Citation: R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan; R v Jacobs Group (Australia) Pty Ltd [2021] NSWSC 534
Court: Supreme Court of New South Wales
Date: 14 May 2021
Judge: Adamson J
Background
Jacobs Group (Australia) Pty Ltd, formerly known as Sinclair Knight Merz Pty Ltd, pleaded guilty in the Local Court to three charges of conspiracy to bribe foreign public officials in Vietnam and the Philippines, contrary to the Criminal Code Act 1995 (Cth). The company was committed to the Supreme Court for sentencing, with a hearing listed for 31 May 2021. Five individual co-accused, each charged with overlapping conspiracy offences arising from the same alleged conduct, had pleaded not guilty and were awaiting trial, expected to proceed in 2022.
The company's agreed statement of facts, prepared for the sentencing hearing, named each of the individual accused and attributed the company's criminal conduct to them specifically. Under the corporate criminal liability provisions of the Criminal Code, the company admitted it had acted through two of the individual accused in committing the conspiracies, and admitted it had conspired with all five.
One of the individual accused, Andrew Counihan, brought a motion seeking non-publication orders in respect of the company's guilty plea, the agreed statement of facts, the sentence hearing, the sentence imposed, the sentencing remarks, and the motion itself. The four remaining individual accused joined in and supported the application. The Crown did not oppose the orders sought.
Legal Issues
- Whether a non-publication order was necessary under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to prevent prejudice to the proper administration of justice.
- Whether the guilty plea and agreed statement of facts of the corporate accused would, if published, materially prejudice the fair trial rights of the individual co-accused.
- What exceptions to any non-publication order were appropriate, including to permit the company to meet its regulatory, commercial, and shareholder disclosure obligations.
Decision
Adamson J granted the non-publication orders sought, grounded on s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW): that the orders were necessary to prevent prejudice to the proper administration of justice. The court identified a real and substantial risk that publication of the company's guilty plea and agreed statement of facts would prejudice the individual accused's right to a fair trial before an impartial jury.
The risk of prejudice was particularly acute because the agreed statement of facts named each individual accused, attributed the company's criminal acts to specific individuals, and described their alleged conduct in significant narrative detail. Publication of those admissions, made by the company for sentencing purposes and not binding on the individual accused, could create a misleading impression among prospective jurors that the individual accused's guilt had already been established.
The court also took into account the existing media coverage of the charges since 2018, which had already generated some public attention. It accepted that the administration of justice encompasses both the principle of open justice and the right of an accused to a fair trial by an impartial jury, and that these values had to be weighed. On the facts, the prejudice to the individual accused from publication outweighed the public interest in immediate access to the proceedings.
The orders were tailored to include carefully defined exceptions, permitting disclosure for legitimate regulatory, commercial, and shareholder purposes. The Crown did not oppose the orders or the exceptions proposed.
Orders Made
- Publication of any material containing reference to the following was prohibited pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):
- The company's guilty pleas to charges of conspiring to offer bribes to foreign public officials
- Any statement of facts relating to those offences
- The sentence hearing, sentence imposed, and sentencing remarks in respect of the company
- The suppression application itself
- Exceptions to the non-publication order permitted disclosure by:
- The Commonwealth Director of Public Prosecutions and Australian Federal Police, to international investigators and prosecuting authorities, government departments, and lawyers for the accused or witnesses
- The company and its lawyers, to government departments, auditors, insurers, professional advisers, the World Bank, the Asian Development Bank, contractual counterparties, and its US parent company's securities exchange obligations
- The Sellers' Representatives (as defined in the relevant scheme booklet), to former SKM scheme shareholders, their legal representatives, professional advisers, the escrow agent, and the shareholder register maintainer Computershare
- In each case where the exceptions applied, disclosure was to be accompanied by a copy of the orders
- The orders were made on the ground in s 8(1)(a) of the Act: necessity to prevent prejudice to the proper administration of justice
- The orders applied throughout the Commonwealth of Australia pursuant to s 11(2) of the Act
- The orders were to operate until the earlier of the determination of the criminal proceedings against each of the five individual accused, or further order
Key Takeaways
- A non-publication order under s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) may be granted where publication of a corporate co-accused's guilty plea and agreed statement of facts would materially prejudice the fair trial rights of individual co-accused who have pleaded not guilty.
- Where a company's agreed statement of facts for sentencing purposes names individual co-accused and attributes the company's criminal conduct directly to them, the risk of jury prejudice is heightened, particularly because those admissions are not binding on the individuals and may be taken out of context by prospective jurors.
- The principle of open justice does not automatically override fair trial rights. The Supreme Court weighed both values and found that, in the circumstances, the individual accused's right to a fair trial by an impartial jury warranted temporary suppression of the relevant material.
- Non-publication orders of this kind can be framed with carefully tailored exceptions to allow legitimate regulatory, commercial, and shareholder disclosure to proceed without compromising the integrity of pending criminal proceedings.
- Under s 11(2) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), such orders can be made to operate throughout the Commonwealth of Australia, not merely within New South Wales.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 9, 11
- Criminal Code Act 1995 (Cth), ss 11.5, 12.3, 70.2
- Crimes Act 1914 (Cth), ss 16A, 16AC
- Criminal Procedure Act 1986 (NSW), s 97
- Evidence Act 1995 (NSW), s 191
- Jury Act 1977 (NSW), s 68C
- Proceeds of Crime Act 2002 (Cth)
- Supreme Court Act 1986 (Vic), ss 18, 19
Cases
- Australian Competition and Consumer Commission v BlueScope Steel Limited [2019] FCA 1532
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Humphries v R [2015] NSWCCA 319
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- R v Note Printing Australia Limited (Ruling No 2) [2012] VSC 304
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41