THE STATE OF WESTERN AUSTRALIA -v- PYE [2026] WASC 149

[2026] WASC 149 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- PYE [No 5] [2026] WASC 149 CORAM : MCGRATH J HEARD : 24 APRIL 2026 DELIVERED : 24 APRIL 2026 FILE NO/S : INS 6 of 2023 BETWEEN : THE STATE OF WESTERN AUSTRALIA Prosecution AND DAVID JAMES PYE Accused Catchwords: Criminal law - Practice and procedure - Suppression order - Whether the court is satisfied that it is in the interests of justice to continue the order - Whether suppression order ought to be set aside - Whether suppression order opposed by media outlets - Openness of court - 'Interests of justice' Legislation: Criminal Procedure Act 2004 (WA) s 171 Result: Suppression orders set aside -- 1 of 11 -- [2026] WASC 149 Page 2 Category: B Representation: Counsel: Prosecution : Mr J Whalley SC Accused : Mr P Holmes BLJ (Applicant) : Mr F Merenda Intervenor (The West Australian Newspapers Ltd) : Mr A McCarthy Intervenor (Swan Television & Radio Broadcasters Pty Ltd) : Ms C Galati Intervenor (Australian Broadcasting Corporation) : Ms J Sims Solicitors: Prosecution : Director of Public Prosecutions (WA) Accused : Holmes Criminal Lawyers BLJ (Applicant) : David Manera Barrister and Solicitor Intervenor (The West Australian Newspapers Ltd) : Mr A McCarthy Intervenor (Swan Television & Radio Broadcasters Pty Ltd) : Ms C Galati Intervenor (Australian Broadcasting Corporation) : Ms J Sims Case(s) referred to in decision(s): Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Re Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 The State of Western Australia v BLJ [2021] WASCSR 57 The State of Western Australia v BW [2024] WASC 163 The State of Western Australia v Edwards [No 6] [2020] WASC 22 The State of Western Australia v Pye [2025] WASC 566 -- 2 of 11 -- [2026] WASC 149 Page 3 The State of Western Australia v Pye [No 4] [2026] WASC 37 West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 -- 3 of 11 -- [2026] WASC 149 MCGRATH J Page 4 MCGRATH J: (This judgment was delivered extemporaneously.) 1 This is an application by a person known as BLJ to lift suppression orders made by the court restricting the publication of his name. 2 On 12 December 2020, BLJ intentionally killed Mr Nick Martin by shooting him from a distance of 365 metres at the Perth Motorplex. A single bullet discharged by BLJ killed Mr Martin and caused bodily injury to another person, Mr Ricky Chapman, who happened to be present at the public arena. 3 BLJ pleaded guilty to four charges in proceedings INS 38 of 2021, namely that he murdered Mr Martin; that with intent to harm Mr Martin he did an act which caused a bodily injury to Mr Chapman; and two charges of dealing with money that was used in connection with an offence.1 4 On 20 December 2021, Hall J sentenced BLJ to a total effective term of 20 years' imprisonment after receiving a significant discount upon giving an undertaking to give testimony at any trial of another.2 5 On 16 December 2021, Hall J made orders prohibiting the publication outside the courtroom of information which may reveal the identity of BLJ, including the name of the accused or his image (suppression order (INS 38 of 2021)). The suppression order was made administratively. During the hearing of this application, counsel for the State confirmed that the State requested the suppression order because BLJ had made an undertaking to assist law enforcement and give testimony at the trial of Mr Pye. Accordingly, the sentencing remarks of Hall J anonymised BLJ's true name. 6 On 22 December 2021, BLJ commenced an appeal against sentence which was ultimately discontinued. 7 On 10 February 2023, the Court of Appeal (Quinlan CJ, Buss P and Mazza JA) made orders that no person or entity is to communicate, transmit or publish to any other person or entity the name of the appellant or any information, image or description that may reveal, directly or indirectly, the identity of the appellant, without the prior 1 The State of Western Australia v BLJ (INS 38 of 2021). 2 The State of Western Australia v BLJ [2021] WASCSR 57. -- 4 of 11 -- [2026] WASC 149 MCGRATH J Page 5 leave of a judge of the Court of Appeal (Court of Appeal suppression order (CACR 196 of 2021)). 8 On 24 February 2026, the Court of Appeal (Quinlan CJ and Thomson P) set aside the suppression order in respect to BLJ. The application to set aside the Court of Appeal suppression order (CACR 196 of 2021) was made by BLJ. The State consented to the order being set aside. 9 Mr Pye was indicted on six counts in proceedings INS 6 of 2023, namely that he murdered Mr Martin; that with intent to harm Mr Martin he did an act which caused a bodily injury to Mr Chapman; two charges of inciting BLJ to commit the offence of murder and two charges of dealing with money that was used in connection with an offence. 10 On 9 July 2024, Mr Pye made an application that his trial be conducted by judge alone. On 10 January 2025, Fiannaca J ordered that the trial be held before a judge alone.3 11 On 26 July 2024, Fiannaca J made a suppression order that the publication outside the courtroom of any information which may reveal the identity of the person convicted in the Supreme Court of Western Australia of the murder of Mr Martin on Indictment 38 of 2021, including the name of the person or his image, is prohibited (suppression order (INS 6 of 2023)). The application for the suppression order was made by the State and not opposed by Mr Pye. 12 BLJ gave evidence at the trial of Mr Pye which was held in October 2025. On 20 February 2026, after trial, I convicted Mr Pye of six counts comprising two counts of inciting BLJ to commit the offence of murder, one count of murdering Mr Martin, one count of unlawfully doing an act as a result of which bodily harm was caused to Mr Chapman and two counts of dealing with money that was intended to be used in connection with an offence, namely murder.4 13 Throughout the proceedings in court, BLJ's name has been subject to suppression orders. 14 On 1 April 2026, BLJ filed an application to set aside suppression order (INS 6 of 2023). During the hearing of this application, counsel applied to amend the application to also set aside suppression order (INS 38 of 2021). I granted leave to BLJ to amend the application. 3 The State of Western Australia v Pye [2025] WASC 566. 4 The State of Western Australia v Pye [No 4] [2026] WASC 37. -- 5 of 11 -- [2026] WASC 149 MCGRATH J Page 6 15 The State does not oppose the setting aside of the suppression orders. However, Mr Pye contends that the suppression orders should remain given that he is yet to be sentenced in respect to the six counts upon which he was convicted and that it is open to him to appeal his conviction and sentence. Mr Holmes submitted that any retrial may be conducted before either a judge and jury or by judge alone and that the publication of BLJ’s name may affect the integrity of the trial process and therefore, compromise the ability of Mr Pye to have a fair trial. BLJ's reasons for applying to set aside the suppression orders 16 In support of the application to set aside the suppression orders, BLJ relies upon the affidavit of Mr Manera, legal practitioner, sworn 1 April 2026. 17 BLJ seeks to set aside the suppression orders for the following reasons:5 1. The suppression orders are creating difficulties with his life in custody, including mail often being blocked or not received and people having difficulties making visit bookings to see him. 2. BLJ would like to enrol in a health science degree by correspondence through a university but cannot do so as he cannot use his own name. 3. When moving through prison BLJ has to use false names/aliases and does not wish to be known by a pseudonym. Rather, BLJ wishes now to be called by his proper name. 4. BLJ believes that his identity is known by many members of the prison population; and 5. BLJ does not have any fears for his own safety. 18 Mr Manera deposes that BLJ understands that the State does not oppose the setting aside of the suppression orders. That belief is well-founded and was confirmed by Mr Whalley SC during the hearing of this application. 5 Affidavit of Mr Manera [14]. -- 6 of 11 -- [2026] WASC 149 MCGRATH J Page 7 Relevant legal principles 19 The suppression orders were made under s 171 of the Criminal Procedure Act 2004 (WA), 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. Penalty: (a) for an individual, a fine of $12 000 or imprisonment for 12 months; (b) for a corporation, a fine of $60 000. -- 7 of 11 -- [2026] WASC 149 MCGRATH J Page 8 20 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 whose representative represented the State at the trial of Mr Pye and the sentencing of BLJ. BLJ, being the accused in INS 38 of 2021, is a party in proceedings INS 38 of 2021. 21 However, BLJ, being a witness in INS 6 of 2023 is not a 'party to the case' within the meaning of s 171(4) of the Criminal Procedure Act. The parties to INS 6 of 2023 are the Director of Public Prosecutions and Mr Pye. The application to set aside the suppression order (INS 6 of 2023) may be understood as an invitation by a person with an interest in the matter for the court to vary or discharge the order on its own motion.6 I am satisfied that the interests of BLJ are directly impacted by the suppression order in a manner that makes it appropriate for the court to consider the merits of the application in respect to suppression order (INS 6 of 2023). 22 Similarly, Mr Pye was not a party to proceedings INS 38 of 2021. I am satisfied that the interests of Mr Pye are directly impacted by the suppression order made in INS 38 of 2021 and therefore, the merits of his opposition to the setting aside of that suppression order will be considered. 23 I have also granted leave to West Australian Newspapers Ltd, Swan Television & Radio Broadcasters Pty Ltd (being the licensee of Channel Nine Perth) and the Australian Broadcasting Corporation to participate in the proceedings as intervenors.7 24 In considering this application, a paramount consideration is the open justice principle, which is reflected in s 171(2) of the Criminal Procedure Act. In Hogan v Hinch,8 French CJ stated as follows in respect to the open justice principle: 6 The State of Western Australia v BW [2024] WASC 163. 7 Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, 171 - 172 (Malcolm CJ). 8 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] - [21]. -- 8 of 11 -- [2026] WASC 149 MCGRATH J Page 9 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) 25 In Hogan v Hinch, French CJ identified various established categories in which the open justice principle may be limited but noted the categories are not closed, although they will not be lightly extended.9 Suppression orders have been made where the safety of an alleged co-offender might be at risk because of their cooperation with law enforcement authorities.10 26 The open justice principle includes the publication of the name of the accused or offender in criminal proceedings, both at trial and on appeal. 27 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.11 28 In West Australian Newspapers Ltd v The State of Western Australia,12 the issue was whether it was in the interests of justice to make a suppression order under s 171(4)(b) prohibiting the publication of the identity of a witness. At [31] Owen JA said: The 'interests of justice' is a broad concept and accommodates a wide range of considerations. It should not exclude from consideration, when appropriate and with significant limitations, the personal interests of 9 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21]. 10 Re Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172. 11 West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 [31]. 12 West Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10. -- 9 of 11 -- [2026] WASC 149 MCGRATH J Page 10 those involved in judicial proceedings. The phrase should not be limited, as the appellants suggested, to mean 'in the interests of the administration of justice'. The phrase means exactly what it says. It must be given a meaning which properly reflects the breadth of the matters which may be taken into account when considering whether to make an order. 29 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. I agree with Mitchell J in The State of Western Australia v BW13 that when 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. Mitchell J stated that there is no significant role for the exercise of a discretion once that state of satisfaction is reached. Evaluation of the interests of justice 30 In the present case, there are significant factors which count against the continuation of the suppression orders. The factors that warranted the making of the suppression orders are no longer relied upon by the State and BLJ. The factors raised by Mr Pye that are contended to count in favour of the continuation are limited. 31 The suppression orders were made upon the application of the State. Counsel for the State confirmed that the suppression orders were sought by the State for the reason that BLJ had given an undertaking to provide assistance to law enforcement and to give evidence at any trial of another. The underlying rationale was that the suppression orders would provide anonymity to BLJ and thereby, serve to protect his personal safety. 32 Mr Manera deposes that BLJ wishes to be known by his own name. The suppression of his name is causing BLJ difficulties in prison with the anonymity affecting the attendance of his visitors and him being unable to enrol in tertiary study. BLJ considers that his identity is now known by members of the prison population and that he does not have any fears for his own safety. 33 At the hearing of this application, the State did not make any submissions contradicting BLJ's contention that his identity is now 13 The State of Western Australia v BW [2024] WASC 163. -- 10 of 11 -- [2026] WASC 149 MCGRATH J Page 11 known within the prison population. In respect to the safety issue, counsel for the State confirmed that WA Police had been consulted and that the State no longer contended that the suppression orders were necessary to ensure the safety of BLJ. 34 In opposing the setting aside of the suppression orders, counsel for Mr Pye submitted that an appeal will be lodged in respect to his conviction and if that appeal is allowed and a retrial ordered, BLJ will be required to give evidence. Therefore, the setting aside of the suppression orders is premature. 35 I do not accept this factor warrants the continuation of the suppression orders. Whether BLJ is known by his own name or he remains anonymous will not have any bearing on him giving evidence at any future trial, should the appeal against conviction be allowed. Rather than being referred to as BLJ, he will be known by his true name. The publication of the name of BLJ will not affect Mr Pye having a fair trial, should that eventuate, whether that trial is before a judge and jury or by judge alone. The suppression orders were never made on the basis that the anonymity of BLJ was necessary to ensure a fair trial for Mr Pye. 36 There is a very strong public interest in court proceedings being conducted openly to ensure public scrutiny which in turn ensures the maintenance of confidence in the integrity and independence of the court. There is no longer any reason in the circumstances of this case to justify a departure from the ordinary rule relating to court proceedings. 37 Accordingly, I grant the application. I set aside suppression order (INS 38 of 2021) made by Hall J and suppression order (INS 6 of 2023) made by Fiannaca J. There is no longer any restriction on the publication of the name of the person known as BLJ. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CEM Associate to the Hon Justice McGrath 24 APRIL 2026 -- 11 of 11 --