Supreme Court New South Wales Medium Neutral 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 Hearing dates: 12 May 2021 Decision date: 14 May 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), prohibit the publication of any material containing any reference to any of the following: (a) the pleas of guilty entered by Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Jacobs Australia) to charges of conspiring to cause offer of bribe to foreign public officials; (b) any statement of facts relevant to the offences to which Jacobs Australia pleaded guilty to; (c) the sentence hearing in respect of Jacobs Australia; (d) the sentence imposed on Jacobs Australia; (e) the sentencing remarks in relation to the sentence imposed on Jacobs Australia; and (f) this application. (2) Order (1) does not prevent publication by: (a) the Commonwealth Director of Public Prosecutions or the Australian Federal Police, of any material containing reference to the matters listed in paragraphs (1)(a)-(f) above to: (i) international investigators, international prosecuting authorities, and other like international entities; (ii) Australian State, Territory and Commonwealth Government departments; (iii) lawyers for the co-accused; and (iv) lawyers for witnesses or potential witnesses; (b) Jacobs Australia (or any of its related body corporates) or its lawyers, of any material containing reference to the matters listed in paragraphs (1)(a)-(f) above: (i) to Australian State, Territory and Commonwealth Government departments, authorities, agencies or entities; (ii) to the auditors, insurers or professional advisers of Jacobs Australia (or any of its related body corporates); (iii) to the World Bank and the Asian Development Bank and any employees or professional advisors thereof; (iv) to any existing or prospective contractual counterparty of Jacobs Australia (or any of its related body corporates); (v) as required by Jacobs Engineering Group Inc. pursuant to the rules of any registered securities exchange or under applicable law; and (vi) to the Seller's Representatives referred to in Order (3), or their lawyers, in which circumstances, such disclosure is to be provided together with a copy of these Orders. (3) Order (1) does not prevent publication of any material containing reference to the matters listed in paragraphs (1)(c)-(f) above by the Seller's Representatives (as defined in the scheme booklet relating to shares in Sinclair Knight Merz Management Pty Ltd (SKMM) and Sinclair Knight Merz Holdings Pty Ltd (SKMH) registered with ASIC on 6 November 2013 (the Scheme Booklet)) to: (i) each of the SKMM Scheme Shareholders and SKMH Scheme Shareholders, as defined in the Scheme Booklet (collectively "Scheme Shareholders"); or to their respective legal personal representatives, successors or assigns; (ii) the lawyers, accountants, or other professional advisers of the said Seller's Representatives; (iii) the Escrow Agent (as defined in the Scheme Booklet), and (iv) Computershare, who maintains a register of Scheme Shareholders for the purposes of forwarding communications to them, in which circumstances, such disclosure is to be provided together with a copy of these Orders. (4) Order (1) is made on the ground in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice. (5) Pursuant to s 11(2) of the Act, these orders are to apply throughout the Commonwealth of Australia. (6) Order (1) is to operate until the earlier of either: (a) the determination of the criminal proceedings 2018/150442 against Paul Dougas; 2018/150387 against Mark Read; 2018/150400 against Geoffrey Linke; 2018/150467 against Paul Casamento and 2018/221995 against Andrew Counihan; or (b) further order. Catchwords: CRIMINAL PROCEDURE — Application for suppression and non-publication orders — Grounds — Whether the order is necessary to prevent prejudice to the proper administration of justice — Administration of justice includes the public interest in open justice and the right of an accused person to a fair trial by an impartial jury — Whether accused person is prejudiced by being identified in publicity relating to the plea of the Company or the statement of agreed facts signed by the Company and the Crown for the sentence proceedings of the Company CRIMINAL LAW — Attribution by Company of its acts and intention to individuals who are co-accused — Prejudicial effect on individuals if Company's plea is published — Particular prejudice arising from statement of agreed facts between the Company and the Crown on co-accused referred to in statement Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 9 Crimes Act 1914 (Cth), ss 16A, 16AC Criminal Code Act 1995 (Cth), ss 11.5, 12.3, 70.2 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 Cited: 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 Category: Procedural rulings Parties: Proceedings 2018/150442 Regina Paul Peter Dougas (Accused) Proceedings 2018/150387 Regina Mark Andrew Read (Accused) Proceedings 2018/150400 Regina Geoffrey Kym Linke (Accused) Proceedings 2018/150467 Regina Paul Joseph Casamento (Accused) Proceedings 2018/221995 Regina Andrew William John Counihan (Accused) Proceedings 2018/154158 Regina Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Accused) Representation: Counsel: G Craddock SC / S Flood / K Heath (Crown) S Pararajasingham (Paul Peter Dougas) J Gullaci (Mark Andrew Read) C Morgan (Geoffrey Kym Linke) H Dhanji SC / E Sullivan (Paul Joseph Casamento) G Livermore QC / B Anniwell (Andrew William John Counihan) T Game SC / A Bonnor (Jacobs Group (Australia) Pty Ltd) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Arnold Bloch Leibler (Paul Peter Dougas) Stary Norton Halphen (Mark Andrew Read) Logie-Smith Lanyon Lawyers (Geoffrey Kym Linke) Johnson Winter & Slattery (Paul Joseph Casamento) Holding Redlich (Andrew William John Counihan) Jones Day (Jacobs Group (Australia) Pty Ltd) File Number(s): 2018/154158; 2018/150442; 2018/150400; 2018/150387; 2018/221995; 2018/150467 Judgment Introduction 1. By notice of motion dated 14 April 2021, Andrew Counihan seeks orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) to prohibit the publication of material, including the Statement of Agreed Facts, with respect to the plea of guilty by Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Jacobs Group), formerly known as Sinclair Knight Merz Pty Ltd (SKM), (the Company) to three offences. The three offences were conspiracy to bribe a foreign official in Vietnam (sequence 1) and in the Philippines (sequences 2 and 3), contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) (Criminal Code). 2. Paul Casamento, Mark Read, Geoffrey Linke and Paul Dougas join in, and support, Mr Counihan's application (together, they are referred to as "the applicants"). On 5 November 2020, the Crown filed an indictment which charged the applicants with offences which overlap with those to which the Company has pleaded guilty: namely, being parties to a conspiracy to bribe a foreign official as follows: 1. between about 1 January 2000 and 30 June 2005, Mr Dougas, Mr Read and Mr Linke in Sydney, the Republic of the Philippines and elsewhere, did conspire with each other, Lyndsay Chapple, Mohit Kumar and Yolanda Fernandez and various others to provide a benefit to another person with the intention of influencing a foreign public official in the Philippines in the exercise of the official's duties as a foreign public official in order to obtain or retain business (the Philippines conspiracy); and 2. between about 1 December 2006 and about 20 June 2012, Mr Linke, Mr Casamento and Mr Counihan in Sydney, the Socialist Republic of Vietnam and elsewhere, did conspire with each other, Lyndsay Chapple, Adam Carey, Mohit Kumar and Nguyen Ngoc Thang and various others to provide a benefit to another person with the intention of influencing a foreign public official in Vietnam in the exercise of the official's duties as a foreign public official in order to obtain or retain business (the Vietnam conspiracy). 1. The trial, or trials, of the applicants have not yet been listed for hearing but it is expected that they will take place in 2022. The delay has been occasioned by the time taken by the Crown to comply with its disclosure obligations and also the relative priority of the trial, which is lower, because none of the applicants is on remand. 2. The Company, in an agreed statement of facts to be tendered at its sentence hearing on 31 May 2021, has admitted that it acted through Mr Dougas, its then Chief Executive Officer, with respect to the Philippines conspiracy and Mr Linke, the head of the relevant division in Vietnam, with respect to the Vietnam conspiracy. That is, the Company admitted liability through attribution within s 12.3 of the Criminal Code. It has also admitted, for the purposes of its plea, that it conspired with each of the applicants with respect to one or other or both conspiracies. Mr Game SC, who appeared with Ms Bonnor for the Company, informed me that because the Company self-reported the offending conduct, ss 16A(2)(h) (assistance to investigative authorities) and 16AC (reduction in penalty for cooperation with law enforcement authorities) of the Crimes Act 1914 (Cth) will be relied on by the Company on the sentence hearing. 3. The applicants seek a non-publication order of "any material containing any reference to: a. the pleas of guilty entered by Jacobs Group (Australia) Pty Ltd (ACN 001 024 095) (Jacobs Australia) to charges of conspiring to cause offer of bribe to foreign public officials; b. any statement of facts relevant to the offences to which Jacobs Australia pleaded guilty to; c. the sentence hearing in respect of Jacobs Australia; d. the sentence handed down on Jacobs Australia; e. the sentencing remarks in relation to that sentencing of Jacobs Australia; and f. this application." 1. Each of the applicants accepts that, if a non-publication order is made, the prohibition of publication ought be subject to an exception to permit the Company to comply with certain disclosure obligations which it owes to various Governments, auditors, professional advisers, the World Bank or the Asian Development Bank, and others. The Crown does not oppose this exception. Section 9(4) of the Act authorises the Court to make a non-publication order subject to exceptions and conditions. The procedural background 1. The context in which the applications arise is as follows. The Philippines conspiracy is alleged to have continued from 1 January 2000 until about 30 June 2002. The Vietnamese conspiracy is alleged to have continued from 1 December 2006 until about 20 June 2012. As set out above, the indictment charges Mr Dougas, Mr Read and Mr Linke with the Philippines conspiracy (count 1) and Mr Linke, Mr Casamento and Mr Counihan with the Vietnamese conspiracy (count 2). 2. In 2013, Jacobs Group purchased all the shares in SKM. It was a term of the sale agreement that Jacobs Group would withhold part of the consideration for the purchase of SKM's shares pending resolution of a number of matters, including the subject matter of these proceedings. Under the terms of the agreement, persons described as "Seller's Representatives" provide regular updates to SKM's former shareholders as to the resolution of the remaining issues and inform them of how much of the remaining consideration may be released by the Company. At the time of the acquisition by Jacobs Group, SKM had approximately 7,000 employees of which about 8% (560 people) held shares in SKM. As referred to above, there is no objection to the exception sought by the Company to any non-publication order which would permit updates on the progress of the sentence hearing to be given to these former shareholders. 3. In 2018, Court Attendance Notices (CANs) were served on the Company and each of the applicants, charging them with conspiring to offer bribes to foreign officials in Vietnam and the Philippines respectively. The CANs were accompanied by a statement of facts which was relied on by the prosecutor in the Local Court. On 21 December 2018, a charge certificate was filed for all matters except those with respect to Mr Counihan. The charge certificate in respect of Mr Counihan was filed on 4 March 2019 and a case conference was held in respect of him on 5 June 2020. A case conference certificate was filed in all matters on 3 September 2020, at which time the applicants were committed to stand trial. 4. On 3 September 2020, the Crown handed up a Further Amended Court Attendance Notice in respect of the Company which contained three charges of conspiring to offer bribes to foreign public officials in Vietnam (sequence 1) and the Philippines (sequences 2 and 3), contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code. The Company pleaded guilty to the three charges in the Local Court, with the consequence that the Company was committed for sentence to the Supreme Court pursuant to s 97(6) of the Criminal Procedure Act 1986 (NSW). The Company's plea of guilty was the subject of an update issued by the Seller's Representatives. On 5 November 2020, the Crown Case Statement was filed. 5. On 15 December 2020, I listed the Company's sentence hearing for two days commencing on 31 May 2021. This was also the subject of an update issued to SKM's former shareholders by the Seller's Representatives. 6. The agreed facts for the purposes of the sentence hearing set out, in significant detail in an apparently comprehensive narrative, the conduct of the Company through and with the applicants, each of whom is mentioned by name. As referred to above, the Company admits that it acted through Mr Dougas when it engaged in the Philippines conspiracy and through Mr Linke, when it engaged in the Vietnam conspiracy. It agrees that it conspired with each the applicants. 7. The applicants were arraigned on 9 December 2020. Each pleaded not guilty. As can be seen from the charges set out above, Mr Linke is the only accused who is charged with both offences (counts 1 and 2). The publicity to date 1. On 26 April 2021, a search conducted using the Google search engine, produced seven results, which comprised media publications dated between 2018 and 2020, principally by The Guardian Australia. The dates of publication and headlines of the articles are as follows: Date Publication Headline 13 July 2018 The Guardian Australia Australian handed out millions in aid contracts to company accused of bribery. 14 July 2018 The Guardian Australia Sinclair Knight Merx foreign bribery case sparks call for greater police resources 19 July 2018 The Guardian Australia Clean coal institute chairman accused of bribe conspiracy while at Sinclair Knight Merz 1 August 2018 The Australian Federal Police claim SKM execs conspired to bribe foreign officials 7 December 2018 The Guardian Australia Labour ministers knew of SKM bribery claims but continued giving firm work 1 March 2020 The Guardian Australia "This is a practical joke": the moment police called about alleged foreign bribery 1. The articles are relatively detailed. The article published in The Australian on 1 August 2018 refers to individual applicants by name (although some had not been charged as at the date of the article). 2. A national search for media articles relating to the Company's plea of guilty for the period from 7 December 2020 until 14 April 2021 did not reveal any reporting of that fact. A search using the terms "Jacobs Group guilty" brought up results which contained references to the charges, but not to the Company's pleas of guilty. I would not infer from the apparent lack of interest in the Company's plea of guilty that there will be a similar dearth of interest in the sentence hearing, since, at that time, the basis of the Company's plea will be revealed in a public forum and will be, unless I make the order sought, able to be reported. Further, when the trial or trials commence and are continuing, there may be continued media interest which may lead to the publication of the Company's plea of guilty and the factual basis on which the Company was sentenced. The basis of the application 1. The applicants contended that, while pre-trial publicity with respect to criminal proceedings is commonplace and its prejudicial effects can usually be ameliorated by directions to the jury, this case is to be distinguished from the usual case. Mr Livermore QC, who appeared with Ms Anniwell for Mr Counihan, submitted that it was the fact that the Company had admitted (and the Crown had agreed) that it acted through particular individuals (Mr Dougas and Mr Linke) and that it conspired with others (Mr Counihan, Mr Read and Mr Casamento) that would make any publication prejudicial to the applicants. He said that it was one thing for there to be publication of allegations against an accused person but quite another for admissions to be made which implicated an accused person. Further, he contended that the admissions gained particular weight by reason of having been included in a detailed statement of agreed facts signed by the Company and the Crown. Mr Livermore argued that it was this feature of the application which set it apart from other cases and made it, except for the decision of Hollingworth J in R v Note Printing Australia Limited (Ruling No 2) [2012] VSC 304 (Note Printing), unprecedented. In Note Printing, discussed below, her Honour made a non-publication order relating to the plea of guilty and sentencing of a company, the directors of which had pleaded not guilty to a charge that they conspired with the company to bribe foreign officials pending determination of the trials of the individual accused. 2. Mr Livermore's submissions were adopted and supported by Mr Dhanji SC, who appeared with Ms Sullivan for Mr Casamento; Mr Pararajasingham who appeared for Mr Dougas; Mr Morgan, who appeared for Mr Linke and Mr Gullaci who appeared for Mr Read. 3. Mr Game indicated that his client had no interest in whether a non-publication order was made, as long as any prohibition on publication was subject to the exception that the Company be permitted to communicate to those to whom it had a legal obligation to disclose or inform of certain matters. Nonetheless he accepted that if there were publication of the sentence material "just before the trial [of the applicants]", "that would be a problem" because of the attribution by the Company of its intent and actions to identified individuals who are applicants. In reply, he reiterated the importance that the eventual jury not know that the Company pleaded guilty on the basis of the acts of particular individual accused and the undesirability of having a detailed article on the internet which sets out how the conduct of individual accused establishes the Company's guilt. 4. The Crown opposed the making of a non-publication order but did not oppose an exception to permit the Company to make the disclosures it is obliged by law to make. The Crown contended that there was "insufficient media interest" in the Company's sentence proceedings "to create a sufficient risk that a future trial will be unfair due to the partiality of the potential jurors." The Crown contended that the assumption that jurors would abide by the trial judge's directions to decide the case in accordance with the evidence was sufficient to prevent prejudice to the administration of justice. It argued that if there was significant pre-trial publicity just before the trial, this could be addressed by an adjournment or by making a non-publication order at that time. Consideration General principles 1. Section 8(1)(a) of the Act relevantly provides that a court may make a non-publication order on the ground that "the order is necessary to prevent prejudice to the proper administration of justice" (emphasis added). Since this was the only ground on which the application was put, the question is whether the order is necessary to prevent prejudice to the administration of justice. 2. Section 6 of the Act identifies the public interest in open justice as a "primary objective of the administration of justice". The administration of justice also plainly includes the right of an accused person to a fair trial by an impartial jury. 3. The public interest in open justice (which is a primary objective of the administration of justice) is furthered by the publication of the conduct of court proceedings (in this case a sentence hearing), including the evidence adduced; the outcome of such proceedings (the orders made or sentence imposed); and the reasons for decision. Open justice in respect of sentencing proceedings and remarks on sentence is required for the purposes of general deterrence, which depends on the community being made aware of a particular sentence and the reasons for its imposition. The public interest in open justice is inevitably compromised by restriction in the publication of anything that occurs in court proceedings. General deterrence can be expected to have the greatest impact when the facts and circumstances of the offending are known as well as the precise charges, the agreed facts or other evidence, the sentence imposed, and the reasons for sentence. 4. By contrast, the right of each applicant to a fair trial is, at least potentially, prejudiced if the applicant is identified in the publicity relating to the plea of guilty by the Company or any of the facts in which an applicant is named as the person through whom the Company committed the offences to which it has pleaded guilty or with whom the Company came to an agreement. The prejudice can arise if the publicity comes to the attention of someone who is ultimately selected as a juror for the applicants' trial, or, if separate trials are ordered for each conspiracy, the applicants' trials. While the only people whose knowledge of the prejudicial information is relevant are the 12 (or 15, if the trial is to be lengthy) people who are ultimately selected to sit on the jury, if there is a single trial, or the 24 (or 30) people who are ultimately selected to sit on the two juries, there is no guarantee that even limited publicity will not come to the attention of potential jurors. Prospective measures to prevent prejudice and measures to remedy prejudice 1. In addressing the question whether a non-publication order is necessary, it is useful, but not determinative, to consider the measures which the law has devised, including directions given to the jury, to prevent or ameliorate the prejudice arising from pre-trial publicity. If other measures are sufficient to prevent prejudice, it will not be "necessary" to make a non-publication order. In this context, it is important not to confuse measures which might be taken to remedy the prejudicial effects of particular pre-trial publicity with the question whether a non-publication order is necessary to prevent the prejudice before it arises. It was not suggested in the present case that the applicants have suffered any prejudice yet by reason of pre-trial publicity. The applicants' submission is that, if the non-publication order is not made, they will suffer potential prejudice. 2. I accept the applicants' submissions that it is, accordingly, not to the point that trials are rarely permanently stayed by reason of pre-trial publicity. Where prejudice has already occurred, the administration of justice takes measures, generally in the form of jury panel polling or directions to the jury, to remedy the prejudice. These measures are regarded as sufficient to ensure a fair trial and as preferable to a permanent stay. 3. For example, in The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon), the accused, a Catholic priest, who was charged with child sex offences, having already been convicted of child sex offences, applied for a permanent stay of the criminal proceedings on the basis of substantial pre-trial publicity relating to his earlier convictions. The stay was refused by the trial judge and the accused was convicted after trial. The High Court allowed the Crown's appeal from the decision of the Victorian Court of Appeal (which quashed his conviction). In Glennon, Mason CJ and Toohey J considered that (to permanently stay the proceedings) it was insufficient to show that it was possible that the jury might have acquired some knowledge of publicity during the trial and said, at 603: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence." 1. I raised with the parties in oral argument other instances where measures may be taken to remedy prejudice. For example, in Humphries v R [2015] NSWCCA 319 (Humphries) (Bellew J, Gleeson JA and R S Hulme AJ agreeing), the applicant and his brother were charged with a joint criminal enterprise involving break and enter. In the course of the trial the applicant's brother pleaded guilty before the jury to one of the counts on the indictment. The other two counts were then included in a Form 1. The trial judge directed the jury not to take into account, against the applicant, the plea by his brother. The applicant's appeal against his conviction was dismissed on the basis that there was no miscarriage of justice. Bellew J, at [115], cited the well-known authorities of Glennon and Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [153] (Barr J, Spigelman CJ and Price J agreeing) in support of the proposition that the jury could be expected to abide by the directions of the trial judge. 2. Similar considerations arise where there is an allegation of a joint criminal enterprise. The inadmissibility of admissions by one accused against a co-accused does not generally lead to an order for separate trials because there is an acceptance that juries follow directions, including as to the use which can be made of evidence which is admissible against one accused and inadmissible against another: Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 89 (Toohey J, Mason CJ and McHugh J agreeing); [1994] HCA 30. 3. In response to these examples, Mr Dhanji relied on the following statement made by Gleeson CJ and Gummow J in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]: "The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice." 1. This point made by their Honours is a significant one in the present context. There are steps which I can take, as the trial judge, including to invite those members of the jury panel who know of the Company or the applicants or have formed a view about them to apply to be excused and to direct jurors, once empanelled and sworn or affirmed, to decide the case on the evidence. These measures are, by their nature, retroactive because they are designed to undo any prejudice which may have been occasioned in the past by pre-trial publicity. 2. A non-publication order under s 8(1)(a) of the Act has a different effect: it is, at least in part, prospective, since it is made when it is necessary to prevent prejudice to the administration of justice, which has, by definition, not yet been suffered. Other prospective measures include a direction in accordance with s 68C of the Jury Act 1977 (NSW), which makes it an offence for a juror to conduct inquiries for the purpose of obtaining any information about an accused. This Court recognises the potential for prejudice in pre-trial publicity by restricting its judgments when matters are outstanding and does so as a matter of course and not because of any perception of the potential readership of such judgments which are posted on the Caselaw website, which is not searchable through search engines such as Google. Open justice and a fair trial as part of the administration of justice 1. However, as the Act makes clear by the wording of s 6, the concept of "the administration of justice" is not limited to the requirement for a fair trial of an accused person. The public interest in open justice is a primary objective of the administration of justice. Accordingly, in determining whether a non-publication order under s 8(1)(a) of the Act is necessary, it is also necessary to take into account the public interest in open justice since it, too, forms part of the "administration of justice". 2. The relationship between the prejudice to a fair trial and the prejudice to the principle of open justice arose in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 (John Fairfax). In John Fairfax, a media outlet challenged non-publication orders which had been made by a trial judge preventing publication of the fact that guilty verdicts had been returned by the jury. The trial judge made the orders to preserve the offender's right to a fair trial in respect of a future trial for further charges. This decision pre-dated the enactment of the Act but the test of necessity was found to apply. 3. Although the factual situation was similar to Glennon, the issue in John Fairfax was whether there ought be a non-publication order (to prevent the prejudice prospectively), whereas in Glennon the question was whether the respondent had a fair trial because of pre-trial publicity (to remedy the prejudice which might already have been suffered). 4. The Court of Appeal set aside the non-publication orders made by the trial judge in John Fairfax. Spigelman CJ (Handley JA and M W Campbell AJA agreeing) said, of present relevance: "99 The principle of open justice is not simply a means of attaining a fair trial. In a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice. The publication of findings of guilt are of value in and of themselves. 100 Finally, nothing appeared on the facts of this case which could satisfy a test of necessity. As his Honour acknowledged the next trial was many months away. The suggestion that jurors in such future trials were likely to be prejudiced by the possibility of remembering the fact of a prior conviction at such a distance is most unlikely to be true. None of the publications before the Court were of any prominence, except when extracted from their context and tendered in court. The possibility that a juror in a future trial could learn of the prior conviction, perhaps by inappropriately accessing the internet or by publication closer to the subsequent trial, is at least more probable. However, it is not determinative. 101 The extraordinary course of making an order of the character which his Honour made can only be justified if the Court came to a conclusion at a high level of certainty that prejudice of the trial will ensue. There was no basis on which a test of necessity could be satisfied in this case. … 103 There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them. … 111 His Honour's order preventing publication of a verdict many months before the trial in which the possibility of prejudice could arise was, in the circumstances of the case, so inappropriate as to constitute a legal error in the exercise of a discretion." Note Printing 1. Because of the reliance placed by the applicants on Note Printing and its factual similarity to the present case, it is necessary to address it in some detail. In Note Printing, charges were brought against two corporations and their former directors for conspiring to bribe a foreign official contrary to ss 11.5(1) and 70.2(1) of the Criminal Code. The offending conduct was discovered by investigative journalists who reported for The Age. When the board of one of the corporations became aware of the coverage, the matter was referred to the Australian Federal Police for its investigation. In June 2011, charges were laid against the two companies and the individual co-accused. 2. In August 2011, in the committal proceedings, the magistrate made non-publication orders in relation to the proceedings and to the "guilty plea facts". On 27 October 2011, the two corporate accused entered pleas of guilty. The application by The Age to have the non-publication orders revoked was refused by the Magistrates' Court. 3. The Commonwealth subsequently issued proceedings for pecuniary penalty orders pursuant to the Proceeds of Crime Act 2002 (Cth). The County Court made orders restricting the publication of the fact that the corporate offenders were making pecuniary penalty payments. These orders were to continue until the determination of the criminal proceedings against the individual accused. The committal hearing for the individual accused was listed for hearing for three months to commence in August 2012. It was expected that if any of the accused was committed to stand trial, the trials would be listed in 2013 or 2014. 4. On 5 December 2011, the sentence hearing for the two corporate offenders proceeded in the Supreme Court of Victoria. The individual co-accused sought orders restricting the publication of any material relating to the pleas of guilty by the corporate accused. Although the Crown did not support the orders, her Honour noted that "there was no substantial opposition" to the orders being made on the date on which the corporate accused pleaded guilty. Her Honour made the order on the basis that "it was necessary to do so in order not to prejudice the administration of justice". 5. Subsequently, the individual co-accused sought to extend the non-publication orders to prevent publication of any material containing any reference to the plea hearing, the sentences handed down to the corporate offenders and to her Honour's sentencing remarks (the Sentencing Material). The extension to the non-publication order was opposed by the Crown and The Age newspaper and media outlet. 6. The individual co-accused argued that the case was a high-profile one because the corporate offenders were subsidiaries of the Reserve Bank and because it was the first prosecution of the offence of conspiracy to commit foreign bribery (which had been introduced into the Criminal Code in 1999). They contended that their rights to a fair trial before an impartial jury would be prejudiced if the non-publication orders were not extended to cover the Sentencing Material. 7. The Crown and The Age argued that any prejudicial pre-trial publicity could be adequately dealt with by way of appropriate jury selection and directions. They submitted that because the sentencing remarks did not identify individual co-accused by name, publication of the remarks would not give rise to any prejudice. 8. Hollingworth J found that there had already been considerable media interest in the proceedings and accepted the submissions made as to the reasons for the profile of the proceedings: the novelty of the provisions and the connection with the Reserve Bank. Although there are slight differences between the wording of the relevant provisions applicable in Note Printing and s 8(1)(a) of the Act, these are immaterial since in both cases the order is made only if it is necessary "in order not to prejudice the administration of justice" (ss 18 and 19 of the Supreme Court Act 1986 (Vic), in force at the relevant time) or "to prevent prejudice to the proper administration of justice" (s 8(1)(a) of the Act). 9. Hollingworth J rejected the submission that because the sentencing remarks would not identify individual accused by name, there was no potential prejudice to the accused. Her Honour considered that although the individual accused were not named, they were effectively identified by reason of their connection with companies which were known to be subsidiaries of the Reserve Bank. Her Honour said at [45]: "Publication of my sentencing remarks is likely to lead to widespread publicity of the fact that two subsidiaries of the Reserve Bank have been sentenced for conspiring with some of their former senior executives to bribe foreign banks in order to secure banknote contracts. Each of the individual co-accused clearly fits that description. The fact that they may not be mentioned by name in media reports, because I have not named them in my sentencing remarks, is not particularly important in terms of potential prejudice. Unlike some of the applicants in other cases which were referred to me, none of them are of such current notoriety that their names would be likely to be remembered by prospective jurors at a trial held next year. But what is likely to be remembered is that former senior executives of the Reserve Bank subsidiaries were involved as co-conspirators in bribing foreign banks." 1. Her Honour found, at [49], that a non-publication order was necessary for the following reasons: "The prosecution case against each of the individual co-accused is that they conspired with one or both of the companies. It will be evident to the jurors that the companies are not taking part in the trials with the individual co-accused. There are a number of ways the trial judge can deal with that matter, including by directing the jury not to speculate on the absence of the companies from the trial. Such a direction would be designed to prevent speculation that the companies had already been found guilty, and impermissible use of that speculation in considering the individual co-accused's verdicts. Or, it may be that defence counsel will wish the jurors to be informed that the companies have pleaded guilty, and then seek to distance themselves from the company's actions. There are difficult forensic decisions to be made by trial counsel in this regard. Their capacity to make those decisions is compromised if the fact that the companies have been sentenced has already been widely published." 1. Her Honour said of the effect of delay on the general deterrence effect of the sentencing remarks at [52]: "The conspiracies operated at various times around a decade ago. The AFP started their investigations around May 2009. These were large and very complex investigations. The charges were laid in June 2011. The effect of my orders will be that there will be a delay of a year or so, until the Australian community can be educated by reference to this sentence. I am not persuaded that the educational value of my sentence is sufficient to displace the individual co-accused's right to a fair trial." 1. As is evident from her Honour's reasons, it was the fact that the company that had pleaded guilty and which stood to be sentenced was a subsidiary of the Reserve Bank (of which the public could be expected to have the highest expectations of probity and which would be likely to remain in the memory of the public) and the novelty of the foreign bribery provisions which made it necessary, in her Honour's view, to make a non-publication order in respect of the Sentencing Material. 2. Note Printing was considered in Australian Competition and Consumer Commission v BlueScope Steel Limited [2019] FCA 1532 (ACCC v BlueScope). In that case, the ACCC commenced civil proceedings in the Federal Court against BlueScope Steel Limited (BlueScope) and its former general manager, Jason Ellis (the respondents), for alleged cartel conduct with respect to the supply of flat steel products. It alleged that the respondents had attempted to induce various steel distributors to fix the level of pricing of such products in Australia. The ACCC had commenced the civil proceedings shortly before the expiry of the six-year limitation period. It had also referred the matter to the DPP for consideration of whether criminal charges ought be laid. The ACCC and the respondents agreed that the pleadings in the Federal Court ought not be disclosed because of the prospect of criminal proceedings against the respondents. The Age Company Pty Ltd, publisher of "The Age" newspaper, opposed the making of the non-publication orders. 3. O'Bryan J assessed the risk of prejudice to a fair trial as remote for the following reasons, at [38]: "(a) No criminal trial has yet been commenced and it is not possible to assess the likelihood of a criminal trial being commenced. (b) Even if a criminal trial were to be commenced, the trial would be unlikely to occur for at least 12 months and potentially longer. Any reporting of the allegations in this proceeding would, by that time, be a long way in the past. (c) The allegations in the present case concern wrongful business conduct. While the wrongdoing is serious and likely to be harmful to those sections of the public who are consumers of steel products, it is not of a nature that is likely to be of wide interest to the public or to generate particular notoriety or scandal. (d) The media releases issued by the ACCC and BlueScope have already made public the main aspects of the allegations made against BlueScope and Mr Ellis. While the originating application and the concise statement contain more details of the alleged offending in comparison to the media releases that have been issued, the information contained in those documents is at a relatively high level of generality. For that reason, the likely impact of any further reporting of the originating application and the concise statement on potential jurors will be limited. (e) The publication of allegations, as distinct from evidence or findings, made in a civil proceeding are unlikely to cause prejudice to a subsequent criminal trial involving the same or similar allegations. The circumstances of this case are not comparable to the typical case in which a suppression order is sought in respect of the evidence adduced or findings made in a proceeding that may prejudice a subsequent criminal proceeding." 1. The present case is different from Note Printing (and similar to ACCC v BlueScope) in that there has been relatively little publicity to date and nothing about the case to give it any particular notoriety or media interest. It is different from ACCC v BlueScope (but similar to Note Printing) in that charges have already been laid, but similar to ACCC v BlueScope in that the trial has not yet been set down for hearing and could be a year away. 2. Understandably, the agreed facts for the purposes of the companies' pleas in Note Printing were not reproduced in the reasons for judgment. Accordingly, it is not possible to determine whether they constituted the apparently comprehensive narrative of events as is present in this case. Conclusion 1. While some court proceedings capture the public imagination (such as Glennon), the reports of others may make little mark. Even in notorious trials, the details are relatively quickly lost from the public's collective memory. In Note Printing, the matters of notoriety were that the corporate offenders were subsidiaries of the Reserve Bank and the crime itself had been "discovered" as a result of the work of investigative journalists published in The Age. The present case lacks any such feature which would tend to result in members of the public remembering the detail of the Company's plea or the statement of agreed facts. As John Fairfax makes clear, open justice is furthered by the fact of a guilty plea being able to be published. 2. However, I accept the submissions made by the applicants that there is a potential for prejudice if there is publicity which links the individual applicants to the plea by the Company and to the facts on which the Company's plea was based. This prejudice arises from the circumstance that, although the Company has a separate legal personality from the individuals through whom it acts, it cannot act on its own account but only through human agents. A potential juror who becomes aware, through pre-trial publicity, of the Company's plea and the facts on which it was based may have difficulty in discerning why the Company's guilt does not implicate the individuals through whom it acted or who were involved in its operations at the relevant time. 3. That the Company is making admissions of its own guilt on the basis of the applicants' conduct (through attribution) makes the disclosure of such admissions qualitatively different from a situation where one accused, in pleading guilty, agrees to facts which, on their face, implicate a co-accused. The particular prejudice of disclosure of an admission of guilt is undeniable. Indeed, Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49 still stands as the sole example of a case where a permanent stay was granted because of pre-trial publicity. The High Court found that Tuckiar's counsel's disclosure in open court that his client had admitted his guilt created irremediable prejudice because it was so widely publicised in Darwin, which was the only forum in which a further trial could take place, that no retrial could take place. While the present case is different in that the Company and the individuals through whom it acted have separate legal personalities, the potential prejudice to such individuals, particularly Mr Linke and Mr Dougas, is significant where the basis of the Company's plea of guilty is exposed and reveals a narrative in which they are principal actors. 4. Further, lawyers appreciate that a statement of agreed facts is binding only on the parties to it and only for the purposes of the proceedings in which it is filed: s 191 of the Evidence Act 1995 (NSW). As such, it does not have the weight of a finding made on the basis of disputed facts by a judge in a judge-alone trial or on sentence. However, non-lawyers cannot be expected to appreciate the limitations of such a document. The word "fact" connotes something definite, the truth of which has been established, and is to be distinguished from the word "allegation". The word "agreed" indicates that the facts are not disputed and connotes that they are accepted to be true. That the agreement is between the Company and the Crown adds significantly to its apparent weight. If the statement of agreed facts were widely reported, it could be taken as a "template" narrative of the relevant events. Unsurprisingly, the agreed facts bear a close resemblance to the Crown Case Statement filed by the Crown in the criminal proceedings against the applicants. 5. Publication of these facts could result in a narrative being lodged in the minds of potential jurors, which would be prejudicial to the applicants. 6. However, the present case lacks the features of Note Printing, which persuaded Hollingworth J to make a non-publication order. There has been limited publicity to date and no identified reporting of the Company's plea of guilty in the Local Court. Although prosecutions for foreign bribery offences are still relatively rare, they do not retain the novelty which they had at the time of Note Printing. Further, as the prosecutions in Note Printing can be said themselves to have been the product of publicity (in the form of investigative journalism), they attracted considerable publicity. It was also significant in Note Printing that the corporate offenders, the names of which were not likely to stick in the public memory, were identified by reason of being subsidiaries of the Reserve Bank. There is nothing of that nature about the Company in the present case which would tend to be remembered over the period between the sentence hearing and the time of the eventual trial or separate trials. Further, no date has yet been set for the applicants' trial, which is unlikely to commence until some time next year, and there is no feature of the trial which is likely to remain in the memory of the public for that period. 7. Despite the differences between the present case and Note Printing, I am nonetheless persuaded by the applicants that it is necessary to make a non-publication order in respect of the matters identified in the notice of motion to prevent prejudice to the fair trial of the applicants, which is an aspect of the administration of justice. The publication of the detail of the narrative in the statement of agreed facts would be prejudicial to the applicants if it became known to potential jurors who may be unable to discern that it represents a negotiated agreement about the narrative rather than a statement of the truth, and may be unable to appreciate that the Company cannot make admissions which are binding, or which implicate, the natural persons through whom it acts and with whom it deals. It is this particular aspect of the present case which gives rise to the prejudice for which, in my view, a non-publication order is necessary to prevent. It is also necessary to prohibit publication of the Company's plea, the sentencing proceedings, the sentencing remarks and the sentence ultimately imposed on the Company to prevent prejudice to the administration of justice. 8. Although the making of the order will inevitably infringe the public interest in open justice, it will do so only for a limited period, relative to the time that has elapsed since the Company's offending. Once the trials of the applicants have been concluded, all of the materials which are subject to the order can be published without restriction. Whatever general deterrence will ultimately flow from my sentencing remarks or the sentence I impose on the Company can operate from that later date. The applicants have sought that the orders apply throughout the Commonwealth of Australia. Although the jury will be selected from a portion of the Sydney metropolitan area, it is necessary that the order be expressed in such broad terms since any publicity would be expected to be in a national newspaper or on the internet. Orders 1. For the reasons given above, I make the following orders: 1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), prohibit the publication of any material containing any reference to any of the following: 1. the pleas of guilty entered by Jacobs Group (Australia) Pty Ltd ACN 001 024 095 (Jacobs Australia) to charges of conspiring to cause offer of bribe to foreign public officials; 2. any statement of facts relevant to the offences to which Jacobs Australia pleaded guilty to; 3. the sentence hearing in respect of Jacobs Australia; 4. the sentence imposed on Jacobs Australia; 5. the sentencing remarks in relation to the sentence imposed on Jacobs Australia; and 6. this application. 1. Order (1) does not prevent publication by: 1. the Commonwealth Director of Public Prosecutions or the Australian Federal Police, of any material containing reference to the matters listed in paragraphs (1)(a)-(f) above to: 1. international investigators, international prosecuting authorities, and other like international entities; 2. Australian State, Territory and Commonwealth Government departments; 3. lawyers for the co-accused; and 4. lawyers for witnesses or potential witnesses; 1. Jacobs Australia (or any of its related body corporates) or its lawyers, of any material containing reference to the matters listed in paragraphs (1)(a)-(f) above: 1. to Australian State, Territory and Commonwealth Government departments, authorities, agencies or entities; 2. to the auditors, insurers or professional advisers of Jacobs Australia (or any of its related body corporates); 3. to the World Bank and the Asian Development Bank and any employees or professional advisors thereof; 4. to any existing or prospective contractual counterparty of Jacobs Australia (or any of its related body corporates); 5. as required by Jacobs Engineering Group Inc. pursuant to the rules of any registered securities exchange or under applicable law; and 6. to the Seller's Representatives referred to in Order (3), or their lawyers, in which circumstances, such disclosure is to be provided together with a copy of these Orders. 1. Order (1) does not prevent publication of any material containing reference to the matters listed in paragraphs (1)(c)-(f) above by the Seller's Representatives (as defined in the scheme booklet relating to shares in Sinclair Knight Merz Management Pty Ltd (SKMM) and Sinclair Knight Merz Holdings Pty Ltd (SKMH) registered with ASIC on 6 November 2013 (the Scheme Booklet)) to: 1. each of the SKMM Scheme Shareholders and SKMH Scheme Shareholders, as defined in the Scheme Booklet (collectively "Scheme Shareholders"); or to their respective legal personal representatives, successors or assigns; 2. the lawyers, accountants, or other professional advisers of the said Seller's Representatives; 3. the Escrow Agent (as defined in the Scheme Booklet), and 4. Computershare, who maintains a register of Scheme Shareholders for the purposes of forwarding communications to them, in which circumstances, such disclosure is to be provided together with a copy of these Orders. 1. Order (1) is made on the ground in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice. 2. Pursuant to s 11(2) of the Act, these orders are to apply throughout the Commonwealth of Australia. 3. Order (1) is to operate until the earlier of either: 1. the determination of the criminal proceedings 2018/150442 against Paul Dougas; 2018/150387 against Mark Read; 2018/150400 against Geoffrey Linke; 2018/150467 against Paul Casamento and 2018/221995 against Andrew Counihan; or 2. further order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2022