Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Qiangdong Liu v Fairfax Media Publications Pty Ltd & Ors [2018] NSWCCA 159 Hearing dates: 23 July 2018 Date of orders: 23 July 2018 Decision date: 31 July 2018 Before: Hoeben CJ at CL at [1] Price J at [2] Wilson J at [3] Decision: 1. Leave to appeal is refused. 2. The order made by Noman SC DCJ extending the suppression order until 4pm on 23 July 2018 is revoked. Catchwords: PROCEDURE – CRIME - suppression orders - application for leave to appeal against the refusal of an order to suppress identity of applicant – application for an order made during the course of a trial before the District Court – interim order made but final order refused – appeal as de novo hearing - whether order necessary in the public interest – question of financial harm, embarrassment, or distress to applicant if identified - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 Legislation Cited: Courts (Suppression and Non Publication Orders) Act 2010 Cases Cited: Fairfax Digital Australia & New Zealand Pty LTD v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 R v AB [2018] NSWCCA 113 Category: Principal judgment Parties: Applicant - Mr P Lange Respondent 1 - Fairfax Media Publications Pty Ltd Respondent 2 - Nationwide News Pty Limited Respondent 3 - Nine Network Australia Pty Limited Representation: Counsel: Mr P Lange (Applicant) Mr D Sibtain (Respondents) Solicitors: Nicholas Hanna of Hanna Legal (Applicant) Phillip Beattie of Banki Haddock Fiora (Respondents) File Number(s): 2015/379625 Publication restriction: None Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 20 July 2018 Before: Noman SC DCJ File Number(s): 2015/379625 Judgment 1. HOEBEN CJ at CL: I agree with the reasoning and analysis of Wilson J and with her Honour's conclusion. I note that orders in this matter were made by the Court on 23 July 2018. 2. PRICE J: It is for the reasons so clearly expressed by Wilson J in her judgment that I joined in the orders made by this Court on 23 July 2018. 3. WILSON J: By way of a Notice of Appeal filed on 20 July 2018, the applicant, Qiangdong (Richard) Liu, sought leave to appeal to this Court against a decision of the District Court of New South Wales made by Noman SC DCJ on 20 July 2018, by which an earlier interim order made by Her Honour under s 10 of the Courts (Suppression and Non Publication Orders) Act 2010 ("the Act") was revoked. The appeal proceedings are brought pursuant to s 14 of the Act. 4. The matter was given an urgent hearing before this Court on 23 July 2018. 5. The applicant sought leave to appeal her Honour's decision to refuse to make a non-publication order on three grounds: 1. "Her Honour Noman SC DCJ erred in finding that it was not necessary in the public interest to make an order under s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010. 2. Her Honour Noman SC DCJ erred in finding that the public interest in open justice outweighed the public interest in making the order under the Court Suppression and Non-Publication Orders Act 2010. 3. Her Honour Noman SC DCJ erred in finding that it was not necessary to make an order to avoid causing undue stress and embarrassment of a party under s 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010." 1. At the conclusion of evidence and submissions, at about 3pm, the Court refused the applicant leave to appeal, and revoked the temporary order made by the trial judge, which had prohibited the publication of information that might identify the applicant until 4pm on 23 July 2018. Reasons for those orders were reserved. These are my reasons for joining the orders of the Court made on 23 July 3018. The Relevant Background 1. The trial before her Honour is a sexual assault trial; the accused in the trial, Longwei Xu, is alleged to have sexually assaulted the complainant after a birthday party for the accused that had been hosted by the applicant. It is not suggested that the applicant had any involvement in, or criminal knowledge of, the alleged offences. 2. On 10 July 2018, the second day of the trial and the first day during which the evidence of the complainant was heard, the applicant, who was mentioned in that evidence, sought an order prohibiting the publication of any material that might identify, or tend to identify, him. 3. Evidence in support of the application placed before the District Court was to the effect that the applicant was a very wealthy Chinese businessman, being the proprietor of a large e-commerce business, JD.com, which is one of the largest commercial enterprises in China. The evidence was that the applicant was a person in whom the media took a considerable interest and, there being such a strong media focus upon him, publication of his identity and role in the matter before the court could or would lead to significant damage to his company, and to the financial prospects of it and its shareholders. It was also suggested that the applicant would suffer significant personal embarrassment if named in connection with the trial proceedings. 4. At the time of the application, the complainant had commenced but not completed her evidence in chief. Although the applicant must have been aware that he was likely to be mentioned in evidence prior to the commencement of the trial proceedings, his application was made at such a time that, had it been fully aired, there would necessarily have been considerable delay in the continuation of the complainant's evidence. Delay at such a time was undesirable for obvious reasons – the anxiety and probable distress it would cause to the complainant; and the unwelcome interregnum in the jury hearing such important evidence, coupled with the fact that the jurors would be left sitting in a jury room unenlightened as to the reason for the delay in their return to the courtroom. 5. To avoid that outcome, her Honour made an interim non-publication order in the terms sought, until such time as the application could be fully heard, and properly determined. The interim order was made on the basis that intense media interest in a person connected with the trial may have the capacity to influence the jury. There was, however, no determination of the merits of the application, as provided for by s 10(1) of the Act. Section 10 is in these terms: 10 Interim orders (1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined. (2) If an order is made as an interim order, the court must determine the application as a matter of urgency. 1. Her Honour varied the terms of the order the following day, on 11 July 2018, on the application of the applicant, to add to it references to "billionaire" and "penthouse", further evidence having been placed before the court as to media reports using these terms, which the applicant contended could lead to his identification. 2. At a point at which the jury in the trial had retired to consider its verdict, the trial judge returned to the issue of the non-publication order and its final determination. 3. At that stage the whole of the references to the applicant in the evidence given at trial were known, as they had not been when the interim order was made. They were, in her Honour's summary in her judgment of 20 July 2018, to the effect that: "[…] he cooked dinner and hosted the birthday party for the accused at which the accused and complainant dined with others before the two attended the Shangri-La where the offences allegedly occurred." 1. The trial judge accepted that the applicant was a person who would be of interest to both national and international media. She also accepted the effect of some further evidence that was tendered in support of the application, that there had been inaccuracy in some reported accounts of the trial proceedings. 2. Ultimately, however, she did not accept that it was in the public interest to suppress evidence that identified or tended to identify the applicant. Her Honour concluded that, even had there been a public interest in suppressing reporting so as to prevent damage to the applicant's company, the public interest in open justice outweighed that consideration. 3. The interim order was revoked and her Honour declined to make any further non-publication order. She granted a stay of the revocation pending the urgent review to be conducted by this Court. The Relevant Law 1. Section 7 of the Act confers a power on a court to make a non-publication order prohibiting publication of information that could identify a party in proceedings before the court. The provision is in these terms: 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 1. A "party" is defined in s 3 as, party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded. 1. There is no question that the applicant, as a person named in evidence given in proceedings, is a "party" for the purposes of the Act. 2. A non-publication order may only be made if one or more of the grounds referred to in s 8 are made out. Section 8 provides: 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. (3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances. 1. In determining whether to make a non-publication order, the court must have regard to s 6 of the Act, which provides: 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 1. Section 14 of the Act provides for a process of appeal or review of an order made, or not made, under the Act: 14 Appeals (1) With leave of the appellate court, an appeal lies against: (a) a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or (b) a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court. (2) The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court. (3) Each of the following persons is entitled to appear and be heard on an appeal under this section: (a) the applicant for the suppression order or non-publication order, (b) a party to the proceedings in which the order or decision subject to appeal was made, (c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory, (d) a news media organisation, (e) any other person who, in the appellate court's opinion, has a sufficient interest in the decision that is the subject of appeal. (4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance. (5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review. 1. An appeal against the orders of the trial judge is available with the leave of this Court, it being the court to which appeals lie against final judgments of the District Court sitting in its criminal jurisdiction. 2. The appeal proceeds as a hearing de novo pursuant to s 14(5), as was observed by Bathurst CJ in Fairfax Digital Australia & New Zealand Pty LTD v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, at 56 ([6]): The nature of an appeal depends on the construction of the particular statutory provisions by which the right of appeal is conferred: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]; Dwyer v Calco Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 at [2]. In the present case the wide powers to admit not only additional evidence but also substituted evidence, coupled with the fact that, subject to leave, a review under s 13 and an appeal under s 14 appear to be alternatives, lead me to the conclusion that the hearing on the appeal is a hearing de-novo. The Proposed Appeal 1. In addition to the material that was before the trial judge, the applicant relied upon an affidavit of his solicitor, Nicholas Hanna, affirmed on 23 July 2018, in support of the appeal. On 22 July 2018 Mr Hanna made a number of searches of the internet to identify media reporting of the trial before her Honour, both nationally and internationally, and references that could be to the applicant. His affidavit annexes a number of the reports he discovered, in hard copy. The headlines preceding some of those reports include: "Chinese billionaires raped female models in Sydney, and even the courts ordered the protection of the suspect"; "Chinese billionaire to keep his identity secret in dinner party rape trial"; "Exclusive: A "very famous" Chinese billionaire will have his identity kept secret in a rape trial involving guests to an intimate dinner party in his Sydney penthouse". 1. Mr Hanna had also provided an affidavit to the trial judge, affirmed on 19 July 2018, in which he deposed to a high level of familiarity with news reporting concerning the applicant's company, JD.com, over the previous two years. The company is said to be the third largest internet company in the world, and there is a significant level of identification between the applicant and the company. Mr Hanna opined that the applicant is the "face" of JD.com. 2. The grounds which the applicant seeks leave to advance are set out at [5] above. It is proposed to address grounds 1 and 2 together, as the parties did at the hearing of the appeal, before turning to ground 3. Ground 1: "Her Honour Noman SC DCJ erred in finding that it was not necessary in the public interest to make an order under s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010. Ground 2: Her Honour Noman SC DCJ erred in finding that the public interest in open justice outweighed the public interest in making the order under the Court Suppression and Non-Publication Orders Act 2010". 1. The applicant contended that the trial judge was in error in concluding that it was not necessary in the public interest to make a non-publication order and that, if it was, the public interest in open justice significantly outweighed that interest. It was argued that the word "necessary" in s 8(1)(e) of the Act should be broadly construed and that, properly constructed, it encompassed economic harm that will be occasioned to the applicant and his company if the order is not made. The applicant relied upon Fairfax Digital v Ibrahim at [8] per Bathurst CJ, and R v AB [2018] NSWCCA 113 at [75] per Rothman J. 2. The construction of the word "necessary" will depend on the context in which it is being construed, upon the particular grounds in s 8 of the Act which are relied upon, and the factual circumstances relevant to the order. In Fairfax Digital v Ibrahim, the Chief Justice held that it was not sufficient that the orders are "merely reasonable or sensible", although the word should not be given a narrow construction. 3. A suppression order may only be made where, in the circumstances of the matter, the order "is necessary" to achieve the required statutory objective. The applicant points to two statutory objectives, being those set out in s 8(1)(d) and s 8(1)(e) of the Act, "to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature", or because "it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice". 4. It was submitted that the implication of the applicant as involved in some way in the offence would tarnish his reputation, affect his professional standing, and adversely impact upon the profitability of JD.com, and that the order was thus necessary to prevent embarrassment or distress to him, and because it was in the public interest to make it. 5. As to the question of the public interest in open justice, it was argued that an order preventing the identification of the applicant did not prevent the reporting of the proceedings before the District Court and the arguments of the parties to the proceedings, and thus the imposition upon open justice was very slight. 6. For my part, I can discern no error in the manner in which the trial judge resolved the question of determining where the public interest in this matter lay. 7. Her Honour considered that there was no danger of the applicant or, by extension JD.com, being harmed by accurate reporting of the trial proceedings and the evidence given at trial. That evidence revealed that the applicant had not been involved in any way in the commission of the alleged offences, and was guilty of no wrongdoing. 8. Having regard to the nature of the evidence, the best protection for the applicant's reputation was by informed and accurate reporting of the evidence given at trial. 9. The correctness of her Honour's decision is reinforced in my view by the evidence placed before this Court by the applicant in support of his appeal, revealing as it did the nature of the press reporting after the interim non-publication order was made. 10. It is clear from the news reports referred to by Mr Hanna in his most recent affidavit that the interim non-publication order made by her Honour may have inadvertently led to a degree of distorted reporting relevant to the trial proceedings. Not only were reports published that contained erroneous references to the role of the "Chinese billionaire" in the commission of the alleged offences, but much column space was taken up in decrying the "protection" extended to a "billionaire" by the courts. 11. Without specific identification of the applicant and his limited and entirely innocent connection with the events the subject of the trial proceedings, there appears to have been a tendency in some of the reporting, particularly that in the Chinese language press (before this Court in translation), to closely link the host of the birthday function with the accused and, overtly or implicitly, to attribute sexual wrongdoing to him. 12. The public interest is hardly best served by inaccurate reports of criminal proceedings before the courts, or by speculation as to the capacity of the wealthy to "buy" a desired outcome from a court, or receive a level of protection not available to those without substantial wealth. 13. In my assessment, there was little or no public interest in suppressing references to the applicant's name or other information that might identify him. He was no more than a witness to peripheral events surrounding the commission of an alleged crime, and was not entitled to the sort of anonymity he sought. I can see no scope for financial or reputational harm being caused to him or his company by accurate and informed reporting of the trial, something that was only possible if reporting was not subject to restrictions under the Act. Accurate reporting would also have the effect of correcting the record, as well as making it clear that the applicant was not criminally involved in the events the subject of the trial. 14. That being the case, the principle of open justice, a fundamental principle of the justice system in this state, clearly prevailed, as her Honour concluded. Ground 3: Her Honour Noman SC DCJ erred in finding that it was not necessary to make an order to avoid causing undue stress and embarrassment of a party under s 8(1)(d) of the Court Suppression and Non-Publication Orders Act 2010." 1. The applicant submits that her Honour's "brief" reasons for concluding that a non-publication order was not necessary to avoid undue distress or embarrassment to the applicant, did not expose the basis for her conclusion which was, in any event, wrong. 2. The applicant argues that s 8(1)(d) specifically recognises the prospect for distress to be occasioned to persons involved in sexual assault cases, there being a "particular stigma" attaching to a person embroiled in allegations of a sexual nature. It is contended that the stigma of this case would lead to humiliation and financial harm being occasioned to the applicant, in the absence of a non-publication order. 3. Having regard to the limited evidence led at the trial which touched upon the applicant, and its overall benign import, I am unable to see any real prospect of humiliation, embarrassment, or distress being caused to the applicant in the absence of a non-publication order. His only role in events connected with the criminal allegations the subject of the trial was to host a dinner party at which the accused and complainant were guests. There was no suggestion in the evidence that he in any way facilitated the commission of the alleged offences, or had any knowledge of them. 4. I cannot agree with the applicant's contentions that he would inevitably suffer embarrassment or harm if connected, no matter how tangentially, with these events in media reports. 5. Even if, due to inaccurate reporting, there was some scope for embarrassment to the applicant, or unpalatable untruths being reported, it is not in the interests of the public for courts to impose limits on media reporting of criminal proceedings in an attempt to obviate that prospect, in circumstances where embarrassment could not be significant, or reach the heights of anything more than discomfort. Minor discomfit is not what the legislation operates to prevent. As was said by Kirby P in Raybos Australia Pty Lyt & Another v Jones (1985) 2 NSWLR 45 at 60A-D, Widespread publicity, through the modern media of communications, may dogreat harm. Sometimes quite unjustifiable damage can be inflicted onindividuals. […] However that may be, a price must be paidfor the open administration, particularly of criminal justice. The alternative,of secret trials, where important public rights may be in competition andindividual liberty may be at risk is so unacceptable that courts of our traditionwill tend to avoid the consequence. The Question of Leave 1. The applicant argues that leave should be granted to him to advance his appeal on two bases: that the trial judge failed to adequately expose her reasons for the orders that she made; and that proper assessment of the merits of the application for a non-publication order must result in its making. 2. In my assessment, the proposed appeal is wholly without merit and there is no basis for a grant of leave. 3. The reasons given by the trial judge were considered and thorough. Her Honour referred to the evidence before the court, and correctly applied the law to that evidence. Taking the reasons as a whole there can be no legitimate complaint that her reasons provided no basis for the orders or did not adequately explain them; it was clear that her Honour was unpersuaded that it was in the public interest to make the order sought. She was not able to discern any real prospect of harm being occasioned to the applicant or his company by informed reporting of the case, bearing in mind the very limited role he played in events connected with the alleged offences. 4. Neither can I conclude that there is a basis for making the order such that leave should be granted. On the evidence, the only real mischief for the applicant if he is identified in reporting of the trial is that he would be publically associated with a criminal trial, an outcome he would prefer to avoid. No doubt that is the position of most witnesses who become involved, through no fault of their own, with events which are later exposed to public scrutiny via the medium of a criminal trial. A reluctance to be publically named in connection with a criminal trial is not, however, any basis for a non-publication order to be made. Nor is mere discomfit or simple embarrassment a sufficient reason for such an order. 5. There is generally a very strong public interest in full and proper reporting of criminal trials. Public scrutiny of the proceedings of the courts is a proper and necessary part of a democratic society, to be diluted only in circumstances where there is some particularly compelling reason to so do. 6. This is not such a case. ********** Amendments 02 August 2018 - Typo in Representation field amended. 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: 02 August 2018