Citation: Qiangdong Liu v Fairfax Media Publications Pty Ltd & Ors [2018] NSWCCA 159
Court: Court of Criminal Appeal, New South Wales
Date: 31 July 2018
Judge(s): Hoeben CJ at CL, Price J, Wilson J
Background
The underlying proceedings were a sexual assault trial in the District Court. The accused was alleged to have sexually assaulted the complainant following a birthday party he had hosted at a property belonging to the applicant. The applicant played no part in the alleged offending and faced no criminal charges.
The applicant was a prominent Chinese billionaire and founder of a major e-commerce company. When the complainant's evidence mentioned him in passing, he applied for a non-publication order to prevent any reporting that could identify him in connection with the trial, citing potential financial harm to his company and personal embarrassment.
The trial judge made an interim non-publication order to avoid delaying the complainant's evidence while the application was heard properly. Once the jury had retired to consider its verdict, the trial judge heard the application in full and refused to make a final order, revoking the interim order. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal on an urgent basis.
Legal Issues
- Whether the trial judge erred in finding it was not necessary in the public interest to make a non-publication order under s 8(1)(e) of the Courts (Suppression and Non-Publication Orders) Act 2010 (NSW)
- Whether the trial judge erred in concluding that the public interest in open justice outweighed the public interest in making the order
- Whether the trial judge erred in finding it was not necessary to make an order to avoid undue distress or embarrassment to the applicant under s 8(1)(d) of the Act
- Whether leave to appeal should be granted at all, including whether the trial judge's reasons were adequate
Decision
Wilson J (with whom Hoeben CJ at CL and Price J agreed) refused leave to appeal and revoked the temporary order that had been in place pending the urgent hearing.
The Court found that the trial judge's reasons were considered and thorough. Her Honour had referred to the evidence, correctly identified and applied the relevant legal tests, and was plainly unpersuaded that any real harm to the applicant or his company would result from accurate reporting of his very limited involvement in events connected with the alleged offences.
On the merits, Wilson J found no basis for granting a non-publication order. The applicant's real concern was simply that he would be publicly associated with a criminal trial, an outcome he would prefer to avoid. The Court observed that this position is common to many witnesses caught up in criminal proceedings through no fault of their own, but that reluctance to be named, or mere discomfort and embarrassment, does not meet the threshold required by the Act.
The Court reaffirmed that there is a strong public interest in full reporting of criminal trials, and that open justice is a fundamental principle to be displaced only in circumstances where a particularly compelling reason exists. This was not such a case.
Orders Made
- Leave to appeal refused
- Temporary non-publication order revoked
Key Takeaways
- Under the Courts (Suppression and Non-Publication Orders) Act 2010 (NSW), a non-publication order may only be made where one or more of the specific grounds in s 8 are established; the threshold is not met by a witness's desire to avoid public association with a criminal trial.
- Mere discomfort, embarrassment, or reputational inconvenience is insufficient to satisfy either the "undue distress or embarrassment" ground under s 8(1)(d) or the public interest ground under s 8(1)(e).
- The Court of Criminal Appeal confirmed that the public interest in open justice is a strong default and will yield only to particularly compelling countervailing considerations.
- Potential financial harm to a witness's commercial interests does not, without more, constitute a basis for suppressing information that identifies that witness in trial proceedings.
- An interim non-publication order made under s 10 of the Act without determination of the merits does not carry any presumption in favour of a final order; the merits must be properly assessed when the application is ultimately heard.
Legislation and Cases Referenced
Legislation
- Courts (Suppression and Non-Publication Orders) Act 2010 (NSW), ss 3, 7, 8, 10, 14
Cases
- Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
- R v AB [2018] NSWCCA 113