Citation: R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd (No 2) [2021] NSWSC 1084
Court: Supreme Court of New South Wales
Date: 26 August 2021
Judge: Adamson J
Background
This decision concerns an application to vary existing suppression and non-publication orders made in the context of complex criminal proceedings involving a corporate offender and five individual accused persons. The corporate offender had pleaded guilty to charges of conspiring to cause offers of bribes to foreign public officials, contrary to the Criminal Code Act 1995 (Cth). The individual accused persons were yet to stand trial at the time of this decision.
Adamson J had previously sentenced the corporate offender on 9 June 2021 and delivered detailed sentencing remarks. Those remarks remained suppressed to protect the fair trial rights of the individual accused. A restricted version, containing only the citation and catchwords, was publicly available on Caselaw; the full unredacted reasons had been provided only to the Crown, the corporate offender, and the accused.
The Crown then sought to vary the suppression orders further, seeking to expand the categories of persons permitted to receive the sentencing remarks. The immediate prompt for the application was a request from a solicitor at a major law firm advising corporations in connection with proceeds of crime applications brought by the Australian Federal Police (AFP).
Legal Issues
- Whether the Crown's proposed exemption, permitting disclosure to "lawyers representing corporations investigated or prosecuted by a Commonwealth agency," was appropriately scoped
- Whether the circumstances (including the solicitor's access request) constituted a sufficient change in circumstances to warrant review of the suppression orders under section 13 of the Court Suppression and Non-Publications Orders Act 2010 (NSW)
- How to balance the need to protect the individual accused persons' right to a fair trial against the interests of open justice and the AFP's legitimate law enforcement objectives
Decision
Adamson J accepted that there was a legitimate basis for expanding access to the sentencing remarks, given evidence from the AFP and the Commonwealth Director of Public Prosecutions (CDPP) that the reasons would assist ongoing engagement with corporations under foreign bribery investigation. Federal Agent Turner deposed that a number of Australian corporations were under active AFP investigation, and that access to the remarks would facilitate the AFP's engagement with those corporations' legal and financial representatives. Ms White, a Federal Prosecutor, added that the reasons could also be relevant to other Commonwealth offences carrying similar maximum penalties.
However, the court found the Crown's proposed exemption to be too broad. The phrase "lawyers representing corporations investigated or prosecuted by a Commonwealth agency" extended well beyond foreign bribery matters and risked undermining the efficacy of the non-publication orders. Several accused persons, through their counsel, opposed the broad carve-out and proposed instead that a redacted version of the reasons, with names and identifying details anonymised, be made available under narrower conditions. The Crown resisted anonymisation, describing it as unnecessary, but offered no elaboration for that position.
Adamson J preferred the narrower approach. The court determined that disclosure should be limited to legal representatives retained or briefed specifically in connection with investigations or prosecutions for foreign bribery offences under section 70.2 of the Criminal Code, with additional procedural safeguards: each recipient must identify themselves and their client to the Crown, and must acknowledge receipt of the non-publication orders in writing. The court also required that disclosure be of a redacted version of the sentencing remarks, with identifying particulars removed to reduce the risk that the corporate offender's identity would be revealed, which could in turn identify the individual accused.
The Crown's amended notice of motion was otherwise dismissed. The court directed the parties to attempt to agree on a redacted form of the reasons by 3 September 2021, with the agreed text and draft short minutes to be provided to the Associate so that the orders could be made in chambers.
Orders Made
- The parties were directed to agree, if possible, on a redacted version of the sentencing remarks in respect of the corporate offender (the Redacted Reasons) for the purposes of the proposed variation to the non-publication orders
- The parties were directed to provide to the Associate an agreed form of the Redacted Reasons and draft short minutes of order, or competing versions in the absence of agreement, by 3 September 2021, with a view to orders being made in chambers
- The Crown's amended notice of motion dated 12 August 2021 was otherwise dismissed
- Liberty to restore was granted to the parties on three days' notice
Key Takeaways
- The Supreme Court confirmed that suppression orders can be varied to permit limited disclosure of sentencing reasons where a legitimate law enforcement or regulatory purpose is established, provided the exemption is precisely drawn
- A proposed exemption framed by reference to "lawyers representing corporations investigated or prosecuted by a Commonwealth agency" was too wide, because it extended beyond the specific foreign bribery context that justified the disclosure and risked eroding the protections underpinning the orders
- Where suppressed sentencing reasons contain identifying particulars capable of revealing the identity of co-accused who have yet to stand trial, redaction of those particulars is an appropriate condition of any expanded disclosure
- Procedural safeguards, including requirements that recipients identify themselves and their clients to the Crown and acknowledge the non-publication orders in writing, can form part of a carefully tailored variation to a suppression order
- The court weighed the open justice principle against the fair trial rights of unsentenced accused persons, finding those rights continued to justify substantial restrictions on publication even where partial disclosure served legitimate enforcement objectives
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publications Orders Act 2010 (NSW), sections 7, 8(1)(a), 11(2), and 13
- Criminal Code Act 1995 (Cth), sections 11.5(1), 70.2(1)(a)(iv), and 70.2(5)(b)
Cases
- Decision restricted [2021] NSWSC 534 (Adamson J, reasons for original suppression orders)
- Decision restricted [2021] NSWSC 657 (Adamson J, sentencing remarks in respect of the corporate offender)
Other Materials Referenced
- CDPP, Best Practice Guidelines: Self-reporting of foreign bribery and related offending by corporations (20 December 2017)