Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 2 Application for non-publication orders)
[2021] FCA 787
•12 July 2021
FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 2 – Application for non-publication orders) [2021] FCA 787
File number: NSD 1316 of 2020 Judgment of: WIGNEY J Date of judgment: 12 July 2021 Catchwords: PRACTICE AND PROCEDURE – applications for non-publication order in respect of reasons for judgment under s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) – applications for confidentiality order in respect of reasons for judgment pursuant to r 1.20(3)(a) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) – whether orders necessary to prevent prejudice to the proper administration of justice – whether prejudice outweighed the primary consideration of the public interest in open justice – alternatively whether to redact part of the reasons for judgment – where Court found there was no basis for making non-publication order – where there was no prejudice to the proper administration of justice – where no proper basis for preventing any third parties from inspecting the Judgment – applications for orders dismissed Legislation: Competition and Consumer Act 2010 (Cth), ss 79(1)(a), 79(1)(c), 44ZZRF(1), 44ZZRG(1)
Federal Court (Criminal Proceedings) Rules 2016 (Cth), rr 1.20, 1.20(2), 1.20(2)(i), 3.01, 3.01(3), 3.01(4)(c), 3.07(3)
Federal Court of Australia Act 1976 (Cth), ss 23, 23CB(1), 23CE, 23CE(a), 23CP(2)(a)(i)-(iv), 30AA(4), 30AB(2), 37AE, 37AF, 37AF(1)(b)(i), 37AG(1)(a)
Cases cited: Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44
Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 62 Date of last submissions: 9 July 2021 Date of hearing: Determined on the papers Counsel for the First Accused: Mr C Moore SC with Mr R Ranken Solicitor for the First Accused: Herbert Smith Freehills Counsel for the Second Accused: Mr N Clelland QC and Mr G Livermore QC with Ms B Anniwell Solicitor for the Second Accused: MinterEllison Counsel for the Third Accused: Ms K C Morgan SC Solicitor for the Third Accused: Watson Mangioni Lawyers Counsel for the Fifth Accused: Mr M Thangaraj SC with Ms E Sullivan Solicitor for the Fifth Accused: King & Wood Mallesons ORDERS
NSD 1316 of 2020 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED ACN 003 114 832
First Accused
ITAY TUCHMAN
Second Accused
JOHN WILLIAM MCLEAN (and others named in the Schedule)
Third Accused
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
12 JULY 2021
THE COURT ORDERS THAT:
1.The applications by the first, second, third and fifth accused for a non-publication order pursuant to s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) and an order pursuant to r 1.20(3)(a) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) in respect of the Reasons for Judgment of the Court dated 7 July 2021 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
The prosecutor, the Commonwealth Director of Public Prosecutions, has filed an indictment in this Court which charges nine accused with various cartel offences in the Competition and Consumer Act 2010 (Cth) (C&C Act). The accused are, in the order in which they appear in the indictment, Citigroup Global Markets Australia Pty Limited, Mr Itay Tuchman, Mr John McLean, Mr Stephen Roberts, Deutsche Bank Aktiengesellschaft, Mr Michael Ormaechea, Mr Michael Richardson, Australia and New Zealand Banking Group Limited (ANZ) and Mr Richard Moscati. The trial has been listed to commence in April next year, though a jury will not be empanelled before May next year.
In March 2021, the accused each filed interlocutory applications objecting to the form of the indictment. Each of the accused sought an order quashing the counts in the indictment relating to them and an order discharging them in relation to those counts. Those interlocutory applications were heard by the Court on 1 April 2021.
On 7 July 2021, I handed down a judgment, including reasons for judgment, in relation to the applications (Judgment). The upshot was that the accused were partially successful in that I found that the indictment was defective and ordered the prosecutor to file a new indictment. I also made an order, on an interim basis, which delayed the publication of the Judgment, other than to the parties, and directed the parties to file any written submissions in support of a non-publication order by 2.00 pm on 9 July 2021.
Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman each subsequently filed written submissions in support of their applications for a non-publication order in respect of the Judgment pursuant to s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and that the Judgment be confidential for the purposes of r 1.20(3)(a) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth). The basis of the applications for the non-publication order was said to be that the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the FCA Act. The prejudice that was said to flow from the publication of the Judgment was, in summary, that the Judgment contained some extracts from and a summary of the outline of the prosecutor’s case which was likely to be reported in the media and seen by potential jurors. The suggestion appeared to be that there was a risk that jurors in the trial next year might somehow be influenced by those media reports. That also appeared to be the basis for the order sought under r 1.20 of the Rules.
Neither the prosecutor, nor any of the other accused, sought non-publication or confidentiality orders or filed written submissions in response to the orders made on 7 July 2021. It is unclear what those parties’ positions were in relation to the applications made by Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman, though it may perhaps be assumed that they neither consented to, nor opposed, the applications.
The main issues for consideration and determination by the Court in respect of these applications are whether an order suppressing or preventing the publication of the Judgment is necessary to prevent prejudice to the proper administration of justice and whether there is any proper basis for preventing any third parties from inspecting the Judgment as would otherwise be permitted by the Rules.
BACKGROUND
It is necessary to provide a little more background to these applications.
The indictment which has been filed by the prosecutor contains 42 charges. Citigroup and Deutsche Bank are each charged with three counts (and three alternative counts) of making an arrangement or arriving at an understanding that contained a cartel provision contrary to s 44ZZRF(1) of the C&C Act and three counts (and three alternative counts) of giving effect to a cartel provision in an arrangement or understanding contrary to s 44ZZRG(1) of the C&C Act. ANZ and each of the individual accused are variously charged with being knowingly concerned in, or a party to, the contraventions of s 44ZZRF(1) and s 44ZZRG(1) by Citigroup and Deutsche Bank and to have thereby contravened those provisions by operation of s 79(1)(c) of the C&C Act. ANZ and Mr Moscati are also charged with one count (and one alternative count) of aiding, abetting, counselling or procuring a contravention of s 44ZZRG(1) of the C&C Act by J.P. Morgan Australia Limited and to have thereby contravened that provision by operation of s 79(1)(a) of the C&C Act.
The interlocutory applications filed by the accused in March 2021 each sought orders, pursuant to ss 23, 23CB(1), 23CP(2)(a)(i)-(iv) of the FCA Act, quashing the counts in the indictment and discharging them in relation to those counts. Each of the accused contended, in summary, that the statements of the offences in the indictment did not comply with r 3.01 of the Rules, in particular subrules (3) and (4)(c), because they did not describe the nature of the alleged offences with “reasonable particularity”. The central claim in that regard was that the statements of offences simply recited the terms of the offence provisions and did not identify the essential factual ingredients of the offences.
Prior to the hearing of the interlocutory applications, the prosecutor filed a new indictment pursuant to r 3.07(3) of the Rules. The new indictment included particulars of the alleged arrangements or understandings that were central to the charges. The prosecutor also filed a Notice of the Prosecution’s Case in compliance, or purported compliance, with s 23CE of the FCA Act. The Notice included, as required by s 23CE(a) of the FCA Act, a detailed outline of the prosecution case that set out the facts, matters and circumstances on which the prosecution case is based.
At the hearing of the interlocutory applications, the prosecutor argued, amongst other things, that the requirement that the indictment describe the offences with reasonable particularity was to be read in light of, or in the context of, the requirement in the FCA Act that the prosecutor file a notice containing detailed particulars of the prosecution case. The prosecutor submitted that the accused knew the case they had to meet because it was fully particularised in the Notice. There was therefore said to be no need to include further particulars in the indictment itself. The accused acknowledged that the Notice contained, or at least purported to contain, detailed particulars of the factual allegations which formed the basis of the charges in the indictment. They argued, however, that those particulars, or at least a short summary or distillation of them, was required to be included in the indictment, otherwise the indictment could not be said to describe the offences with reasonable particularity.
In determining the interlocutory applications largely in favour of the accused, I accepted that there was some merit in that argument. In summary, I held that, even if it were accepted that the Notice contained sufficient particulars of the factual allegations which were said to support the charges, the indictment itself was required to contain particulars of the essential factual ingredients of the charges. While the particulars included in the indictment obviously did not need to be as detailed as those contained in the Notice, I found that the statements of the charges in the indictment were largely bereft of any meaningful particulars of the factual ingredients of the offences. It followed that the indictment did not describe the offences with reasonable particularity as required by the Rules and the common law concerning indictments generally. The indictment was therefore defective. I ordered the prosecutor to file a new indictment pursuant to r 3.07(3) Rules which remedied that defect.
Not surprisingly, given the nature of the arguments mounted by the prosecutor and the accused, the Judgment contains a short summary of the prosecution case as outlined in the Notice: Judgment at [59]-[86]. It is difficult to imagine how I could have considered and determined whether the indictment contained sufficient particulars of the essential factual ingredients of the alleged offences without first identifying the factual allegations made by the prosecutor in support of the charges. It was, however, made abundantly clear in the Judgment that the outline of the prosecution case comprised mere allegations and that the facts and evidence recited in the outline were or were likely to be disputed and contested by the accused at the trial.
Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman now argue, in effect, that the publication of the short summary of the allegations which form the basis of the prosecution case will somehow prejudice their right to a fair trial.
RELEVANT PROVISIONS AND PRINCIPLES
Section 37AF(1)(b)(i) of the FCA Act, which is the provision relied on by the moving parties, relevantly provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of “information that comprises evidence or information about evidence”.
Section 37AG of the FCA Act specifies the grounds upon which the Court is permitted to make such an order. One of those grounds, being the only ground potentially applicable to the circumstances of this case, is that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act.
Section 37AE of the FCA Act provides that in deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are well settled. They were recently summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 (Country Care (No 2)) in the context of an application for non-publication orders in a circumstances almost identical to the circumstances of this case. The Full Court said (at [8]-[9]) the following in relation to the applicable principles:
Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].
The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].
The Full Court also emphasised the importance of the principle of open justice in the context of non-publication orders. The Full Court said (at [29]):
… as s 37AE makes clear, the public interest in open justice is a primary consideration in deciding whether to make a suppression or non-publication order. The principle of open justice is “one of the overarching principles in the administration of justice” which “lies at the heart of the exercise of judicial power as part of the wider democratic process”: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]. The principle involves justice being seen to be done. While the principle is not an “absolute concept”, an order restricting the ordinary open justice approach is “not lightly made”: Egan at [4].
The Full Court in Country Care (No 2) dismissed the application for non-publication orders in respect of its judgment, which was a judgment dismissing an appeal from an interlocutory judgment of the trial judge. Citigroup, in its submissions in support of the non-publication order, spent much time attempting to distinguish Country Care (No 2). As discussed in more detail later, however, the circumstances in Country Care (No 2) are not relevantly distinguishable from the circumstances of this matter. Many of the arguments advanced by the appellants and found to be wanting by the Full Court in Country Care (No 2) were similar to the arguments mounted by the moving parties in support of their applications. That said, the decision in Country Care (No 2) is not determinative of the applications in this matter. Plainly each case must be considered on its own facts.
Citigroup, Deutsche Bank and Mr McLean also relied on r 1.20(3)(a) of the Rules.
Rule 1.20 of the Rules provides for the inspection of documents. Subrule 1.20(2) provides that a person who is not a party to criminal proceedings may inspect certain specified documents. One of the specified documents is “reasons for judgment”: r 1.20(2)(i) of the Rules. Subrule 1.20(3)(a) provides that a person who is not a party to criminal proceedings is not entitled to inspect a document that the Court has ordered “be confidential”.
ARGUMENTS ADVANCED IN SUPPORT OF THE APPLICATIONS
Citigroup’s submissions in support of a non-publication order were endorsed and adopted by Deutsche Bank, Mr Tuchman and Mr McLean. Citigroup contended that a non-publication order was necessary to prevent prejudice to the proper administration of justice. That was said to be the case for the following reasons.
First, it was noted that the Judgment contained a summary of the “prosecutor’s allegations”.
Second, it was asserted that some of those allegations were “wrong” and that “the evidence in due course may be very different”. One example of a “wrong” allegation was said to be the allegation that the investment banks that had underwritten the placement of ANZ shares were not able to place all of the shares with institutional shareholders and were accordingly required to subscribe for a large number of the shares. Citigroup’s submissions asserted, without reference to any evidence, that in fact the placement was “fully covered”, but that the investment banks decided to “scale back the allocations”. This asserted error in the prosecutor’s allegations was said to constitute or give rise to a “false factual narrative”.
Third, it was asserted that the prosecutor’s allegations had so far been kept “secret”. That assertion appeared to be based simply on an analysis of what had been reported in the media to date. Affidavit evidence from Citigroup’s solicitor annexed what was said to be a “representative sample” of media articles which were said to illustrate the level of detail of the allegations which have appeared in the media. The solicitor also said that he was unaware of any reporting that included any more detail than the detail included in the representative sample. He said that so far as he was aware, no non-party has sought or been given leave to access the Notice.
Fourth, it was claimed that “publication of the full judgment will lead to significant media coverage setting out the detail of the factual allegations”, that the “extensive media coverage may well be seen by potential jurors” and that jurors are “likely to find relevant media coverage” if they perform a Google search.
Fifth, the supposed “false factual narrative” was said to have the “real potential to prejudice a proper trial”. The potential for prejudice was suggested to be that jurors in the trial, which is expected to commence before a jury no earlier than May next year, might have seen and might remember the media reports of the Judgment in July this year. It was also claimed that the jurors may do a Google search and retrieve those media reports. The suggestion appeared to be that if that occurred, the jurors would somehow be influenced by the outline of the prosecution case in those media reports.
Sixth, Citigroup contended that the publication of the Judgment would defeat the purpose of an order that was said to have been made on 1 April 2021 that anything filed in the proceeding be treated as confidential. As discussed later, however, no such order was made.
Citigroup also submitted that the Court should adopt the approach taken by the trial judge in the Country Care proceeding at first instance, which was said to involve the making of an order under r 1.20 of the Rules “to facilitate a course that all reasons for pretrial rulings only be published to the parties”.
Finally, as already adverted to, Citigroup submitted that the circumstances of its application are different to the circumstances considered by the Full Court in Country Care (No 2). The differences were said to be threefold: first, Country Care (No 2) was said to have involved “an important matter of general importance”, whereas the Judgment in this matter did not; second, the “apprehended harm” and “apprehended mechanism for that harm” in Country Care (No 2) was that jurors may access the appeal judgement, whereas in this case the apprehended harm was said to arise from media coverage of the Judgment; and third, it was noted that the Full Court in Country Care (No 2) had observed that the accused had not sought any non-publication orders in respect of facts disclosed during the committal proceeding, whereas in this case the prosecutor’s allegations were said to have been “kept secret”.
Mr Tuchman filed separate submissions. He submitted that a non-publication order was necessary to ensure that he “receives, and is seen to receive, a fair trial by an impartial jury, uninfluenced by prior publication of the Judgment which reveals the Court’s understanding of the way the prosecution currently puts its legal and factual case”. It was contended, in that regard, that potential jurors should not be “exposed to the possible influence of the Court’s analysis of the prosecution’s case about critical issues that are to be tried”.
ARE THERE GROUNDS FOR A NON-PUBLICATION ORDER?
I am not persuaded by any of the submissions advanced on behalf of the relevant accused, or by the evidence relied on by Citigroup, that a non-publication order is necessary to prevent prejudice to the proper administration of justice. That is mainly because I am not satisfied that the publication of the Judgment poses any real or appreciable risk of prejudice to the accused or their right to a fair trial.
While there no doubt may be cases where a non-publication order in respect of an interlocutory judgment in a criminal matter is necessary to prevent prejudice to the proper administration of justice because the publication of the judgment may give rise to a risk of prejudice to the accused in a forthcoming trial, this is not such a case. That is so for a number of reasons.
First, the Judgment contains no more than a short summary or outline of the prosecution case drawn entirely from the terms of the Notice. It does not contain anywhere near the level of detail contained in the Notice, which is over 100 pages in length and contains detailed references to the evidence which will be relied on by the prosecutor. The summary of the prosecution case in the Judgment is also expressed in neutral and anodyne terms.
Second, it is made abundantly clear in the Judgment that the summary of the prosecution case was a summary of “mere allegations” made by the prosecutor and that many of the facts recited in the summary were or were likely to be disputed and contested at trial: Judgment at [59]. There could be no suggestion whatsoever that, in summarising the prosecution case as articulated in the Notice, the Judgment somehow gives the allegations any particular credence or credibility, or that the allegations are somehow given the Court’s imprimatur. The apparent suggestion by Citigroup that the Judgment expresses “a view of the facts or a view of the capacity of the evidence to establish particular facts” is entirely without foundation.
Third, the assertion that some of the allegations contained in the Notice and summarised in the Judgment are wrong is just that – a bare assertion. That assertion may turn out to be correct once evidence is adduced, but at the moment it is just based on Citigroup’s say so. In any event, even if some of the allegations summarised in the Judgment turn out to be wrong, it does not necessarily follow that there is any risk of prejudice. The example of the “wrong” allegation referred to in Citigroup’s submissions could hardly be seen to be a critical or scandalous allegation that is likely to stick in the mind of a potential juror who just happens to read an account of the Judgment almost a year before the trial.
Moreover, it would seem that there has already been some media coverage concerning this particular allegation. Included amongst the representative sample of media articles concerning the charges and the committal hearing are: a report published by the Australian Broadcasting Corporation (updated on 6 June 2018) which states that “almost a third of the shares” in the placement did not sell and that that circumstance “left the three big investment banks with a chunk of ANZ shares they would eventually need to offload”; an article published in the Australian Financial Review (AFR) on 22 March 2019 which states that “the bank [ANZ] totally misread the market” and that “it was obvious institutions had baulked at the price and underwriters were left with $789 million in stock”; and another article published by the AFR (updated on 28 January 2020) which states that a “huge $2.5 billion ANZ capital raising … had shockingly fallen short, leaving one-third of the shares unsold” and that for the “three investment banks” who were the underwriters “this was now their problem: how to manage the aftermath”.
The reference to those statements in the media articles is not intended to suggest that they are factually correct. Nor is it intended to suggest that the prosecutor’s allegation in the Notice concerning the outcome of the share placement is correct, or will be proved by the evidence adduced by the prosecutor at the trial. The statements in the articles do, however, put in context Citigroup’s assertions concerning the prosecutor’s allegedly wrong allegation about the upshot of the investment banks’ underwriting of the ANZ share placement. It is difficult to see how the reference to that allegation in the Judgment, expressed as it is in the Judgment in far more neutral and unsensational terms than in the media articles, could possibly lead to any prejudice at the trial next year, even if it turns out to be incorrect on the evidence.
Fourth, Citigroup’s assertion that the prosecution case was somehow “kept secret” through the committal is without foundation. There is certainly no evidence to suggest that any relevant non-publication orders concerning the prosecution case were made by the presiding magistrate in the Local Court of New South Wales where the committal proceeding was conducted. The media articles just referred to also tend to cast doubt on the assertion that there has been no detailed media reporting of the details of the prosecution case. The evidence of Citigroup’s solicitor that he is unaware of any reporting of the case which includes more detail than the representative sample of articles annexed to his affidavit is hardly compelling or persuasive.
Fifth, the assertion that the publication of the Judgment “will lead to significant media coverage setting out the detail of the factual allegations” which “may well be seen by potential jurors” is somewhat speculative. It may be accepted that the prosecution is of significant public interest to some members of the community, mainly those in the business, banking and legal communities. It may also be accepted that the case has been relatively widely reported in the financial press. It does not necessarily follow, however, that the media coverage of the Judgment will necessarily be extensive or significant, or that the reporting will necessarily set out the “detail of [the] factual allegations” referred to in the Judgment, or even that the media coverage “may well be seen by potential jurors”. The evidence suggests that only one of the major daily newspapers published a report relating to the orders made on 7 July 2021.
Sixth, even if media articles reporting on the Judgment are read by potential jurors, the suggestion that any juror would actually recall the content of those articles when the trial occurs next year is speculative, if not somewhat fanciful. That is particularly so given that, as has already been said, the outline of the prosecution case is expressed in neutral and anodyne terms. There is nothing in the outline which could be considered to be sensational such that it would be likely to stick in the mind of a potential juror.
Seventh, the claim that jurors in the trial next year may do a Google search which may turn up media articles that report the Judgment is also speculative, if not fanciful. The jury will almost certainly be directed not to conduct any such searches on the internet. The Court should not readily assume or infer that such directions are likely to be ignored.
Eighth, and perhaps most significantly, even if potential jurors read any media articles reporting on the Judgment at the time they are published, or jurors read those articles as a result of internet searches during the trial, there is in any event nothing in the Judgment that gives rise to any risk of prejudice to the accused or their right to a fair trial. As has already been noted, while the Judgment contains a brief summary of the prosecution case, it is clearly stated that the summary is drawn from the Notice and comprised mere allegations, many of which were likely to be disputed and contested at trial. There is no basis for the apparent assertion that any media reports concerning the Judgment will not report that the prosecution case as outlined in the Judgment comprises mere allegations. In any event, ordinary readers of such media reports are likely to understand that to be the case.
Ninth, there is, in all the circumstances just identified, no basis whatsoever for the contention by Citigroup that potential jurors may be “inadvertently influenced to a view of the facts or a view of the capacity of the evidence to establish particular facts”. There is equally no foundation for the contention by Mr Tuchman that potential jurors might somehow be “exposed to the possible influence of the Court’s analysis of the prosecution’s case”. Nothing said in the Judgment could possibly be construed as amounting to a view about the facts, or a view about the capacity of the evidence to establish the facts. Quite to the contrary.
Tenth, the prosecutor will almost certainly give an opening address at the commencement of the trial which outlines the prosecution case. That opening address is likely to mirror the case as outlined in the Notice. The jury will almost certainly be directed that the prosecutor’s opening is just an outline of the prosecution case and that the jury must decide the factual issues on the basis of the evidence which is adduced during the trial. The jury will also almost certainly be directed, in that context, that they should ignore or disregard anything that they may have read, or might read, in the media about the case. The Court must “place great store in the integrity of the jury system, including that jurors will act on the directions given by the trial judge”: Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 at [72]; Country Care (No 2) at [17]. It is difficult to see how, in those circumstances, the fact that members of the jury might possibly recall earlier accounts of the prosecution case reported in the media could possibly result in any prejudice to the accused.
Eleventh, the contention by Citigroup that the publication of the Judgment would “defeat the purpose” of an order concerning the confidentiality of filed documents which was said to have been made on 1 April 2021 is entirely without merit. First, no such order was made on 1 April 2021. Rather, as the transcript annexed to the solicitor’s affidavit clearly reveals, the Court foreshadowed the making of an order that documents filed by the parties in the proceeding be treated as confidential and not be open to inspection by third parties “unless leave is granted”. The foreshadowed order was not that all filed documents would necessarily be treated as confidential for all purposes. The foreshadowed order also related only to documents filed by the parties and had nothing whatsoever to do with the publication of judgments of the Court.
As for Citigroup’s submission that the circumstances of this case are different from those considered by the Full Court in Country Care (No 2), it scarcely matters whether this case is or is not distinguishable from Country Care (No 2). The relevant principles are clear and must be applied to the particular facts of the case at hand. The application of the principles to the facts of this case are clear. There is simply no basis for finding that the publication of the Judgment would be likely to give rise to any risk of prejudice to the accused or their right to a fair trial. There is therefore no basis for finding that such an order is necessary to prevent prejudice to the proper administration of justice.
For completeness, however, it should be noted that, contrary to Citigroup’s submission, the circumstances of this case are not relevantly distinguishable from Country Care (No 2). As noted earlier, Citigroup identified three supposedly distinguishing features. Upon analysis, none of them constitute material differences.
First, the issue considered in the Judgment – the requirement that an indictment describe the nature of the alleged offences with “reasonable particularity” – is also capable of being seen as a matter of general importance. The principle of open justice and the desirability of the public being made aware of the reasons for judgments in important matters applies as strongly in this case as it did in Country Care (No 2). The public has a right to know why the indictment originally filed by the prosecutor was found to be defective and why the prosecutor was ordered to file a new indictment.
Second, the arguments concerning the “apprehended harm” and “apprehended mechanism for that harm” which were considered in Country Care (No 2) were not relevantly different to those raised by these applications. The appellants in Country Care (No 2), like the moving parties in this matter, argued that prospective jurors might be influenced by the summary of the prosecution case contained in the judgment. The fact that the appellants in Country Care (No 2) argued that prospective jurors might read the relevant judgment itself, as opposed to media reports of the judgment, is essentially immaterial.
Third, the fact that the judgment in issue in Country Care (No 2) was the judgment of the Full Court, not the trial judge, is equally immaterial. That is so particularly given that nothing in the Judgment could possibly be interpreted as somehow amounting to the Court’s view of the facts or the capacity of the evidence to establish the facts.
The reasons for rejecting the applications for a non-publication order in Country Care (No 2) apply equally to the circumstances of this case.
It follows that there is no basis for finding that a non-publication order in respect of the judgment is necessary to prevent prejudice to the proper administration of justice. No other ground or basis for the making of such an order was put forward by Citigroup, Deutsche Bank, Mr McLean or Mr Tuchman.
SHOULD THE JUDGMENT BE ORDERED TO BE CONFIDENTIAL?
I am also not persuaded that there is any basis for the making of an order under r 1.20(3)(a) of the Rules. All of the reasons for refusing a non-publication order apply equally to the applications for an order under r 1.20 of the Rules, the effect of which would be to deny anyone other than the parties access to the Judgment. In summary, I am not satisfied that there is any risk that the publication of the Judgment will cause any prejudice to the accused or their right to a fair trial. There is, on the other hand, a strong public interest, founded on the principle of open justice, which militates against an order that the Judgment be treated as confidential for the purpose of the Rules until the conclusion of the trial.
I do not consider that the fact that the trial judge in the Country Care proceeding apparently made an order under r 1.20(3)(a) of the Rules in respect of all pre-trial rulings provides a persuasive reason for the making of such an order in respect of the Judgment in this case. Each case must be considered on its own facts. It may well be the case that it will be appropriate to make such an order in respect of some future pre-trial rulings or judgments in this matter, particularly those closer to the trial which concern the admissibility of evidence. It does not follow that confidentiality or non-publication orders should be made as a matter of course in respect of all interlocutory judgments in criminal matters. As the Full Court said in Country Care (No 2) (at [26]-[27]):
Fourth, the third appellant’s assertion that non-publication orders in relation to interlocutory appeals are not uncommon in the context of other anticipated trials is not a matter which carries any real weight. The third appellant cites, as an example, what was said by Basten JA in Ibrahim at [55]. Basten JA went on to note, however, that “[w]hether they [non-publication orders] are always necessary is not a question which needs to be addressed”. That appears to have been an acknowledgment that attention is not always given to whether the making of non-publication orders is always necessary. There may perhaps be a practice in other courts to routinely make non-publication orders in respect of judgments concerning forthcoming criminal trials simply out of an abundance of caution and because they are generally not opposed. If there is such a practice, we are not persuaded that it is one which should be adopted here. To make non-publication orders in relation to judgments in respect of interlocutory appeals simply because such orders are commonplace would be to ignore the mandatory terms of s 37AE and the clear and emphatic terms of s 37AG(1)(a) of the FCA Act.
It is, of course, possible to imagine many cases involving interlocutory appeals in criminal trials where non-publication orders should be made on the basis that they are necessary to prevent prejudice to the proper administration of justice. The clearest example would be an interlocutory appeal in respect of a pre-trial ruling to exclude evidence, particularly where the appeal is dismissed and the evidence will accordingly not be adduced at trial. If the excluded evidence was of a highly prejudicial nature, there may well be good grounds for making a non-publication order. This, however, is plainly not such a case.
The same considerations apply in relation to confidentiality orders in respect of judgments pursuant to r 1.20(3)(a) of the Rules.
REDACTIONS?
Finally, it should be noted for completeness that Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman did not apply for an order that parts of the Judgment be redacted before it is published generally. Indeed, they appeared to accept that redactions would be unhelpful and problematic for the reasons given in Country Care (No 2) at [25].
CONCLUSION AND DISPOSITION
Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman have not demonstrated that a non-publication order in respect of the Judgement is necessary to prevent prejudice to the proper administration of justice. No other ground for the making of a non-publication order was identified. Their applications for a non-publication order pursuant to s 37AF(1)(b)(i) of the FCA Act must accordingly be dismissed.
Citigroup, Deutsche Bank, Mr McLean and Mr Tuchman have also not demonstrated a proper basis for the making of an order under r 1.20(3)(a) of the Rules that the Judgment be confidential. Their applications for such an order must also be dismissed.
Orders will be made accordingly.
In its written submissions, Citigroup indicated that if the Court refused its application for a non-publication order, or order under r 1.20(3)(a) of the Rules, it sought a “brief stay or suspension of the publication of the Judgment to ascertain what further steps it might wish to take”. Any further suspension of the publication of the Judgment would have to be premised on the grant of leave to appeal this judgment. Only I can grant leave to appeal this judgment: see s 30AA(4) and s 30AB(2) of the FCA Act. I will hear any submissions that Citigroup may wish to make in relation to leave to appeal. At this point, subject to being persuaded that there are grounds for the grant of leave to appeal, I am not prepared to grant any further suspension of the publication of the Judgment.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 12 July 2021
SCHEDULE OF PARTIES
NSD 1316 of 2020 Accused
Fourth Accused:
STEPHEN HUNTER ROBERTS
Fifth Accused:
DEUTSCHE BANK AKTIENGESELLSCHAFT
Sixth Accused:
MICHAEL RENE ORMAECHEA
Seventh Accused:
MICHAEL HUGH RICHARDSON
Eighth Accused:
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
Ninth Accused:
RICHARD MARC MOSCATI
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