Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.18) [2018] NSWSC 659 Hearing dates: 8 May 2018 Date of orders: 08 May 2018 Decision date: 08 May 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Order until further order, that there be no publication of any information tending to reveal that Mr Robert Barnes: (a) was in any way involved in the investigation of the murder of Colin Stanley Winchester; or (b) gave evidence in the trial in 1995 of David Harold Eastman; or (c) gave evidence to the Board of Inquiry constituted by Acting Justice Martin into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester. (2) Order that this non-publication order is to apply throughout Commonwealth of Australia. Catchwords: CRIMINAL PROCEDURE – application for non-publication order pursuant to Court Suppression and Non-publication Orders Act 2010– application made by prosecution in another Australian jurisdiction – where non-publication order is necessary to prevent prejudice to the proper administration of justice in a separate trial – consideration of the principle of open justice – no prejudice to accused in conducting his defence – non-publication order made Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2; (2014) 9 ACTLR 178 Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly (Accused) M Thangaraj SC (ACT DPP) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020. Non publication order lifted on 14 February 2020. EX TEMPORE Judgment 1. Application has been made by the Australian Capital Territory Director of Public Prosecutions ("ACT DPP") for a non-publication order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 ("the Act"). 2. I am satisfied that the ACT DPP is a person with sufficient interest in the making of the order pursuant to s 9(1)(b) of the Act. That is because the ACT DPP is the party responsible for the prosecution, in a just manner, of the trial of David Harold Eastman, which is a re-trial due to commence on 4 June 2018 in the ACT Supreme Court. 3. I am informed by affidavit that Mr Eastman is charged with the murder of Mr Colin Stanley Winchester, who was then the Assistant Commissioner of the Australian Federal Police. Mr Winchester was killed on 10 January 1989. 4. The initial trial of Mr Eastman was conducted in 1995, at the conclusion of which he was found guilty of the murder of Mr Winchester. 5. On 22 August 2014, as a consequence of the report of a Board of Inquiry into the conviction of Mr Eastman constituted by Martin AJ, the Full Court of the Supreme Court of the Australian Capital Territory ordered that the conviction of Mr Eastman, for the murder of Mr Winchester, be quashed and that there be a new trial on the charge of murder ("the Eastman re-trial"): Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2; (2014) 9 ACTLR 178. 6. I am informed that the Eastman re-trial is expected to last approximately six months. 7. Mr Robert Barnes, an expert witness whom the Crown relies upon in this trial involving Mr Warwick, is listed as a potential Crown witness in the Eastman re-trial. He has apparently been subpoenaed to attend to give evidence at that re-trial. Mr Barnes was an expert witness in Mr Eastman's first trial in 1995 and gave evidence with respect to gunshot residue, cartridge case identification, silencer testing and the analysis of projectile fragments recovered from the scene and from the body of Mr Winchester. 8. As a consequence of what occurred during the hearing of the Board of Inquiry, and as a consequence of the remarks of the Board in its Report, the Crown does not intend to lead the expert forensic evidence of Mr Barnes at the Eastman re-trial. If he is to be called as a witness – and that remains a possibility only – he is to be asked to give evidence of factual matters dealing with the continuity of exhibits of which he was in possession from time to time. 9. Mr Barnes is listed as an expert witness in the present trial of Mr Warwick and I have been informed, and anticipate, that there will be significant issues raised with respect to the admissibility of his evidence and, if admitted, the quality of that evidence, as well as the credibility of Mr Barnes, the acceptability of the expert opinions which he expresses and his character generally, including, without limitation, his professional expertise. It is likely that parts of the attack on Mr Barnes in this trial involving Mr Warwick will involve Mr Barnes' work in the Winchester investigation, his evidence to the first Eastman trial and before the Board of Inquiry. 10. The ACT DPP is concerned that publicity arising from the evidence that Mr Barnes gives in this case, either in-chief or in cross-examination, may create prejudice to the proper administration of justice in the retrial of Mr Eastman and, accordingly, seeks a non-publication order with respect to Mr Barnes' involvement in the investigation of Mr Winchester's death and in the first trial of Mr Eastman. 11. ACT Legal Aid, who is instructed to act for Mr Eastman on the retrial, has been given notice of the application in this Court for the non-publication order. ACT Legal Aid has confirmed by letter that, having received notification of and having considered the application, it supports the application. That letter indicated that they accept, as a basis for their support, the reasons advanced by the ACT DPP. 12. I have an unqualified assurance by senior counsel who appears for the ACT DPP on this application, who is also the senior prosecutor at the Eastman re-trial, that Mr Barnes has not been consulted in any way about the making of this non-publication order, and further that the application made to this Court is not being made at the request of Mr Barnes. No material before this Court demonstrated otherwise. 13. I am also satisfied that a non-publication order of the kind which is sought will not impact in any way upon the accused in this trial. By way of contrast, a suppression order is not sought. All that is sought is that there be no publication of what occurs in the course of this trial, so far as it relates to Mr Barnes, in the ways the order identifies. That places no restriction at all on the lawyers for the accused in the conduct of any attack on Mr Barnes in this Court, and does not seem to me to adversely impact the conduct of this trial. 14. I keep in mind the terms of s 6 of the Act which provides that I must take into account in considering the making of a non-publication order that a primary objective of the administration of justice is to safeguard the public interest in open justice. I keep that primary objective firmly in mind in my consideration of this application. 15. If I am to make a non-publication order, I must do so on one of the grounds set out in s 8 of the Act. The application is put on the basis of the ground identified in s 8(1)(a) of the Act, that the non-publication order is necessary to prevent prejudice to the proper administration of justice. 16. I note that the use of the word "necessary" operates in respect of this ground in a way such that an order of this kind ought only be made in exceptional circumstances. I note that the word "necessary" does not have the meaning equivalent to "convenient", "reasonable" or "sensible" in this provision: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [31] per Bathurst CJ and McColl JA; Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 at [8] per Bathurst CJ. 17. What is in prospect in the Australian Capital Territory is a long, complex re‑trial of a serious crime. It is in the interests of the proper administration of justice that the trial involving Mr Eastman be permitted to occur without any prejudice emanating by a side wind from Mr Warwick's trial. 18. Putting it differently, it is essential that the Eastman re-trial occur without the jury in it being influenced in any way by external factors, including publicity about the adequacy or integrity of the earlier investigation. That is because, to the extent that those matters are relevant to the re-trial, they will be explored in evidence before the jury. The jury ought not be informed of those matters by publicity arising from Mr Warwick's trial. 19. A non-publication order, as I have earlier said, will have, in my assessment, no adverse impact on the accused in this case in the way in which he approaches the defence of these charges. 20. I am therefore satisfied, taking all of those matters into account, that it is necessary in order to prevent prejudice to the proper administration of justice that a non-publication order be made. 21. In acceding to that request, it is obviously necessary to ensure that the non‑publication order is as constrained as is possible, but that it is of a sufficient width to give it effect. 22. Accordingly, I will make an order to the following effect: 1. Order, until further order, that there be no publication of any information tending to reveal that Mr Robert Barnes: 1. was in any way involved in the investigation of the murder of Colin Stanley Winchester; or 2. gave evidence in the trial in 1995 of David Harold Eastman; or 3. gave evidence to the Board of Inquiry, constituted by Martin AJ, into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester. 1. Order that the non-publication order is to apply throughout the Commonwealth of Australia. 2. Grant leave to the ACT DPP, the lawyers for Mr Eastman, the Crown and the lawyers for Mr Warwick, to apply to vary that order upon the giving of 24 hours' notice to all other affected parties. ********** Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020