R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd (No 2)

1. [1]

   On 14 May 2021, I made orders under the Court Suppression and Non-Publications Orders Act 2010 (NSW) (the Act) and gave reasons for my orders: Decision restricted [2021] NSWSC 534.

2. [2]

   My orders included the following:

3. [3]

   Order (2) permitted disclosure to those involved in the proceedings. Order (3) permitted disclosure to those with a commercial or regulatory interest in the material.

4. [4]

   On 9 June 2021, after the orders referred to above were made, I imposed a sentence on Jacobs Group (Australia) Pty Ltd (the corporate offender) and gave reasons for sentence: Decision restricted [2021] NSWSC 657 (the Reasons). An unredacted version of the Reasons was provided to the Crown, the corporate offender and each of the accused persons: Mark Read, Geoffrey Linke, Paul Dougas, Paul Casamento and Andrew Counihan. A restricted version of the Reasons, which comprised the Medium Neutral Citation and the catchwords, was posted on Caselaw, as follows:

5. [5]

   On 17 June 2021, I varied order (2)(a) to permit access to be granted to the Commonwealth’s legal representatives, intergovernmental agencies and State, Territory and Government agencies.

6. [6]

   By email to my Associate dated 1 July 2021, Emily McLennan, a solicitor at Allens Linklaters, requested access to the Reasons. The basis for her request was, as stated in her email:

7. [7]

   Ms McLennan offered to give undertakings not to publish any material containing reference to the matters covered by the non-publication orders.

8. [8]

   By amended notice of motion dated 12 August 2021, the Crown seeks that further exceptions to order (1) be made. The effect of the proposed further variation would be to permit the Commonwealth Director of Public Prosecutions (the CDPP), the Australian Federal Police (the AFP) or any legal representative, or employee, of the Commonwealth to provide a copy of the Reasons to “lawyers representing corporations investigated or prosecuted by a Commonwealth agency”. Further, the Crown does not oppose access to the Reasons being granted to Ms McLennan.

9. [9]

   The Crown’s application is supported by an affidavit of Geoffrey Turner, Federal Agent, Commander Crime, sworn 16 August 2021 and an affidavit of Hannah Amelia Iris White, a Federal Prosecutor at the CDPP, affirmed 17 August 2021. Federal Agent Turner has responsibility for overseeing Australia’s foreign bribery enforcement strategy. He deposed that the AFP has a number of ongoing foreign bribery investigations that relate to Australian corporations and that, “in many cases there is ongoing engagement with legal and financial representatives of those corporations”. These representatives include Deloitte, Allens Linklaters, Clayton Utz and Arnold Block Leibler. The AFP also expects some corporations to self-report, in accordance with the CDPP’s Best Practice Guidelines: Self-reporting of foreign bribery and related offending by corporations (20 December 2017). Federal Agent Turner deposed that it would assist the AFP’s ongoing engagement with such representatives if it could give those representatives access to the Reasons. Ms White’s evidence is to similar effect although she also deposed that the Reasons might also be useful with respect to other Commonwealth offences which carry similar maximum penalties to the one I considered in the Reasons (with respect to s 70.2(5) of the Criminal Code Act 1995 (Cth) (Criminal Code)). Both deponents undertake to provide a copy of my non-publication orders to any recipient of the Reasons.

The facts

1. [10]

   The position of each accused person and the corporate offender with respect to the Crown’s application is as follows.

2. [11]

   Neither the corporate offender, nor Mr Casamento, nor Mr Read, wished to be heard against the Crown’s application.

3. [12]

   Mr Livermore QC and Ms Anniwell submitted on behalf of Mr Counihan that the proposed “carve-out” (“lawyers representing corporations investigated or prosecuted by a Commonwealth agency”) in the amended notice of motion was too broad; that it was not warranted; and that, if ordered, there was a risk that the efficacy of the non-publication orders would be undermined. They indicated that they would consent to publication of the Reasons in a form whereby the names of the accused, the co-accused and the company were anonymised and any other parts of the Reasons which would otherwise identify those parties were redacted. They also sought a further requirement that any lawyers to whom the redacted Reasons were provided would need to be identified and would need to fulfil the requirement that they were briefed or retained in matters concerning corporations investigated or prosecuted for foreign bribery offences.

4. [13]

   It was further submitted on behalf of Mr Counihan that the circumstances, which included Ms McLennan’s request, did not constitute a change in circumstances which would warrant a review of the non-publication orders pursuant to s 13 of the Act.

5. [14]

   Mr Pararajasingham submitted on behalf of Mr Dougas that the Crown’s application ought be dismissed. He adopted the submissions made on behalf of Mr Counihan. Mr Linke opposed the Crown’s application for the Reasons to be provided to the expanded categories of people set out in the amended notice of motion and adopted the submissions made on behalf of Mr Counihan and Mr Dougas.

6. [15]

   In response, the Crown opposed the compromise position proposed on behalf of Mr Counihan in the following terms:

7. [16]

   Further, the Crown submitted, without elaboration, that the anonymisation of the Reasons was “unnecessary”.

Consideration

1. [17]

   It is the responsibility of the sentencing judge to set out the findings of fact in order that the basis of the sentence imposed is clear. These findings of fact were largely agreed but were relatively detailed because of the sophistication of the transactions involved. The location and nature of the business conducted by the corporate offender might be sufficient to identify the company and, by implication, its officers. Thus, publication of the redacted Reasons still has the potential to put the trial at risk.

2. [18]

   I set out the basis for the non-publication orders made at [59] of my reasons as follows:

3. [19]

   In substance, as my reasons for making the orders on 14 May 2021 indicate, I decided that it was necessary to protect the administration of justice to make the orders since the corporate offender had pleaded guilty to offences based on the actions of individuals who were entitled to the presumption of innocence. If publication of the matters referred to in the order was allowed, there was a potential for the publication to prejudice the trials of the individual accused which are listed for hearing in early 2022. For this reason, I ensured that, only a restricted judgment was published on Caselaw (in the form extracted above).

4. [20]

   The Crown has failed to engage with the proposition advanced on behalf of Mr Counihan that there is no need for advisers or representatives of other clients to know the name of the corporate offender or the individuals through whom it acted, some of whom stand charged and are to be tried next year. It is difficult to see how the advice given by the representatives of those charged with foreign bribery or those who are being investigated for that offence would be improved by knowledge of the names of the accused or the corporate offender. For example, it is common for the names of sex offenders to be anonymised in published judgments to protect the identity of the complainants. In this way, the judgments can still serve the purposes of general deterrence and education, while ensuring that the inroad into the principles of open justice is relatively slight.

5. [21]

   However, there is a relevant difference between sex offences and foreign bribery offences. Because sexual abuse is so clichéd, and can only be performed in certain ways, anonymisation of the names of perpetrators and victims is usually sufficient to protect the identity of the victims. By contrast, the circumstances of the offending in the present case (which include location and the contracts for which the corporate offender was submitting tenders) has the potential to implicate the individual accused, even if their names and the name of the corporate offender are redacted.

6. [22]

   Further, insofar as there may be interest in the meaning of “benefit” in s 70.2(5) of the Criminal Code (which I note is the subject of ground 1 of the Crown appeal against the sentence imposed on the corporate offender), this interest need not extend to the name of the corporate offender or the names of individual accused.

7. [23]

   As I endeavoured to explain in my reasons for making the non-publication orders, I am concerned about protecting the fairness of the trials of the accused. I accepted the arguments raised on behalf of the accused that disclosure of the Reasons and associated documents posed a very substantial risk to the fair trial of the accused. Jurors could not be expected to appreciate that an admission by a corporation that its conduct through a human agent, does not incriminate the human agent. Thus, publication of the Reasons in a manner which could reach potential jurors could be highly prejudicial.

8. [24]

   I accept Mr Livermore’s submissions that the categories proposed by the Crown are far too broad to be helpful. The evidence adduced by the Crown does not indicate how many people would fall into the categories proposed. Further, I would resist the suggestion that it was appropriate to have a group of persons who are entitled to be “in the know” as to the identity of the corporate offender and the accused when there is no particular reason why they ought to know in advance of the final determination of the trials of the individual accused. Once these have concluded, the Reasons in their unredacted form can be published without restriction, having regard to the duration of the non-publication orders.

9. [25]

   The safeguard proposed by the Crown, that the CDPP undertakes to provide a copy of any non-publication order when furnishing a copy of the Reasons to the relevant legal representatives “in order to ensure that the sentencing remarks are not further disseminated or published to the public or a section of the public”, is inadequate. The only reason the legal representatives will want to have access to the Reasons (apart from continuing legal education) is to provide advice to clients. Once the advice is provided to the clients of the legal representatives in a way which discloses the Reasons, the purpose of the non-publication order is potentially thwarted.

10. [26]

    The Crown has proposed limitations such that an exception to the prohibition in order (1) of the non-publication orders would apply only to legal representatives of particular firms. There is no principled reason why the exception ought be limited in this way and no basis for conferring what might be regarded as a competitive advantage on particular firms. Further, as the present case indicates, there is significant potential for conflict between corporations and their associates or employees, which would necessitate separate representation of each person, whether corporate or natural, involved in the alleged offending. For this reason, I propose to limit the legal representatives who can have access to the Reasons to those who have been instructed or retained by persons who have been charged with foreign bribery offences or who are the subject of investigation for such offences, without reference to the firms with which such legal representatives are associated.

Conclusion

1. [27]

   For the reasons given above, I am not persuaded that it is appropriate to amend the non-publication order as proposed by the Crown. I accept the submissions made on behalf of Mr Counihan (which were adopted by Mr Dougas and Mr Linke). I consider that the amendment proposed by Mr Livermore and Ms Anniwell, modified as set out below, will serve the needs of open justice and protect the administration of justice and, most importantly and relevantly, protect the rights of the accused persons to a fair trial.

2. [28]

   The orders which I propose are as follows:

   1. (1)

      Vary the orders made on 14 May 2021 and varied on 17 June 2021 by adding the following subparagraph:

3. [29]

   I will leave it to the opponents to the Crown’s amended notice of motion (Mr Counihan, Mr Dougas and Mr Linke) to propose redactions to the Reasons. A draft redacted version can then be provided to the Crown and the other parties with a view to the parties agreeing on a redacted version for the purpose of my proposed orders. Once agreed, the agreed form redacted Reasons is to be provided my Associate with proposed short minutes of order, so that the orders can be made in chambers. If adjudication is required, the matter can be re-listed before me for that purpose.

Orders

1. [30]

   For the reasons given above, I make the following orders:

   1. (1)

      Direct the parties to agree, if possible, on a redacted version of the remarks on sentence in respect of Jacobs Australia (the Redacted Reasons), for the purposes of the proposed variation to the non-publication orders set out in these reasons.

   2. (2)

      Direct the parties to provide to my Associate an agreed form of the Redacted Reasons and draft short minutes or order, or, in the absence of agreement, competing versions, by 3 September 2021, with a view to the orders being made in chambers.

   3. (3)

      Otherwise dismiss the Crown’s amended notice of motion dated 12 August 2021.

   4. (4)

      Grant liberty to the parties to restore the matter on 3 days’ notice.