts 1824 - 1825, 1850 - 1851, 1874.
For these reasons, on 30 April 2024 I made orders having the substantive effect referred to at [39] above and reserved my decision on the application to vacate the Identity Suppression Order.
Position of the parties as to vacation of the Identity Suppression Order
At the hearing on 30 April 2024, counsel for Bernadette Clarke, supported by counsel for Anne Jones and Caesar Jackson, contended that the Identity Suppression Order should be vacated. This was on the basis that the court should not be satisfied that it is in the interests of justice to continue the operation of the Identity Suppression Order.
Counsel for the Commissioner of Police, supported by senior counsel for BW, contended that the court should dismiss the application to vacate the Identity Suppression Order. This was on the basis that the court should be satisfied that it is in the interests of justice for the Identity Suppression Order to continue.
Senior counsel for the State Coroner adopted an essentially neutral attitude to the vacation of the Identity Suppression Order. The State Coroner was satisfied that the variation of the Identity Suppression Order proposed in her re-amended application was sufficient for the proper conduct of the inquest into JC's death. The State Coroner considered that the parties representing the police interests and JC's family's interests were best placed to agitate the dispute as to whether the Identity Suppression Order should be vacated.[20]
[20] ts 1820 - 1821.
The court received the following affidavits which were relevant to the question of whether the Identity Suppression Order should be vacated:
1.An affidavit of Jon Tiller, junior counsel assisting the State Coroner in the inquest, affirmed on 26 February 2024.
2.A confidential affidavit of Joanne Graham, BW's solicitor, sworn 14 March 2024.
3.A confidential affidavit of Assistant Commissioner Darryl Gaunt sworn 26 March 2024.
4.An affidavit of Bernadette Clarke affirmed 12 March 2024.
Power to make, vary and discharge the Identity Suppression Order
The Identity Suppression Order was made under s 171 of the Criminal Procedure Act, which relevantly provides:
(1)In this section, unless the contrary intention appears -
proceedings means proceedings on or in relation to a case.
(2)Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.
…
(4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so -
(a)order any or all persons, or any class of persons, to leave or be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the court;
(b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court;
(c)make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.
(5)The powers in subsection (4) may be exercised by a court at any time after an accused is charged with an offence and before or after the accused first appears in the court on the charge.
(6)An order made under subsection (4) may be made subject to conditions specified by the court.
…
(10)A person who contravenes an order made under this section commits an offence.
An order under s 171(4)(b) may be made by the court either on the application of 'a party to the case' or on the court's own initiative. The term 'party' is defined in s 3 of the Criminal Procedure Act to mean, in relation to a charge, the prosecutor or the accused. The term 'prosecutor' is defined to mean, in the case of a prosecution in a superior court, the authorised officer (as defined in s 80) who commenced the prosecution or a person who in court represents that person. In this case, the prosecutor was the Director of Public Prosecutions who signed the indictment and represented the State at trial. It follows that none of the applicants seeking a variation or discharge of the Identity Suppression order - being the State Coroner, the Commissioner of Police and JC's family members - are a 'party to the case' within the meaning of s 171(4) of the Criminal Procedure Act.
The applications to vary or discharge the Identity Suppression Order are therefore properly treated as invitations by persons with an interest in the matter for the court to vary or discharge the order on its own motion. I am satisfied that the interests of each of the State Coroner, the Commissioner of Police and JC's family members are directly impacted in a manner that makes it appropriate for the court to consider the merits of their requests.
I am also satisfied that the power to make a suppression order under s 171(4) of the Criminal Procedure Act carries with it the implicit power to vary or discharge orders which the court has previously made. There is nothing in the terms of s 171(4) which would prevent the court from exercising that power after the criminal trial has concluded. It is inherent in the terms of the Identity Suppression Order - which operates until further order and was subject to liberty to apply - that its continued operation is subject to variation or cancellation.
Operation of the Identity Suppression Order
The Identity Suppression Order prohibits:
The publication outside of the court room of the image, name, address, and any particular or information that is likely to identify the accused[.]
In contrast to order 1(a) of the orders made on 21 September 2022, the Identity Suppression Order does not merely prohibit the publication of evidence adduced or statements made in the courtroom. However, the order cannot reasonably be read as prohibiting any publication of any information which identifies or is likely to identify BW, irrespective of whether any connection is made with the current proceedings. Otherwise, it would prohibit, for example, the circulation of a photograph of BW among his own family members. Further, such an order would exceed the scope of s 171(4)(b) of the Act, which only provides for the court to prohibit the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court. The relevant particular in this case is the identity of the person who is the accused in the proceedings. The Identity Suppression Order would extend beyond the scope of s 171 if it prohibited the publication of identifying information about BW which was divorced from any connection with the criminal trial.
Rather, the reference to information that is likely to identify the accused is to information which identifies or is likely to identify BW as the accused in these proceedings. For example, the prohibition on the publication of BW's image is not a prohibition on the dissemination of any photograph of BW. It is rather to the publication of BW's image which is likely to identify him as the accused in these proceedings.
The above operation of the Identity Suppression Order was not controversial. However, the parties advanced conflicting submissions as to three aspects of the operation of the Identity Suppression Order.
Reference to 'publication'
The Identity Suppression Order prohibits 'publication outside of the courtroom' of certain particulars and information. Counsel for the Commissioner of Police notes that the term 'publish' has an ordinary meaning - to make generally known or to make information generally available - and a technical meaning used in the law of defamation - to communicate information to another person.[21] Counsel submits that the term 'publication' in the Identity Suppression Order is used in its ordinary meaning. She submits that the prohibition is against making the identity of BW as the accused generally known, accessible or available such as to enable persons who may wish to do harm to BW to identify him as the accused.
[21] Referring to Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; (2008) 72 NSWLR 577 [22] - [23]. See also Re s 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210; (2020) 56 WAR 209 [162] - [166], [265] - [269].
For the following reasons, in my view the order, construed as a whole, prohibits any communication likely to identify BW as the accused in these proceedings.
The Identity Suppression Order, like s 171(4)(b), refers to 'publication outside the courtroom'. As information is not made generally available to the public in a courtroom, the language points to the prohibition being directed to any communication of the relevant information outside the courtroom.
The object of s 171(4)(b), which also uses the term 'publication', could be defeated if publication was not used in a technical sense in that provision. In that event the court could not, for example, prohibit disclosure of the identity of an informer only to persons he or she is informing against or prohibit disclosure of trade secrets only to a particular commercial competitor of the holder of the secrets.
The exceptions to the prohibition created by par 1(c) of the orders made on 21 September 2022 are directed to the communication of information to specified individuals with some connection with the case. These exceptions would be unnecessary if the reference to publication was to making the identity of BW as the accused generally known, accessible or available.
It follows that communications from the Commissioner of Police to the State Coroner and communications from the State Coroner's office to the solicitors for parties given leave to appear at the inquest were captured by the Identity Suppression Order. The Identity Suppression Order would also capture communications of identifying information between individuals and small groups of people which did not involve any dissemination of the identifying information to the public or any section of it.
Fact that BW remains a police officer
BW remains an officer in the Western Australia police force. Since the conclusion of his trial, he has returned to and remains on active duty. Counsel for the Commissioner of Police raised the question of whether disclosure of this fact, even without disclosure of the location at which BW is currently stationed, would be likely to identify BW as the accused in these proceedings within the meaning of the Identity Suppression Order.[22]
[22] ts 1855 - 1856.
In my view, the mere publication of the fact that BW is a serving police officer is not likely to identify him as the accused in these proceedings. Counsel for the Commissioner of Police observed that the information would reduce the possible pool of persons who might be the accused in this trial to currently serving police officers. However, the pool of potential candidates is still very large. There are many thousands of police officers in Western Australia. BW was a constable up to the time of trial, so that he is not distinguished from very many other police officers by rank.
Further, the Identity Suppression Order was made in a context where there had previously been very broad publicity that BW was a police officer when he shot JC and at the time of trial. An order made in that context should not be construed as prohibiting the dissemination of the fact that BW is a serving police officer.
Counsel for the Commissioner of Police also suggested that publication of the fact that BW remains a police officer would make it more likely that someone who has seen him in the courtroom would recognise him as the accused if they happened upon him in public. However, such a person would already know who BW was through observation of the court proceedings. Being told that BW was a police officer would not materially add to the information already in the person's possession.
I am comfortably satisfied that mere publication of the fact that BW remains a serving police officer is not captured by the Identity Suppression Order. The mere revelation of the fact that the accused in this matter is a serving police officer who has returned to active duty is not likely to identify BW as the accused in these proceedings.
Location at which BW is currently serving as a police officer
Counsel for the Commissioner of Police also submits that the identification of the location of the accused's current posting within the police force is likely to identify BW as the accused in these proceedings.
In my view, it is unnecessary and undesirable to determine this question in the abstract at this time. It does not appear to me that identification of the location at which BW is serving as a police officer would necessarily be likely to identify him as the accused in these proceedings. However, much may depend upon the degree of precision with which that location was identified and the context in which and persons to whom the communication was made. To take a hypothetical example, to communicate that a police officer is stationed in the Perth metropolitan area would not be likely to identify the officer as the accused in this trial. But to say that the officer is serving in a particular role at a particular suburban police station might be likely to identify the officer, particularly if the communication was to a person who knew or could readily ascertain that the officer served in Geraldton in 2019.
Practical effect of the Identity Suppression Order
The evidence before me indicates that, to date, the Identity Suppression Order has been effective in limiting disclosure and knowledge of the identity of BW as the accused in these proceedings.
The evidence of Assistant Commissioner Gaunt is that the police force's investigations and assessments indicate that BW's identity as the officer who shot JC is generally not known by JC's family, the Geraldton community, or the community more generally.[23] The police force's assessment is that JC's family and the community generally are unaware of the fact that the officer who shot JC has returned to serve as a police officer or the location at which he is currently serving.[24] On the information available to Assistant Commissioner Gaunt, only a minority of the police officers working at the location where BW is currently stationed are aware he is the officer who shot JC.[25]
[23] Affidavit of Assistant Commissioner Gaunt, pars 90, 95.
[24] Affidavit of Assistant Commissioner Gaunt, pars 93, 96.
[25] Affidavit of Assistant Commissioner Gaunt, par 98.
Ms Graham deposes that BW has instructed her that his identity as the officer who shot JC is not (I infer generally) known to JC's family. BW has instructed her that the current location where he resides and works is also currently unknown to JC's family.[26]
[26] Affidavit of Ms Graham, pars 44 - 45.
Bernadette Clarke's affidavit also indicates that the name of the officer who shot JC is not generally known to the Geraldton community or her family members. She also speaks of the personal and cultural impact of the fact that BW's identity is not known and cannot be revealed by her, to which I will refer later in these reasons.
General principles
The starting point for considering whether the Identity Suppression Order should continue is the open justice principle, which is reflected in s 171(2) of the Criminal Procedure Act. The principle was described in the following terms by French CJ in Hogan v Hinch:[27]
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. (citations omitted)
[27] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] - [21], adopted by the Court of Appeal in AW v Rayney [No 4] [2012] WASCA 117 [30] (Buss JA, McLure P & Newnes JA agreeing).
French CJ identified various established categories in which the open justice principle may be limited, including the identity of a blackmail victim, police informant or undercover police officer. His Honour noted that the categories of cases are not closed, although they will not be lightly extended.[28]
[28] Hogan v Hinch [21].
The ability to freely publish the identities of persons charged with serious criminal offences is an important aspect of the open justice principle. This was recognised by the Court of Appeal in Hill v The State of Western Australia [No 2]:[29]
A corollary of the open-court or open justice principle is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court. At common law, a superior court may, in the exercise of its inherent jurisdiction, make orders that limit or restrict the application of the open-court or open justice principle, and the correlative entitlement to publish a fair and accurate report, by, for example, making a suppression order. However, this jurisdiction may be exercised only where it is reasonably necessary for the proper administration of justice, including securing the fair trial of an accused … The open-court or open justice principle ordinarily includes the publication of the name of the accused in criminal proceedings, both at first instance and on appeal.
Section 171 of the Criminal Procedure Act 2004 (WA) makes provision for proceedings in a court to be in open court and for the courtroom where the court sits to be open to the public. … Nothing in s 171 of the Criminal Procedure Act is relevantly inconsistent with the features of the open-court or open justice principle at common law that we have mentioned.
[29] Hill v The State of Western Australia [No 2] [2022] WASCA 149 [2] - [3].
In Hill, the appellant had successfully appealed against his conviction of serious sexual offences and a retrial had been ordered. The reasons for decision of the court on appeal had been suppressed for the purpose of ensuring a fair retrial. When the Director of Public Prosecutions decided not to proceed with a retrial, the basis for that suppression no longer existed. The appellant sought that a pseudonym be applied to the reasons to be published on the court's website. The appellant deposed that, even after the discontinuance of the prosecution, he had been shunned and suffered other prejudice from employers, fellow employees and others who became aware that he was charged with sexual offences and convicted at the original trial.[30] The Court said:[31]
We are not persuaded … that it is in the interests of justice that, upon general publication of this court's reasons for judgment in the appeal, the appellant's name be removed and replaced by a pseudonym. We accept that the matters deposed to by the appellant in his affidavit are a relevant consideration in determining whether the appellant's name should be removed and replaced by a pseudonym. However, those matters do not outweigh the ordinary application of the open-court or open justice principle which includes the publication of the name of the accused in criminal proceedings, both at first instance and on appeal.
[30] Hill [11].
[31] Hill [12].
The decision in Hill illustrates that it is an exceptional course for the court to suppress the identity of an accused in criminal proceedings even when the accused has been acquitted of serious charges likely to attract public opprobrium or those charges have been discontinued. Mere embarrassment, distress, loss of privacy and shame if the identity of an accused is revealed generally does not justify a departure from the principle of open justice.[32] As Kirby P noted in John Fairfax Group Pty Ltd v Local Court of NSW:[33]
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. (citations omitted)
[32] See Hopley v The State of Western Australia [2014] WASCA 30 [22], [26].
[33] John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131, 142 - 143.
I would not regard BW as a 'powerful litigant'. However, his status as a police officer is a reason for the court to take special care to ensure that departure from the open justice principle in suppressing his identity as the accused in this trial is properly justified in all the circumstances of the case. As McLure P (Buss & Mazza JJA agreeing) noted in Hopley:[34]
It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it.
[34] Hopley [27].
Therefore, the exercise of the court's inherent common law power to prohibit the publication of proceedings depends on the order being really necessary to secure the proper administration of justice in the proceedings. There must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.[35] In my view, similar considerations apply in relation to the exercise of the statutory power conferred by s 171(4) of the Criminal Procedure Act.
[35] Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8].
The reference in s 171(4) of the Criminal Procedure Act to the 'interests of justice' is to a broad concept which accommodates a wide range of considerations. The reference does not exclude from consideration, when appropriate and with significant limitations, the personal interests of those involved in judicial proceedings. It reflects the breadth of matters which may be taken into account when considering whether to make the order.[36]
[36] West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 [31].
The exercise of the court's power under s 171(4) turns on the evaluative assessment of whether the court is satisfied that it is in the interests of justice to make one or more of the orders referred to in the provision. Evaluating where the interests of justice lie may involve weighing competing public policy considerations. But once that evaluation is undertaken, and the court is satisfied that it is in the interests of justice to make one of the specified kinds of order, then the court will do so. I see no significant role for the exercise of a discretion once that state of satisfaction is reached.[37]
[37] Contrast the view expressed by Hall J in The State of Western Australia v Edwards [No 6] [2020] WASC 22 [10].
In conducting that evaluative exercise, it is important to recognise that, as counsel for Bernadette Clarke submitted,[38] the court does not begin with evenly balanced scales. The open justice principle will count strongly against making an order under s 171(4). The question for the court is whether it is positively satisfied that a departure from that principle is warranted. As illustrated by the cases referred to above, the conclusion that the suppression of the identity of an accused in criminal proceedings is warranted will not be reached lightly. That is, as Hall J observed in Edwards [No 6]:[39]
It is only in exceptional circumstances that the courts depart from the principle of open justice by prohibiting publication of the identity of a witness.
There is a public interest in the exposure of court proceedings to public scrutiny to ensure maintenance of confidence in the integrity and independence of the courts. That public interest will generally prevail over the adverse personal consequences to litigants and those associated with them that can arise from the public nature of court proceedings. However, the possibility of collateral damage to litigants, victims and those associated with them is a relevant consideration. That consideration can, in limited circumstances, justify a departure from the ordinary rule relating to court proceedings. (citations omitted)
[38] ts 1830.
[39] Edwards [No 6] [12] - [13].
Parliaments may make provisions intruding upon the open justice principle in certain kinds of cases so as to prohibit the public identification of a party or witness to the proceedings. Common examples include restricting publication of the identities of young offenders,[40] victims of sexual offences[41] and parties to family law proceedings.[42] The court frequently modifies its own behaviour to comply with these legislative requirements, for example by anonymising the names of parties and witnesses in judgments published on the court's website. Often, for example where the relationship between the accused and complainant of a sexual offence is such that to identify the accused would also identify the complainant, judgments published on the court's website will refer to the accused using a pseudonym. Even in the absence of legislative requirements, reasons for judgment available to the public generally may omit references to the names of persons involved or use pseudonyms. The fact that, out of respect for the cultural concerns of JC's family, I have not named her in these reasons is another example of that approach. The combined effect of the above practices is that it is very common for the identity of parties and witnesses to be anonymised in the court's own publications.
[40] Section 35 of the Children's Court of Western Australia Act 1988 (WA).
[41] Section 36C of the Evidence Act 1906 (WA).
[42] Section 243 of the Family Court Act 1997 (WA).
The frequency with which the court may avoid identifying a party or witness in its own publications should not disguise the exceptional nature of a suppression order which prohibits publication by others. In cases of the kind referred to in the previous paragraph, the court does not ordinarily make a suppression order and any restriction on others identifying a party or witness is the result of legislation. In the present case, the court has exercised the power conferred by s 171(4)(b) of the Criminal Procedure Act to prohibit, subject to limited exceptions, any publication likely to identify BW as the accused in these proceedings. There is a significant difference between the court choosing itself not to publish identifying information and the court prohibiting others from doing so. The exceptional nature of a suppression order needs to be kept in mind in deciding whether the Identity Suppression Order should remain in force.
Evaluation of the interests of justice in the present case
In the present case, there are factors which count against the continuation of the Identity Suppression Order, factors which are essentially neutral and factors which count in favour of the continuation of the Identity Suppression Order. I note that counsel for Bernadette Clarke sought to characterise some of the factors relied on by the Commissioner of Police as irrelevant considerations.[43] Given the breadth of the concept of the interests of justice, I do not accept that evidence of those matters is irrelevant. However, I would give some of those matters little weight and do not consider that other matters relied on would justify a suppression order in the present circumstances.
[43] See, for example, ts 1833, 1840 (that BW may be subject to verbal abuse and his employment may be restricted), 1837 - 1839 (the consequences of the public learning that BW is a serving police officer at a particular location), 1839 (the impact of anti-social or violent behaviour on police officers and the allocation of police resources generally).
I turn then to consider the significant factors bearing on my evaluation of where the interests of justice lie in the present case.
Factors counting against continued suppression of BW's identity
In my view, the following factors tend to reinforce the policy against suppression reflected in the open justice principle.
Potential stifling of public discussion about an important issue
Various aspects of this case engage the public interest in, and constitutional protection of, the full and free discussion of matters concerning government affairs.
First, the circumstances of JC's death are such as to merit legitimate criticism of the conduct of police and demand improvement in police procedures. JC was a young Aboriginal woman with mental health issues who was walking along a residential street carrying a serrated bread knife (which admittedly looked more threatening from a distance) and a small pair of scissors. While she was not complying with police directions to drop the knife, she was not, at least up to the very point at which she was shot, behaving in an aggressive or threatening manner. She was surrounded by eight fully equipped police officers in four police vehicles. The community is entitled to expect that the police officers would have been able to achieve an arrest in those circumstances without the use of lethal force. Evidence at trial of police officers who were on Petchell Street at the time JC was shot indicated that, despite all being in radio contact, they were not acting in a planned or coordinated way in dealing with JC.
Secondly, BW was a public officer exercising public powers who claims the use of lethal force against JC to have been authorised and justified by provisions of the Criminal Investigation Act. The public has an interest in the full public examination of, and discussion and debate about, that conduct. This should not be impeded by restrictions on disclosure of information likely to identify BW as the accused in these proceedings.
Thirdly, the question of whether BW should remain a police officer following his conduct on 17 September 2019 is a matter which can be the subject of legitimate public debate. Recognition of that fact is implicit in Assistant Commissioner Gaunt's anticipation of an outraged reaction from portions of the community to publication of the fact that BW is still a serving police officer who has returned to operational duties.[44] In making these observations, I should not be taken to be expressing any view of my own as to whether it is appropriate for BW to continue as a police officer. I am simply recognising that the topic is one capable of legitimate public debate and that debate is likely to occur. Again, that public debate ought not be stifled by restrictions on disclosure of information likely to identify BW as the accused in these proceedings.
[44] Affidavit of Assistant Commissioner Gaunt, par 110.
The State Coroner is satisfied that she can effectively conduct the inquest into JC's death with variations to the Identity Suppression Order to allow full and free discussion within the inquest. However, public discussion of the above matters is not confined to the inquest into JC's death. While much discussion can occur without identifying BW as the accused in these proceedings, the Identity Suppression Order does, in my view, have the potential to stifle that public discussion outside the auspices of the inquest. I have already noted the scope for debate as to whether disclosure of the location at which BW is currently serving as a police officer would contravene the Identity Suppression Order. Disclosure outside the auspices of the inquest of other aspects of BW's training, background and experience might inform public discussion of the issues referred to above but risk contravening the Identity Suppression Order. Further, the practical impact of public statements may be reduced if they can only refer to a faceless, nameless officer.
In my view, the continuation of the Identity Suppression Order does have the potential to restrict or stymie public discussion about important issues arising from the fatal police interaction with JC on 17 September 2019.
Impact of the Identity Suppression Order on community and family
The unchallenged evidence of Bernadette Clarke shows that the above concern as to the impact of the Identity Suppression Order on community discussion is not merely theoretical. Bernadette Clarke is aware of BW's identity as the accused from attending the trial courtroom. She deposes:[45]
Not having the name of the police officer known to the community has brought me a lot of trauma and stress. The trauma and stress has also impacted my siblings and my children as well as the elders in our community.
Not having [the] police officer's name known publicly impacted me because of the fact that I couldn't give my family answers. A lot of them wanted to know what was going on and how come we haven't had him named yet. I had a lot of pressure on me as the leader of my family.
The fact that the officer's name has not been released publicly has also had a significant cultural impact. A lot of elders in the community have been waiting to find out the police officer's name so that he can be held publicly accountable for what he has done and the fact he took a life.
[45] Affidavit of Bernadette Clarke, pars 9 - 11.
I do not read the reference in the above passage to BW being 'held publicly accountable' to involve any threat to BW. Rather, I take it to refer to the accountability which derives from public scrutiny and discussion of the conduct of a public officer exercising public functions in a way that resulted in JC's death.
Bernadette Clarke deposes that being able to have BW's name finally released to the public would assist her and JC's family in the grieving process.
Distrust of police
Assistant Commissioner Gaunt refers to the distrust in, and animosity towards, police felt by persons in the Aboriginal community.[46] I accept that a significant level of such distrust and animosity exists. However, in my view the existence of this level of distrust is a factor counting against, rather than towards, the continuation of the Identity Suppression Order. Secrecy as to the events leading to JC's death, the identity of the officer who fatally shot her and the subsequent role of that officer in the police force is more likely to foster rather than dispel that distrust. This is a case where, in my view, sunlight is the best disinfectant. Openness is more likely to increase rather than reduce the level of trust members of the Aboriginal community have in the police force.
Community perceptions of the court's impartiality
[46] Affidavit of Assistant Commissioner Gaunt, pars 51 - 52, 68(b).
However justified it might be, the Identity Suppression Order is likely to create a perception in the community that a police officer who was charged with a very serious offence has been treated in a way that is different to other offenders. It is most exceptional for the identity of a person charged with unlawful homicide to be suppressed. The fact that this occurs for a police officer is apt to suggest preferential treatment for an officer of the police force, which is an organisation that has an integral role in the system of criminal justice which the courts administer.
The reaction to the Identity Suppression Order which might be expected from many reasonable members of the community is reflected in Bernadette Clarke's evidence:[47]
JC's name and all the details of her life were always in the media but there has been nothing said about the police officer. This doesn't seem fair to me and it doesn't feel like there is any sense of justice as the police officer got special treatment and protection that other people don't get when they go on trial. It feels like there is a real power imbalance and the system is corrupt.
[47] Affidavit of Bernadette Clarke, par 14.
The continuation of the Identity Suppression Order will tend to undermine the community's confidence in the impartiality of the courts in administering criminal justice. As I have noted, that is not a reason for declining to continue the order if it is truly justified. But the perceptions of preferential treatment apt to be created by the order are a factor to be considered in determining where the interests of justice ultimately lie.
Factors which are neutral or of limited significance
Assistant Commissioner Gaunt's affidavit raises several factual matters which, while they provide some background, have very limited impact on my assessment of whether it is in the interests of justice to continue the Identity Suppression Order.
Assistant Commissioner Gaunt refers to the geography, demographics, crime patterns and historical conflicts between different family groups in the Geraldton region. He also refers to incidents of anti-social behaviour which have no obvious connection with death the of JC and BW's trial for her murder. This provides some context as to the need for police to regularly interact with members of the Aboriginal community in Geraldton, in which the risk of harm to police officers serving in that area is to be assessed. However, this general evidence is of limited value in assessing the risk of harm posed to BW and his family if the Identity Suppression Order ceases to operate.
Assistant Commissioner Gaunt expresses concern regarding the effect of publication of the fact that BW remains a serving police officer on BW and his family, police officers generally and the community generally, particularly those living or serving in the Geraldton area. However, as I have noted, the Identity Suppression Order does not prohibit publication of that information. Community reactions to that information becoming generally known are therefore neutral in my assessment of whether it is in the interests of justice to continue the Identity Suppression Order.
Assistant Commissioner Gaunt also expresses concern that disclosure of the location of BW's current posting will give rise to greater risks to the safety, security and well-being of those persons in that location. As I have noted, whether disclosure of information about where BW is currently serving infringes the Identity Suppression Order will depend on the detail disclosed and the circumstances and context in which the disclosure occurs. As a general statement of location will not necessarily infringe the order, the consequences which concern Assistant Commissioner Gaunt may eventuate even if the Identity Suppression Order continues. Further, the extent to which disclosure of the location, as well as the mere fact, of BW's continued role as a serving police officer will increase the risk of public disorder is likely to be marginal. Therefore, while it may favour continuing the suppression of BW's identity to some extent, this factor has very limited impact on my assessment of whether it is in the interests of justice to continue the Identity Suppression Order.
Assistant Commissioner Gaunt makes some reference to the difficulty in recruiting and retaining police officers and the effect of those difficulties on the achievement of State government targets. Given the size of the police force overall, the retention of one or two police officers is unlikely to have a significant impact on the attainment of those targets. Assistant Commissioner Gaunt notes that Geraldton is a popular posting, in part due to the positive impact of community sentiment. He deposes that, should community sentiment change, attraction and retention of officers and staff to Geraldton will be adversely impacted. However, this aspect of Assistant Commissioner Gaunt's affidavit seems in tension with his evidence of animus towards and mistrust of police officers by sections of the Geraldton community, particularly the Aboriginal community. Ultimately, this is not a factor to which I attach any significant weight.
Factors counting in favour of the suppression of BW's identity
The principal factor relied on by the Commissioner of Police and BW in support of the continuation of the Identity Suppression Order is the risk of harm to BW and his family if BW's identity as the accused in these proceedings becomes generally known.
The assessment of that risk is complicated by the requirement to assess risk in a counterfactual scenario to the actual situation, in which BW's identity has been suppressed from the inception of the criminal proceedings so that his identity as the accused has never been generally known.
Assistant Commissioner Gaunt deposes as to his view of the extent of the risk to the welfare of BW and his family if the Identity Suppression Order is vacated. The high point of his opinion is the view that:[48]
I hold the opinion that, if [BW's] identity as the person who shot [JC] is published and becomes widely known, there is a high risk that [BW's] physical safety and that of his family will be endangered. The nature of the risks are varied, including varying levels of verbal and physical abuse as well as property damage.
[48] Affidavit of Assistant Commissioner Gaunt, par 104.
I give considerable weight to the views of a very senior police officer, informed by the intelligence and assessment of the police force, as to the extent of the predicted risks to BW and his family. However, the weight to be given to these views is qualified by the following matters.
There is some ambiguity in the paragraph quoted at [106] above, considered as a whole in the context of the balance of the affidavit, as to whether the reference in the first sentence to 'physical safety' is confined to the risk of physical injury. The second sentence suggests that Assistant Commissioner Gaunt is concerned with verbal and physical abuse as well as property damage.
Later in his affidavit, Assistant Commissioner Gaunt deposes in effect that, in his view, if BW's identity as the accused in these proceedings becomes generally known in the community, there is an extremely high risk that BW and members of his family will be subject to verbal abuse and 'animus in the community' to the detriment of their wellbeing and mental welfare.[49] I accept that the risk of verbal abuse occurring would be very high, and the eventuation of that risk would have a negative impact on BW and his immediate family. However, I am not persuaded that the nature and extent of that risk is such as to, on its own, justify the exceptional course of suppressing the identity of an accused person in criminal proceedings.
[49] Affidavit of Assistant Commissioner Gaunt, pars 110, 114.
In expressing that latter view, Assistant Commissioner Gaunt also appears to contemplate that the risk of physical harm to BW and his family may be low or be able to be mitigated and managed.[50]
[50] Affidavit of Assistant Commissioner Gaunt, par 114.
In this context, there is some ambiguity as to whether Assistant Commissioner Gaunt's assessment of a high risk to the 'physical safety' of BW and his family is an assessment of the risk of physical injury or extends to the impact on mental wellbeing resulting from verbal insults.
Further, Assistant Commissioner Gaunt deposes that the opinion expressed in the passage quoted at [106] above is based on the totality of the matters outlined in section 5 of his affidavit.[51] In section 5 of his affidavit, Assistant Commissioner Gaunt identifies the following events following the death of JC.
1.On 20 September 2019 (three days after JC's death), there was a protest in the main street of Geraldton in respect of JC's death, which lasted several hours. There were approximately 100 people involved in the protest, the majority of whom were, understandably, very emotional and often angry. The protest was mainly peaceful, with a group of approximately nine persons behaving in an abusive manner and accusing police of being murderers. A small number of the persons who participated in the protest damaged a police car in the street.
2.Following BW's arrest for JC's murder on 20 February 2020, there were protests across the State which involved people attending police stations and applying red handprints to the buildings. The protest outside the Geraldton Police Station involved a very angry and volatile crowd of approximately 75 ‑ 100 people who were yelling abuse, accusing police of being murderers and demanding to know BW's name.
3.The events which caused the first trial to be aborted are described above.
4.After the acquittal of BW on 22 October 2021, there was 'community unrest across the State', with protesters covering local police stations and courthouses in handprints.
[51] Affidavit of Assistant Commissioner Gaunt, par 105.
The matters referred to above show the significant emotional impact of JC's death on sections of the community, particularly the Aboriginal community. That emotional impact has resulted in sometimes angry protests. However, the protests have not involved physical violence or threats of physical violence. The only evidence of property damage is damage to a police vehicle by a small number of people in the immediate aftermath of JC's death. The placement of red handprints on public buildings, while a nuisance which no doubt resulted in public cleaning expenses, can be seen as a form of non‑violent artistic protest. Further, it is now over four and a half years since JC's death and two and a half years since the conclusion of BW's trial. The passage of time is likely to have provided an opportunity for emotions to cool somewhat, although anger at the events is unlikely to have entirely dissipated. Even at the times immediately after JC's death and BW's acquittal of her murder, there is no evidence of actual or threatened physical violence to any person.
I also note that there is no suggestion before me that other police officers involved in the incident on Petchell Street on 17 September 2019, whose identities have not been suppressed, have experienced violence or threats of violence.
That said, I do accept that the risk of physical harm to BW and his family is elevated to some extent, over and above that which may be experienced by an ordinary accused. This elevated threat arises by reason of the notoriety of, and public controversy about, the case and the fact that it involves a police officer killing a young Aboriginal woman. As Assistant Commissioner Gaunt notes, the risks arising against this emotional backdrop are difficult to predict.[52]
[52] Affidavit of Assistant Commissioner Gaunt, par 105.
In my assessment, the increased risk of a targeted attack if the Identity Suppression Order is discharged is low. As counsel for Bernadette Clarke submitted, a person contemplating a targeted attack could have discovered BW's identity by attending the trial.[53] There are also measures referred to by Assistant Commissioner Gaunt which can be taken to manage and mitigate the risk of such an attack. I also note that the many persons in a full public gallery of the trial courtroom at the first trial saw what BW looked like and heard his full name as he was arraigned. Anyone in the public gallery of the trial courtroom and the courts to which proceedings were livestreamed would have heard BW's full name when he was arraigned at both trials. Despite this, there is no evidence that BW has been the target of violence or threats of violence.
[53] ts 1847.
It seems to me that the greatest risk of physical violence is of opportunistic offending by a person who recognises BW in passing from media coverage. However, given the serious consequences of violence directed towards police officers, BW's status as a police officer tends to moderate that risk.
I accept the submission of senior counsel for BW that the risks are not to be compartmentalised.[54] There is some degree of elevated risk of physical harm to BW and his family members, as well as property damage, through opportunistic offending. There is a very high risk that BW and his family members will be subject to verbal abuse which, although not sufficient in itself to justify a suppression order, remains a factor to be considered in combination with the elevated risk of physical violence.
[54] ts 1874.
There is potential for public reactions which might follow from the vacation of the Identity Suppression Order to make BW's continued residence and service as a police officer in his current location difficult. BW might reasonably regard continuing in his current location to be untenable. However, a reasonably perceived imperative to relocate employment and residence within the State due to publicity is not an adverse impact which would ordinarily result in the suppression of an accused's name.
In considering the risk of harm which may follow from the vacation of the Identity Suppression Order, I have paid particular regard to evidence as to the circumstances of BW's family. Out of respect for their privacy, and to avoid including information which is likely to identify BW, I have not set out that evidence in these reasons.
Overall, although the nature and extent of the risk is not overwhelming, the risk of harm to BW and his family is a factor that tends to favour the continuation of the Identity Suppression Order.
The interests of justice in this case
In my view, the present case is finely balanced. There is some degree of elevated risk of harm to BW and his family which favours the continuation of the Identity Suppression Order, although the nature and extent of that risk is moderated by the factors to which I have referred. However, the impact of a suppression order on the policy standing behind the open justice principle, particularly the perception of the court as an impartial tribunal, is of particular significance in this case. The continuation of the Identity Suppression Order also has the potential to stifle public discussion of important issues involving police operations and it has had a detrimental impact on JC's family.
On balance, the nature and extent of the risk of harm to BW and his family is not sufficient, in all the circumstances of this case, to warrant a continuation of the departure from the open justice principle through the suppression of BW's identity as the accused in this matter. That risk of harm is outweighed by the policy considerations standing behind the open justice principle and the importance of allowing open public discussion about matters concerning government operations and the exercise of powers by a public officer. Having regard to all of the above matters, I am not satisfied that it is in the interests of justice, as the circumstances now stand, to continue to prohibit publication outside of the courtroom of the identity of BW as the accused in these proceedings. The Identity Suppression Order, and associated orders, should therefore be discharged.
Orders
For the above reasons, I will discharge the following orders relating to the suppression of BW's identity as the accused in these proceedings:
1.The order of Magistrate Millington made on 20 February 2020, that 'the publication/disclosure to any other person of the name, address, image or any other particular which would enable the identification of the accused is prohibited until further order'.
2.The order of Corboy J made on 20 February 2020, that 'the publication outside of the courtroom of the image, name, address, and any particular or information that is likely to identify the accused is prohibited'.
3.Order 1(b) of the order made by this court on 21 September 2022 (ie the Identity Suppression Order).
4.Order 2 of the orders made by this court on 27 March 2024 (which restricts lawyers who have received certain transcripts provided for the purposes of the applications from publishing the transcripts).
5.Orders 3 - 4 and 7 of the orders made by this court on 30 April 2024 (which become redundant once the Identity Suppression Order is discharged).
An advance copy of these reasons will be provided to the parties prior to judgment delivery. I would hear from the parties as to the following matters at judgment delivery:
1.The date at which the order discharging the suppression orders should take effect.
2.Whether any part of these reasons should be redacted before being published on the court's website. I have attempted to avoid disclosing any information which would be likely to identify BW so that the publication of these reasons does not compromise the right of any dissatisfied party to appeal against the orders. However, I will give the parties an opportunity to make submissions about any information disclosed in these reasons, other than the mere fact that BW remains a police officer who has returned to operational duties, which they contend is likely to identify BW as the accused in these proceedings.
3.Whether any order should be made in relation to confidential affidavits and submissions filed on the applications for variation or vacation of the Identity Suppression Order.
Although my provisional view is that there should be no order as to the costs of the applications to vary or vacate the Identity Suppression Order, I would hear from any party who proposes different costs orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
10 MAY 2024
0
13
1