Director of Public Prosecutions (ACT) v Shui (a pseudonym)

[2022] ACTSC 260

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Director of Public Prosecutions (ACT) v Shui (a pseudonym) (No 2)
Citation:	[2022] ACTSC 260
Hearing Date:	29 April 2022
Decision Date:	28 September 2022
Before:	McCallum CJ
Decision:	1) That the first defendant be referred to by the pseudonym

“Vivian Shui”.

2)   That the sixth defendant be referred to by the pseudonym

“Vivian Pty Ltd”.

Catchwords:	PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — Principle of open justice — Whether publication of names of
defendants in confiscation of criminal assets proceedings should
be prohibited — Whether redactions should be made to judgment — Where allegations of criminal conduct made in closed court —
Where media later granted access to affidavits – Where access
order subject to appeal
Legislation Cited:	Confiscation of Criminal Assets Act 2003 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111
Cases Cited:	David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2
NSWLR 294
Director of Public Prosecutions (ACT) v Shui (a pseudonym)
[2022] ACTSC 62 R v Brady (Court of Criminal Appeal, 29 July 1977, unreported)
Parties:	ACT Director of Public Prosecutions (Plaintiff)
Vivian Shui (a pseudonym) (First Defendant) Jason Yuan (a pseudonym) (Second Defendant) May Chao (a pseudonym) (Third Defendant)
Yawen Jian (a pseudonym) (Fourth Defendant) Kelvin Leung (a pseudonym) (Fifth Defendant)
Vivian Pty Ltd (a pseudonym) (Sixth Defendant) The Age Company Pty Ltd ABN: 85 004 262 702 (Applicant)
Commissioner of the Australian Federal Police (Interested Party)
Representation:	Counsel
E Batrouney (Applicant)
D Campbell SC (First Defendant)
Solicitors
The Age Company Pty Ltd (Applicant)
AKN & Associates (First Defendant)
File Number:	SC 110 of 2021
McCALLUM CJ:

1.       The Director of Public Prosecutions brought proceedings against the defendants

seeking various orders under the Confiscation of Criminal Assets Act 2003 (ACT). As

commonly occurs in such proceedings, the first step taken by the Director in the

proceedings was to seek restraining orders in respect of certain property. There were

two such applications. Each came before the Court ex parte, that is, on the application

of the Director alone, in the absence of the relevant defendants. Each was heard and

determined by Loukas-Karlsson J in closed court. On each occasion, an affidavit was

read in support of the relief sought.

1. The first application for restraining orders concerned the first defendant’s interests in

   certain property along with the interests of the second, third and fourth defendants,

   which were suspected to be under the effective control of the first defendant. That

   application was granted and the orders were made on 26 March 2021.

3.       After the determination of that application, and presumably after at least the first

defendant had been served with the relevant documents, the entire proceedings were

resolved. Orders were entered by consent and on a “without admissions” basis

forfeiting the first defendant’s interests in a property to the Australian Capital Territory

and making an “unexplained wealth order” against her in the sum of $2,250,000.

4.       In May 2021, Loukas-Karlsson J heard a second application for restraining orders

brought by the Director against the fifth and sixth defendants. By that application, the

Director sought to restrain certain of their interests in property which, as with the second

to fourth defendants, were suspected to be under the effective control of the first

defendant. That application was also granted and orders were made the same day.

5.       In October 2021, The Age Company Pty Ltd, the proprietor of several mass media

publications, made an application to inspect and uplift the two affidavits relied on by the

Director in support of the two sets of restraining orders. Loukas-Karlsson J heard that

application in open court on 10 and 17 December 2021 and, on 6 April 2022, granted

leave to The Age to inspect and uplift redacted versions of the affidavits.

6.       Her Honour prepared lengthy reasons for that decision. However, before publishing

those reasons to the world at large and in circumstances where an appeal had been

foreshadowed by the first defendant, her Honour afforded the parties an opportunity to

be heard as to the form in which the judgment should be published. It was already

contemplated that the names of the second to sixth defendants, against whom there

was no allegation of criminal conduct, should be anonymised. The first defendant

subsequently sought orders pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) seeking to prohibit the publication of parts of the judgment.

There were two aspects to the application. First, it was submitted that a pseudonym

order should be made in respect of the name of the first defendant. Secondly, certain

redactions were sought to preserve her anonymity. This judgment determines that

application.

7.       The ultimate task of the courts is to administer justice. A governing principle in the

performance of that task is that justice is to be administered in public; a correlating

entitlement of the press is that proceedings before the court may be openly reported

(for preference, fairly and accurately). However, it is accepted that there must be

exceptions to that principle where public hearing or open reporting would defeat the

very subject matter of the litigation. So much is recognised in s 111 of the Evidence

(Miscellaneous Provisions) Act, which confers power on the court during or after the

hearing of proceedings to prohibit the publication of certain information in the

proceedings. That power should be exercised sparingly in the recognition that it

constitutes a limited statutory exception to a fundamental common law principle. The

power to prohibit the publication of information that would ordinarily be able to be

published in accordance with the principle of open justice is enlivened under s 111(1)

only if the court considers that:

(a)	the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b)	in the interests of the administration of justice the names of any of the following people should not be published:

(i) a party to the proceeding;

(ii) a witness, or intended witness, in the proceeding.

8.       The basis for seeking to prohibit the name of the first defendant in connection with the

proceedings was that, as made clear in the judgment of Loukas-Karlsson J, the first

defendant was the only party to the proceedings suspected of any criminal activity.

Separately, however, it was noted that the sixth defendant is a company named after

the first defendant. It was accordingly submitted that the publication of either of their

names could identify the first defendant as a person suspected to have committed a

criminal offence. Conversely, the publication of the true name of the first defendant

could tend to implicate a company that has not been accused on any criminal conduct.

9.       The Director of Public Prosecutions has confirmed that there is no intention on his part

to charge the first defendant with the suspected offences on the strength of which the

confiscation proceedings were brought. Consequently, the publication of the first

defendant’s name would not carry the risk of prejudicing her right to a fair trial (by

influencing the minds of potential jurors). Conversely, however, the publication of her name in the context of allegations of serious criminal conduct but in circumstances

where the Director has determined that she will not be charged would instead have the

effect of damaging her reputation by airing the allegations of criminal conduct in

circumstances where those allegations will never be tested in criminal proceedings and

she will not be able to defend them and clear her name.

10.     Those circumstances would not ordinarily be enough on their own to warrant an order

prohibiting the publication of the first defendant’s true name as a party to the

proceedings. Persons who are only accused of criminal conduct are frequently named

in criminal proceedings. More importantly, however, the confiscation proceedings

having been conducted in closed court and there being no criminal proceedings against

the first defendant in contemplation, the suspicions which formed the basis for making

the restraining orders would not ordinarily be available to the media to be reported save

for the order granting access to the affidavits, which is the subject of a forthcoming

appeal. To publish the name of the first defendant in the context of the judgment under

appeal might tend to defeat the subject matter of the appeal.

11.     In those unusual circumstances I consider that, in the interests of the administration of

justice (specifically, preservation of the utility of the appeal), the names of the first and

sixth defendants should not be published at this stage, at least pending determination

of the appeal against the order granting access to the two affidavits. The convenient

course is to use pseudonyms for those parties for the time being.

1. The second limb of the application sought to redact certain portions of her Honour’s

   judgment relating to the nature of the suspected offending. The basis for seeking those

   redactions was that to grant them would be “to more carefully preserve the privacy of

   [the first defendant] pending the disposition of any appeal”.

13.     It may be accepted that judges should, in preparing reasons for judgment, be mindful

of issues of confidentiality, reputation, privacy, the risk of identity theft and the like.

However, in light of the principles referred to above, the court should be slow to redact

or prohibit the publication of portions of a prepared judgment. The tension between the

principle of open justice and the occasional need for secrecy was considered by the

New South Wales Court of Appeal in David Syme & Co Ltd v General Motors-Holden’s

Ltd [1984] 2 NSWLR 294. In that case, Street CJ ventured to quote from a judgment

of his own, R v Brady (Court of Criminal Appeal, 29 July 1977, unreported), in which

he had said:

“… It is a deeply rooted principle that justice must not be administered behind closed doors

— court proceedings must be exposed in their entirety to the cathartic glare of publicity.”

14.     Street CJ considered in David Syme that the primary judge should have cast his

judgment in terms that could have been published without objection and that he had

erred in failing to do so. However, that was a case in which the respondent’s

confidential commercial information was the very subject matter of the litigation.

15.     No such complaint can be made in the present case. My analysis of the proposed

redactions has not persuaded me that the power to redact the judgment prepared by

Loukas-Karlsson J is enlivened. In my assessment, the position of the first defendant

is adequately protected by the making of a pseudonym order. There is no reason why

the judgment of Loukas-Karlsson J titled Director of Public Prosecutions (ACT) v Shui

(a pseudonym) [2022] ACTSC 62 should not otherwise be published in unredacted

form.

16.     It is not clear to me whether her Honour has in fact made pseudonym orders in respect

of the first and sixth defendants. For abundance of precaution, I make the following

orders:

(1)	That the first defendant be referred to by the pseudonym “Vivian Shui”.
(2)	That the sixth defendant be referred to by the pseudonym “Vivian Pty Ltd”.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: